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Petitioner: JAMEEL AKHTAR KIYANI and another VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title: JAMEEL AKHTAR KIYANI and another vs THE STATE Case No.: Criminal Accountability Appeal No,18 of 2003 Date of Judgment:2006-05-29 Reported As: 2006 P Cr. L J 1409 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- Brief facts given rise to the present appeal are that the appellant No,1 Jameel Akhtar Kiyani joined Government service as Assistant Sub - Inspector (A.S.-I.) on 1-1- 1959. He retired as Deputy Superintendent of Police (D.S.P) on 1-9-1995. It was alleged that the appellant No,1 during the period of his service indulged himself into corruption, corrupt practices and misused his authority to gain monitory benefits for himself and his family members. He also accumulated assets and properties worth Rs,90 million in his own name, in the name of his wife, the appellant No,2 Mst. Riaz Bibi, his sons absconding accused Fahad Jameel and Faisal Jameel. It was also alleged that they were living beyond their known sources of income. The details of movable and immovable properties acquired by the appellants and absconding accused that are subject-matter of the charge are as under:-- S.No. Description In whose nameYear of PurchaseValue 1 Residential H.No.34/11/A, Street No.16, Khayaban-e- Mujahid, D.H.A., KarachiMst. Riaz Bibi (Accused No.2)1984-86 Rs.14,03,000 Cost of construction 2 H.No.34/11/B, Street No.16, Khayaban-e-Mst. Riaz Bibi (Accused No.2)1984-86 Rs.14,35,000 Cost of construction
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Mujahid, Plot No.45/11 Phase- V, D.H.A., Karachi
3 H.No.321/A, Street No.15, Sector F-10/2, Islamabad (666.66 sq.ft.)Mst. Riaz Bihi (Accused No.2)1992 Rs.58,00,000 Total Rs.86,38,000 4 Commercial 6-C, Sunset Boulevard, DHA, KarachiMst. Riaz Bihi (Accused No.2)1992 Rs. 25,15,000 5 24-D, Street No.24, Phase- II, Ext.DHA, KarachiMst. Riaz Bihi (Accused No.2)1989 Rs.26,30,000 6 32-C, Stadium Lane-I, Phase- V, DHA, KarachiMst. Riaz Bihi (Accused No.2)1991 Rs.4,80,000 Total Rs.56,25,000 7 Vehicles Honda VII, Model 98, Regn.No.ABM- 222Jamil Akhtar Kiyani (Accused No.1)1998 Rs.9,42,500 8 Honda City Model-98, Regn.No.ABQ- 222Faisal Jamil Kiyani (Accused No.4)1998 Rs.6,53,000 9 Suzuki Khyber, Model-96, Regn.No.ABV- 300Fawad Jamil Kiyani1996 Rs.3,64,125 Total Rs.19,59,625 Details of Bank Account S.No. Bank Account No. Total Amount Credit 1 Accused Jamil Akhtar Kiyani U.B.L. Vault Branch, Abdullah Haroon Road, Karachi 878 Rs.55,58,656 2 Standard Chartered Bank,035-51-09632 $1,22,400
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Clifton Branch, Karachi Total Rs.55,58,656+$1,22,400 1 Accused Mst. Riaz Bibi U.B.L., Awari Tower Branch, Karachi629 Rs. 84,71,680 2 Faisal Bank, Clifton Branch, Karachi118-2013657-108 $ 2,29,278 3 Standard Chartered Bank, Clifton Branch, Karachi035-0107643 $ 50,000 4 Standard Chartered Bank, Clifton Branch, Karachi1192128195251 $ 6,000 5 Citibank, Karachi 5433255013 Rs.33,54,680 6 Citibank, Karachi 54332551102 $ 71,617 7 Habib Bank A.Z. Zurich Clifton Branch, Karachi61220613333135827 Join Account with Accused Faisal Jamil$ 1,14,439 8 Prime Commercial Bank Clifton Branch, Karachi05-0506112716 Join Account with Accused Faisal JamilRs.28,05,753 9 Hong Kong and Shangai Bank,Clifton Branch, Karachi004002119-183 Join Account with Accused Faisal Jamil$ 1,15,304 10 Faisal Bank, Clifton Branch, Karachi118-2041464-149 Join Account with Accused Faisal JamilRs.53,27,475 Total Rs.1,99,59,588+$5,86,638 1 Fawad Jamil Kiyani (son) Prime Commercial Bank, Clifton Branch, Karachi050506012919 Rs.42,678 Total 42,678 1 Accused Faisal Jamil Kiyani Faisal Bank, Clifton Branch, Karachi118-2022478-101 Rs.1,50,05,203
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2 Faisal Bank, Clifton Branch, Karachi118-2022478-149 Rs.92,52,872 3 Faisal Bank, Clifton Branch, Karachi118-2022478-001 Rs.67,000 4 Citibank, Karachi 6000093708 Rs.24,31,586 5 Habib Bank A.Z. Zurich Clifton Branch, Karachi61320311714143799 Rs.7,96,235 6 Prime Commercial Bank, Clifton Branch, Karachi050502081618 Rs.1,12,562 Total Rs.2,76,65,458 ' Residential Property Rs,86,38,000 ' Commercial Property Rs,56,25,000 ' Vehicles Rs,19,59,625 Total Rs,1,62,22,625 2. The Chairman NAB, after going through the investigation report, filed the Reference No,27 of 2002 before the Accountability Court No,1, Karachi. 3. On 14-9-2002 the trial Court framed the charge against the appellants and absconding accused Faisal Jameel for offence punishable under section 10 of the National Accountability Ordinance, 1999 (in short "Ordinance"). In order to prove the case the prosecution examined 25 witnesses. 4. The appellant No,1, in his statement recorded under section 342, Cr.P.C., admitted that on 1-1-1959 he was appointed as A.S.