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Petitioner: Mumtaz ul Haq VS Respondent: State
Court Name: Sindh High Court Judge(s): Muhammad Saleem Jessar Title: Mumtaz ul Haq vs State Case No.: Cr. Appeal No.317 of 2015 Date of Judgment:2021-09-27 Reported As: 2021 SHC 801 Result: N/A
JUDGMENT
JUDGMENT Muhammad Saleem Jessar , J.- By means of this Criminal Appeal appellant Mumtaz ul Haq has assailed judgment dated 30.11.2015 handed down by learn ed Special Judge, Anti-Corruption (Provincial), Karachi, in Special Case No.20 of 2005 (Re: State Vs. Mumtaz ul Haq), being outcome of Crime No.34/1997, registered at P.S. ACE Karachi under Sections 5-B and 5-C read with section 5(2) of Prevention of Corruption Act (Act II of 1947), whereby the appellant has been convicted for the offences punishable under the above said sections and sentenced to undergo R.I. for five years (5) and to pay fine of Rs.5 Lacs to the Government and in case of non-payment of fine, the appellant was ordered to suf fer S.I. for six months more. The crux of prosecution case, as per contents of FIR, are that accused Mumtazul Haq before his promotion to the post of Assistant Director , K.D.A. was residing in a rented quarter in North Nazimabad, Karachi. On 12.06.1994, he purchased a bungalow No.C-107, Block-9, measuring 600 sq. yards in Works Society , Gulshan-e-Iqbal, Karachi valuing 40 Lacs of Rupees. During his posting at Park and Recreation Department, K.D.A., he got allotted KDA land for Nursery and now he is runnin g Nursery thereon. He is also working as Secretary , KDA Employees Cooperative Housing Society and he is also involved in corruption and misapprop riation from last twenty years . The Secretary KDA vide his Letter No.0345/ET/84/pt/1 18 dated 18.03.1996 has informed that the accused has neither applied for permission to purchase the above property , nor the declaration of assets has been furnished. During the course of enquiry , he failed to prove justification regarding his source of income for the purchase of the above properties and, thus, he has committed an offence punishable under section 5-B and 5-C of the Prevention of Corruption Act-II, 1947. On the basis of aforesaid allegations, case was registered against the accused. A formal charge against the accused was framed vide Ex-2 to which he pleaded not guilty and claimed to be tried vide his plea Ex-3.
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In support of its case, prosecution examined PW.1, Mohammad Mujtaba Khursheed at Ex.4, who produced Photostat documents as Ex.4/1 to 4/6. P.W.2 Syed Shakeel Ahmed was examined at Ex.5. Thereafter , statement of process server namely Shakeel Hashim was recorded vide Ex.6, who deposed that PW / complainant, Jamil Ahmed Siddiqui had expired, whereas other PWs namely Mohammad Iqbal, Moham mad Arshad and Syed Masroor Ali were not traceable, therefore, he produced unserved summons of aforesaid PWs. P.W. Kafeel Ahmed Siddiqui, who was son of the complainant, during his examination before trial Court vide Ex.7, also confirmed the fact regarding death of his father . Thereafter , P.W.3 Mushtaq Ahmed was examined at Ex.8, who produced Photostat copies of documents as Ex.8/1 to 8/10. P.W. 4 Syed Muzammil Hussain was examined at Ex.9, who produced documents as Ex.9/1 to Ex.9/6. Thereafte r, statement of process server namely , Ghulam Ashar was recorded vide Ex.10, who produced death certificate of P.W. Syed Mohammad Junaid alongwith unserved summons and his report vide Ex.10/1 to 10/3. P.W. 5 Khalid Javed Abbasi was examined at Ex.11, who produced photo copies of documents vide Ex.11/1 to 11/7. Statement of process server Mohammad Qasim was recorded vide Ex.12, who produced unserved summons of P.Ws Yousuf Ali Khan and Anwar Hussain alongw ith his report as Ex.13/1 to 13/4. P.W. 6 Mohammad Tariq Khan, Bank Manager , was examined at Ex.14, who produced summary alongwith photocopies of account opening form, specimen signature card and bank statemen t documents vide Ex.14/1. P.W. 7 Riaz Ahmed was examined at Ex.15, who produced reports and certificates as Ex.15/1. Statement of process server Mohammad Qasim was again recorded vide Ex.16, who produced unserve d summons alongwith his report as Ex.16/1 and 16/2. P.W.8, Mohammad Arshad was examined at Ex.17, who produced documents vide Ex.17/1 to 17/30. P.W. 9, Mohammad Rashid was examined at Ex.18, who produced photocopies of documents as Ex.18/1 to Ex.18/10. An application was moved by accused vide Ex.19. Last witness i.e. P.W.10 I.D. Mangi, I.O. of the case was examined at Ex.20, who produced documents vide Ex.20/1 to Ex.20/21. Thereafter , prosecution closed its side vide Statement Ex.21. Statement of accused under Section 342 Cr. P.C. was recorded vide Ex.32, in which he denied prosecution allegations and claimed to be innocent. He also got examined himself on oath and also produced Rafiq Iqbal son of Iqbal Bashir in his defence. He specifically stated, "I am