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Petitioner: ABDUL SATTAR DERO VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, S. A. Sarwana Title: ABDUL SATTAR DERO vs THE STATE Case No.: Criminal Accountability Appeal No,14 of - 01 Date of Judgment:2002-08-13 Reported As: 2002 YLR 1870 Result: Case remanded
JUDGMENT
JUDGMENT ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal is directed against the judgment dated 2-4- 2001 by the learned Judge Accountability Court' No,II, Karachi, in Reference No,45 of 2000, whereby the appellant has been convicted under section 10(a) of National Accountability Bureau Ordinance, 1999 and sentenced to suffer R.I. For 7 years and fine of Rs,2 crores, in default whereof he has to undergo further simple imprisonment for 2 years. He has further been disqualified for 21 years from seeking or from being elected, chosen, appointed or nominated as a Member or a representative of any Public Office or any statutory or local authority of the Government of Pakistan. ' The relevant facts are that, on 23-4-1998 complainant Abdul Sattar Mandokhail submitted an application to Chairman, Ehtesab Bureau Islamabad, which reads as follows:-- "To, ' The Chairman, Ehtesab Bureau, Islamabad. ' The Joint Secretary, Ehtesab Bureau at Karachi. ' Subject: COMPLAINT AGAINST ABDUL SATTAR DERO, MEMBER BOARD PORT QASIM AUTHORITY. ' Sir, ' I am a contractor owing a Civil Engineer and contractor firm namely TECHNO INTERNATIONAL, KARACHI. During 1993-95, I was awarded three contracts of Bulk Water Supply in the Port Qasim Authority by their management. However, during execution of the said work, inspite of completing the work as laid down in the contract, I had been facing great difficulties in execution of my work and getting my bills cleared. The various steps in the above process were at the level of design, construction, survey and acquisition of land.
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' All this was being done with the sole purpose of extorting illegal gratification from me, on almost every stage of work. I will produce two Video Tapes recorded by my nephew namely Khuda-e- Rahim in which Mr. Abdul Sattar Dero, the then Member Board Port Qasim Authority (P&D Special Land Development) was accepting from me currency notes worth Rs,10,00,000 at one occasion and Rs,5,00,000 at other occasion. Both these transactions of passing bribe money, to Mr. Abdul Sattar Dero took place at his House No,53/2, 15th Street, Khayaban-e-Mujahid, Phase-V, Defence Housing Authority, Karachi. The Tape in which transaction of Rs,10,00,000 took place was made during mid of 1995. I am also shown there seated with longer hair, while the second Tape in which transaction of Rs,5,00,000 is shown, the amount is being counted in the close up. I made payments on both the occasions at his residence No,53/2, 15th Street Khayaban-e-Mujahid, Phase-V Defence Housing Authority, Karachi at about Maghrib Prayers. ' Sir, I had to pay the amount of Rs,10,00,000 on the demand of Mr. Abdul. Sattar Dero, as even after the work order having been issued to me, I was not handed over the site and my work was getting delayed and I was suffering loss by continuously paying labour charges without any work. This pertains to contract Nos.PQA/M.P./1-94, dated 25-2-1995 (2) MGD R.C.C. Gravity Conduit). It was only after payment of bribe money of Rs,10,00,000 to Abdul Sattar Dero that I was allowed to commence the work. The design of the project had some intrinsic flaws, which were deliberately created there to cause hindrance. Abdul Sattar Dero removed this hindrance by changing the previous Engineer Shaukat Hussain and bringing in his place another Engineer Irshad Sheikh, from whom he got the design modified to allow me to work, (after accepting the bribe of Rs,I0,00,000 as shown in the video tape). The amount of Rs,5,00,000 was paid by me to Abdul Sattar Dero on his demand, as my bills for the same contract were held up by him for several months. ' It is, therefore, requested that necessary legal action may kindly be taken against Abdul Sattar Dero and others who had forced me to pay the illegal gratification. Yours faithfully, (Sd.) (ABDUL SATTAR MANDOKHAIL)" ' This complaint was forwarded to Director, Crime F.I.A. Headquarter, Islamabad, and was ultimately sent by the Deputy Director, F.I.A., ECC, Karachi to Assistant Director F.I.A., ECC, Karachi for registration of case, and an F.I.R. Was registered on 25-4-1998 by incorporating the same in 154, Criminal Procedure Code book. The F.I.R. Was registered under section 161, Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act-II, 1947. ' After completion of investigation, the appellant/convict was challaned to face trial in the Court of Special Judge Anti-Corruption Central-I, Karachi. The case was subsequently transferred to the Court of Judge Accountability Court Noil, Karachi. ' A charge was framed by the trial Court alleging commission of offence of corrupt