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Petitioner: Dr. AZHAR ATTA MALI VS Respondent: CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU, JUDGMENT
Court Name: Lahore High Court Judge(s): Muhammad Saeed Akhtar, Tasaddaq Hussain Jillani Title:Dr. AZHAR ATTA MALI vs CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU,
JUDGMENT
Reported As: 2004 YLR 3201 Result: Order accordingly Judgment JUDGMENT ' TASSADUQ HUSSAIN MILANI, M.--Appellant Dr. Azhar Atta Malik, along with his co-accused Dr. Zahid Ali, were tried by the Accountability Court, Lahore in Reference No.4 of 2001 on the alledtions that appellant established a Housing Society, became its President himself while co-accused Dr. Zahid Ali under:-- was appointed its Secretary and in the said capacities it was alleged that they misappropriated a huge amount and committed acts and omissions which constituted offences under the Penal Code and the NAB Ordinance, 1999. Vide its judgment dated 17-6-2002, Dr. Zahid Ali was acquitted while appellant was found guilty of offence punishable under Serial No.8 of the Schedule to the National Accountability Ordinance, 1999 and sentenced to R.I. For ten years and a fine of rupees nine crores. The fine was directed to be recovered from his personal assets. He was further found guilty of offence. Punishable under section 9(iii) read with section 10 of the National Accountability Ordinance, 1999 and section 409, P.P.C. Read with Serial No.6 of the Schedule of the Ordinance and was sentenced to R.I. For ten years and a fine of rupees nine crores to be recovered from his personal properties/assets. Benefit of section 382-B, Cr.P.C. Was extended to him and sentences of imprisonment were directed to run concurrently. Under section 15 of the National Accountability Ordinance, 1999, appellant was disqualified to hold- any public office or to get any financial -facility in form of loans or advances etc. For a period of ten years to be reckoned from the date of his release after serving the sentence with a further direction to forthwith seize to hold all such public offices including his office as President of Pakistan Medical Cooperative Housing Society.
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3. During trial, the prosecution examined 57 witnesses and placed on record the documentary evidence to prove its case. In defence the appellant produced 77 witnesses. His defence plea as given in para.4 of the impugned judgment, reads as He admitted that he, along with the Management Committee, was entrusted with the dominion and control of the Society. He admitted the bank accounts of the Society as alleged by the prosecution but sratedlthat the total deposits were Rs.16,41,62,419 and not Rs.23,06,78,332. He admitted that about 20% withdrawals were under his sole signature, while the remaining withdrawals were under his signature jointly with the signatures of other office bearers. He also admitted sale of 5 vehicles of the Society. Accused disclosed that the Society got planning permission for Medical Town, but later on, the project was abandoned. The contention of the accused regarding deposits and refunds was that about 2000 forms were sold a Rs.100 per form, but only about 1300 persons deposited Rs.700 per head to become members. He contended that about 600 members deposited price of plots and some of them also deposited development charges, but about 300 members later on got refund of about Rs.3.5 crores. Accused alleged that about 10% work, was done at the site. Accused admitted receipt of lease money of land for 10 crores w.e.f. 1996 but denied its misappropriation. ' Accused alleged that during initial elections he was legally elected as President of the Society for 3 years but the tenure was extended to 5 years in the year 1993 and that he was re-elected in the General Body Meeting for another period of 5 years in the year 1998. Accused denied to have shown inflated price in the purchase of land. Accused admitted that no land was purchased for Block-D of Avicenna City but alleged that proceedings were duly initiated for its approval from L.D.A. He denied creation of any Block-E in Avicenna City. He denied to have created imaginary commercial plots or plots beyond numbers 85 in Block-B Avicenna City. His version was that P.W. Abdul Aziz, General Manager of the Society, fabricated record to create all the alleged fake plots. The contention of the accused was that General Body Meeting was regularly convened and audit was regularly got conducted by him. The version of the accused was that P. Ws. Shahbaz Hussain Tahii, Abdullah Khalid Khakwani, Dr. Saleem, Qazi Mohyuddin and Asghar Chaudhry, colluded wiih Ex-General Manager of the Society to fabricate evidence, as they, wanted to usurp management of the Society by hook or by crook." 