innocent and falsely implicated in this case by complainant Jalil Ahmed Siddiqui, whose document of plot were forged and I refused to transfer , therefore, he filed complaint against me. I will depose further in my statement on oath. I pray for justice." In his statement on oath recorded under Section 340 Cr. P.C. vide Ex.23, he deposed that the Investigating Officer has wrongly assessed the value of property as Rs.1,43,00,000/-, whereas, as per law, the value of the property is always assessed according to market value and in the year 1997 market value of the property was Rs.22 Lac. He further stated that, in fact, the complainant of the instant case was on inimic al terms with him because he (accused), being Assistant Director , (Land Department) KDA, North Karachi Township at the relevant time, had cancelled a plot bearing No.A-1, Sector 15-B, North Karachi which was purch ased by the complainant, after receiving letter for cancellation of plot from Deputy Director Anti-Corruption Establishment on the basis of FIR No.109/1986 registered at ACE Karachi. He produced relevant documents in supp ort of his assertions. He further deposed that the complainant had approached to Secretary , Provincial Ombudsman Karachi in respect of cancellation of his plots by way of moving an application; however , said application was dismissed and he produced copy of the report received from the of fice of Provincial Ombudsman Karachi as Ex.23/C. He also gave details regarding the properties which are the subject matter of the case of prosecution and elaborately explained as to from which fund he purchased some of the such properties and also stated that some of the properties were not owned by him but the same were purchased by his relatives and either he was ostensible owner in respect of such properties or General Power of Attorney was executed in his favour in view of the circumstances explained by him. He also stated that some properties were obtained by him by way of inheritance. According to him, the Investigating Officer has wrongly calculated the value of the properties. He further deposed that he had narrated the above facts to the Investigating Officer but he neither took the same into consideration, nor did mention the actual facts in the investigation papers. He further deposed that in the year 1996 Secretary , K.D.A. namely , Aftab Ahmed Lodhi sent a letter to Director , ACE Karachi wherein nothing was
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complained against the accused but the I.O. has not investigated the matter fairly. He reiterated that he is innocent and prayed for justice. After formulating the points for determina tion, recording evidence of the prosecutio n witnesses as well as defence witnesses and after perusing written arguments submitted by the accused in person, so also by learned DDPP , appearing for the State, learned trial Court vide impugned judgment convicted and sentenced the accused / appellant as stated above. Against the said judgment the appellant has preferred instant appeal. I have heard learned counsel for the appellant as well as learned A.P.G. appearin g for the State and perused the material available on the record. Learned counsel for the appellant submitted that entire prosecution case was initiated upon a complaint made by one Jalil Amed Siddiqui (since deceased) who was on inimical terms with the appellant. In support of this assertion, he referred statement of accused (Ex.22 available at pages 1645 to 1655 of paper book part-II ). He further submitted that due to theft of certain record including relevant registers, some of documents regarding different categories of the plots were missing. He further submitted that prior to said FIR, K.D.A. got published notice in Daily Jang vide its issue dated 22.11.1994 in respect of disputed plot belonging to complainant (Ex.23/A available at page-1633 of the paper book part-II ). He next submitted that complainant Jalil Ahmed Siddiqui maneuvered fake documents in respect of plot No.A-I, Sector 15-B, Buffer Zone, North Nazimabad, Karachi, in his favour , therefore, the State through KDA got registered FIR No.109/1986 at P.S. ACE, Karachi against some officials of K.D.A. including complainant (Ex.23/B available at page-1665 of the paper book part-II ). He, therefore, submitted that malice on the part of the complainant was established and even the complainant, due to his demise, did not appear before the trial Court for recording his evidence. He further submitted that P.W.2 Syed Shakil Ahmed (Ex.5 at page 111 of paper book part-I ), whose evidence was important as he was a senior officer in K.D.A., made admission to the effect that he had no knowledge abou t property purchased by the appellant in his own name or in the name of his dependents; however , there were some allegations of corruption against him. It will be advantageous to reproduce hereunder relevant portion from his evidence (at page-1 11 of the paper