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Petitioner: ABDUL AZIZ MEMON VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Roshan Essani, Muhammad Mujeebullah Siddiqui Title: ABDUL AZIZ MEMON vs THE STATE Case No.: Criminal Accountability Appeals Nos. 58 and 59 of 2002 Date of Judgment:2002-11-06 Reported As: 2003 YLR 617 Result: Appeals dismissed
JUDGMENT
JUDGMENT MUHAMMAD MUJIBULLAH SIDDIQUI, J.---Both these appeals are directed against the judgment dated 28-6-2002 by the learned Accountability Court No.IV, Sindh Karachi, in Reference No.44 of 2001. As both the appeals arise out of the same reference under section 18(a) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as NAB Ordinance) and the same judgment of learned trial Court, therefore, they have been heard together and are disposed of by this single judgment. The relevant facts giving rise to these appeals are that, on receipt of information that appellant Abdul Aziz Memon acquired assets/properties disproportionate to his known source of income, the Competent Authority under the NAB Ordinance, ordered investigation by the F.I.A. During the course of investigation it was found that not only appellant Abdul Aziz Memon but his wife, appellant Farida Abdul Aziz was also holding properties/assets acquired by the appellant Abdul Aziz Memon through corruption and corrupt practices. In pursuance of direction given by the Chairman, NAB, the Assistant Director, F.I.A. CBC Karachi, submitted report under section 173, Criminal Procedure Code. On the basis of above report the Chairman, NAB submitted a reference before the Accountability Court, against both the appellants under section 18(a), NAB Ordinance, which is reproduced below: -- "BEFORE THE ADMINISTRATIVE JUDGE, ACCOUNTABILITY COURTS SINDH AT KARACHI Accountability Reference No.44 of 2001 State
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versus 1. Abdul Aziz Memon son of Abdul Ghani (At present in NAB custody since 23-8-2001). 2. Farida Abdul Aziz wife of Abdul Aziz Memon, both resident of Bungalow No.15/1, 30th Street, Phase- V, Ext. DHA, Karachi Accused REFERENCE UNDER SECTION 18(a) READ WITH SECTION 24 (b) OF THE NATIONAL ACCOUNTABILITY BUREAU ORDINANCE, 1999 Respectfully sheweth 1. That accused No.1, joined United Bank Limited (UBL) as a typist in 1970 and, later on, took part in labour union activities and, ultimately, became General Secretary of the United Bank Employees Federation of Pakistan and belonged to an ordinary poor family. 2. That UBL, being a nationalized bank. its employees are holders of public office as envisaged under the NAB Ordinance, 1999. In addition, accused No.1, in the year 1993, contested general elections on P.P.P. ticket from NA 190, Karachi South and was elected MNA and thus was holder of public office from 1993 to 1996. 3. That g credible information was received that accused No.1 had acquired, assets/properties dispro-portionate to his known sources of income which he cannot reasonably account for. It was, therefore, considered necessary to refer the matter for investigation to ascertain the factual position. The FIA was, therefore, directed to conduct investigation and submit report under section 173, Criminal Procedure Code. 4. That during the course of investigation it was revealed that accused No.1 with the abetment of accused No.2, who was a housewife and at the time of their marriage, was not involved in any business activities, has amassed illegal wealth and immovable/ movable properties/assets and enterprises during the check period as envisaged in the NAB Ordinance, 1999 i.e. since 1985 onwards. 5. That the assets, properties and shares owned/held by accused No.1 are in his own name or in the name of accused No.2 being his dependent/wife and same have been found to be disproportionate to the known sources of income of the accused persons for which no reasonable justification has been given or is forthcoming. 6. That details and other particulars of the assets/properties and shares in business found to be in the name of the accused persons held by them in collaboration with each other established to be the result of the illegal gains of corruption and corrupt practices committed by accused No.1 as holder of public office with connivance of accused No.2 who has abetted him in acquiring the assets. Properties in the name of accused No.1 S. No. Description of propertyValue(Rs.)
