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Petitioner: Mehr MUHAMMAD BAQIR VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Umar Ata Bandial, Ali Nawaz Chohan Title: Mehr MUHAMMAD BAQIR vs THE STATE Case No.: Criminal Appeal, No, 1574 of 2003, Date of Judgment:2006-01-24 Reported As: 2007 YLR 3303 Result: Sentence reduced.
JUDGMENT
JUDGMENT ' ALI NAWAZ CHOWHAN, J.--- This is the Criminal appeal under the NAB Ordinance against the judgment dated 27-7-2003, handed down by Rana Zahid Mehmood learned Judge Accountability Court-III under Reference No,6 of 2001; whereby the appellant has been convicted under section 10(a) read with section 9(v) of National Accountability Ordinance, 1999 and sentenced to 10 years' R.I. And with a fine of Rs,1,00,00,000. In case of default, he was to further undergo 2 1/2 years' R.I. He was given benefit under section 382-B, Cr.P.C. 2. This case has a historical background. Initially, when the matter was agitated before the trial Court he was convicted as now, but was awarded 5 years sentence with a fine of Rs,10,00,000 and his property in Chak No,72/RB, measuring 100-Kanals and 3-Marlas were ordered to be confiscated. The appellant preferred appeal and the judgment was set aside on 9-12-2002 and the case was remitted to the trial Court with a direction that the Benamidars should be provided an opportunity of hearing. 3. Two P.Ws who had already recorded their testimonies were recalled for purposes of examination by Benamidars. One of whom was examined because the other died in the meanwhile. 4. The following was the charge against the appellant:--- (i) That you acquired 4 Kanals, 6 marlas of land by way of gift through Mutation No,3104, dated 30- 5-1991, in village Kot Sazii Singh, Tehsil & District Jhang, in your name. (ii) That you acquired 2 Kanals of land by purchase through Mutation No,3160, dated 31-7-1991, in Village Kot Saai Singh, Tehsil & District Jhang, in your name. (iii) That you acquired 1 Kanal, 2 Marlas of land by purchase through Mutation No,3184, dated 24-8- 1991, in Village Kot Saai Singhy Tehsil & District Jhang, in your name.
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(iv) That you acquired 19 Marlas of land by purchase through Mutation ' 3197, dated 28-9-1991, in Village Kot Saai Singh, Tehsil & District Jhang, in your name. (v) That you acquired 10 Marlas of land by purchase through Mutation No, 3198, dated 28-9-1991, in Village Kot Saai Singh, Tehsil & District Jhang, in your name. (vi) That you acquired 1 Kanal, 7 Marlas . Of land by purchase through Mutation No,3268, dated 28- 10-1991, in Village Kot Saai Singh, Tehsil & District Jhang, in your name. (vii) That you and your dependent brother Muhammad Ramzan acquired 2/3rd share in 1 Kanal of land by purchase through Mutation ' No,2961, dated 30-11-1990, in Village Kot Saai Singh, Tehsil & District Jhang. (viii) You and your dependent brother Muhammad Ramzan acquired 3 Kanals of land by purchase through Mutation No,2990, dated. 22-1-1990, in Village Kot Saai Singh, Tehsil & District Jhang. (ix) That you and your dependant brother Muhammad Ramzan acquired 5 Kanals, 3 Marlas of land by purchase through Mutation No,4408, dated 14-3-1995, in Village Kot Saai Singh, Tehsil & District Jhang. (x) That you, your dependent brother Muhammad Ramzan and your niece Mst. Naseem Bibi daughter of Pahlwan, acquired 1 Kanal, 16 Marlas of land by purchase through Mutation No,4411, dated 14-3-1995, in Village Kot Saai Singh, Tehsil & District Jhang. (xi) That you acquired .15 Kanals, 6 Marlas of land in your name through Mutation No,3023, dated 27-2-1991 in Village Kot Saai Singh, Tehsil & District Jhang, showing fake exchange with your 2 Kanals, 1 Marla of land of nominal value. (xii) That you acquired 1 Kanal, 18 Marlas of land in your name through Mutation No,3131, dated 30- 6-1991, in Village Kot Saai Singh, Tehsil & District Jhang, showing fake exchange with your 10 Marlas of land of nominal value. (xiii) That you acquired 10 Kanals 1 1/2 Marla of land in your name through Mutation No,3148, dated 13-7-1991, in Village Kot Saai Singh, Tehsil & District Jhang, showing fake exchange