book, part-I): "I do not know if accused has purchased any property in his own name or of his dependents, however , there were allegations of corruption against him. There was no such application for permission of purchaser of property or any declaration of assets of accused in his personal file." Learned counsel further submitted that nothing has been brought on record to show that appellant had indulged in any malpractice through which he gained a lot by misusing his authority . He further submitted that merely bare words do not constitute any of fence against the accused. So far as alleged properties, which have come on surface during investigation, are concerned, learned counsel submitted that said properties were purchased by the appellant through known sources for which details have been given by him, which have also been made part and parcel of the record vide his statement recorded on oath under Section 340 Cr. P.C. (Ex.23 available at page-1645 of the paper book part-II ). Learned counsel added that complainant did not adduce even a single document in support of his allegations against the appellant and the Investigating Officer wrongly calculated value of the properties contrary to market value though, at the relevant time, the properties were of lower price / cost. In support of his contentions, learne d counsel placed reliance upon the cases of MOEEN JAN NAEEM Vs. ISLAMIC KREPUBLIC OF PAKIST AN THROUGH SECRET ARY, ESTABLISHMENT DIVISION, ISLAMABAD, ETC. (NLR 1990 TD 525) and THE STATE AND OTHERS Vs. M. IDREES GHAURI AND OTHERS (2008 SCMR 1118). He has also submitted written synopsis, which are herein taken on record. On the other hand, learned Assistant P.G. Sindh, appearing for the State, opposed the appeal on the ground that impugned judgment does not suffer from any illegality or infirmity which may require interference by this Court and it being well-reasoned, deserves to be upheld. The instant case was initiated against the accused / appellant, Mumtaz ul Haq, on the basis of complaint moved by one Jalil Ahmed Siddiqui which, as per statement of I.O. P.W. I.D. Mangi, was received by him from the Directorate of ACE, Karachi on 15.08.1995. It is not understandable as to how I.O. took a long period of about two years in ascertaining the truth or otherwise of the contents of said complaint, as admittedly F.I.R. was registered on
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05.7.1997. Even there is lethargy of great scale on the part of complainant Jalil Ahmed Siddiqui in moving such complaint as he himself admitted in his complaint, "he is also involved in corruption and misappropriation from last twenty years ...". It has not been explained that if the accused was involved in the acts of corruption for the last twenty years, thereby he accumulated properties which were beyond his known sources of income, then as to what prevented the complainant to move complaint against the accused at an earlier stage. Even if it is presumed, for the sake of arguments, that the I.O. got registered the F.I.R. after receiving permission from the competent authority , even then there is delay of about 11 days in lodging the FIR as, accordin g to his own admission made in his evidence, "The competent authority accorded the permission vide letter dated 24.06.1997 issued by the Director of ACE Sindh Karachi for registration of case ". Even, no explanation has been offered in the F.I.R. for such delay . In this view of the matter , lethargy on the part of complainant Jalil Ahmed Siddiqui for about twenty years, then long and considerable time of about two years taken by the I.O. in the enquiry even before lodging of F.I.R. and then inordinate delay of about 11 days in registering the case against the accused even after receiving permission from the competent authority , speaks a volume about the conduct of prosecution. No plausible, rather simple, explanation has been furnished by the prosecution for such delay . This creates doubt regarding involvement of the accused in the commission of alleged of fence. In the case reported as Ayub Masih v. The State (PLD 2002 SC 1048 ) Honourable Supreme Court held as under:- "The unexplained delay in lodging the F.I.R. coupled with the presence of the elders of the area at the time of recording of F.I.R. leads to the inescapable conclusion that the F.I.R. was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether . Unexplained inordinate delay in lodging the F.I.R. is an intriguing circumstance which tarnishes the authenticity of the F.I.R., casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the F.I.R. is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused." In another case reported as Syed Altaf Hussain Shah Vs. State (2018 YLR 482 Karachi) this Court while dealing with a case relating to offence under Sections 409 PPC and 5(2) of Act-1 1, 1947, held that on account of delay of about one year in lodging the FIR without furnishing satisfactory