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Petitioner: KHALIQ DAD And Others VS Respondent: THE STATE And Others
Court Name: Balochistan High Court Judge(s): Amanullah Khan, Fazal-ur-Rahman Title: KHALIQ DAD And Others vs THE STATE And Others Case No.:Appeals Nos.32, 34 and 36 to 40 of 2001 Appeal No. 32 of 2001 Appeal No. 34
JUDGMENT
Reported As: 2003 YLR 209 Result: Sentence reduce Judgment JUDGMENT AMANULLAH KHAN, J.---By this common judgment we propose to dispose of Criminal Ehtisab Appeals Nos.32 of 2001, 34 of 2001 and 36 of 2001 to 40 of 2001 as all these appeals arise out of the same judgment. The National Accountability Bureau (NAB) tiled Reference No.1 of 2000 before Accountability Court No.1 against the appellants, details whereof as below:--- (1)Farooq Ahmed Chaudhry, ex-Cantonment Executive Officer (C. E. O), appellant in Criminal Ehtisab Appeal No.37 of 2001. (2)Haji Muhammad Bashir, ex-Land Superintendent, Cantonment Board, Quetta (C.B.Q.) appellant in Criminal Ehtisab Appeal No.39 of 2001. (3)Abdullah Durrani, ex-tracer C.B.Q., appellant in Criminal Ehtisab Appeal No. 34 of 2001. (4)Shabbir Kamran, Property Dealer, appellant in Criminal Ehtisab Appeal No.38 of 2001. (5)Mehrullah Khan Property Dealer, appellant in Criminal Ehtisab Appeal Nb.40 of 2001. (6)Khaliq Dad Property Dealer, appellant in Criminal Ehtisab Appeal No.32 of 2001. (7)Muhammad Ali Property Dealer, appellant in Criminal Ehtisab Appeal No.36 of 2001. The learned Accountability Court No. 1 convicted the appellants vide impugned judgment, dated 20-5-2001 as follows:-- "(1)Accused Farooq Ahmed Chauhdary is convicted and sentenced under section 10(a) for 5 years' R.I. And fine of Rs.3 crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case of non-recovery of fine through forfeiture of his properties then he will further undergo 1-1/2 years' R.I.
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(2)Accused Haji Muhammad Bashir is convicted and sentenced under section 10(a) for 14 years' R.I. And fine of Rs.19 crore. The amount of fine be recovered by way of Collector concerned. In case the fine does not recover he will further undergo for 4-1/2 years' R.I. (3)Accused Shabbir Kamran is convicted and sentenced under section 10(a) for 12 years' R.I. And fine of . Rs.7 crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine does not recover he will further undergo 4 years' R. I. (4)Accused Khaliq Dad Mandokhail is convicted and sentenced under section 10(a) for 5 Years' R.I. And fine of Rs.3 crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine does not recover he will further undergo for 1-1/2 years' R.I. (5)Accused Abdullah Durrani is convicted and sentenced under section 10(a) for 9 years' R.I. And fine of Rs.3 crore. The amount of fine be recovered by way of forfeiting of his immovable properties. In case the fine does not recover he will further undergo for 3 years' R. I. (6)Accused Muhammad Ali Hazara is convicted and sentenced under section 10(a) for 5 years' R.I. And fine of Rs.3 crore. The amount of fine be recovered by way of forfeiting of his immovable properties. Its case the fine does not recover he will further undergo 1-1/2 years R. I. (7)Accused Mehrullah Khan Kakar is convicted and sentenced under section 10(a) for 3 years' R.I. And tine of Rs.30 lacs. The amount of fine be recovered by, way of forfeiting of his immovable properties. In case the fine does not recover he will further undergo I year's R.I. (7-A)On the proof of charges of corruption they are barred from taking part in any Election nor can they hold any Public Office nor can they obtain loan from any financial institution for 10 years. The period of 10 years is to be counted from the date the convict is released after serving his sentence." Appellants have assailed their conviction by filing the aforestated appeals. 