-I. In Police Department and retired as D.S.P. On 1-9-1995. He admitted that at the time of joining service he inherited a Barani land measuring 3 Kanals and 14 Marlas in Tehsil Rawalpindi and had income of Rs,1,000 per month. He further stated that he had other properties but he did not give the details of such properties. He further admitted that in the year about 1969 he contracted marriage with one Mst. Ismat but she was divorced, therefore, in the year, 1970 he contracted, second marriage with the appellant No,2. He further admitted that his wife, the appellant No,2, inherited 1 Kanal and 2 Marlas of agricultural land in Moza Tehsil Haripur but further added that she had also inherited other properties. He further admitted the acquiring of the properties mentioned in the charge in his name and in the name of appellant No,2 and children but took the plea that the properties were acquired from the legitimate sources of his income and the income of his wife as from the year 1976 his wife was engaged' in business of sale and purchase of properties. The appellant No,2 also admitted the same facts as disclosed by the appellant No,1. In order to prove their case the appellants examined 20 witnesses. 5. The learned trial Judge, after going through the evidence and hearing the parties' counsel, formed opinion that the appellant No,1 had small portion of ancestral agricultural land; and Rs,1,000 per annum as income from the said land. The trial Court also formed the opinion that the properties mentioned in the charge were acquired by the appellant No,1 in his name and in the name of his dependents wife, the appellant No,2 and absconding accused after joining service; that the said properties were purchased beyond the known sources of the income of the appellants and that some of the expenditure Rs,53,17,790 incurred by the appellants were more than their income, therefore, convicted them for offence punishable under section 10 of the Ordinance and sentenced the appellant No,1 to suffer R.I. For 10 years and fine of Rs,30 million or in default thereof to suffer. R.I. For 3 years. The appellant No,2 was convicted and sentenced to suffer R.I. For 5 years and fine of Rs,30 million or in default thereof to suffer R.I. For 3 years with benefit of
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section 382-B, Cr.P.C. The appellants were disqualified in terms of section 15 of the Ordinance and forfeiture of properties to Government of Pakistan under the impugned judgment dated 31-10-2003. 6. We have heard the Advocate for the appellants, ADPGA, NAB for the State and perused the record of this case very carefully. 7. The learned Advocate for the appellants has stated that at the time of entering into service the appellant No,1 was having agricultural land as shown by the prosecution and had sufficient income to maintain his family and to purchase the properties; that after the marriage of the appellant No,1 with the appellant No,2 he received cash, ornaments and other properties from which he purchased the properties; that from the year 1976 the appellant No,2 started the business of sale and purchase of the properties and acquired various properties as shown by the prosecution; that all the properties were acquired through legal sources of income which have been proved from the defence witnesses and so also from the prosecution witnesses viz. Income Tax Officer and Patwaries. He has further stated that the appellants had no guilty conscience as the appellant No,1 had mentioned all the properties in the annual declaration of assets which were filed before the department and also mentioned the sources of income from which the said properties were acquired; that the appellant No,2, after availing the amnesty in filing income tax returns had also filed income and wealth tax returns of various years showing the above mentioned properties and sources of income; that the appellant No,2 had paid about Rs,30,00,000 as income-tax to the Government of Pakistan. As such, the appellants have proved that the properties were acquired from their legal sources of income, therefore, the appellants have committed no offence. The learned Advocate for the appellants has further argued that the Ordinance was applicable from the year 1985 but the prosecution has travelled beyond the said period; that the appellant No,1 had retired in the year 1995 but the properties purchased after the retirement, have been taken into consideration. As such, the learned trial Judge has committed material illegality and has travelled beyond the scope of the Ordinance. 