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Petitioner: Syed ZAHIR SHAH VS Respondent: NATIONAL ACCOUNTABILITY BUREAU through Chairman JUDGMENT
Court Name: Peshawar High Court Judge(s): Mazhar Alam Khan Miankhel, Ikramullah Khan Title:Syed ZAHIR SHAH vs NATIONAL ACCOUNTABILITY BUREAU through Chairman
JUDGMENT
Reported As: 2015 YLR 371 Result: Appeal dismissed. Judgment JUDGMENT ' IKRAMULLAH KHAN, J.---Through this single judgment, we intend to dispose of Eh. Criminal Appeal No, 7 of 2010, Writ Petitions No, 555 of 2010 and 736 of 2010 wherein common questions of law and fact are involved and have arison out of the same judgment of the Accountability Court No,1, Peshawar dated 20-1-2010 in Reference No,4/2000. 2. Brief but material facts of the case are that on 22-4-2000 the learned trial Court framed the charge against the accused to the effect that during the tenure of his service as a Government servant he had amassed huge amount through corruption, dishonesty and by illegal means and with that ill-gotten income had purchased some land at Abdara Road, Peshawar, Plot No, 56 in Defence Colony with additional allotment of an area of 200 square yards in the name of his wife Mst. Tasneem Begum, two Flats constructed on the land at Abdara Road, a quarter in Gharib Abad, Peshawar, a plot measuring one Kanal with additional land measuring 1110 square feet in Hayatabad, a building comprising five shops on Saddar Road along with Balakhana known as UBL Building in the names of his wife and brother-in-law Syed Mansoor Ahmad and that on such property he had constructed a Hotel known as Sindbad Hotel. 3. The appellant was also charged for having purchased Deposit Certificates from the Islamic Investment Bank Main Branch Peshawar Saddar, Special Saving Certificates from the National Saving Centre Dabgari Peshawar, a Honda Car in the name of his son Syed Yasir Shah, National Saving Certificates in the name of his wife and a Toyota car in the name of Fayaz Ali Shah, the son- in-law of his brother.
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4. Besides, he was charged for having foreign currency account in dollars in the name of his wife by using her fake name as Mst. Roohi Zahir in Grindlays Bank Peshawar Cantt. And that such other property including agriculture land, the total value of aforesaid assets was worked out to be rupees two crores fifteen lacs (Rs,21500000) which was disproportionate to the known sources of his income. The accused appellant denied the charges, pleaded not guilty and opted for trial. 5. On conclusion of the trial, the trial Court came to the conclusion that the prosecution has proved its case against the appellant and consequently the appellant was convicted and sentenced under section 10 of the Ordinance to suffer five years rigorous imprisonment and to pay a fine of Rs,21500000. The fine was directed to be paid within a period of one month failing which the amount shall be recovered by sale of his movable and immovable property including that which is in the, name of his wife and sons. The benefit of section 382-B, Cr.P.C. Was extended to the appellant. 6. Feeling himself aggrieved, the appellant filed Eh. Criminal Appeal No, 5/2000 in Peshawar High Court and the Division Bench of this Court while maintaining the conviction reduced the sentence of imprisonment to three years and fine was reduced to Rs,11500000. The fine was ordered to be paid within a period of two months failing which the appellant shall undergo one year further rigorous imprisonment. The property mentioned in para-66 of the judgment was ordered to be forfeited to the Government. 