explanation for such delay , false implication of the accused cannot be rule out. In view of above, possibility of deliberation and false implication of the accused could not be overruled. Another serious lacuna on the part of Investigating Officer is that it took almost eight (8) years in submitting challan before the competent Court of law, as admittedly the F.I.R. was lodged on 05.7.1997 whereas challan was submitted on 24.05.2005 which is also apparent from the first Diary Sheet of the trial Court which reads, "24-05- 2005 : Challan present by Inspector I.D. Mangi against accused Mumtaz-ul-Haq ...". Needless to emphasize that in every criminal case, officer incharge of police station is required to submit Challan within 14 days of the registration of F.I.R. and if investigation is not completed within stipulated period of 14 days then only a further time of 3 days could be granted for submission of interim challan. In this connection, reference may be made to the case of Mian GHULAM IJAZ and others Vs. THE STATE and others reported in PLD 2018 Lahore 151, wherein it was held: "12. It is also the requirement of law that every investigation is to be complet ed without unnecessary delay and as soon as it is completed, officer incharge of police station is required to submit Challan through Public Prosecutor but not later than 14-days and if investigation is not completed within stipulated period of 14-days from date of recording of FIR then officer in-charge of police station within 3-days of expiration of such period, forward to Magistrate through Prosecutor an interim repor t stating therein the result of investigation so that Court would commence trial on the basis of such interim report......." Yet in another case, viz. ADNAN PRINCE Vs. The STATE throug h P.G., Punjab and another , reported in PLD 2017 Supreme Court 147, Honourable Supreme Court took a serious view for not submitting the challan within the
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time prescribed under the law . It was observed: "Many years back, the State/Government with the object to put the criminal justice system into the correct channels, bifurcated the police force to preventive/detective, investigation and prosecution wings. The establishment of the same cost dearly the public exchequer because extrao rdinary budget was allocated for this purpose by all the Governments of the Provinces including Federa l Government, however , such costly exercise could not improve the system because supervising officers of these three wings of the police are taking least interest to streamline the working of each wing, in an efficient and effective manner and to comply with the mandatory provisions of law. Thus even today charge sheets and submission of the challans before the competent courts in criminal cases are delayed beyond the mandatory statutory period for no reason much less plausible. Even interim challans as required under the law are not submitted within the statutory period. This condu ct and attitude as well as performance of investigating, prosecution and detective agencies are absolutely un-acceptable and un-condonable because on the one hand, the law is disregarded while on the other hand, with the passage of time and long delay in the submission of challans, trial in each case is delayed and some of the witnesses including star witness either vanish being killed by the opponents, meet natural death or abandon their permanent abode/place of official duties due to transfer to another place or district making it a cumbersome job for the trial court to procure their attendance. This is one of the major contributory factor in the backlog, crisis/pendency of criminal cases. Such type of un-condonable delay in many cases becomes a cause of frustration both for the accused, the aggrieved complainant party and in some cases, the aggrieved party ordina rily takes the law into hands indulging in revengeful acts. 10. This has certainly resulted in unrest and element of intolerance in the society which ultimately would have negative impacts on the performance of the government as a whole. 11. Accordingly , copy of this judgment be sent to the Attorney General of Pakistan, all the Prosecutor Generals of the Provinces and Islama bad Capital Territory-ICT , Advocate Generals of the four Provinces, DIGs/Addl. IGPs who are the Incharge s of the Investigation Wings, Ministry of Interior , Govt. of Pakistan and all the Chief Secretaries of the four Provinces, all the Home Secretaries of the provinces, IGP- Islamabad, Chief Commissioner-ICT with the direction to hold deliberations and consultations and after giving deep thought to the subject matter , they should collectively and individually devise a proper strategy/policy to arrest this grave menace of delay and causes thereof and to immediately redress the same within the possible minimum time so that compliance is made with the mandatory provision of law and the relevant article of the Constitution in its true letter and spirit and to make accountable each and every officer who is found responsible for such delay and to show a visible and efficient performance in all three fields, failing which the public would be justified to protest that their money is going waste without any fruitful result even after introduction of the new system. 