8. Conversely, the learned ADPGA, NAB has argued that the appellants have admitted the case of the prosecution in respect of acquiring various properties shown in the charge framed by the trial Court; that the appellant No,1 had very meager property at the time when he joined the service and his main source of income was his salary from that the appellant No,1 could not acquire the said properties; that the properties purchased by the appellants are disproportionate to their known sources of income, therefore, burden shifts upon them to prove that the properties were acquired by them from legitimate sources of income. He has further argued that the appellants have taken different stand in annual declaration of assets, income and wealth tax returns and before this Court; that the changing of defence about sources of income by the appellants at three different stages shows that the appellants had guilty conscience and have not come to the Court with clean hands; that the learned trial Judge has examined the defence of the appellants in respect of each property and disbelieved the same, therefore, the appellants have failed to discharge the burden that was upon them. He has further argued that the properties were purchased by the appellant No,1 during the period of his service and the remaining properties were purchased from the ill-gotten money earned by the appellant No,1, therefore, all the properties can .Be taken into consideration for the purpose of present proceedings and the learned trial Judge has not committed any illegality or travelled beyond the scope of the Ordinance. He has supported the impugned judgment. 9. We have given due consideration to the arguments, gone through the evidence with the assistance of learned Advocate for the appellants and found that all the facts advanced by the prosecution have been admitted by the appellants including the purchase of the properties mentioned in the charge in the name of appellants and absconding accused. According to the prosecution the appellants had no sources of income to purchase the said properties from the
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meager inherited property and salary of the appellant No,1, therefore, the properties purchased by the appellants are disproportionate to their known sources of income. Whereas the case of the appellants is that all such properties were purchased from the legitimate sources of income. 10. According to section 9(a)(v) of the NAB Ordinance, the prosecution is required to prove that (i) the accused is a holder of Public Office; (ii) the nature and extent of the pecuniary resources or property found in his possession; (iii) what are his known sources of income (i,e, known to the prosecution); (iv) such pecuniary resources or the property found in possession of the accused are disproportionate to his known source of income. Once these ingredients are established then the offence of corruption and corrupt as defined under section 9(a)(v) is complete unless the accused is able to reasonably account for such resources from which the properties were purchased, as provided under section 14(c) of the NAB Ordinance. In this section the word "satisfactorily" has been used, whereas in section 9(a)(v) the word "reasonably" has been mentioned. For convenience sake, section 14(c) of the NAB Ordinance is reproduced to understand the position properly. Section 14(c) reads as under:--- "In any trial of an offence punishable under this Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices and his conviction, therefore, shall not be invalid by reason only that it is based solely on such a presumption." 11. In this section, the words "unless the contrary is proved" have been used. The word "proved" has been defined under Article 2(4) of the Qanun-e-Shahadat Order, 1984 as under:- "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists." 12. Now keeping in view the above principle of law, we will examine whether or not the prosecution has proved the ingredients of section 9(a)(v) of the NAB Ordinance. 13. It is an admitted position that the appellant No,1 was a public servant. The learned Advocate for the appellants has admitted that at the time of joining service the appellant No,1 had a small area of agricultural land and was serving in the Police Department as A.S.-I. He has also admitted the acquiring of the properties mentioned in the charge. As such, the income from the said properties and salary were apparently not sufficient to purchase the properties as mentioned above leaving aside the huge expenditure incurred by the appellants. Thus, the said properties are disproportionate to the known sources of income of the appellant. Thus, all the ingredients of the offence are proved. Therefore, by virtue of section 14(c) burden lies upon the appellants to satisfactory account for the said properties. 14. In order to prove they said fact the appellants have examined 20 defence witnesses who produced various documents. The appellants have also relied upon the annual declaration of assets submitted by the appellant No,1 and also relied upon the evidence of Income Tax Officer, Patwari and other witnesses examined by the prosecution. They further took the plea that after their marriage the appellant No,1 had received cash, golden ornaments, from that, the properties were purchased, subsequently from the year 1976 the appellant No,2 started the business of sale and purchase of the properties, therefore, she purchased the properties. 15. In view of the stand taken by the appellants it is necessary to examine each property and the source of income of purchase of the said property in order to ascertain whether the said properties