2. Briefly stated the facts of the case are that P.W.1 Rafique Ahmed Siyal filed complaint with Deputy Director, FIA Crimes Circle, Quetta alleging therein that complainant after assuming the charge of C.E.O has been instructed by his department to get an F.I.R. Registered against appellant Haji Muhammad Bashir and other accused persons who in connivance with some officials of the Cantonment Board and private respondents committed fraud in Cantonment Board, Quetta at a large scale by disposing of more than 500 plots through fake documents. The accused, through unfair practice have tampered with the Government documents, prepared fake lease deeds, altered site plans of housing schemes belonging to the Cantonment Board and disposed of the plots on fake deeds. On receiving the complaint (ExP/1-1), the FIA authorities entrusted investigation of the case to P.W.21 Habibullah Niazi who on the basis of complaint by P.W.1 lodged F.I.R. Exh.21-A on 15-5-1999. He recorded statements of P. W.1, took into possession copies of fake lease deeds vide Exh. P/3-A being Articles A/1 to A/2551 and during investigation it was revealed that appellant Farooq Ahmed Chaudhry, C.E.O., Haji Muhammad Bashir, Land Superintendent and Abdullah Durrani, Tracer had signed the said documents and had prepared site plans and further lease deeds were got registered on previous sanction orders issued from 1984 to 1986 and 1991 and it was further discovered that nature of the plots was changed by changing the given numbers. He also took into possession from the officials of the Cantonment Board documents Articles A/2552 to Articles A/2629 vide Exh. P/3-B. He also recorded their statements and found that fake plots were sold in Jinnah Town, Shehbaz Town and Gulistan Town and it was revealed that all those plots were sold on fake documents causing loss of RsA1 crores. He got specimen signatures of appellants Haji Muhammad Bashir, Farooq Ahmed Chaudhry and Abdullah Durrani before the Magistrate as the aforesaid appellants had signed fake lease deeds and he also obtained routine signatures of the aforestated appellants from Cantonment which vide Exh.P/7-A and the said documents are Articles A/1802 to A/2859 and he also sent the said signatures for comparison and expert report to the Hand--writing Expert and received reports Exp/8-A. During investigation he also got recorded confessional statements of Haji Muhammad Bashir, Mehrullah and Kamran Shabbir and also
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recovered documents lying in the house of Shabbir Kamran at his pointation vide Exh.P/22-A and said documents were placed on record vide Articles A/2996 to A/3763. He also received departmental enquiry against appellant Abdullah Durrani vide Exh.P/11-A and Enquiry Report being A/2884 to A/2900 and Enquiry Report against Farooq Ahmed Chaudhry was taken vide Exh.P/11-B being Articles A/2901 to A/2912. Riaz Hussain Shah, Secretary, Cantonment Board also produced documents which were taken into possession vide memo. Exh.P/5-A and same were placed on record as Articles A/2630 to A/2741. -Land Superintendent Rana Muhammad Azam also produced documents which were taken vide Exh.P/12-A being Articles A/2913 to A/2936. Sanction for proceeding against the appellants was obtained vide Exh.P/21 and final challan Exh.P/21-C was submitted before Special Judge Accountability Court-I, Quetta. Charge was framed on 11-9-2000 under section 9/10 of the Ordinance. It was alleged that appellants in connivance with each other had fraudulently disposed of 524 plots of C.B.Q. Situated at Jinnah Town, Shahbaz Town and Gulistan Town, Quetta and Government exchequer suffered loss of more than Rs.40 crores. The said charge was denied by the appellants. To substantiate its case the prosecution produced the following 21 witnesses: P.W.1 Rafiq Ahmed Sayal is complainant of the case. He sent Murasla Exh.P/1-A and further deposed that officials in connivance with each other tampered with the documents and in connivance with the outsiders i.e. Property dealers, disposed of the plots on forged documents. P.W.2 Jamaluddin Ansari deposed that he came to know about the forged documqUts prepared by the officials of the C.B.Q. Namely Farooq Ahmed Chaudhry, C.E.O., Haji Muhammad Bashir Land Superintendent, Abdullah Durrani, Tracer and Muhammad Younus, Clerk and thereafter fraudulently sold about more than 500 plots on forged lease deeds. He also explained the procedure for sale of the lands by the Cantonment Board. He further stated that first of