practices under section 9(a)(1) of the National Accountability Bureau Ordinance 1997, punishable under section 10(a) of the said Ordinance. The appellant pleaded not guilty to the charge. ' The prosecution -examined complainant P. W.1, Abdul Sattar Mandokhail, Exh.4, P.W.2 Khuda-e- Rahim, Exh.30., P.W.3, Shujjat Ali Qarni, Exh.31 and P.W.4, Abu Bakar Bhatti, Assistant Director F.I.A., Karachi, Investigating Officer, Exh.33, in support of the charge. The appellant/accused was examined under section 342 of Criminal Procedure Code Exh.39. He did.Not examine himself on oath under section 340(2) of Criminal Procedure Code. However, he filed a written statement under section 265-F(5) of Criminal Procedure Code, which was placed, on record as Exh.39-B. ' The appellant submitted list of Defence Witnesses, containing 50 names, but examined D.W.1, Khalid Hussain Makhdoom, Exh.47, D.W.2, Muhammad Yousif Shaikh, Exh.48, D.W.3, Bawar Tautik, Exh. 49, D.W.4, Saifullah Channa, Exh.52, D.W.5, Muhammad Yakoob Kalhoro, Exh.55, D.W.6, Kamran Afzal, Exh. 62, D.W.7, Noor Muhammad Kaka, Exh, 71, D.W.8, Ejaz Saeed, Exh.74, D.W.9, Allah Nawaz Qabulio,
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Exh. 79, D.W.10, Afsar Din Talpur, Exh. 85, D.W.11, Syed Mumtaz Hussain Shah, Exh.102 and D.W.12, Rizwan Shakzad, Exh.119. The learned trial Court framed a single point for determination as follows:- "Whether the accused accepted illegal gratification in total amounting to Rs,15,00,000 for showing favour in the exercising of his official function and committed the offence of corruption. Is the accused guilty of charge?" ' During the course of trial P.Ws. 1 and 2, fully supported the prosecution case and produced two video cassettes showing delivery of illegal gratifications by complainant/P. W. 1, Abdul Sattar Mandokhail to the appellant and acceptance thereof by the appellant in two episodes. The video cassettes were displayed before the trial Court, during the Course of proceedings. The learned trial Court after considering the prosecution as well as defence evidence came to the conclusion that, the evidence of P.Ws Abdul Sattar Mandokhail and Khuda-e-Rahim corroborated by the video cassettes showing the passing of, illegal gratification to the appellant has connected the appellant with the offence. The learned trial Court further held that the film contained in the video cassettes were prepared in the house of appellant signifying the receiving of money by appellant from complainant Abdul Sattar Mandokhail and except the contract referred to in the charge, there was no other concern whatsoever, between the parties. No other piece of evidence was brought on record to point out any other sort of relationship between the appellant Abdul Sattar Dero and the complainant Abdul Sattar Mandokhail, except that appellant was an officer of Port Qasim Authority and the complainant was contractor. Thus, the passing of money could be illegal gratification only. The learned trial Court further placed reliance on section 14 of the National Accountability Bureau Ordinance, 1999, which provides that, where it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, shall be presumed, unless the contrary is prayed, that he accepted or obtained or agreed to accept or attempted to obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive Or a reward such as is specified in sections 161 to 163 of the Pakistan Penal Code. ' The learned trial Court held that, the contrary was not proved by the appellant therefore, the video cassette showing acceptance of money by the appellant from complainant Abdul Sattar Mandokhail shall be presumed to be illegal gratification. The point for determination was decided in affirmative and consequently, the appellant was convicted and sentenced as narrated in the opening part of this judgment. ' Being aggrieved with the conviction and sentence, the appellant has preferred this appeal. ' We have heard Mr. Azizullah K. Shaikh, learned counsel for the appellant and M/s. Sarfraz Khan Tanoli, Special Prosecutor and Muhammad Anwar Tariq, D.P.G.A. For the State. ' Mr. Azizullah Shaikh, learned counsel for the appellant has assailed the impugned judgment, conviction and sentence on various points of law and facts. Before embarking upon the points of law and facts dealing with the merits of the case, first, I would like to dilate on the objection pertaining to the jurisdiction of the Accountability Court, established under the NAB Ordinance, 1999. ' Mr. Azizullah Shaikh, has submitted that, the admitted facts are, that, the interim charge-sheet was submitted by the Assistant Director, FIA, ECC Karachi in the. Court of Special Judge (Central-1), Karachi on 11-5-1998 which was registered as Special Case No,3 of 1998. The appellant was challaned to face trial for the offence punishable under section 161 of Pakistan Penal Code, read with section 5(2) of the Prevention of Corruption Act-II, 1947. The case was pending before the Court of Special Judge (Central-1), Karachi and in the wake of promulgation of NAB Ordinance,