1 Plot Hawksbay, Karachi45,000 2 Residential plot at Saudabad, Malir, Karachi.4,048
3 Residential Plot at Gulshane Karim Landhi, Karachi.14,000
4 Residential plot at Gulshan-80,000
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e-Iqbal Karachi. 5 Residential plot at Shah Latif Town6,316 6 Costa Living Clifton (Advance for flat) 50,000
7 Rabia Bungalows, G.T. Road, Rawalpindi (Advanced for residential plot). 5,50,000 8 Parliamentarian Housing Society, Islamabad (Advance for residential plot). 200,000 9 Cash Bank Accounts and Prize Bonds 393,746 13,43,110 Properties in the name of accused No.2 S.No.Description of PropertyValue in Rs. 1 Plot at Hawksbya Town, Karachi.18,000 2 Flat at Jilani Palace, Old Town, Karachi.90,000 3 1/3 share in Industrial Plot, North Karachi.93,353 4 Plot at K.D.A. Scheme lA Extension, Karachi.5,701,080
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5 House No.15/1, Khayaban- e - Shamsheer Phase V- Ext. DHA Karachi67,00,000
6 Cash Bank and Prize Bonds164.362
TOTAL 1,27,66,795
7. That besides the above said assets, held by the accused persons, it has been revealed that accused No.1 had invested various amounts in the Government securities i.e. FEBCs which were purchased by the accused No.1 in his own name or in the name of his dependent i.e. his wife to cover and take shelter on exemption provided under the relevant laws from this ill-gotten money. 8. That although accused No.2 has attempted to show her independent income and attempted to reconcile her wealth from 1-1-1989 when accused No.1 was in the employment of UBL yet she was not assessee before the assessm ent year 1988-89 and through deceptive means such income has been manoeuvred in the record in her name through impersonation. 9. That the known source of income of accused No.1, through salary and other means as calculated till 1993 are about Rs.787,657 and in the year me 1999 the declared income has been and shown to the Rs.72,000 the net as wealth as on 30-6-1993 has been given as Rs.700,000. Similarly, accused No.2 has been assessed in the tax since 1988 and her wealth has been declared in the record in the year 1999-2000 as Rs.41,41 285: 10. That since his joining service in the UBL and being elected MNA as holder of public office, the total salary and allowances received by the accused No.1 is Rs. 787,657 And thereafter the income has been shown having been generated from the ill-goften properties by illegal means in his own name and in the name of his dependents. 11. That from the material collected and the circumstances and the evidence it has been established that accused No.1 as holder of public office, with the abetment of other accused person, has been living a lavish life beyond his means and through the acts of corruption and corrupt practices as holder of public office has amassed illegal wealth through illegal means, disproportionate to his pecuniary resources and thus has committed an offence under section 9 of the N.A.B. Ordinance, 1999, and us liable to punishment under section 10 of the ibid law. 12.Report under section 173 Criminal Procedure Code list of witnesses/documents are filed herewith. It is, therefore, prayed that this Honourable Court be pleased to take cognizance of the matter and of the offences committed by the accused persons and they may be punished in accordance with law. Rt.-General Chairman (Munir Hafiez). National Accountability Bureau, Islamabad. Dated 20-11-2001" The learned trial Court framed charge against both the appellants in the following terms:--
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"CHARGE I, Muhammad Jawaid Alam, the Judge, Accountability Court No. IV, Sindh, Karachi, do hereby charge you:-- 1. Abdul Aziz Memon son of Abdul Ghani 2. Farida Abdul Aziz wife of Abdul Aziz Memon That you accused Abdul Aziz Memon were an employee of United Bank Ltd. during the period 1972 to 1993 and Member of National Assembly from 1993 to 1996 and being holder of public office, you by abusing your official position and authority and using corruption and corrupt practices accumulatedmovable/immovable properties in your name and in the name of your dependent/wife worth Rs.14,109,905 as detailed below which are quite disproportionate to your known legal sources of income: 1. Plot at Hawksbay, Karachi. 2. Residential plot at Saudabad, Malir, Karachi. 3. Residential plot at Gulshan-e-Karim, Landhi, Karachi. 4. Residential plot at Gulshan-e-Iqbal, Karachi. 5. Residential plot at Shah Latif Town, Karachi. 6. Costa Living Clifton (Rs.50,000 as advance for flat). 7. Rabia Bungalows, G.T. Road, Rawalpindi (Rs.550,000 as advance for plot). 8. Parliamentarian Housing Society, Islamabad (Rs.200,000 as advance for residential plot). 9. Cash, bank accounts and prize bonds worth Rs.393,746. 10. Plot at Hawksbay Town, Karachi. 11.Flat at Jilani Palace, Old Town, Karachi. 12. 1/3 share in Industrial Plot, North Karachi. 13. Plot at KDA Scheme. No. 1-A Ext. Karachi. 14. House No. 15/1, Khayaban-e-Shamsher, Phase-V, Ext. DHA, .Karachi. 