all the site plan is prepared which is accordingly approved by the Board and then the same is sent to Ministry of Defence and after approval from Ministry of Defence, procedure as laid down for disposal of the plots is adopted. He further stated that rules and conditions are framed for disposal of each and every plot on auction basis and same is sold to the highest bidder. After acceptance of bids, sanction is obtained and thereafter lease deed is prepared in the name of highest bidder and ultimately C.E.O regularizes the sale-deed in the name of the highest bidder. He further pointed out that 393 plots were sold in Jinnah Town, 121 plots in Gulistan Town and 110 plots were sold in Shahbaz Town on forged lease deeds w.e.f. 1-1-1995 to 31-12-1997. He further stated that during this period, Farooq Ahmed Chaudhry was the C.E.O., Haji Muhammad Basheer was Land Superintendent and Abdullah Durrani was tracer and one Younus (deceased) was clerk. He further stated that in disposing of the aforementioned plots, rules and regulations were not followed. He further explained that the approved list of the Government was altered by adding new plots. For example Plot No.70 was changed into 70-A; likewise new lease deed in said plot was executed and approved list was changed and new names were added in the same. Lay out plan was amended. Commercial plots were changed into residential and vice versa and also plots which were earmarked for parks and green belts were changed into commercial plots and when fraud was revealed, Government regularized 468 plots by receiving additional amount from the purchasers. P.W.3 Abdul Sattar was posted as Land Superintendent from July, 1999 to August, 2000. He deposed that when he took charge, he came to know that about more than 500 plots have been sold on fake documents. He further deposed about the duties of Land Superintendent i.e. Land Superintendent looks after the land of the C.B.Q., receives daily mail and prepares lease deeds and also supervises transfer of properties belonging to the C.B.Q. He further stated that no proper lease deeds of the said plots was prepared nor premium was deposited in the Government treasury. He also delivered copies of the fake lease deeds to I.O. Habibullah Niazi vide Exh.P/3-A and said lease deeds were Articles A/1 to A/2551. He also handed over documents Articles A/552 to A/629 vide
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Exh.P/3-B which pertain to the approval of the plots and lay-out of the land. He further stated that lay-out plan of Jinnah Town was genuine and other layouts and plans of the other Twonships were forged in which amendments and cuttings were made. He further stated that fake building plan was prepared. P.W.4 Muhammad Israr remained as Overseer from July, 1998 to August. 2000. He stated that during his posting he came to know that the plots situated in Jinnah Town, Gulistan Town and Shehbaz Town were transferred on forged lease deeds and unauthorized amendments were made in the said plans. He further stated that by comparing the original and forged site plans, following amendments were revealed: Land earmarked for playgrounds, parks and green belts were changed into residential plots. Big commercial plots were changed into small commercial plots and some residential plots were changed to big housing plots. In Gulistan Town commercial plots were changed into small commercial units. In Gulistan Town, commercial plots were changed into residential and vice versa. All these alterations were made unlawfully. Alterations which were made in the site plans were placed on record as Articles A/2604 to A/2607 and aforesaid articles were given to I.O. Habibullah Niazi. He further stated that Article A/2604 is original lay-out plan of Jinnah Town which was passed vide resolution, dated 28th July, 1983. Article A/2605 is the alternate plan of Jinnah Town which was altered and unauthorized alterations were made in Jinnah Town and 393 plots were sold on forged lease deeds. Article 2606 pertains to altered and unauthorized lay-out plan of Gulistan Town wherein plots were sold on forged lease deeds. Article A/2607 and A/2607-A pertain to Shehbaz Town in which