4. Learned counsel for the appellant, right at the outset, conceded that the appellant does not want to challenge the conviction but only prays that the same be altered to one under section 409, P.P.C. Read with Serial 8 to the National Accountability Ordinance, 1999. He also prayed . For modification of sentence. In support of the appeal and the afore-referred prayer, he made following submissions:-- (i) that a bare reading of the charge framed against the appellant would indicate that offence alleged in Charges Nos.1 and 2 are the same and he could not have been convicted on two counts. This, according to him, is violative of section 26 of the General Clauses Act. In support of the submissions, learned counsel relied on Niaz Ali v. The State PLD 1961 WP Lahore 269; Inayatullah and another v. The State 1971 PCr.LM 1197; Ziaul Haq v. The State 1973 PCr.LM 457; Syed Muhammad Rizvi v. The State 1973 PCr.LM 1015 and Muhammad Noor alias Norak v. Member Board of Revenue Balochistan PLD 1985 SC 335. (ii) That the appellant could not have been burdened with a fine of rupees nine crores on two counts, that the fine has to be proportional to the alleged amount of misappropriation. It is in evidence that there were two parcels of the hind, that only one parcel of land had allegedly been misappropriated whereas the second parcel was still available and waS intact in the name of the Pakistan Medical Cooperative Housing Society; that the value of land purchased in the name of the Society has arbitrarily been reduced by the learned trial Court not withstanding the registered sale-deeds and that the findings given are against the weight of evidence on record;
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(iii) that the learned trial Court has, not correctly included the total expenditure incurred by the Society and the expenses, as mentioned in the ledger, has not been considered at all by the trial Court; (iv) that the allegation and evidence which was not put to the appellant in his statement under section 342, Cr.P.C. Could not have been made basis for his conviction; (v) that the impugned judgment is violative of Article 13 of the Constitution of Islamic Republic of Pakistan, 1973 and he could not be convicted under a provision which was not in vogue at the time when the alleged offence was committed. The concept of continuing offence, as purported by the august Supreme Court in Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 Supreme Court 607 is not attracted as the said concept is relatable only to financial and bank institutions; (vi) that the appellant was arrested on 14-10-2000, that he was tried and convicted on 17-6-2002; that the National Accountability Ordinance, 1999 was amended on 23-11-2002 in terms of which section 10(d) was added and the convicts under the National Accountability Ordinance, 1999 were held not entitled to any remissions in sentence. This amended provision could not have retrospective effect and the appellant could not be deprived of the benefit of remissions. 6. Learned counsel for the NAB, while defending the impugned judgment, contended as under:-- (i) that since the appellant has not chosen to challenge the conviction, no leniency is warranted because he committed extensive and excessive fraud with hundreds of people. He particularly referred to para.67 of the impugned judgment to apprise the Court of the magnitude of the offences committed by the appellant; (ii) that the appellant has been convicted on two charges which reflected two distinct offences and hence there is no illegality in the impugned judgment; (iii) that the bar envisaged in section 26 of the General Clauses Act is attracted on when offence is the same; (iv) that the total losses, as per the evidence collected, are more than eleven crores and fifty lac of rupees which have not been accounted for by the appellant. He could not have been sentenced to fine, to a sum less than the afore-referred amount in view of section 11 of the National Accountability Ordinance, 1999; (v) that during trial, conscious of his misdeeds, appellant was prepared and offered a sum of rupees eighteen crores to discharge liabilities of the Society and he cannot say today that the fine is excessive. He, however, on a Court query conceded that if the mandate of section 11 of the National Accountability Ordinance, 1999 is kept in view, the fine, on second count, can be reduced by five to six crores. He further admitted that the land situated in Mauza Badokisani was not sold by the appellant as held by the learned trial Court. It still remains with the Housing Society and the Court may reduce a further sum of Rs.48,00,000 (if the value as shown in the registered deed is reduced to 60%). 