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1999, the appellant was arrested on 26-11-1999, without affording any chance of being heard and without intimation about the reasons and substance for his arrest. On 10-10-2000 Mr. Muhammad Anwar Tariq, Deputy Prosecutor General, Accountability, Sindh, Karachi, submitted an application signed by him only, to the learned Special Judge (Central-1), Karachi, requesting for transfer of the case of the appellant to Accountability Court No,II, Karachi, under section 16-A of the NAB Ordinance, 1999. On the very same day the learned Senior Special Judge (Central-1), Karachi. Transferred the case pending before the said Court, to the Accountability Court, without affording any opportunity of being heard to the appellant. The learned counsel for the appellant has submitted that the fatal deficiency in the transfer application submitted by Mr. Muhammad Anwar Tariq, was that it was not signed by the Chairman, NAB, as "Persona Designata". According to him an application under section 16-A(a) of the NAB Ordinance, 1999, could be moved by the Chairman, NAB only and thus, the application signed, by Mr. M. Anwar Tariq, Deputy Prosecutors General, NAB was unauthorised and not warranted in law which was liable to be summarily rejected. According to Mr. Shaikh, it was an extremely serious and fatal lapse on the part of the Special Senior Judge, while transferring the case of the appellant to the Accountability Court, first, because no opportunity was provided to the appellant of being heard and secondly, it was without adhering to the provisions of law. He has further submitted that, being aggrieved with the order of learned Senior. Special Judge (Central-1), Karachi, the appellant filed a Constitutional Petition No,95 of 2001, on 17-1-2001 praying for setting aside the order of the learned w Senior Special Judge (Central-1), Karachi, dated 10-10-2000, whereby he transferred the case of appellant from his Court to the Accountability Court. However, a Division Bench of this Court, disposed of the petition vide order dated 19-1-2001 as follows:- "We are, of the view that, all the pints raised by the petitioner before us can be urged before the trial Court in the final arguments on conclusion of trial and in appeal if the petitioner/accused is convicted, as the final order is appealable before the High Court and all the points of facts and law can be considered by the High Court." ' He further maintained that, the appellant's counsel, vide application dated 23-1-2001, submitted before the Accountability Court, contended that, the transfer of the case was illegal. The learned Accountability Court after referring to the provisions contained in section 16-A (a) of the NAB Ordinance and several other provisions rejected the application. ' The learned counsel for the appellant has contended that, after the conclusion of trial and at the time of final arguments, the question of jurisdiction was again raised after re-producing the contents of order dated 12-2-2001, whereby the application dated 23-1-2001 was dismissed, the learned trial Court; disposed of the objection involving extremely important point which goes to the roots of the case, by a finding comprising one sentence only, "Thus no violation of justice has occasioned to the accused with the shifting of case from Senior Special Judge (Central-1), Karachi to this Court under the above law". ' Mr. Azizullah Shaikh, has proceeded on to argue that, the entire exercise in the trial Court is an exercise in futility, because the learned Accountability Court has no jurisdiction at all for the reason that, the case was transferred to Accountability Court from the Court of Special Judge (Central-1), Karachi in flagrant violation of the provisions of NAB Ordinance and thus, the entire proceedings held by the Accountability Court and the resultant conviction is unlawful, ultra vires and of no legal effect, ' Elaborating his point of view, the learned counsel for the appellant has submitted that, an Accountability Court can take cognizance of an offence under the NAB Ordinance, either on a direct reference made under section 18(a) of the NAB Ordinance or on transfer of a case from any Court of law or Tribunal under section 16-A (a) of the NAB Ordinance, followed by a reference under section 18(a) NAB Ordinance. He has submitted that, admittedly no reference was made under
