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Petitioner: Syed ZAHIR SHAH and others VS Respondent: NATIONAL ACCOUNTABILITY BUREAU and JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Chaudhry Ijaz Ahmed, Raja Fayyaz Ahmad Title:Syed ZAHIR SHAH and others vs NATIONAL ACCOUNTABILITY BUREAU and
JUDGMENT
Reported As: 2010 SCMR 713 Result: Case remanded Judgment JUDGMENT ' RAJA FAYYAZ AHMAD, J.---This Criminal Appeal No,31 of 2001 has been directed against the judgment dated 2-1-2001 whereby, Ehtesab Appeal No,5 of 2000 preferred by the appellant against the judgment dated 17-7-2000 of the Accountability Court No,1, Peshawar in Reference No,2 of 2000 convicting and sentencing him under section 9 of National Accountably Bureau Ordinance, 1999 has ,been dismissed by the Special Ehtesab Bench (Division Bench) of the Peshawar High Court, Peshawar. The connected Civil Petitions Nos.751-P of 2003 and 1736 of 2005 are also disposed of by this singie judgment. 2. Appellant Syed Zahir Shah was convicted and sentenced to suffer R.I. For a period of (5) years and fine of Rs,2,15,00,000 (Rupees Two crores and fifteen lacs) required to be paid within a period of one month from the date of the judgment of learned ,Accountability Court, (hereinafter referred as the 'trial Court') failing which the amount of fine was directed to be realized by sale of his movable and immovable properties including the properties in the name of his wife and sons. Benefit of section 382-B, Cr.P.C. Was extended in his favour. ' The Learned High Court vide impugned judgment while maintaining the conviction of the appellant under section 9 read with section 10 of the NAB Ordinance, 1999 but keeping in view the facts and circumstances of the case to which no specific reference was made, reduced the sentence of imprisonment from 5 years' R.I. To 3 years' R.I. The amount of fine was also reduced from 2,15,00,000 (Rupees two crores and fifteen lacs) to Rs,1,15,00,000 (Rupees one crore and fifteen lacs) to be paid within a period of two months and in default of payment of fine to further undergo
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R.I. For a period of one year, as well as; the properties mentioned in paragraph No,66 of the judgment was held to be disproportionate to his known sources of income. Accordingly, the same were forfeited to the Government. With the above modification in the quantum of sentence and fine, Ehtesab Appeal No,5 of 2000 filed by the appellant was dismissed. 3. Masroor Shah son of Syed Zahir Shah petitioner in Civil Petition No,1736 of 2005 has sought for leave to appeal against the order dated 9-3-2005 passed by the learned Peshawar High Court, Peshawar whereby his Writ Petition No,51 of 2002 was dismissed, reproduced hereinbelow in extenso:--- "Respondent No,3 was tried by Judge Accountability Court at Peshawar, N.-W.F.P., who was convicted and sentenced on 17-4-2000. Respondent No,3 filed appeal before this Court bearing Ehtesab Appeal No,5 of 2000 which was partially allowed on 2-1-2001. ' Petitioners have also filed appeal before this Court but was dismissed on 4-9-2000 as not maintainable. ' Respondent No,3 has challenged his conviction and sentence before the apex Court which appeal is still pending. This Court when seized of the appeal against conviction and sentence of respondent No,3 held that certain properties were held by respondent No,3 as Benamidar. Hearing of this petition by this Court when subject-matter is presently pending before the apex Court would not be possible as any decision in the writ petition may have different effect on the conviction and sentence as was up held by this Court in appeal. This petition, therefore, at present is misconceived and is dismissed in limine." 