7. Still feeling .Dissatisfied, the appellant filed Criminal Appeal No, 31 of 2001 in the august Supreme Court. Benamidars Mansoor Shah, Yasir Shah sons, Tasneem Begum wife of accused appellant Syed Zahir Shah, Syed Fayaz Ali Shah husband of the niece of accused filed Civil Petition No, 1736 of 2005 while Mansoor Ahmad son of Ahmad Ali Shah brother-in-law of accused appellant filed Civil Petition No, 751-P of 2003 in august Supreme Court of Pakistan wherein they assailed the conviction of accused Syed Zahir Shah to the extent that in case of default of payment of fine by accused, the properties owned by them can be utilized for recovery of fine. 8. The honourable Supreme Court of Pakistan converted both the Civil. Petition No, 1736 of 2005 and Civil Petition No, 751-P of 2003 into appeals and were allowed in the terms that the said appellants shall have an opportunity of hearing and producing of evidence before the trial Court in the light of their alleged claims about properties in question. The august Supreme Court of Pakistan rendered the forfeiture of the properties as unlawful and unsustainable unless the questions relating to the Benami transaction in which certain rights and interests claimed by Benamidars were determined by the trial Court in the overall perspective of evidence. Criminal Appeal No, 31 of 2001 of Syed Zahir Shah was partly allowed. Thus the impugned judgments in these matters were set aside and the case was remanded to the trial Court with the direction to afford opportunity of hearing to the alleged Benamidars to produce evidence. 9. After the remand, the Benamidars attended the Court and produced their respective evidence. After hearing the learned counsel for the parties, the accused appellant was convicted under section 10 of National Accountability Ordinance, 1999 and sentenced to three years rigorous imprisonment and also to pay a fine of Rs,11500000. Accused was directed to pay the amount of fine within a period of one month. In the case of failure, the same shall be recovered as arrears of land revenue. The properties of the accused in the name of Benamidars were ordered to be forfeited to the Government. The accused appellant was extended the benefit of section 382-B, Cr . P.0 . 10. The appellant has filed the instant Eh. Cr. Appeal No, 7 of 2010 against his conviction and sentence while Writ Petition No, 555/2010 and Writ Petition No, 736 of 2010 have been filed by the petitioners therein to set aside the impugned judgment dated 20-1-2010 of the Accountability Court No,1, Peshawar to the extent of their properties.
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11. In order to prove its case, the prosecution examined as many as 24 witnesses. The statement of appellant-accused was recorded under section 342, Cr.P.C., 1898 and the appellant also produced 15 witnesses in his defence. On remand of case by the Apex Court, petitioner in Writ Petitions Nos. 555/2010 and 736/2010, respectively also recorded their evidence on notice by the learned trial Court on the direction of the Apex Court. 12. Barrister Masroor Shah, learned counsel for the appellant and Syed Arshad Ali, advocate counsel for petitioners in writ petition argued that under section 14(d) of the NAB Ordinance, 1999, it was the legal obligation of the prosecution to make out a reasonable case against the appellant while heavy duty cast upon the prosecution, to prove the allegation levelled against the appellant, beyond any shadow of doubt, through cogent, reliable and confidence inspiring evidence, albeit prosecution had miserably failed to substantiate its case but the learned trial Court erred in law as well as on facts and illegally placed burden on appellant, to rebut the charges levelled against the appellant as such the impugned judgment is against the established principle of dispensation of criminal justice and jurisprudence. 13. That the impugned judgment is not only erroneous but also fallacious in so far as the sentence of fine of Rs,11500000 is concerned, as the appellant had already been undergone not only the substantive punishment of 3 years but also one year R.I, in lieu of fine of Rs,11500000 as per judgment of this Court dated 2-1-2001. The imposition of fine upon the appellant is against the clear mandate of the provisions of the Constitution, 1973 contained in Article 13 and also against the provisions contained in section 403, Cr.P.C., 1898, read with conjunction with the provisions contained in section 26 of the General Clauses Act; 1897. 