12. Copy of the actions taken along with minutes of each and every action taken, in view of above guidelines be submitted periodically to the Registrar of this Court with detailed information about the cases pending investigation before the Investigating Agency , the Prosecution Branch and to explain the delay in the submission of challans to the trial court." In view of above, it can safely be held that the delay of about eight (8) years in submission of challan is sufficient to vitiate the entire proceedings. Even, if it is presumed that the I.O. of the case was waiting for the permission of competent authority for submission of challan, although the same is not supported by any provision of law, even then, as per Investigating Officer?s own admission in his evidence to the effect, "Approval for prosecution of accused was accorded by ACC-I vide letter dated 16.02.2005 .", there is apparently unexplained delay of 3 months and 8 days in submission of challan which is also fatal to the prosecution case. Now adverting to the merits of the case , it seems that P.W.1 namely , Mohammad Mujtaba, who was Honorary Secretary of Works Cooperative Housing Society of K.D.A at the relevant time, had brought record of the Society . He deposed that, as per record of the Society , Plot No.C -107, Block9, Scheme No.24 was in the name of accused Mumtaz ul Haq, who had purchased the same for a sale consideration of Rs.18,00,000/-. According to him, at the
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time of recording his evidence, the said plot was valued at One Crore of rupees. In his cross-examination, he admitted that on 7th July, 1994 accused had sent an application intimating the society to have purchased the said plot jointly with his mother Mehmooda Begum. He further admitted that in 1991 an agreement showing Mehmooda Begum as joint partner was sent and placed on record. He further admitted that Mst. Mehmooda Begum had executed a Relinquishment Deed in respect of her share in the said property in favour of accused. P.W.2, Shakeel Ahmed deposed that he had remained posted in K.D.A. on various posts. He deposed, "I do not know if accused has purchased any property in his own name or of his dependents, however , there were allegations of corruption against him. There was no such application for permission of purchase of property or any declaration of assets of accused in his personal file." P.W.3 Mushtaq Ahmed deposed that in the year 2000 he had purchased a plot and at that time accused was holding the office of Honorary Secretary of KDA Employees Housing Society and the said plot was in the name of his wife. He showed his ignorance as to whether the said plot was purchased by the wife of accused in the year 1981 in an open auction at the rate of Rs.143 per sq. yards.
P.W. 4 Syed Muzammil Husain was posted as branch manager in Allied Bank, Plaza Square Branch, Karachi at the relevant time. He deposed that as per bank record, wife of accused namely , Mrs.A bida Nasreen was holding bank account in the said branch and in the year 2000 she debited Rs.17,80,943/- and credited Rs.17,81,678.35. In his cross-examination he admitted that the I.O. never investigated him about the account of one Fahmida Begum bearing No.2686. P.W.5 Khalid Javed Abbasi deposed that plot No.313-B, Block L, North Nazimabad, Karachi, was purchased by his wife Neelam Javed on 02.3.1994 for Rs.11 Lac on the basis of Power of Attorney executed by one Shaikh Salahuddin in favour of Abida Nasreen, wife of accused. In his cross-examination he admitted that parentage of allottee Salahuddin Amir was Shaikh Mohammad Aslam; however , he showed his ignorance that said Shaikh Mohammad Aslam was the father of accused?s wife Abida Nasreen. P.W. 6 Mohammad Tariq Khan, who was Manager HBL, Civic Centre Branch had produced a summary regarding account maintained by accused in the aforesaid branch. P.W. 7, who was an Architect, deposed that he had been given assignment by I.O. of the case namely , I.D. Mangi to estimate the value of House No.C-107, Block-9, Gulshan-e-Iqbal, Karachi and he evaluated the said house to be of Rs.40 Lac in 2001 and of Rs.19,74,65 0/- in 1991-92. In his cross-examination he admitted that he had got no separate license as "V aluer". P.W. 8 Mohammad Arshad, who was posted as Assistant Director in K.D.A. F.B. Area Scheme 16/1 at the relevant time, deposed that as per record, Plot No. D-201, Block-4, measuring 1000 sq. yards was originally allotted to one Haji Shaikh Mohamad Shafi and after his death…
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