7. We have heard learned counsel for the parties, have gone through the evidence on record and have given anxious consideration to the issues raised. 8. Appellant has been convicted on two charges and the second charge carried sub-heads. Since the appellant did not challenge the convictions and sentences on the first charge at all, the same are being maintained. We would at the outset deal with the objectives and legal propositions raised with regard to conviction on the second charge. Since conviction is not being challenged, we would at the outset address the legal propositions raised. There is no cavil to the proposition that a person cannot be punished twice for the same act or omission even if it constitutes offence under two different enactments. This is the mandate of section 26 of the General Clauses Act, 1897 which reads as under:--
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"26. Provision as to offences punishable under two or more enactments. Where an act or omission constitutes an offence under two or 'more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for same offence." ' The purpose of the afore-referred provision is to prohibit double punishment though the trial and conviction for different offences is not illegal. It would apply only and only where the offences under the two enactments are constituted by the same act or omission. Where the transactions disclose distinct offences, this section would not be attracted. In the precedent case-law relied upon by appellant's learned counsel i.e. Niaz Ali v. The State PLD 1961 WP Lahore 269, this Court maintained the conviction of a canal Patwari under two different provisions i.e. Under sections 161, P.P.C. And 5(2) of the Prevention of Corruption Act, 1947 but did not send the convict back to prison to serve out his remaining sentence of imprisonment but enhanced the sentence of fine from Rs.50 to Rs.500 for either of the charges in question and held, at page 273, as under:-- ' I am of the view that this contention is well founded. Section 26 of the General Clauses Act provides a bar to double punishment for the same offence, although a person is liable to be prosecuted and punished for an act or omission constituting an offence and falling under two or more enactments. In other words, there is no bar to a trial or a conviction for the same act which is an offence under different enactments, but there is a bar to a punishment being awarded twice for the same offence. In such a case it would be quite in order to record the convictions separately and award concurrent sentences if they are of imprisonment, but in no case can an accused person be made to suffer any extra punishment by way of duplication for the same offence. In the present case, the punishment is illegal inasmuch as it imposes a fine of Rs.50 under each of the two enactments making a total of Rs.100. The extra fine of Rs.50 for the offence under one or other of the counts is therefore, not legal involving, as it does, a duplication of punishment for the same offence." 9. This principle was reiterated in Muhammad Noor alias Norak v. Member Board of Revenue Balochistan and others PLD 1985 SC 335, wherein at page 340, the august Supreme Court, holding that the principle enshrined in section 403, Cr.P.C., was analogous to the spirit of section 26 of the General Clauses Act, 1897, observed as under:- "The same principle is laid down in section 26 of the General Clauses Act which provides that if an act of omission constitutes offence/offences under two or more enactments, then, the offender though can be prosecuted under either or any of those enactments, but cannot be punished twice for the same offence." totally unconnected. The rest to determine whether the offences charged at two trials are distinct for purpose of this section would be whether, if the offences were charged at the 'same trial, separate sentences could be passed in respect thereof under section 71 of the Penal Code. Another test is to see whether the evidence necessary to prove the two offences is the dame or different. Where the two charges were in respect of totally distinct offences committed by different accused at different times. Merely because same accused happens to be common in both the cases or that the later offence may have been committed with a view to destroy or cause disappearance of certain evidence which could have been