14. That, no person shall be convicted for any punishment, in view of the clear mandate of the Constitution, 1973, contained in Article 12, which was not substantive one, at the time of commission of offence, while the learned Accountability Court has convicted the appellant for a sentence, which was not substantive, at the time of the commission of the alleged offence, all laws, irrespective of its kind whether general or special shall be considered to be subservient to the Constitution; and any law in derogation of the Constitution shall be void ab initio and could not be implemented, that the provisions contained in section 10 of the NAB Ordinance, 1999, was amended by an amending Ordinance No, XXXIII of 2002, whereby imposition of fine upon the convict was made a substantive punishment apart from the sentence of imprisonment. 15. That the learned trial Court has misconstrued the meaning of Benamidars. There is no evidence on record to show, that appellant had acquired assets mentioned therein the charge framed by the trial Court in the names of petitioners in Writ Petitions Nos. 555 of 2010 and 736 of 2010, respectively, which was illegally held by the learned Court that properties owned by the others petitioners in Writ Petitions Nos. 555 of 2010 and 736/2010, being benami, properties, on behalf of appellant-convict. 16. That the learned trial Court has not treated and appreciated the defence evidence, whereas the appellant and rest of the petitioners have given reasonable explanation that the assets, subject matter of charge had been acquired thereby other petitioners through their own independent, lawful sources/means. 17. It was also argued that the impugned judgment is against the law, facts on record; that the learned trial Court has not appreciated the evidence on record in its correct perspective; that the impugned judgment is the result of misreading and non-reading of evidence. The learned counsel also argued that the appellant has illegally been convicted and sentenced. In the end, the learned counsel prayed that the appeal may be accepted and the judgment of learned Accountability Court No,1, Peshawar be set aside. The learned counsel in support of his submissions placed reliance on:-- ' Chaudhry Aamir All v. State (2002 YLR 1902),
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' Pir Mazhar ul Hag v. The State (PLD 2005Supreme Court 63), ' Syed Qasim Shah v. The State (2009 SCMR 790), ' Muhammad Hayat v. The State (PLD 2002 Peshawar 118), ' Khalid Aziz v. The State, (2011 SCMR 136), ' Muhammad Hashim Babar v. The State and another (2010 SCMR 1697), ' Mehmood Hussain v. The State and another (2003 PCr LI 1 (Peshawar) ' Qazi Siraj v. The State (PLD 2004 Quetta 136), ' Hakim All Zardari v. The State (2007 MLD 910), ' Farrukh Javed Ghumman v. The State (PLD 2004 Lahore 155), ' The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), ' Hayat Khan v. The State (2011 YLR 890), ' The State through Prosecutor-General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid (2003 SCMR 150), ' Zulkar Ahmad and another v. The State (2011 SCMR 492), ' Sultan Khan v. Sher Khan and others (PLD 1991 Supreme Court 520), ' Abdul Wahab v. The Crown (PLD 1955 Federal Court 88), ' Shabbir Ahmad v. The State (PLD 1995 Supreme Court 343), ' Din Muhammad v. The Crown (1969 SCMR 777) and ' Khan Muhammad and others v. The State (PLD 1960 (W.P.) Lahore 218). 18. On the other hand, Mr. Khalil Ullah Khalil, Special Prosecutor of NAB supported the impugned judgment of conviction passed against the appellant and contended that the impugned judgment is based on proper appreciation of evidence and correct construction of law and facts on record; that the prosecution successfully had discharged its initial burden of proof, rebuttable had proved through cogent, unshakeable and un-rebutted evidence the charges levelled against the appellant beyond any shadow of doubt as such, according to provisions contained in section 14 it was the duty of the appellant to show that the assets subject matter of charge were acquired either by the appellant or by petitioners in Writ Petition No, 555 of 2010 through lawful means and the forfeited properties, were not benami and petitioners were not benamidars or ostensible owners, but both have failed to prove, hence the appellant was rightly being convicted by the trial Court, thereunder section. 10 of the NAB Ordinance, 1999. 19. We have heard the learned counsel for the parties and anxiously given consideration to their arguments in view of law and evidence on record. 