alterations were made and plots were sold on forged lease deeds. P.W.5 Riaz Hussain Shah was posted as Assistant Secretary, Cantonment Board from May, 1996 till December, 1999. He used to receive mail from the concerned Head of Department and used to send it to C.E.O. During his posting he observed that mail was sent directly to C.E.O. He complained about the said procedure but he was told that mail is being directly sent to C.E.O. On his own orders. He retained some documents which were given to Habibullah Niazi who take the same vide Exh.P/5-A being Articles A/2630 to A/2741. P.W.6 Munawar Ahmed Shahwani, Judicial Magistrate obtained signatures of acquitted accused Abdul Rehman's vide Articles A/2742 and A/2747 and specimen signatures of appellant Mehrullah vide Articles A/2748 to 2756 and also recorded confessional statement of appellant Mehrullah, vide Article A/2758 and sealed the same in an envelope Article A/2757. He obtained specimen signatures of appellant Farooq Ahmed Chaudhry vide Articles A/2759 to 2767 and also obtained specimen signatures of appellant Haji Muhammad Bashir vide Articles A/2768 to 2776 and also got recorded his confessional statement Article A/2778 and sealed the same in envelope Article A/2777. He also obtained specimen signatures of Shabbir Kamran Articles A/2779 to A/2790 and also recorded confessional statement of Shabbir Kamran vide Article A/2792 and sealed the same in an envelope Articles A/2791. He also obtained specimen signatures of appellant Abdullah Durrani vide Articles A/2793 to A/2801. P.W.7 Zaheer Iqbal was posted as Record Keeper in 1982. He handed over documents to Habibullah Niazi which were signed by appellants Farooq Ahmed Chaudhury, Haji Muhammad Basheer and Abdullah Durrani in routine. The same were taken into possession vide Exh. P/7-A being Article A/28 to Articles A/2859. P.W.8 Shaukat Ali, Handwriting Expert examined specimen signatures of the appellants and compared it to the signatures on the lease deeds and issued certificate Exh.P/8-A. He examined signatures of 388 lease deeds i.e. A/17 to A/2512 with Article A/1 to Article A/9 and specimen signatures on Article A/2793 to Article A/2801. Signatures of appellant Abdullah Durrani are Article A/1 to S.A.9 on Article A/2793 to Article A/2801. Signatures of acquitted accused Abdul Rehman's are
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on Article A/2768 to Article A/2776. Forged signatures of appellant Farooq Ahmed Chaudhry and also the acquitted accused Abdul Rehman's, Muhammad Younus Article A/2860 to Article A/2870 and thereafter report Exh.P/6-A was prepared. P.W.9 Haji Ali Akbar had purchased two plots in Gulistan Town through appellant Haji Muhammad Bashir for a consideration of Rs.l4 lakhs. He paid the amount through cheque and numbers of the plots are 340/438-B and 327/433-B. In this regard lease deeds Article A/1961 to A/1966 and A/1967 to Article A/1972. He further deposed that later on he-came to know that the plots have been sold on forged documents. Thereafter, Cantonment Board Authorities called him and asked him to pay an amount of Rs.3,60,000 which he did to get the plots regularized. P.W.10 Zahid Hussain also purchased plot in the name of his were in July, 1997 through Kamran Sahbbir, in Jinnah Town bearing No.249/159-B for a consideration of Rs.6,34,950. The plot was transferred in his favour vide sale-- deed Articles A/ 156 to A/ 161. Thereafter, he came to know that the same has been sold on forged documents, thus. Any authorities asked him to make payment of Rs.2,30,000 which he deposited in Askari Bank and thereafter he got the plot regularized in his favour. P.W.11 Muhammad Ramzan. Is marginal witness to Exh.P/11-A whereby by post Article Af2884 to Article A/2900 were received. Similarly other documents were received on 31-8-1990 which were taken into possession vide Exh.P/11-B being Article A/2901 to Article A/2912. P. W.12 Rana Muhammad Azam: He was successor in chair of Land Superintendent Haji Muhammad Bashir. He stated that since Haji Muhammad Bashir retired on 31-12-1997; therefore, he could not take proper charge from him and at that time deceased Muhammad Younus was also working in the said