material in the other case, could not bar a trial for the subsequent offence. Even if the finding that the offences which are the subject- matter of the two cases were "similar" could be accepted, section 403, Cr.P.C. Would not bar such a trial." However, the afore-referred principle is not applicable where the offences are distinct. While explaining the expression "distinct offence", Shaukat Mahmood, in the commentary of section 403, Cr.P.C., Volume II, page 1847, comments with reference to precedent case-law, as under:- "In order to constitute distinct offences the offences need not necessarily be totally unconnected, because same transaction may involve distinct offenders, in which case they cannot be said to be
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Coming to the facts of this case, a bare reading or charges 1 and 2 would indicate that they are relatable to distinct offences. The first charge is under section 9(a)(iii) read with section 10 of the National Accountability Ordinance, 1999 as also under section 409, P.P.C. Read with Serial 6 of Schedule annexed with the Ordinance. The second charge under which he stands convicted is under Serial 8 of the NAB Ordinance. To have a better appreciation of the issue whether offences as alleged in the two charges under which appellant stands convicted and sentenced are distinct or not, the charges framed same are being reproduced as under:-- ' First Charge "Firstly, that you Dr. Azhar Ata Malik, being President and you Dr. Zahid Ali, being Secretary General, Pakistan Medical Cooperative Housing Society, Lahore, being holders of such public offices, with active abetment, aid and assistance of each other, in the year 1992 and onward, being entrusted with the dominion and control of property of Pakistan Medical Cooperative Housing Society, Lahore, dishonestly and fraudulently misappropriated a sum of Rs.27,78,44,203, by showing fake and inflated prices in purchase of land also by usurping lease money of land of Society, in addition to Rs.23,06,78,32, being illegal withdrawals by you from the funds of the said society, total amounting to Rs.50,85,22,536, along with Vehicles Nos. LOP 2379, LOF 9518, LHO 7824, LOD 3530 and LOA 8759, and thus you committed an offence of corruption and corrupt practices punishable under section 9(iii) read with section 10 of the NAB Ordinance, also punishable under section 409. P.P.C. Read with Serial No.6 of Schedule of NAB Ordinance, 1999, which is triable by this Court. 1999, and ' Second and Third Charges ' Secondly, that you in the said capacity and in the said period, with active abetment, aid and assistance of each other, deceitfully, fraudulently and dishonestly committed fraud with the said Society by doing following illegal acts:-- i. Medical Town was added by forged means in the letter of approval issued by the LDA for Housing Scheme known as Avicenna City. ii. That you issued bogus allotment letters to at least 51 members of the said Society, inducing them' for payment of price of land and development charges iii. That neither development work was done at the site nor possessions of plots were delivered to the members. Iv. That the land of the said Society was given on rent, the proceeds of which were utilized by you. v. That you fraudulently withdrew Rs.23,06,78,332 from nine different bank accounts of the said Society and converted them into your own use. Vi. That you tampered with the record to increase your tenure of the said offices to 8 years and no Annual General Meeting of the said Society was convened after the year 1991. vii. That you advertised the said Society, showing renowned persons in the Management Committee and the Board of Governors etc. Without their knowledge to attract members for the Society. viii. That you obtained General Power of Attorney from different persons including Mst. Sughra Bibi, Mst. Zabaida Bibi, Mst. Tasneem Bibi and others for their land in Village Tarogill and sold the same to the said Society on their behalf at inflated prices. Ix. That the actual price paid for land of said Avicenna City was Rs.3,53,25,000 showing inflated amount of Rs .2,59,63,500. x. That the actual price paid for land of Medical Town was Rs.49,50,000 whereas you illegally presented price of Rs.80,17,785, showing inflated amount of Rs.30,67,785. xi. That self-created plots and self-created Blocks-D and E were got entered in allotment letters although no such approval was made by the LDA for Avicenna City. xii. That 725 Kanals 14, Marlas land was available in Avicenna City. For 311 plots in the approved layout plan but the area was illegally shown as 915 Kanals for 419 plots.