4. Mansoor Ahmad son of Syed Ahmad Ali Shah through Civil Petition No,751-P of 2003 has called in question by seeking leave to appeal, the order dated 11-9-2003 of the learned Division Bench of the Peshawar High Court, Peshawar dismissing his Civil Miscellaneous Application No,345 of 2000 moved for the restoration of his writ petition dismissed in default. The order dated 11-9-2003 reads as under:- "Mr. Naveed Maqsood, Advocate, counsel for the petitioner in Writ Petition No,1119 of 2001 has filed this application for the restoration of the writ petition, which was dismissed in default on 20-5- 2003. The reasons stated for non-appearance of the counsel before the Court on 20-5-2003, are two. Firstly, that the case was to be argued by the senior counsel, Barrister, Jehanzeb Rahim and secondly, that the counsel moving the application was busy before another Bench of the Court. Before dilating upon the merits of the grounds stated in application for the restoration of the writ petition it is relevant to narrate briefly the facts of the case and some of the orders passed from time to time therein. (2) The writ petition arose from the proceedings before the Accountability Court No,1 N.-W.F.P. In Reference No,2 of 2000 under which S. Zahir Shah, a civil servant was being tried. S. Zahir Shah accused was convicted by the fine levied as part of sentence amounting to Rs,2,15,00,000 be recovered from the sale of the properties owned by the convict in his own name or in the name of somebody else as Benamidars'. The petitioner in the present writ petition, Mansoor Ahmed son of S. Ahmad Ali Shah, moved an application before the Accountability Court on 8-8-2000, claiming that some of the properties ordered to be sold was owned by IA, which came to his lot as a result of family settlement. The application was dismissed on the ground, inter alia that the Court had already disposed of the main case and the same cannot be reopened. The petitioner thereafter filed the present writ petition the appeal filed by S. Zahir Shah against his conviction and sentence has been dismissed and thus the question of maintainability of the writ petition arose. (3) From the order sheet it appears that the counsel for the petitioner was confronted by different Benches with the question of maintainability of the writ petition in the light of the judgment of this Court in appeal filed by S. Zahir Shah convict, when the Court upheld the findings of the trial Court that the properties which the present petitioner claims to be his were owned by S. Zahir Shah. The
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case was adjourned by the counsel for one reason or another when on 4-7-2000 Barrister Jehanzeb Rahim,. Counsel for the petitioner, stated at the Bar that since he has been appointed as Advocate-General he would not be able to appear on behalf of the petitioner and thus nominated. Mr. Naveed Maqsood, Advocate to appear for the petitioner in the case. Since then Mr. Naveed Maqsood, Advocate, has been appearing for the petitioner. Another connected writ petition titled S. Fayez Ali Shah v. National Accountability Bureau (Writ Petition No,1119 of 2000) involving the same question and also arising out of the same Reference against S. Zahir Shah was clubbed along with the present writ petition and heard together. That petition was dismissed as not maintainable on 6-2-2003 and when the present writ petition came up for hearing immediately thereafter the learned counsel for the petitioner requested for adjournment as he wanted to move an application for the conversion of writ petition to an application under section 12(2), C.P.C. The counsel was aloe fortnight (sic) to move such an application has also not been moved since then it would not be necessary to comment upon the maintainability of such application had it been moved. Eventually, the writ petition was dismissed for non-prosecution on 20-5-2003. (4) It may be noted that the writ petition was filed on 10-9-2002, and the case had been adjourned time and again at the request of the counsel for the petitioner on one pretext or another. Reverting to the reasons given in the application for restoration of the writ petition seen in the light of the above narration of facts, the same are not acceptable. As earlier stated Barrister Jehanzeb Rahim, is still Advocate-General and he had stated at the Bar that he will not be appearing in this case for the petitioner on account of his appointment to that office since then Mr. Naveed Maqsood, Advocate, has been regularly appearing for the petitioner on six subsequent dates. As for the second reason that he was, busy before another bench the learned counsel has not given the title of the case nor the Bench before he was appearing. Even if that had been so he could have informed the reader of the Bench before which the case was fixed of his engagement before the Bench. He in fact never appeared before the Court on that 'date. The writ petition can, therefore, not be restored as the counsel for the petitioner has failed to furnish reasonable explanation for his non-appearance on the day on which the petition was dismissed. The application is, therefore, dismissed." 