office and people used to come and deal with him. He further stated that he became suspicious of his meetings with different people. He further deposed that people asked about Plot Nos.36-B and 37-B situated in Jinnah Town in absence of Muhammad Younus and on checking he found that the said plots had not been registered in the record. Thereafter he placed photostat of the forged lease deeds before appellant Farooq Ahmed Chaudhry, C.E.O. And thereafter it was revealed that many plots had been sold on forged lease deeds. On proper enquiry it appeared that 521 plots had been sold illegally. He took over charge of his duties without any proper handing over, the documents were taken into possession vide Exh. P/ 12-A, by the I.O. P.W.13 Hassan Ali, stated that he purchased two plots in Gulistan Town from Muhammad Ali bearing Nos. 179 and 145/11. After one year, there were rumours that many plots had been sold on illegal and forged documents and thereafter Muhammad Ali was called in a meeting in the Imam Bargah where he stated that he had no knowledge about these forged documents and it was not his fault and thereafter he deposited that Rs.3,75,000 additionally for one plot and Rs.3,50,000 for the other plot which were regularized in his favour. P.W.14 Muhammad Ishaq stated that in 1996 Dr. Abdul Rehman's Raisani talked to him about the sale of plots. Thereafter he brought the said person to appellant Muhammad Ali, then Dr. Abdul Rehman's purchased six plots of 400 yards each and agreements were prepared. Numbers of the plots are 162-B, 163-B, 164-B, 170-B, 171-B and 172-B. He made payment of Rs.54 lakhs and also executed sale deeds and thereafter on enquiry the said sale --deeds were found to be forged documents which were taken into possession vide Exh.P/14-B being Article A/2937 to Article A/2941. P.W.15 Muhammad Farooq Qureshi stated that he and his father in 1997 purchased a plot from Khaliq Dad through Shahbaz Property Dealer in Jinnah Town. He further stated that his father wanted to transfer the same in his name for which he applied for NOC and thereafter it was transferred in his name. He also raised construction on the same. He further stated attached to his plot a plot in triangular shape was lying vacant. He also applied for the same and purchased it from the Cantonment Board, Quetta. He executed lease deeds Articles A/888 to A/892 and also got approved plan Article A/893. He further stated that his younger brother Muhammad Khalid Qureshi
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who is employed in State Bank also purchased a plot in Jinnah Town bearing No.246/156 for a consideration of Rs.9 lakhs. In 1997 he came to know that the plots were sold on illegal documents. After enquiry and on demand of any authorities, he deposited Rs.2,40,000 and his brother paid Rs.2,60,000 additionally. Thereafter plots were regularized in his and his brother's name. Copy of the said documents were taken by Habib--ullah Niazi vide Exh.P/15-A being Article A/2942 to Article A/2989. P.W.16 Muhammad Javed stated that he purchased a plot in his were name from Shehbaz Property Dealer from Haji Khaliq Dad for a consideration of Rs.8 lakhs being Plot No.117/34-B. He got water connection and prepared site plan which was approved by the C.B.Q. Office and the plot was earmarked by appellant Haji Muhammad Bashir and one Abdullah. He raised construction on the same and after completion he came to know that the said plot has been sold on forged documents. Thereafter he was asked to deposit additional amount of Rs.2,40,000 after which lease deed of the plot was regularized. P.W.17 Syed Muzaffaruddin in March, 1997 purchased a plot from Shehbaz Property Dealer in Jinnah Town for a consideration of Rs.4,50,000. The deal was done through appellant Haji Khaliq Dad and after four or five months he came to know that the plot was sold on forged lease deeds. He supplied copy of the lease deeds to I.O. Which was taken into possession vide Exh.P/17-A being Article A/2990 to Article A/2995. P.W.18 Muhammad Nasir purchased two plots from appellant Shabbir Kamran through Khurram State Agency being Plots Nos. 162/19-B and 39-B in Jinnah Town for a consideration