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section 18(a) of the NAB Ordinance. The case against the appellant was pending before the Special Judge (Central-1), Karachi and he Chairman, NAB, did not apply to Special Judge (Central-1), Karachi seeking transfer of case from his Coda to the Accountability Court-II, Karachi. Mr. M. Anwar Tariq, D. P . G . A submitted an application under his signature before the Senior Special Judge (Central-1), Karachi, requesting for the transfer of the case of appellant stating therein that, the Chairman, NAB who has exercised his discretion under section 16-A (a) of the_ NAB Ordinance, 1999 and has been pleased to apply to the Special Judge (Central-1), Karachi with a request for the transfer of case to Accountability Court No,II, Karachi on 29-3-2000, but inadvertently the application has been addressed to Honourble Chief Justice Sindh High Court and perhaps it was not received in the Court of Special 'Judge (Central-1), Karachi. A fax message was received by the D.P.G.A., NAB, Karachi on 7-10-2000 and the same was filed in the Court of Special Judge (Central- 1), Karachi on the same day, which remained without any order. On 9-10-2000, the Special Prosecutor NAB, persuaded the Court to entertain application but it was not kept on record. A fresh request was, therefore, made by application dated 10-10-2000, to the effect that, the discretion exercised by the Chairman, NAB for transfer of the case as vested in him, may pleased be considered and the above case may be ordered to be transferred without notice to the other side. Alongwith the application, a faxed copy of the application dated 29-3-2000 addressed to the Honorable Chief Justice Sindh High Court was also filed. The learned Senior Special Judge (Central-1), Karachi' allowed the application on the same day without notice to the appellant and the case was transferred to the Accountability Court No,II, Karachi. ' On the basis of above admitted factual position, Mr. Azizullah Shaikh, learned counsel for the appellant has submitted that under section 16-A (a) of the NAB Ordinance, 1999, the Chairman, NAB is empowered to apply to any Court of law or Tribunal where a case involving a scheduled offence under the NAB Ordinance, is pending for the transfer of the case to an Accountability Court, as a persona designata and therefore, it is the Chairman, NAB only who can apply to any other Court or Tribunal for the transfer of a -pending case to the Accountability Court. He has not been empowered to delegate the authority to any other person and in any case no such authority, directions or instructions have been produced by Mr. M. Anwar Tariq, the learned D.P.G.A., while submitting application for the transfer of case in the Court of Senior Special Judge (Central-1), Karachi. ' Mr. Azizullah Shaikh, has raised another point in his written arguments, to the effect that, section 18(a) of the NAB Ordinance, 1999, specifically states that, the Accountability Court shall not take cognizance of any offence -Wider this Ordinance except on a reference made by the Chairman, NAB or any officer of the NAB duly authorised by him while section 16-A inserted by Ordinance'' 4 of 2000 dated 3-2-2000 states that; "(a) Notwithstanding anything contained in any other law for the time being in force, the Chairman, NAB may apply to any Court of law or Tribunal that any case involving a scheduled offence under this Ordinance pending before such Court or Tribunal shall be transferred to a Court established under this Ordinance, then such other Court or Tribunal shall transfer the said case to any Court established under this Ordinance." ' It is contended that in the nonabstante clause the words used are "notwithstanding anything contained in any other law for the time being in force" and the words" or under this Ordinance" have not been enacted by the Legislature. Either the provisions in section 16-A(a) suffer from the deficiency due to inadvertence or the Legislature has deliberately intended to empower the Chairman, NAB for transfer of a case involving offence under the NAB Ordinance from any other Court or Tribunal to the Accountability Court and intended that, after the transfer of case under section 16-A(a), the Chairman, NAB was required to make a reference under section 18(a) of the NAB Ordinance, enabling the Accountability Court to take cognizance of the offence under the NAB
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Ordinance. He submitted that, the glaring over lapping and conflict in the provisions of sections 16- A(a) and 18(a) of the NAB Ordinance, 1999, circumscribe, the jurisdiction _of an Accountability Court more particularly when section 16-A(a) does not provide any expression to override the provisions of section 18(a). He has submitted that, it is patently a mistake on the part of Legislature. However, unless such mistake is rectified the orders of transfer of cases from any other Court to the Accountability Court shall have the effect of transfer of case only to the Accountability Court but the Accountability Court shall not be empowered to take the cognizance of any offence under the NAB Ordinance until and unless a reference is made under section 18(a) enabling the Accountability Court to take cognizance of the offence under the NAB Ordinance afresh. It is admitted that no such reference has been made under section 18(a) of the NAB Ordinance and