IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa, CJ 
Mr. Justice Mazhar Alam Khan Miankhel 
Mr. Justice Qazi Muhammad Amin Ahmed  
 
 
Criminal Appeal No. 266 of 2019 
(Against the judgment dated 24.08.2017 passed by the High Court 
of Balochistan, Quetta in Ehtesab Appeal No. 05 and 08 of 2009) 
 
 
 
Hashmat Ullah 
 
 
…Appellant 
 
 
 
 
 
versus 
The State, etc.  
           …Respondents 
 
 
For the appellant: 
Mr. Zahoor-ul-Haq Chishti, ASC  
 
For the State: 
Mr. 
Imran-ul-Haq, 
Special 
Prosecutor, National Accountability 
Bureau   
 
 
Date of hearing: 
07.08.2019 
 
JUDGMENT 
 
 
Asif Saeed Khan Khosa, CJ.: 
 
Criminal Miscellaneous Application No. 273 of 2018 
 
 
This miscellaneous application is allowed and the documents 
appended therewith are permitted to be brought on the record of 
the main appeal. Disposed of.  
 
Criminal Appeal No. 266 of 2019 
 
2. 
Hashmat Ullah appellant was in the business of selling 
medicines and many people had invested in the appellant’s 
business with an understanding that regular profits would be paid 
to them by the appellant. The appellant statedly continued giving 
Criminal Appeal No. 266 of 2019 
2
profits to such investors for some time but later on he stopped 
paying profits and allegedly refused to return the invested amounts 
to the relevant persons. It was also alleged that many cheques 
issued by him in favour of such investors had been dishonoured. 
With these allegations Reference No. 4 of 2007 was filed against 
the appellant before Accountability Court-II, Balochistan, Quetta 
and after a regular trial the appellant was convicted by the trial 
court for an offence under section 9(a)(x) of the National 
Accountability Ordinance, 1999 and was sentenced to rigorous 
imprisonment for four years and to pay fine besides confiscation of 
a house standing in his name and disqualification for a period of 
ten years. The appellant challenged his conviction and sentence 
before the High Court through an appeal which was dismissed and 
his conviction and sentence recorded by the trial court were 
upheld and maintained. Hence, the present appeal by leave of this 
Court granted on 24.06.2019.  
 
3. 
Leave to appeal had been granted in this case in order to 
reappraise the evidence and with the assistance of the learned 
counsel for the parties we have undertaken that exercise.  
 
4. 
Agreements having been entered into between the appellant 
and some other persons, investments made by such persons in the 
appellant’s business and payment of profits by the appellant to 
them for some time are facts which are not denied by the parties to 
this case. The appellant had throughout maintained that his 
liability was that of civil nature, particularly rendition of accounts, 
and not a criminal liability because he never had any criminal 
intent to commit the alleged offence. A perusal of section 9(a)(x) of 
the National Accountability Ordinance, 1999 shows that the 
relevant offence is attracted only if the accused person is proved to 
have committed the offence of criminal breach of trust as defined 
in section 405, PPC and if there was an entrustment of property 
involved in the matter. It has already been clarified by this Court in 
the cases of Shahid Imran v The State and others (2011 SCMR 
1614) and Rafiq Haji Usman v Chairman, NAB and another (2015 
SCMR 1575) that the offence under section 405, PPC punishable 
Criminal Appeal No. 266 of 2019 
3
under section 406, PPC is attracted only in a case of entrustment 
of property and not in a case of investment or payment of money. 
In the case in hand it is the prosecution’s own case that a section 
of the public had invested money in the appellant’s business and 
this undeniable fact had taken the present case out of the purview 
of section 9(a)(x) of the National Accountability Ordinance, 1999.  
 
5. 
It has been argued by the learned Special Prosecutor 
appearing for the State/National Accountability Bureau that 
originally the charge framed against the appellant was in respect of 
an offence under section 9(a)(iii) of the National Accountability 
Ordinance, 1999 and if this Court finds that 9(a)(x) of the said 
Ordinance was not attracted to the case in hand then the original 
charge may be considered for the purpose of upholding and 
maintaining the appellant’s conviction and sentence. We have 
attended to this aspect of the case and have found that the basic 
ingredients of the offence under section 9(a)(iii) of the National 
Accountability Ordinance, 1999 are dishonesty and fraud through 
which misappropriation takes place or some property is converted 
to the offender’s use or for the use of any other person and such 
property had initially been entrusted to the offender or was under 
his control. In the case in hand the entire evidence produced by 
the prosecution was in respect of agreements having been entered 
into by some persons with the appellant for the purposes of 
investment in the appellant’s business and it is written large on 
the record of this case that for some time after making of such 
investments the appellant had been paying profits to the investors. 
No evidence worth its name had been brought on the record to 
establish that at the time when the appellant stopped payment of 
profits to the investors the appellant’s business was still running 
in profit or the appellant was doing good business. No independent 
evidence had been produced by the prosecution to prove that 
stoppage of payment of profits by the appellant to the investors 
was a result of dishonesty or fraud on his part. The prosecution 
had also failed to prove that the appellant had converted the 
investors’ money for his own use or for the use of any other person. 
Even 
the 
provisions 
of 
section 
9(a)(iii) 
of 
the 
National 
Criminal Appeal No. 266 of 2019 
4
Accountability Ordinance, 1999 speak of entrustment of property 
to the accused person before it is misappropriated by him and in 
the case in hand, as already observed above, there was no element 
of entrustment available in the agreements between the appellant 
and the investors. The record clearly shows that the investors had 
invested money in the appellant’s business and they had not 
entrusted any money to him for such money to be paid back to 
them in its original form. Apart from that in such cases initial 
dishonest intention on the part of the accused person is an 
important factor but the evidence brought on the record clearly 
negated the same because admittedly the appellant had been 
paying profits to the investors for some time. It appears that, as 
admitted by some of the prosecution witnesses themselves, the 
appellant’s business had hit the rocks and such adversity had 
brought misfortune not only to the appellant but also to the 
investors in his business. In the peculiar circumstances of this 
case we have failed to find any dishonest intention on the part of 
the appellant so as to convert his act into a crime. The case in 
hand has appeared to us to be a classical case of a civil dispute 
based upon alleged breach of agreements for which remedies lied 
somewhere other than in a criminal court. This appeal is, 
therefore, allowed the conviction and sentence of the appellant 
recorded and upheld by the courts below are set aside and he is 
acquitted of the charge. We have been informed that the appellant 
has already served out his entire sentence of imprisonment and 
has since been released from the jail and, thus, no order needs to 
be passed regarding his release from custody.  
 
 
Chief Justice 
 
Judge 
 
Judge 
Islamabad 
07.08.2019 
Approved for reporting.  
 
Arif 