15. Cash, bank and prize bonds worth Rs.164,362. And you accused Farida Abdul Aziz being wife/dependent of Abdul Aziz Memon in collusiori, abetment and criminal conspiracy with him acquired the following movable/immovable properties worth Rs.1,27,66,795 which are quite disproportionate to your known legal sources of income but actually the same are the pecuniary advantages obtained by accused Abdul Aziz Memon through corruption and corrupt practices in your name:-- 1. Plot at Hawksbay Town, Karachi. 2. Flat at Jilani Palace, Old Town, Karachi. 3. 1/3 share in Industrial Plot, North Karachi. 4. Plot at KDA Scheme No.1-A Ext. Karachi. 5. House No. 15/1, Khayaban-e-Shamsher, Phase-V, Ext. DHA, Karachi. 6. Cash, bank and prize bonds worth Rs.164,362. Thus you both in collusion, connivance and abetment with each other have committed the offence of corruption and corrupt practices as defined under section 9 of the National Accountability Bureau Ordinance, 1999 punishable under section 10 of the National Accountability Bureau Ordinance, 1999 within the cognizance of this Court. And I hereby direct that you both be tried by this Court on the aforesaid Charges." Both the appellants/accused pleaded not guilty to the charge. The prosecution in support of the charge examined. Riaz ud din Ahmed, Divisional Head Establishment. Division UBL, Exh 8 (his examination-chief was partly recorded and thereafter he was given up by the prosecution), P.W.-2, Abdul Ghaffar, Exh. 10, P.W.-3, Shaukat Ali, Exh.11, P.W.-4, Irshad Ahmed Qureshi, Exh. 12, P.W.-5 Sultan Mahmood Khan Exh.13, P.W.-6, Abid Raza, Exh.6, P.W.-7, Abdul Razzaq, Exh. 16, P.W. 8, Muhammad Yamin, Exh. 17, P.W.-9, Mohammad Naeem Khan, Exh. 19,
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P.W.-11, Abdul Aziz, Exh.20, P.W.-12, Haji Iqbal Exh.11, P.W.-13, Nazarul Hassan, Exh. 22, P.W.- 14, Ghulam Farooq, Exh.23, P.W.-15, Muhammad Jameel Khan, Exh. 25. Four other witnesses were examined as Court witnesses namely C.W.-4, Abdul Qadir, C.W.-5, Rafique Ahmad, C.W.-6, Syed Abdur Rehman and C.W.-7, Yousaf. Three witnesses were examined as Court witnesses at the request of accused persons, C.W.-1 Tanveer Ahmed, C.W.-2, Abdul Jabbar and C.W.-3 Abdul Majeed. Accused Aziz Memon, was examined under section 342 of the Criminal Procedure Code, vide Exh. 27. He admitted that he was appointed as Typist in UBL on 5-9-1970. He stated that he resigned from UBL on 16/19 of September, 1989 but resignation was accepted on 15-4-1993. He admitted that he was elected as M.N.A. in the year 1993. He further admitted that in his capacity as employee of United Bank Limited and as MNA, he was holding public office. In reply to the question that besides monthly salary and admissible allowances he had no other source of income, he stated that it is incorrect. While replying to the question that he was brought as a ward in Hussaini Yateem Khana from May, 1960 to August 1965, he stated that Hussaini Yateem Khana is a Boarding House of his community and for better education he was lodged there by his maternal uncle. He admitted that as a member of National Assembly, he filed declaration of assets and liabilities with Election Commission of Pakistan and the list of movable and immovable assets held by him, his wife and dependents being Exh. 25/1 (comprising 16 pages). In reply to a question that, he started filing income-tax returns from the year 1991-92 and wealth statements from the year 1993-94, being Exhs. 1 to 15/20, he stated that during his service in UBL his income-tax was deducted from his salary and after the acceptance of his resignation, he was assessed to income-tax. In reply to the question that he accumulated movable and immovable properties in the name of his dependent wife, Farida Abdul Aziz, as detailed in the charge, he stated that he accumulated the movable and immovable assets out of his funds and so was the case of his wife. He denied the allegation that the properties /assets accumulated by him in his name and in the name of his wife were disproportionate to his known legal sources of income. While replying the question that he accumulated the properties/assets by abusing his official position and authority being holder of public office by corruption and corrupt practices, he stated that it was incorrect and he has been victimized for his labour leadership activities and because of political affiliation. He further stated that he resisted . privatization of U.B.L. and therefore, he has been put behind the bar. He also denied that the value of properties declared before the Election Commission were less. He did not examine himself on oath but furnished a detailed written statement which reads as follows:-- "I was born in a well-established effluent business family of Memon Community. Unfortunately, I lost my parents at very tender age. I as well as my brothers and sister were brought up by my maternal uncle Mr. Noor Muhammad son of Abdul Ghani and his wife Khadija Bai who were living in a joint family and were issueless. Since educational environments in Old Town Area, Karachi where we were living were not conducive, I as well as my brothers Abdul Habib Memon and Jamil Memon were lodged in Hussaini Yatimkhana for proper education and discipline and upbringing, the same being an established institution of repute in our community. My said uncle bore all our boarding, lodging and educational expenses. Our family also owned property in Old Town Area bearing No. O.T. 7/22, Kagzi Bazar, Karachi. (The original certified copy of an extract of City Deputy Collector is annexed A herewith it.) We have always lived as a joint family and contributed, and shared the household expenses to the best of our respective abilities. After passing matriculation I joined United Bank Limited and resigned in the year 1989 from service. During my service I actively participated in labour union activity of the Bank, also as a labour leader and held offices of General Secretary as well as the President of the UBL Employees' Union so also UBL Employees Federation. In these capacities I had