5. Reference No,2 of 2000 under section 18(g) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the NAB Ordinance) after completion of investigation along with the final report of the Investigating Officer was submitted in the trial Court for trial of the offence against the appellant under section 9(v)(vi) read with section 10 of the NAB Ordinance, on the allegations that during his tenure of service and his last posting as Director-General, Peshawar Development Authority (PDA) by misuse of his Authority and corrupt practices acquired movable and immovable properties worth Rs,2,15,00,000 beyond and disproportionate to his known source of income in the name of his wife Mst. Tasneem Begum with a fake name of Mst. Ruhi Zahir, Yasir Shah (son) and Benamidar Syed Manzoor Ahmed, thereby committed the offence under section 9(v) (vi) read with section 10 of NAB Ordinance. The allegations against the appellant, as contained in the report submitted in the light of the material collected during the investigation of the case are as under:-- "NAB Reference vide letter No,CES (NAB) U.O.No,7(4) 2000 DD (I&M) dated 29.1.2000 was received on February, 2000 for investigation. It was alleged that Mr. Zahir Shah professionally Engineer joined Government Service as SDO way back 1987 since 1975 he remained posted in PDA. He served t is Authority as D.G. PDA during 1990 to 1996. During: service Syed Zahir Shah has been involved in massive corruption and made property both movable and immovable of million of rupees. Following are the few aspects of his corrupt practices which during investigation have been proved against him. ' He purchased Plot No,96 Defence Colony Peshawar from one General Ghulam Hassan Khan son of Retired Caption Ghulam Nabi resident of Mulazai Peshawar, but cleverly instead of executing
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registered sale-deed, he obtained a general power of attorney on 18-11-1978 from vendor (late) General Ghulam ' Hassan Khan. He later on, transferred the said Bangalow through a consent decree in the name of his wife on 9-6-1981. It is not worthy that Syed Zahir Shah filed a cognovit in reply the suit of his wife and also got his statement recorded on 9-6-1981. Zahir Shah further got allotted an area of 200 Sq. Yards from the Cantonment Board in the name of his wife Mst. Tasneem Begum, in lieu of Rs,3,90,000 and thereaftei reconstructed a Bungalow purchased from Ghulam Hassan Khan. The value of the said Bungalow was assessed by Executive Engineer Zafar Ullah Khan after spot inspection, which came out Rs,30,34,000. ' Syed Zahir Shah purchased five Shops bearing Nos.CA-24/1, CA-25/1, CA-25/2/3B, CA-25/3/3 CA- 24/2/3/K-2 at Saddar Road Peshawar and instead of executing a regular sale-deed, he got executed a general power of attorney on 12-11-1976 from the vendor Shams Din and Ahmad Khan son of Haji Mir Bahadur Khan resident of G.T. Road Peshawar in his favour later on he transferred the said property vide registered sale-deed dated 15-4-1978 in favour of his wife Mst. Tasneem Begum and brother-in-law Syed Mansoor.Ahmad, Sindbad Hotel has been constructed after demolishing of above said property. The value of Sindbad Hotel has been assessed through Mr. Zafar Ullah Executive Engineer Pak PWD Rs,49,50,000. ' Similarly Property bearing old No,27 New No,91-C, CB-15/91/27 with Bala Khana which was rented out to United Bank Limited situated at Saddar Road Peshawar was purchased by Syed Zahir Shah in the name of his wife Mst. Tasneem Begum and Brother-in-law Mansoor Ahmed through a registered deed dated 29-10-1974. It is not worthy that the endorsement of Sub-Registrar would make it clear that the said