with your 2 Kanals of land of nominal value. (xiv) That you acquired 13 Kanals, 16 1/2 Marlas of land in your name through Mutation No,3185, dated 24-8-1991, in Village Kot Saai Singh, Tehsil & District Jhang, showing fake exchange with your 12 Kanals, 1/2 Marla of land of nominal value. (xv) That you acquired 11 Kanals, 12 1/2 Marlas of land in your name through Mutation No,3186, dated 24-8-1991, in Village Kot Saai Singh, Tehsil & District Jhang, showing fake exchange with your 9 Kanals, 13 3/4 Marlas of land of nominal value. (xvi) That you acquired 9 Kanals, 18 Marlas of land in your name through Mutation No,4138, dated 12-6-1994, in Village Kot Saai Singh, Tehsil & District Jhang, showing fake exchange with your 1 " Kanal of land of nominal value. (xvii) That you acquired property No,4- YK, Madina Town, Faisalabad, measuring 10 Marlas, 29 sq, feet and constructed a bungalow on it total value of which is Rs, 18,73,566. (xviii) That you acquired Dera/Plot measuring 5 Marlas at Serial No,37 of Katchi Abadi Mouza Bishan Singh Wala, District Faisalabad, opposite the above-mentioned house of Madina Town and constructed a building, total value of which is Rs,5,16,750. (xix) That you acquired 2 Kanals, 6 Marlas of land by way of purchase in the name of your dependent wife Mst. Mumtaz Bibi,. In Village Kot Saai Singh, Tehsil & District Jhang, through Mutation No,4100, dated 18-5-1994. (xx) That you acquired 13 Marlas of land by way of purchase in the' name of your dependent wife Mst. Mumtaz Bibi, in Village Kot Saai Singh, Tehsil & District Jhang, through Mutation No,4101, dated 18-5-1994. (xxi) That you acquired 10 Marlas, 261 sq feet of land by way of purchase in the name of your dependent wife Mst. Mumtaz Bibi, in Village Kot Saai Singh, District Jhang, through Mutation No,4174,
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dated 30-8-1994. (xxii)That you acquired 8 Kanals, 4 Marlas of land by way of purchase in the name of your dependent wife Mst. Mumtaz Bibi, in Chak Koryyana Shumali, District Jhang, through Mutation No,400, dated 6-3-1996. (xxiii) That you acquired 15 Marlas of land by way of gift in the name of your dependant wife Mst. Mumtaz Bibi in Kot Saai Singh, Tehsil & District Jhang, through Mutation No,4130, dated 12-6-1994. (xxiv) That you acquired 8 Kanals, 18 Marlas of land in village Kot Saai Singh in the name of your dependant wife Mst. Mumtaz Bibi through Mutation No, 4131, dated 12-6-1994, by showing fake exchange with her T3 Marlas of nominal value. (xxv) That your acquired 86 Kanals of land in the name of your brother- in-law, Bashir Ahmad by showing exchange with 3 Kanlas, 17 Marlas in Village Kot Saai Singh, District Jhang through Mutation No,4102, dated 18-5-1994, which 86 Kanals you got transferred in the name of your mother-in-law Mst. Rehmat Bibi through Mutation of gift No, 4103, dated 28-5-1994 and thereafter the said 86 Kanals land was transferred to your wife Mumtaz Bibi through Mutation No,4137, dated 12-6-1994 falsely showing it to tie exchange but in fact it was a gift because no land was transferred to Rehmat Bibi in exchange and the transaction was shown as gift in Part Sarkar, thereby you acquired said 86 Kanals in the name of your dependent wife Mumtaz Bibi through such transactions: (xxvi) That you acquired 107 Kanlas, 4 Marlas of land in the names of your dependent minor sons Iftikhar- Rasool and Imtiaz Rasool in Village Koryyana Shumali, District Jhang by way of mutation of gift No,498, dated 7-8-1997. (xxvii) That you acquired 46 Kanals, 15 Marlas of land in the names of your dependent minor sons Iftikhar Rasool and Imtiaz Rasool in Village Koryyana Shumali, District Jhang, by way of mutation of gift No,500, dated 7-8-1997. ., (xxviii) That you acquired 26 Kanals, 4 Marlds land in the names of your dependent minor sons Iftikhar Rasool and Imtiaz Rasool in Village Koryyana Shumali, District Jhang, by way of mutation of gift No,506, dated 16-10-1997. A (xxix) That you got transferred land of above mentioned three mutations measuring 180 Kanals, 3 Marlas land of your sons Imtiaz Rasool and Iftikhar Rasool in Chak Koryyana Shumali District Jhang, to your dependent wife Mst. Mumtaz Bibi through mutation of gift No, 558, dated 15-8-1998. (xxx) That you acquired 41 Kanalas, 14 Marlas of land in Chak No,72-RB, District Faisalabad, in the name of you dependent wife Mst. Mumtaz Bibi through Mutation No, 1341, dated . 