20. Prior to comment upon the merit of the case in light of arguments and points raised by the learned counsel, it would be not out of context to give an over view of the evidence, produce thereby both the parties, in support of their respective allegations and defence during course of trial, which are as under:-- {{TABLE}} P. W.1 Nasir Khan, Excise and Taxation Officer, Peshawar. Provides the record of motor cars No, PRU88, Honda Civil Model 1995 previously owned by Doctor Shahid Mahmood and presently owned by Syed Yasir Shah the son of Syed Zahir Shah. No, PRR-I 347 Toyota Corolla Model 1988 previously owned by Amir Nawaz and presently Syed Fayaz Ali Shah son of Syed Muzaffar Shah. P. W.2 Muhammad Produced the record Nisar Khan, Controller of regarding admission of Syed Yasir Shah the son Examination of the accused in the University of Engineering University Engineering Peshawar and stated that and as per record his date of
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Technology, Peshawar. Birth was 16-2-1976 and he was admitted in 1st Year Electrical Engineering in the said University on 19-1-1995, while the final year Engineering result was declared on 4-2-2000. #TBS governor Secretariat, N. W. F. P . Peshawar. Housing Department N.W.F. P. At that time. On 9-2- 2000 on the request of P. W.24 certain documents regarding the assets of the accused were provided to him which includes the declaration of assets for the year 1993 to 1996 furnished by the Syed Zahir Shah. He further deposed that after 1996 no declaration of assets was filed by the accused. P.W.8 Muhammad Ibrahim, Military Estate Office, Peshawar. Deposed that he also provided the copies of certain documents to the P. W. 24 pertaining to the Bungalow No, 56 Defence Colony Peshawar etc. P.Ws.9 and 10 Muhammad Ihsan and Asad Ullah, tenants. Deposed that they were the occupier of flats of Yasir Shah situated at Abdara Road, Peshawar as tenant on payment of monthly rent of Rs,7000 for the last three years and Rs,7000 for the last 6 months, respectively. P. W.11 Abdul Samad, tenant. Deposed that he was the tenant of Syed Zahir Shah and residing in a house situated at Gharibabad, Peshawar on payment of monthly rent of Rs,2200, which was rented out by Yasir Shah the son of accused. P. W.12 Abdur Rehman, Sub- Registrar, Peshawar. Produced the record pertaining to general power of attorney executed by one Shamsud-Din in favor of the accused Syed Zahir Shah. P. W.13 Wahid Gul, Driver. Deposed that being the employee in Peshawar Development Authority he performed the duty for a period of three years as Driver with Syed Zahir Shah (appellant). He used to drive vehicle No, PRU-88 Honda Civic. That Motor Car No, PRR-1347 used to be brought by one Fiaz Ali Shah was also driven by #TBE #TBS P.W.3 Muhammad Arif Deputy Director Estate Management, Peshawar Development Authority. Produced the record pertaining to allotment of plot No, 1-C/N-3-1. K Phase- IV, Hayatabad, Peshawar and deposed that said plot was allotted to the accused by the Chief Minister NWFP, vide allotment order dated 23-11-1988. He also produced the original allotment order in respect of additional piece of land measuring 1110 square feet which was allotted to the accused on 11-6-1996. P. W.4 Adnan Inamullah Khan, Assistant Commissioner Income Tax. Produced the income tax record and stated that Syed Yasir Shah and Masroor Shah sons of Syed Zahir Shah during the Assessm ent year
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1997-98 vide which Syed Yasir Shah had paid the income tax amounting to Rs,3020. Copy of computation chart was also produced by him. P.W.5 Khwaja Sardar Ali, Assistant Commissioner, -Income Tax, Peshawar. Deposed that on the request of P. W.24 Shams-ur-Rehman Khan, Inspector F.1.A, copies of Income Tax Returns, Wealth Tax Returns and Assessm ents Forms for the Assessment years 1995-1996, 1996-1997 and 1997-1998 were provided to the Flk He further stated that accused was paying income tax since 1986- 1987, while the Wealth Tax Return was filed by the accused was of 1995- 1996 whereas the last return was filed for the Assessm ent year 1997- 1998. P. W . 