sale consideration was paid by Syed Zahir Shah to the vendors in the presence of Sub-Registrar. The valuation of his building was assessed through Zafar Ullah Executive Engineer which came to Rs,11,80,000. ' Syed Zahir Shah realizing the facts that the above properties are disproportionate to his known resources got executed on exchange deed between his wife and his brother-in-law on 14-5-1999. ' There is yet another property located at Andorra Road in the shape of flats, the land underneath was purchased by Syed Zahir Shah in the name of his wife Mutation No,1855 dated 29-3-1978. He constructed two flats on the said land, the said flats were later on transferred by Syed Zahir Shah through his wife in the name of his two sons namely Syed Astir Shah and Sarwar Shah vide Mutation No,4292 dated 5-3-1984. The value of these flats has been assessed through Zafar Ullah Executive Engineer for Rs,15,00,000. S. Zahir Shah also owned a Quarter at Gharibabad worth Rs,2,00,000 presently Rs,15,00,000 approximately. He is also owner of Plot No,3-CN-3 Phase IV Hayatabad measuring one Kanal. He also got transferred 1110 square feet additional land. The valuation and additional areas comes out be 1,19,868. In the declaration of Asset Forms he has shown 40 Kanals on main Jehangira Swabi Road worth Rs,25,00,000 prize bond of Rs,2,50,000 owned by him and his wife, and Defence Saving Certificates of Rs,1,09,000. ' Record obtained from Motor Registration Office Peshawar reveals that PR No,88 Honda Civic Model 1994 is in the name of Syed Yasir Shah son of Syed Zahir Shah and the other Toyota Car No,D6725 Is in the name of Fayyaz Ali Shah son-in-law of the brother of accused. However, as per statement of three persons namely Driver Samandar Khan, Driver Wahid Gul and Guardian Feroz Khan who are PDA Employees and were working in the private house of Syed Zahir Shah accused for the last many years, Zahir Shah is the actual owner of both Cars. Statements of above persons have already been recorded in the Court under section 164, Cr.P.C. Their above referred statements clearly indicates that the actual owner of the cars is accused Syed Zahir Shah. ' Record of CNG Gas Kitt obtained from Luqman Shah Enterprises in respect of Car No,D6726 shows that the payment of Gas Kitt was made by accused Zahir Shah. Certificate and Receipt No,1116 dated 20-5-1999 is attached. Moreover, renewal and record of registration also shows that both the
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cars' Registration was renewed by Yasir Shah. However, Fayyaz Ali Shah stated that the Car No,D6726 is his property. Minimum value of Car comes out of Rs,8,00,000 approximately. ' Syed Zahir Shah has purchased Deposit Certificates worth Rs,25,00,000 from the Islamic Investment Bank, Main Branch Peshawar Saddar and Special Saving Certificate worth Rs,16,00,000 in the National Saving Centre Dabgari Peshawar in the name of his son Syed Yasir Shah, who is a student having no independent source of income. Syed Zahir Shah purchased National Saving Certificate worth Rs,3,00,000 in the name of his wife Mst. Tasneem Begum but she encashed it on 21-2-2000. ' Syed Zahir Shah and his wife have a Joint Locker No,187 in Grindlays Bank Peshawar. ' The wife of Syed Zahir Shah has opened US Dollar Account No,1131415352251 by a fake name of Mst. Ruhi Zahir while Pakistani Rupees Account No,1131524461035 in the fake name in Grindlays Bank Peshawar Saddar. ' The statement of account dated 2nd October, 1998 shows that Mst. Ruhi Zahir was having 52,882/23 US Dollars in her account which were withdrawn in July, 1998 while dated 14th September, 1998 about Pakistani Rupees shows that she was having Rs,24,32,000 in her account which were withdrawn in July, 1998. She was introduced to the bank at the time of opening of account of Syed Zahir Shah and her address has been shown 56 Defence Colony Khyber Road Peshawar Cantt. All these assets belong to Syed Zahir Shah. ' The evidence collected during the investigation makes it clear that Syed Zahir Shah through his dependents i,e, Mst. Tasneem Begum with fake name of Ruhi Zahir (wife) Yasir Shah (son) and Benamidar Syed Mansoor Ahmed are owners and in possession of movable and immovable property worth Rs,2,15,00,000. This movable and immovable property is disproportionate to his known source of Income and this property has been obtained by Syed Zahir Shah and his dependent wife son and Benamidar by misuse of authority of Syed Zahir Shah and through corrupt practices and thereby committed an offence under section 9(v) (vi) read with section 10 of NAB Ordinance, 1999. So Syed Zahir Shah, is being challaned under the above section of Law for trial. 