28-10-1999 fictitiously showing it to be exchange with 98 Kanals, 9 Marlas, 241 Sq. Feet in Mutation 6017, dated 30-10-1999, although said 98 Kanals, 9 Marlas 241 sq. Feet land is still in possession and cultivation of your brother Muhammad Ramzan. (xxxi) That you acquired 58 Kanals, 9 Marlas in the name of your dependent wife Mumtaz Bibi from one Muhammad Yaseen in Chak No,72-RB, District Faisalabad, through Mutation No, 1340, dated 28-10-1999, falsely showing it to be exchange .With her land measuring 188 Kanals, 7 Marlas in Chak Koryyana Shumali, District Jhang through Mutation No,642, dated 6-11-1999, and thereafter said 58 Kanals, 9 Marlas land along with above-mentioned 41 Kanals, 14 Marlas total measuring 100 Kanals and 3 Marlas of Village 72-RB, District Faisalabad, were got mutated by way of gift in the name of your dependent mother-in-law Mst. Rehmat Bibi through Mutation No, 1347, dated 28-11-1999. (xxxii) That you incurred a sum of Rs, 13,080. ' for education of your son Iftikhar Rasool during the period from 1-9-2000 to 31-1-2001. .(xxxiii) That you incurred a sum of Rs, 14,015 for "education of your son Imtiaz Rasool during the period from 1-5-2000 to 28-4-2001. (xxxiv) That you incurred a sum of Rs,55,606 for education of your daughter Saadia Rasool, during the period from 18-4-1993 to 28-12-2000.
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(xxxv) That you incurred a sum of Rs,42,311 for education of your daughter Saira Rasool, during the period from 12-11-1993 to 30-12-2000." 5. The main argument of the learned counsel for the. Appellant before this Court was that there was a failure on the part of the prosecution to establish as to what was the price of the assets acquired at the relevant 'time and as to what were the available source's of income and wealth of the appellant then. 6. That in matters of exchange of properties through gift or otherwise, it is usual with us to evaluate a property tentatively and this is not done on the basis of its market value. Likewise, in the cases of gift exact value of the property is not provided. 7. It was next contended that whereas, the total investment made by the appellant for the crucial period amounted to Rs,4,39,000, but the value of this investment was exaggerated beyond credulity and notionally so as to thrust upon the appellant the crime under reference. The valuation, according to the learned counsel for the appellant, 'was specific to the properties bearing at, Serial Nos. (ii) to (x) of the charge. Reliance has been placed upon the case of Farrukh Javed Ghuman v. The State (PLD 2004 Lah. 155). 8. Keeping in view the charge against Serial No,(xi), the learned counsel stated that the exchange which took place inter se the parties was a 'correct exchange and there was no fake exchange and the same position was taken with respect to charges against Serial Nos. (xii) to (xv). 9. 10. #TBS 11. 1 12. - 13. #TBE 14. On charge at Serial No,(xvii) learned counsel stated that this pertains to a domestic house and its market value was assessed by P.W.13 erroneously at Rs,18,73,566 and this includes the value of the land which was Rs,10,28,000, whereas this land purchased before the target date on 16-12-1984, which had to be excluded and only the value of structure had to, be added which amounted to Rs,8,45,566. The value at the time of construction ought' to be considered for the purposes of charge and not the estimated value because of escalation of the price later. The learned counsel states that the property as reflected at Serial No,(xviii) of the charge does not belong to him. He accepts the position with respect to the ownership and acquisition of the property as reflected against Serial Nos.(xix) to (xxiv). 