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were purchased from the legitimate sources of income and that the appellants have satisfactorily accounted for the purchase of properties. 16. From the charge it appears that the first property on which construction was raised by the appellants was Plot No,34/II, Khiyban-eMujahid, Phase-V, Defence Housing Authority, Karachi that was purchased in the year 1984 in the name of the appellant No,2. The said plot was 1000 sq. Yds. Subsequently, this plot was divided into two Plots bearing Nos.34/II-A and B. On both the plots bungalows, ground plus one storey were constructed during the period of year, 1986 to 1987. According to prosecution the cost of construction of bungalow constructed on Plot No,34/II-A was Rs,14,03,000 whereas the cost of construction of bungalow constructed on Plot No,34-II/B was Rs,14,35,000. In order to prove the cost of construction during the said period the prosecution examined P.W.5 Ishrat Hussain who inspected the said properties on 30-10-2001. According to his evidence the bungalows were constructed in the year 1986 and 1987 and he gave the above mentioned cost of construction of the bungalows. The defence counsel did not challenge the years of construction but challenged the 'cost of construction by suggesting to the witness that he assessed the value at the price prevailing in the year 2001 but the witness denied the same. The witness filed a detailed report which is Exh.17/2 that supports the above facts. The appellants did not lead any evidence to disprove the above facts. As such, the prosecution has proved that the appellants had E spent Rs,28,38,000 on the construction of the bungalows in the years 1986-1987. 17. The appellants took the plea that the said plot was purchased in the year 1984 from the sale of other plots and savings. The appellants have produced the agreement of sale of the said plot which was filed along with the written statement, appearing at page 2481 of paper book which shows that it was purchased by the appellant No,2 or purchased in her name for Rs,75,000. Whereas the appellant No,2 stated that the said plot was purchased for Rs,1,50,000 from the sale consideration of other plots. The appellant No,1 filed the annual declaration of assets before the department in which he showed the value of the plot as Rs,1,50,000. He also showed the source of income to purchase the plot as from his previous savings, income from the agricultural land, sale of ornaments of the appellant No,2 etc. This annual declaration of assets was filed by P.W.22 Qaimuddin. Officer of Police Department as Exh.34/1. The declarations of assets were filed from the years 1964 to 1993 in 14 leaves and the declaration for the year 1984 shows the above mentioned entry. From this declaration it is clear that the initial stand of the appellant No,1 was that the said plot was purchased from his savings and sale of golden ornaments etc. It has not been mentioned in it that the plot was purchased from the sale of other plots. Thus, the stand taken by the IF appellants before the trial Court has not been substantiated from their own documents. 18. However, we have examined the annual declaration of assets filed by the appellant No,1 from the years 1964 to 1984 and found that before the Plots No,34/II-A and B were purchased the appellant No,1 purchased a Plot No,11/II. Khiyaban-e-Shamshir, Phase-V, D.H.A. Karachi in the year 1979 for Rs,1,60,000 and that too was purchased from the savings of previous years. The annual declaration of assets for the year 1980 shows that the appellant No,2 had sold Plot No,41, Khiyaban- e-Badar. Phase-VI, DHA, Karachi for Rs,1,85,000 and showed the saving as Rs,5,22,000. The declaration for the year 1984 shows that the appellants had spent Rs,4,60,000 for the construction on Plot No,11/II, Khiyaban-e-Shamshir and balance of his savings was. Rs,1,19,000. The annual declaration of assets for the years 1985-86 shows that an amount of Rs,4,70,000 was spent on construction of bungalows constructed on Plots Nos.34/II-A and B. The declaration for the years 1987-88 does not show any expenditure on the construction of said bungalows, as such, from these documents it is also clear that the bungalows constructed on Plots Nos.34/II-A and B were completed in the year 1986 and according to the appellants Rs,4,70,000 were spent on the construction of the said bungalows.