6. The trial Court indicated the appellant in the light of the above- mentioned allegation as under:- "That during the tenure of your service as a government servant you collected/gained huge amount through corruption, dishonest and illegal means and with the ill-gotten income you purchased some land at Abdarra Road, Peshawar, Plot No,56 Defence Colony, Peshawar and also got allotted an area of 200 sq. Yards from the Cantonment Board Peshawar in consideration of Rs,3,90,000 in the name of your wife Mst. Tasneem Begum and thereafter constructed a Bungalow valuing Rs,30,34,000 over the said plot/area and two flats valuing Rs,15,00,000 at Abdara Road and also purchased a quarter worth, of Rs,15,00,000 at Gharib Abad Peshawar and one Plbt No,3-C/N-3 Phase IV Hayat Abad measuring one Kanal and additional land measuring 1110 sq. Feet; and You also purchased Building No,91-C, CB-15/91/27 UBL along with Balakhana valuing Rs,11,80,000 and five Shops Nos.CA 24/1, CA 25/1/3/A, CA 25/2/3/B, CA 24/2/3/K-2 Saddar Road, Peshawar in the name of your wife above named and Brother-in-law Syed Mansoor Ahmed and after demolishing the shops you got, constructed a hotel known as Sindbad Hotel valuing Rs,49,50,000. ' You also purchased Deposit Certificates worth Rs,25,00,000 from the Islamic Investment Bank, Main Branch Peshawar Saddar and a special saving certificate worth Rs,16,00,000 front the National Saving Centre Dabgari Peshawar and a Honda Civic car in the name of your son Syed Yasir Shah and a National Saving Certificate for Rs,3,00,000 in the name of your wife and a Toyota car in the name of Fayaz Ali Shah the son-in-law of your brother. ' That your wife had also opened US Dollar Account No,113141535225 having an amount of 52,000 US Dollars and another Account No,1131524461033 having Rs,24,32,000 by fake name of Mst. Roohi Zahir in Grindlays Bank Peshawar Cantt and that the said amount was withdrawn in July, 1998.
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' That in your annual assets statements you have declared only 40 Kanals Agriculture land valuing Rs,25,00,000, Prize Bonds worthy Rs,2,50,000 and Defence Saving Certificate worth Rs,1,09,000 while the total value of your movable and immovable assets is Rs,2,15,00,000 which is disproportionate to your known source of income and this fact also reveals that you have earned the above referred through corruption, dishonest and illegal means and thus you committed an offence punishable under section of NAB within cognizance." 7. The appellant pleaded not guilty to the charge and the prosecution in order to substantiate the accusation produced documentary and oral evidence. The prosecution examined (24) witnesses and abandoned the remaining witnesses. After close of prosecution evidence, the appellant was examined by the trial Court under section 342, Cr.P.C.. He denied and disputed the allegations and the accusation by explaining his position in view of the incriminating material adduced during the course of the trial. The answers to crucial questions formulated by the trial Court are reproduced hereinbelow:-- "Answer to question No,5.--- ' My wife is the owner of the property known as Sindbad hotel Peshawar Cantt: prior to 1-1-1985 and is getting rent of the property and is regular assessee of income tax and wealth tax. My son Yasir Shah received 500,000 from State Bank of Pakistan as prize money on his bond of Rs,500 as a result of the draw held on 1-4-1997 and my son Yasir Shah paid income tax of Rs,37,500 for the year, 1997- 1998. Besides that both my sons are receiving rent of their flats on Abdara Road, since 1995, which property was purchased by my wife prior to 1-1-1985 in the form of plot and she gifted the plot to both the sons, who constructed flats on the plot with the money of Rs,300,000 each gifted to them by their cousin and admitted by the income tax/wealth tax department after due verification. My wife is the daughter of Syed Ahmad Ali Shah a known industrialist who owns Abaseen Flour Mill, Pakistan Flour Mills also other business. Syed Yousaf Ali Shah (Late) the younger brother of Syed Ahmad Ali Shah was elected Member of the West Pakistan Assembly in 1965 and was then elected Senior Deputy Speaker of the said Assembly. His other brother Syed Ali Shah was Minister till 12-10- 1997 in N.