6 Muhammad Qasim Samad Khan, Deputy Commissioner, Income Tax, Peshawar. Provided the copies of certain documents of income tax ,and computation chart relating to the wife of Syed Zahir Shah appellant. P. W.7 Noor Ullah, Section Officer, Deposed that he was posted as Section Officer, Physical Planning and #TBE #TBS the requisite certificate was issued. After that said property was alienated in favor of Mst. Tasneem Begum and Mansoor Ahmad vide Cantonment Board Resolution No, 70 dated 24-5- 1978. Subsequently the vendees submitted site/building plant for construction of four stories commercial building which was approved by the Government and sanction was accorded on the payment of due charges. Later on the said property was mutated on the name of Mst. Tasneem Begum vide mutation No,545/33(11). P. W.17 Zafarullah Babar, Executive Engineer Pak P.W.D, Peshawar. In the company of Shams- ur-Rehman Khan, Inspector, Niamatullah, Sub- Inspector and Saadullah Estimator of Pak P. W. D, inspected/visited the Sindbad Hotel, Peshawar and two flats at Abdara Road, Peshawar, Bungalow No,56-Defence Colony Peshawar and U.B.L Building situated at Saddar Road, Peshawar, Quarter situated at Gharib Abad, cum Tehkal Bala, Peshawar for the purpose of valuation and had prepared the assessm ent report. P. W. 18 Dost Muhammad Khan, Assistant Revenue Officer, P. T. C.L, Peshawar. On the request of P.W. 24, provides the copies of telephone bills along with all details in respect of telephone No, 271101 for the period from January, 1999 to January, 2000. P. W. 19 Abdul Waheed Khan, Regional Director National Savings Organization, Peshawar. Produced the entire record regarding the Special Saving Certificates purchased by Syed Yasir Shah the son and Mst. Tasneem Begum the wife of the accused amounting to Rs,1450000 #TBE #TBS him, Appellant retained this car for about 15/20 days and when no longer required return the same. P. W. 14 Samandar Khan, Road
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Roller Cleaner in Peshawar Development Authority. Deposed that he got employment in Peshawar Development Authority as Road Roller Cleaner about 19/20 years ago. Thereafter he was promoted as Driver and serving as Driver in Peshawar Development Authority for the last 11/12 years. After performing his official duty he used to come to the house of the accused Syed Zahir Shah and stay there for the night as he belongs to District Mardan and not having any house in Peshawar. He used to drive, two motor cars of appellant while staying with him. P. W.15 Syed Asghar All Shah, Manager in CNG Luqman Shah Enterprises, G. T. Road, Peshawar Deposed that CNG kit was got fitted by Syed Zahir Shah accused in Toyota Corolla Motor Car No, D-6726 and the invoice were also signed by the accused. P. W. I6 Niq at Shah, Senior Clerk, Cantonment Board, Peshawar. Produced the record pertaining to property bearing Nos. 3-A, 3-B, 3-C, 3A-I, & 3A-2 known as Sindbad Hotel situated at Saddar Road, Peshawar and deposed that initially the said property was in the name of Shams-ud-Din and Ahmad Khan. Through general power of attorney Syed Zahir Shah transferred the said property to Mst. Tasneem Begum daughter of Syed Ahmad Ali Shah and her brother Syed Mansoor Ahmad. Accused being attorney of Shams-ud Din and Ahmed Khan submitted an application to the Cantonment Executive Officer for no demand certificate in respect of the said property and accordingly #TBE #TBS Syed Yasir Shah. On demand of P. W. 24 copies of documents have been provided to the 1.0. P. W. 22 Saad Salman Haider, Ex. Manager Grindlays Bank, Peshawar. Deposed that from October 1988 till 15th May, 2000 he was posted as Manager in Grindlays Bank, Pesha- war and on the request of P.W.24 copies of statements of accounts No, 1131332015201, 11314/5352251 and account No,1131524461035 were delivered to the 1.0. P. W.23 Zarsher, Copyist Office of Deputy Commissioner, Peshawar. Produ ed original mutes )ti register relating to I station No, 1853 attes ed on 29-3-1978 and mutation No,. 4292 ant ed on 5-3-1994. P. W.24 Shams-ur- Rehman, Inspector, F.I.A., Peshawar. Deposed that investigation of the case of accused was entrusted to him by the Director F.I.A. During the inquiry/investigation he collected the copies of entire record pertaining to Plot/Bungalow No, 56, Defence Colony, Peshawar, U.B.L Building and Sindbad Hotel, Peshawar Cantt, two flats situated at Abdara Road, University Town, Peshawar, one quarter situated at Gharib Abad, Peshawar, two motor cars No, 8800-B, Peshawar and No,6726-D, Peshawar, Bank Accounts on the name of Syed Yasir Shah (son) and Mst. Tasneem Begum (wife) of the accused Syed Zahir Shah, and have also recorded the statements of the prosecution witnesses