therefore, notwithstanding, the transfer of case from the Court of Special Judge (Central-1), Karachi to the Accountability Court No,II, Karachi, the latter Court was debarred from taking cognizance of the offence under this Ordinance. ' The learned Advocates appearing for the NAB/State, have addressed arguments on the merits of the case only and have not addressed any arguments on the point of jurisdiction. They have merely submitted that the Accountability Court has considered the fact of transfer of the case from the Court of Special Judge (Central-1), Karachi to the Accountability Court under section 16-A(a) of the NAB Ordinance, from page 59 to page 73 of the impugned judgment and has held that no violation of justice has occasioned to the accused with the shifting of case from the Special Court to the Accountability Court and that there is no illegality or irregularity in the impugned finding. They have not filed any written notes of arguments in rebuttal, although the copy of the written notes of arguments submitted by the learned counsel for the appellant were furnished to the learned Advocates for the State. ' I have carefully considered the contentions raised by the learned counsel for the appellant and have minutely examined the relevant provisions of the law and the material available on record. ' The admitted fact is that the challan against the appellant was initially submitted in the Court of Special Judge (Central-1), Karachi and the said Court had taken cognizance of the offence punishable under section 161 of Pakistan Penal Code and section 5(2) of the Prevention of Corruption Act, 1947. The interim challan was submitted on 11-5-1998 and subsequently, final challan was submitted and the case remained pending before the learned Special Judge (Central-1), Karachi till 10-10-2000, when it was transferred to Accountability Court No,II, Karachi on the application of Mr. M. Anwar Tariq, D.P.c.A., (RAB) NAB, Sindh at Karachi. It would be appropriate to reproduce the transfer application alongwith the copy of fax message received by Mr. M. Anwar Tariq and enclosed with the application, as well as the transfer order passed by the learned Senior Special Judge (Central-1), Karachi dated 10-10-2000 which read as follows:-- ' IN THE COURT OF SPECIAL JUDGE (CEATRAL) COURT NO.', KARACHI Special Case No,3 of 1998 ' The State ' versus ' Abdul Sattar Dero ' F.I.R. No,2 of 1998, P.S. F.I.A. (SBC), under section 161, P.P.C., read with section 5(2), of Act II, 1947 TRANSFER OF THE CASE ' It is submitted on behalf of the National Accountability Bureau as under:- 1. That in exercise of its discretion vested in the Chairman under section 16-A(a) of the NAB Ordinance, 1999, he has been pleased to apply to this Honourable Court with a request that the case vide the subject F.I.R. May be transferred to the Accountability Court No,II, Karachi.
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2. That such application was moved on 29-3-2000 but somehow inadvertently the same has been addressed to the Honourable Chief Justice, Sindh High Court, Karachi and, perhaps, has not been received in this Honourable Court. 3. That a copy of the said application was again received by Fax Message dated 7-10-2000 at 11-41 a.m. In the office of Dy. P.G.A. From the NAB Office Islamabad and the same was filed in this Honourable Court in the late hours of 7-10-2000 but, somehow, remained without any order. ' That on 9-10-2000 the Special Prosecutor appointed in the NAB had persuaded this Honourable Court to entertain this application but the same was not kept on the record. ' In the circumstances, it is again requested that the discretion exercised by the Chairman, NAB for transfer of the case as vested in him, may please be considered and the above case may be ordered to be transferred without notice to other side as the Chairman has exercised discretion and, as such, the case probably, shall stand transferred since then. ' Copy of fax message is enclosed herewith. Karachi Dated:10-10-2000 (Sd.) ' DY.P.G. A . (RAB) , NAB Sindh at Karachi" "BEFORE THE CHIEF JUSTICE SINDH HIGH COURT KARACHI ' State ' versus ' Abdul Sattar Dero ' Subject: TRANSFER OF CASE F.I.R. NO.2 of 1998 OF FIA/SBC/ KARACHI STATE v. ABDUL SATTAR DERO UNDER SECTION 16-A (a), NAB ORDINANCE, 1999. Respectfully Sheweth. (i) That the above mentioned case is pending before the Senior Special Judge (Central-1), Karachi. (ii) That the stated case involves a Scheduled Offence under the National Accountability Bureau-. Ordinance of 1999 - and therefore, Exclusively triable by ap Accountability Court. (iii) It is requested that the subject case may be transferred to Accountability Court No,II, Karachi. (Sd.) Chairman, National Accountability Bureau Islamabad. 29th March, 2000" ORDER 10-10-2000 ' Heard Legal Consultant/Prosecutor NAB Mr. Shahabuddin Memon who has filed an application for the transfer of the case pending in this…
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