-W.F.P. Government. ' Answer to question No,6.--- ' I have explained above that an amount of Rs,500,000 was paid to my son Syed Yasir Shah by State Bank of Pakistan at Peshawar on 10-5-1997 as a result of the draw of prize bond of Rs,500 held on 1- 4-1997, wherein the prize bond of Yasir Shah bearing No,Ay 024118 won the prize. Yasir Shah purchased Honda Civic Car No,PRU-88 against the sale of Rs,360,000 in August, 1997. The car was second hand already been used by the previous owner. Said Car is still in use of my son Yasir Shah. ' Answer to question No,7.--- ' Motor Car No,PRR-1347 is the property of Syed Fayyaz Ali Shah. The Car is registered in his name and was recovered from his possession by the Investigating Officer Fayyaz Ali Shah has his own business and is the owner of Shaji Motor Bargain Centre. ' Answer to question No,8.--- ' The question as drafted is not correct. Fitting CNG kitt with the permission and licence of the owner; would not make the owner of the car. ' Answer to question No,9.--- ' The saving certificates mentioned in question were purchased by my son Syed Yasir Shah from his personal savings plus the money of the encashment of the Foreign Currency Account and I had no contribution in the purchase of the Saving Certificates except to the extent of Rs,400,000 which was my saving from my salary and Agricultural/rental income. ' Answer to question No,10.--- ' It is in evidence that one of the Special Saving Certificate bearing No,K-029225 for Rs,500,000 was encashed by your son Syed Yasir Shah.
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' Answer to question No,11.--- ' The Saving Certificate mentioned in the question were purchased by Syed Yasir Shah from his savings plus savings of his brother who is abroad and who's rent and income is received by Syed Yasir Shah. I have neither purchased the Saving Certificate nor there is any contribution by me. ' Answer to question No,12.--- ' The Certificates referred in the question were purchased by my wife from her own saving and income: I had no contribution in these certificates. ' Answer to question No,13.--- ' The Certificates referred in the question were purchased by my wife from her own saving and income. I had no contribution in these certificates. ' Answer to question No,1 --- ' The Certificates were purchased by Yasir Shah from his savings plus his brother's savings plus the amount of the encashment of Foreign Currency Account. I contributed only Rs,5,00,000 from my savings of the salary and Agricultural plus rent income plus encashment of the Policy of State Life which matured on 28-6-1998. ' Answer to question No,15.--- ' Roohi Zahir is not the fake name but in fact is the nick/family name of my wife. In the family and even outside she known by this name. The Foreign Currency Account was opened by my wife with the Foreign Currency which she received from Fayyaz Ali Shah and Sardar Hussain Shah who are settled in USA. In the ID Card number is one and the same with both the names i,e, Roohi Zahir and Tasneem Begum. Similarly the name of the husband and the address is the same. ' Answer to question No,16.--- ' The land at Abdara Road was purchased by my wife Mst. Tasneem Begum in the year 1976 and ttie mutation was attested on 29-3-1978. Subsequently my wife gifted this land in equal share to two sons namely, S. Yasir Shah and S. Masroor Shah who constructed flats on the land each spending Rs,300,000 which was verified and accepted by the Tax Department i,e, Income Tax and Wealth Tax Department value given in the question is the assessment by XEN…
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