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and occupants of flats. He also obtained the record of utility bills (Electric and Telephone). All the copies were obtained from P. Ws. Nos. 5, 7, 8, 18, 21 and 22 and were placed on #TBE #TBS from National Saving Centre-11, Namak Mandi Branch, Peshawar on 21-10-1998. Subsequently one certificate of rupees five lacs (Rs, 500000 was encashed by Syed Yasir Shah on 2-11-1999. After that again Syed Yasir Shah applied for purchase of Special Saving Certificates for Rs,650000 in the National Saving Centre- III Dabgari, Peshawar which were issued to him on 5-8-1999. Special Saving Certificates for an amount of Rs,150000 were also purchased by Mst. Tasneem Begum on 21-2-2000. That on 17-7-1998 Mst. Tasneem Begum wife of Syed Zahir Shah also applied for purchase of Special Saving Certificate for Rs,I5000 which were issued to her after having deposited the said amount. These certificates were however, en-chased on 21-2-2000. He further deposed that he prepared the list in respect of the Special Saving Certificates of Mst. Tasneem Begum and her son Syed Yasir Shah. He also stated that in the document dated 25-2- 2000 the amount has been inadvertently written as Rs,150000 instead of Rs,15000. P. W.20 Naimat Ullah, Sub-Inspector, F.I.A., Peshawar Marginal witnesses of the recovery memo vide which the 1.0. Took into possession Motor Car No,D-6726 (Old No,1347-PRR) along with accessories. P. W.21 Inam Ullah, Senior Deposed that Syed Yasir Shah, opened an account Officer, Islamic in the Cash Management Scheme and deposited Investment rupees One Million in the Bank, Peshawar. Bank and two certificates amounting to Rs,500000 (each) were issued to #TBE #TBS amount of Rs,88601 was paid to her. DW-4 Gul Manzar, Patwari Halqa Tordher, District Swabi. Produced the Revenue Record of landed property of the accused and deposed that on the death of his father the accused inherited landed property measuring 33 kanals, 14 marlas vide Mutation No, 8482 attested on 8-7-1979. He further deposed that on the same quantum Syed Mehboob Shah (brother of the accused) also inherited the land. He produced the revenue record of both the brothers. DW-5 Ghulam Mustafa, Director Finance, Peshawar Development Authority, Peshawar. Deposed that salary and allowances record/statement was prepared by him from 1-10-1975 to 31-12-1999.
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DW-6 Mian Naeem Ullah Kaka Khel, Contractor. States that he had constructed the quarter for the accused Syed Zahir Shah on his plot measuring 3 marlas situated at Gharib Abad, Peshawar vide agreement dated 7-1-1994 at the cost of Rs,84000. DW-7 Qadir Ali, Consultant architect Shalimar Plaza, G.T. Road, Peshawar. Deposed that he had prepared the location plan for the accused Syed Zahir Shah for the construction of flat at Gharib Abad, Peshawar after visiting the site. DW-8 Adnan Mom Ullah, Assistant Commissioner, Income Tax/ Wealth Tax, Peshawar. Produced the copy of assessment year for the year 1996-1997 relating to Syed Yasir Shah son of the accused and deposed that according to the assessment record the gross income of Syed Yasir Shah during the said period was Rs,84000 whereas his net taxable income was Rs,67200. He also produced the assessm ent record for the year 1997-98 and #TBE #TBS Defence Witnesses examined by the appellant-convict. DW-1 Ishan Ullah, Accounts Officer, Prize Bond Section, State Bank of Pakistan, Peshawar. Produced the record pertaining to Prize Bond No, AY-024118 of denomination of Rs,500 vide which Syed Yasir Shah won the prize of Rs, 500000. After deduction of Rs,37,500 as income tax an amount of Rs,462500 was paid to Syed Yasir…
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