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xiii That only 176 Kanals, 6 Marlas land was available in Medical Town but 612 allotment letters were illegally issued for 400 Kanals. xiv.That the staff and equipment of the Society were illegally used for your private business, which was not permitted by rules and you caused corresponding loss to the said Society. And thus you committed an offence of Fraud punishable under Serial No.8 of Schedule of NAB Ordinance. 1999, which is triable by this Court. Thirdly, that you during the said period and in the said capacity with active abetment, aid and assistance of each other misused your above said authority by committing the said acts of fraud, forgery and misappropriation etc. And thus you committed an offence of corruption and corrupt practices punishable under section 10 read with section 9(vi) and para.7 of Schedule of NAB Ordinance, 1999, which is triable by this Court. ' And I hereby direct that you be tried by this Court for the above said charges/ offences." A comparative study of the charges, as reproduced above, is reflective of the fact that barring a few sub-heads in the second charge the allegations levelled mostly pertain to distinct transactions and offences. There might be some overlapping in certain sub-heads of the second charge but those are being attended to in the finding which is to follow in the instant judgment. We would first deal with the points of distinction between the first and second charge. Those are as follow:-- (i) "In the first charge, the allegation is of dishonest misappropriation of Rs.27,78,44,203 by showing fake and inflated prices in purchase of land and also by usurping lease money of land of the Society, of illegal withdrawals from the Society funds to the tune of Rs.23,06,78,32 and illegally disposing of five vehicles of the Society. On the other hand, the second charge has 14 sub-heads and barring a few, they reflect distinct offences. In the first subhead of the charge, it is alleged that approval was given by the competent authority for the Housing Scheme known as "Avicenna City" but another Society i.e. By the name of "Medical Town" was added by tampering with the record. The second sub-head relates to issuance of bogus allotment letters to fifty one members and thereby inducing them to make payment of price of land and development charges. The third sub- head is that no development work was done at the spot and possession of plots was never delivered. The fourth sub-head is that the land of the Society was given on rent which was misappropriated. This subhead and the charge is a repetition of the first charge. Punishment under this sub-head, therefore, would not be tenable. Again subhead (V) is a repetition of certain element of first charge and sentence under this sub-head is not warranted. Sub-head (VI) relates to the allegation that the appellant tampered with the record to increase his tenure of his office from three to eight years. In terms of sub-head (VII) it was alleged that the appellant through advertisement gave a public notice that renowned persons were on the Management Committee and the Board of Governors thereby inducting them to become members and purchase plots. This action is a distinct offence. Charge under subhead (VIII) needs no comment as the learned trial Court, in terms of its finding contained in para.29, has acquitted the appellant of this charge. The charges under subheads(IX)(X) are replica of the allegation contained in the first charge i.e. Showing inflated prices. The punishment under this subhead cannot be sustained. In subhead (XI) of charge 2, it was alleged, that self-created plots without approval of the competent authority were sold to the public, some of which were commercial plots. This again is 'a distinct offence. However, the learned trial Court in its finding recorded in paras.52 to 68, has discussed in detail the evidence led to prove this charge but, in all fairness, excluded the charge of creation of fake commercial plots. Sub-head (XII) of charge 2 again describes a distinct offence as it was alleged that only 725 Kanals, 14 Marlas were available in "Avicenna City" for 311 plots but the areas were illegally shown as 915 Kanals and thereby created 419 plots. Charge under sub-head(XIII) again carries a similar allegation as in subhead(XII). Sub-head(XIV) does not call for comment as
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according to learned trial Court (finding in para.53 of the impugned judgment) this sub-head could not be proved." 10. In view of the discussions in the preceding paragraphs we are of the view that the following sub- heads of second charge are repetitions of certain elements/facts as alleged in first charge, punishment under second charge to the afore-referred extent cannot be sustained:-- (i) Sub-head (V) of Second Charge; (ii) Sub-head (IX) of Second Charge; (iii) Sub-head (X) of Second Charge; (iv) Sub-head (XI) of Second Charge; (to the extent of commercial plots). ' The conviction under the remaining sub-heads of the second charge is valid, as those sub-heads (charges) are distinct offences, the same is being maintained. 11. While arguing the point that the fine imposed is not proportionate to the alleged misappropriation or loss to the members of the Society, appellant's learned counsel contended, firstly, that it has wrongly been held by the learned trial Court that the land situated in Mauza Badokisani was sold by the appellant and the sale price has not been accounted for (para.46 of the impugned judgment), secondly, the value of the purchased land for housing society has arbitrarily been reduced by the learned trial Court 60% of the price shown on the sale-deeds and, thirdly, that the Society's books of accounts have not been considered by the trial Court to assess the total expenditure incurred by the Society under various heads. ' So far as the contention that the land situated in Mauza Badokisani has not been sold by the appellant is concerned, the same is valid and it was fairly conceded by the learned counsel for NAB, during arguments and suggested that the price of the said land be added in the credit account of the housing society by reducing it to 60% in terms of criterion laid down by the learned trial Court which comes to rupees forty eight lac (total price as shown in the sale-deeds is Rs.80,17,785. The remaining contentions qua this issue have no substance. Learned trial Court has given very valid reasons for reducing the price by 60%. Those are…
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