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19. It is pertinent to point out that the appellants had also spent Rs,4,60,000 on the construction on Plot No,11/II, Khiyaban-e-Shamshir in the year 1984. The P.W.5 also inspected the construction of Bungalow No,11/II. Khiyaban-e-Shamshir. The said bungalow was constructed on 1000 sq. Yds. And according to inspection report the cost of construction of the bungalow was Rs,20,05,000. According to the appellants the said bungalow was completed in the year 1984 and the expenditure on the construction of bungalow was shown in the annual returns of the year 1984. 20. If we accept the annual declaration of assets Exh.34/1 filed by the appellant No,1 to be true even then the amount spent on the construction raised on these bungalows is far exceeding than the total income and savings shown by the appellant No,1 in the annual declaration of assets from the years 1964 to 1987. If we hold that the plots were purchased from the savings and income shown by the appellant No,1 in his annual declaration of assets to be true even then there is no explanation for spending huge amount over the construction of these three bungalows in the years 1984 to 1987. 21. We have also given due consideration to the explanation furnished by the appellants for the construction of these bungalows. According to the appellants, bungalow on Plot No,11/II, Khiyaban- eShamshir was constructed for Rs,4,60,000. The area of the plot was 1000 sq. Yds. The covered area of the construction was: ground floor 3628 sq.Ft. And first floor 2108 sq.Ft. The total covered area was 5736 sq.Ft. If the cost of construction per sq.Ft. Is calculated at the above rate then it would come to Rs,80 per sq.Ft. Whereas according to P.W.5, the cost of construction that was of a high quality has been divided in the following categories:-- ' Foundation Rs,60 per sq. Ft. ' Ground floor Rs,200 per sq. Ft. ' First floor Rs,210 per sq. Ft. ' Terrace Rs,25 per sq. Ft. ' Compound wall Rs,150 per sq. Ft. ' Steel gates Rs,600 22. Thus, from this calculation it is clear that cost of construction at the rate of Rs,80 per sq. Ft. In the year 1984 is unreasonable and unrealistic, as such, incorrect figure of expenditure was shown by the appellant No,1 in his annual declaration of assets. 23. As regards the construction of bungalows on Plots Nos.34/II-A and B the total cost of construction has been shown by the appellant No,1 as Rs,4,70,000. The covered area of both the bungalows is 6579. If the cost of construction per sq. Ft. Is calculated at the above rate then it would come to Rs,71 per sq. Ft. The said cost per sq. Ft. Of high quality construction of the bungalows is highly unreasonable, unrealistic and was estimated very low just to conceal the actual expenditure made on the construction of bungalows. The similar rates have been given by P.W.5 with regard to the construction of the two bungalows that was of a high quality. The rates quoted by the P.W.5 appear to be reasonable at the time when the bungalows were constructed. Thus, it has been established beyond any shadow of doubt, that the appellants have failed to satisfactory accounts for the amounts spent by them on the construction of bungalows even to the initial properties which they had purchased. 24. We have also gone through all the annual declaration of assets from the years 1964 to 1993. If they are taken to be true and correct even then the properties mentioned in the charge could not have been purchased form the said income leaving aside the huge balance in the Banks accounts and expenditure incurred by the appellants. 25. The learned Advocate for the appellants has argued that the property purchased by the appellant No,1 before 1985 the year of application of the Ordinance, could not have been considered and the subsequent properties were purchased from the income derived from the said
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properties which are mentioned in the declaration of assets filed with the department from the years 1964 to 1985. 26. We have given due consideration to the arguments and examined the annual declaration of assets. A perusal of such declarations from the years 1964 to 1984 shows that in the year 1979 the appellant No,1 purchased Plot No,11/II. Khiyabana-e-Shamshir for Rs,1,60,000 and raised the construction over it in the year 1984 by spending Rs,4,60,000 The declaration for the year 1984 shows the balance amount with the appellants as Rs,7,29,720 out of which the appellant No,1 spent Rs,4,60,000 over the construction of above bungalow. The balance amount left with the appellant No,1 was Rs,1,19,000. If the amount of Rs,4, 60,000 spent by the appellant No,1 on the construction of the said bungalow is correct then he is justified in his defence, if not, then he has to explain the shortfall of the amount. 27. We have already observed that the amount of Rs,4,60,000 spent on the construction of…
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