15. The learned counsel for the appellant admits alienation through gift of 86-Kanals in favour of the appellant's wife at Serial No, (xxv), but states that this was a gift from the mother of his wife. This was, therefore, not accountable from his income. The position with respect to the transactions as reflected at Serial Nos. (xxvi) to (xxviii) of the charge is also accepted by the learned counsel. 16. Regarding charge at Serial No,(xxix), it was stated that this was beyond the scope of the Reference. Same was stated with respect to charges at Serial Nos. (xxx) and (xxxi) and the ground taken was that no third party was involved in these transactions and it was inter se the family. Regarding charges bearing Nos.(xxxii) to (xxxv), it is stated that these were outside the scope of the Reference as these were not mentioned in the Reference. 12. Learned counsel for the appellant while placing reliance on the case of Syed Khalil-ur-Rehman Chishti v. Abdul Majeed Khan (2004 SCMR 838) stated that the valuation as given by the prosecution side with respect to the transactions of the exchanges and gifts were conjectural and these cannot be, so dubbed on the basis of valuation as given by them because the persons, who were transacting, has no objection with respect to the valuation which was given to them with respect to each property and they never disputed this.
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13. It is stated that the assets of the appellants before 1985 were never kept in view while assessing his position. That he had fourteen shops which fact is accepted by the complainant of the case Haji Gulsher as well; that before 1985, he had also lands in Kot Sain Singh, Chak No,159/JB and in Chak No, 162/JB and these lands produced crops amounting to Rs,1,00,000 per year; that his rental income of 14 shops from 1-1-1985 to 31-12-2000 was Rs,13,44,000; that he also sold Plot No,18/5, B.Z. Satellite Town, Jhang and land measuring 14-Kanals, 14-Marlas in Chak No,162/JB. Thus his total income from all the sources i.e, rent income, salary income, sales of properties, income from agricultural produce etc. From 1-1-1985 to 2000 was Rs,31,44,844.63. 14. On the other hand, learned counsel for NAB has argued that the details of the properties which have been mentioned against most of the charges have been admitted by the appellant, wherein he has also stated the amount of money which was available with him for transactions but he failed to account for property which he has received through gifts and exchanges. But after all he must have spent some money on these. Neither he has given any explanation as to why the gifts were being given to him. 15. According to the learned counsel for the NAB there were fifteen such transactions which have remained was explained even today and the appellant as liable for action for giving no explanation and the basis on which he acquired these properties. In this connection he placed a lot of reliance on the statement of Ghulsher (P.W.9), complainant in this case while stating that his testimony remained unimpeached and there was nothing to suggest any inimical relation between him and Gulsher. In this connection reference is made to the following excerpts from the, statement of Gulsher:--- "Accused purchased 26 Kanals land in his name in Village 159/013. He got the said land exchanged with the land in Tehsil Sohawa District Jhelum. Accused is still in cultivating possession of land which was apparently got exchanged in Village 72/R13." "Normal price of tubewell irrigated land in Kot Saai Singh and Khuryana Shumali is between 2 1/2 to 3 lacs per acre, which is still more if situated near the road." "Mehr Shahamad was not well to do Zamindar but he was an average cultivator." "It is incorrect to suggest that fact accused purchased only 10 Kanals, 6 Marlas of land, got 34 Kanals, 17 Marlas in exchange and got another 4 Kanals, 6 Marlas ,in gift. Volunteered that in reality the accused purchased all pieces of land, as described by me above." 