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constant confrontation with the UBL Administration regarding the welfare of Bank employees/workers (copies attached Annexure B). I graduated in law during my service and attended National and International seminars and conferences pertaining to labour activities. It pains me to submit that in spite of my requests directly, through jail, through Investigating Officer and through this Honourable Court UBL Authorities still do not provide me the data statement of my salary, allowances, entitlements and loan facilities given to me from time to time and adjustment/deduction, thereof from my monthly salary so also the amount, deducted for income- tax purposes at source from my monthly salary. I still do not know nor there is any thing on record to suggest about this said year wise data. This honourable Court will appreciate that the grant of loan by itself is the major legal source and deductions from salary are by themselves the major expenses and it was for this reason that I had applied for the same. Suffice it that for my service period not even the income-tax deductions at source have either been obtained from the Income- tax Department nor produced in the Court. The statement given by P.W.-II Abdul Ghafoor in this respect is vague and expected to be taken as a gospel's truth by the prosecution without any documents to substantiate it. I specifically submit that my income-tax was deducted at source details whereof are neither provided to me nor brought on record. I also specifically submit that likewise, item-wise and year-wise data of loans and facilities deductions of my monthly salaries have purposely been withheld and not brought on record in order to damage my reputation. All I know is that at the time of full and final adjustments of my dates and liabilities at the time of my retirement Rs.540,594 were adjusted from my dues as loan. I also specifically state that in 1989 I had resigned from service and in 1993 I contested elections for the National Assembly seat N-A 190, South, Karachi where Mr. Hanif Tayyab was my main rival candidate who had also filed objections to my candidature/nomination itself. His objection was rejected by the learned Returning Officer by a detailed order. I produce copy of the order of Mr. Ashfaq Baloch, the learned Returning Officer as Annexure C, which also confirms that I was an employee of UBL till 1989 only. Thereafter, I won the National Assembly seat in NA 190, South, Karachi by defeating Mr. Hanif Tayyab and remained the Member of National Assembly throughout this period till 1996 (when Assembly was dissolved) I also say that not only that I defeated Mr. Hanif Tayyab in the National Assembly elections but also that I defeated him in All Pakistan Memon Federation Election where also he was my main rival/opponent for the post of President (Annexure D). In 1997 I was also a candidate for National Assembly seat from NA 189, South, Karachi but I was defeated. ' It will not be out of place to submit here that in the first instance Mr. Ghulam Farooq, Investigating Officer of this case was the main worker of Mr. Hanif Tayyab in both these said elections and carries personal grudge against me and my family and in the second instance that one Mr. Siddique Bilwani (who claims to be the Life President of Abdullah Haroon Muslim Gymkhana on his own) has forcibly grabbed that office/post also and is one of my diehard rival/opponent. of this life presidency affair. This Siddique Bilwani and his supporters have lodged forged criminal complaints against me on account of this dispute of Abdullah Haroon Muslim Gymkhana grabbing by them (wherein I and my family are also members). I say that this Investigation Officer of the case Mr. Ghulam Farooque has been provided not only free membership of the said Muslim Gymkhana by the said Siddique Bilwani and his associates but also that Mr. Bilawani invites Mr.Ghulam Farooq to be a guest of honour to distribute awards, certificates etc. in order to use him against me. Mr. Hanif Tayyab and Mr. Siddique Bilawani managed to have Mr.Ghulam Farooque appointed as Investigating Officer of my case. (It is submitted that membership fees of. Abdullah Haroon Muslim Gymkhana is Rs.300,000 only whereas Mr. Ghulam Farooq has been made member without payment of any fees. Annexure-E. Unwarranted public statements and posters by both the said gentlemen i.e. Hanif Tayyab and Siddique Bilwani are also annexed. I state that my maternal uncle being childless had brought up not only me but also my brothers