of Rs.9,10,000. He got lease deeds executed being Articles A/602 to A/607 and Articles A/984 to A/989. He further purchased three plots in Jinnah Town bearing 278/48-C, 280/50-C and 15-C and the lease deeds of those plots were prepared as Article A/938 to Article A/943 and Article A/ 1027 to Article A/ 1032 and Article A/1185 to Article A/1196. Thereafter he stated that he came to know that the said plots were sold on forged documents and after paying additional amount, the same were regularized in his name. P. W .19 Ahmed Ali stated that he had purchased Plots Nos.36-B and 37-B after verification. He went to C.B.Q. And enquired from appellant Farooq Ahmed Chaudhry about the execution of said lease deeds Articles A/536 to 541 and Articles A/625 to A/630 to which after checking the same, Farooq Ahmed Chaudhry replied that since it is the any institution, things are genuine and same are legal. Thereafter he came to know that the lease deeds are forged documents. Thus after depositing additional amount same were regularized in his name. P.W. 20 Muhammad Shafi is marginal witness to Exh.P/20-A as during the course of investigation, appellant Shabbir Kamran got recovered forged documents i.e. Stamp papers, diaries, site plans etc. From his house. Thus, on his pointation Article A/2996 to Article A/3763 were recovered from his house which were taken into possession. P.W.21 Habibullah Niazi is investigation Officer. Appellants were examined under section 342, Cr.P.C. Wherein all of them denied their involvement regarding preparation of forged sale deeds. On conclusion of trial, appellants were convicted as mentioned above and all of them were disqualified from any public office and were debarred from contesting any election and obtaining any loan from any financial institution for ten years; hence this appeal. 3. Syed Ayyaz Zahoor, Advocate for appellant Farooq Ahmed Chaudhry contended that the prosecution has failed to produce any evidence on record against the appellant, as his signatures were forged by the other accused persons and he had no knowledge about the same and further no evidence has been brought against him regarding preparation of forged deeds. The learned counsel further contended that the learned trial Court has convicted the appellant on the confessional statement of the co-accused without any corroboration and further stated that it has
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come on record that appellant had signed some of the forged lease deeds which were not intentional but due to oversight and negligence which does not constitute any offence and finally contended that there was no corrupt practice regarding preparation of forged deeds and embezzlement of the amount and the report of the Handwriting Expert cannot be relied upon as it is a weak type of evidence. 4. Mr. Naeem Akhtar, Advocate for appellant Muhammad Basheer contended that charge regarding preparation of forged documents is baseless. Not a single iota of evidence has been produced to show that the appellant was involved for such corrupt practice. He further contended that documents were prepared by Clerk Muhammad Younus who had expired and actually he was the one who prepared all these forged documents. The learned counsel further contended that before passing of approved map, it was presented before a Committee consisting of Chairman, Vice-President, Cantonment Board, Councillors and Station Commander. He further contended that as the alleged loss occurred due to preparation of the forged document was recovered from the purchasers, thus no loss had been caused to the Government exchequer. 5. Mr. Kamran Murtaza, Advocate for appellant Abdullah Durrani contended that appellant was only tracer and he used to prepare documents on the directions of the senior officials; therefore, he is not responsible for the alleged forged deeds nor any evidence has come on record against him. He further contended that in fact it was Muhammad Younus, clerk of the office who had prepared all the forged deeds and managed to get them approved and further stated that during the course of investigation, forged…
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