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and sister as his own children inasmu ch as that not only that he bore all our expenses but also that he gifted me' cash, amounts. Gift deeds Annexed-F. At the time of marriage with one of my cousins Mst. Farida, my wife was given solid gold and valuables in dowry by my father-in-law (who was and is a person of vast resources, who is presently living in America with his sons one of whom is doing business and the other is in service) which my wife sold for investments in business, debentures and properties at my asking. My wife and my brother Abdul Habib Memon's wife are real sister& and also that we have engaged our children with each others also due to which my brother Abdul Habib Memon has also gifted/contributed considerable amount from time to time for the future and sake of our children. (Details of the same are in the statement annexed thereinafter). My brother-in-law Haji Yousaf Mernon son of Haji Hashim who is settled in America for the last 14 years had also gifted cash to his sister Farida. I am submitting the detailed statement of sources and resources of generation of the funds lawfully acquired by me as well as my wife for favour of consideration of this Honourable Court. Statement annexed G. I specifically submit that all these assets have been legally acquired out of the funds lawfully available to me and my wife as this statement shall disclose. I also specifically submit that I, my wife and my brother Abdul Habib Memon had shown all these documents to Mr. Ghulam Farooq who. out of sheer grudge/vendetta against me for the reasons stated above neither took these from us nor made enquiries about these facts from our immediate family or from the relevant authorities. I say that whatever. I have acquired and whatever my wife acquired, we have paid the prevailing market price at the respective times of our said purchases out of our lawful funds and no concerned authority ever doubted these documents as narrated by me hereinabove. I have been victimized for my trade union activities in UBL more particularly because. I opposed privatization of UBL without safeguards of the employees' interests' and welfare which were not liked by officers like Mr.Ghafoor and Mr. Zubair Soomro as I was agitating against the exploitation for their personal ends. -I reserve all my rights.... to agitate the acts of omission and commission on the part of all those who have tried to blackmail me and my family. I specifically say that one of the telephones installed for labour union activity at the expenses of the labour union who pays the bill. I also specifically say that had the investigation team just looked into and inquired into the said facts there would had been no occasion of this reference so also there would have been no wastage of public exchequer which has been spent on my detention/trial of this reference. I also take exception to the fact that UBL had engaged full time Advocate to follow this reference alongwith the senior executives of UBL who have been regularly attending this Honourable Court on each date of hearing despite the facts that they have nothing to do with this reference as for that UBL's role in this reference is that one of their senior Vice-President is just the complainant and a witness of this reference while National Accountability Bureau as Investigating and Prosecuting Agency has collected evidence on its own and is prosecuting the matter. Maximum that can be said about this reference is that UBL had asked National Accountability Bureau to inquire into the matter and not that U.B.L. should assume the role of Investigating and Prosecuting Agency against me as the three representatives are following these proceedings at the expenses of Government's exchequers which should be taken judicial notice of, by this learned Court. I have also been an advisor to M/s. United Memon Developers and M/s. Seven Seas International who also pay me handsome remuneration while U.B.L. Employees Federation pays me honorarium for services rendered to them." The appellant Farida Abdul Aziz, in her statement under section 342 of the Criminal Procedure Code stated that, she was not totally dependent upon her husband. The appellant Mst. Farida Abdul Aziz, admitting owing of movable and immovable properties detailed in the charge. While replying another question that she has no independent source of income and the assets owned by her are actually pecuniary advantages obtained by her husband Abdul Aziz Memon, through corruption
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and corrupt practices, she denied the allegation. She stated that she has been investing funds and money acquired by her from her father and Habib Memon, husband of her real sister and brother of co-accused Abdul Aziz Memon. She admitted to have filed income-tax returns from the year 1988-89 onward Exh. 15 to Exhs. 15/30. In reply to another question that in the income-tax returns she wrongfully claimed to be a partner of Messrs Memon Builders impersonating for actual partner Mst. Farida Begum daughter of Muhammad Asghar Siddiq, she stated…
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