16. Learned counsel for the NAB has referred to the following excerpts from the statement of Ghazi Aman Ullah (P.W.16):--- "Accused had joined service as police constable on 15-4-1970 and he was serving as D.S.P. When he was arrested. I got prepared statement of total emoluments received by the accused during his service from 15-4-1970 to , 31-7-2000. Such statement given by PW-Ghulam Rasool is Exh.P.W.15/1, which was taken by me in custody through memo. Exh.P.W.15/2. I also got the statement of total TA/DA and arrears, of pay received by him during, service.' Such statement is Exh.P.W.16/4. Accused has two sons- namely Iftikhar Rasool and Imtiaz Rasool. He has two daughters namely Saadia Rasool and Saira Rasool. Mst. Mumtaz Begum is wife of the accused while Mst. Rehmat. Bibi is his mother-in-law. All the children, wife and Mother-in-law of the accused are his dependents, having no independent source of income. I got statement of tuition fee etc. Of said Iftikhar Rasool from P.A.F. Intermediate College, Lahore Cantt. Such statement Exh.P.W.4/1 was seized by me through memo. Exh.P.W.4/2. 1 seized statement of tuition fee etc. Exh.P.W.3/1-2 of daughters of accused from PW-Muhammad Afzal and took them in custody through memo. Exh. P.W.3/3. Shaukat Ali, Assistant Registrar, Government College, Lahore" delivered me statement of dues paid by said Imtiaz Rasool. I took such statement Exh.P.W.5/1 in my custody and prepared such memo. Of recovery P.W.5/2. The living
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style and general expenditures of the accused and his family were highly disproportionate to his income etc." "I also took custody of Klima gardwari Exh.P.W.1/34. All the -said revenue record was given to me by Patwari Aurangzeb. In fact it was shown a fake exchange, because the land of Wife of accused remained in possession of Ramzan brother of accused even thereafter." "Accused acquired property in Chak Khuryyana Shuman, Tehsil Jhang, through mutation Exh.P.W.6/1 to Exh.P.W.6/6. I seized the said record from Patwari Shaukat Hayat through memo. Exh.P.W.6/7. The transactions were falsely shown as gifts, whereas in fact they were sales, He exchanged the said land with the land of Y.Aseen in Village 72-RB through mutation Exh .P.W .7/1. He also got land of Bashir Ahmad exchanged with the land of Mumtaz Bibi in Village 72-RB through memo. Exh. P.W. 7/2. Thereafter, total land of Village 72-RB measuring 100 Kanals, 3 Marlas was got alienated from Mumtaz Bibi to her mother Mst. Rehmat Bibi through mutation Exh.P.W.7/3. All the said three mutations were given to me by Patwari Liaquat Ali, which I seized through memo. Exh. P.W.7/4." "I collected revenue record of land of accused Baqir from concerned patwaris. Different transactions such as gifts and exchanges were falsely shown but in fact they were all purchases. Copies of register Haqdaran and Khasragardwaris of the said pieces of land were also got prepared. I tender copies of mutation Exh.P.W.16/10, registers Haqdaran Exh.P.W.16/11 to Exn.P.W.16/12 and copies of Khasragardawris P.W.16/13 and Exh.P.W.16/14. (All the said documents admitted under objection that they were not filed with the reference and they are being produced Court today. It is also objected that some of the mutations are copies of part Patwar and not that of Part Sarkar). I also got prepared Khasragardwari of land of mauza Kot Saai Singh Exh.P.W.16/15 and Part Sarkar of mutations Exh.P.W.16/16 to Exh.16/54-57." "Volunteered that I recorded statements of witnesses and patwari and came to the conclusion that price of land in that Village in the year 1985 was about Rs.2 lass per acre." 17. The following excerpt has also been referred to the statement of P.W.1:--- "Square.No.103, Killa No. 11/2 of the said Khatta is in possession of owners and it comprises village Abadi and a hotel. Square No.103, Killa No.20/1 of the same Khatta, owned by the same persons, measures total 4 Kanals, 5 Marlas which comprises village Abadi Including shops, workshops etc. In the year 1997 onward. Shops are situated on the main road while workshop and service station- and are at the back. This khatta is 3rd acre from Chiniot Chowk." 18. According to the learned counsel for the NAB, the appellant has admitted in evidence the acquisitions of assets in his name and his family members; that the gift of 86-Kanals in Kot Saai Singh, District Jhang vide Gift Mutation No.4137, dated 12-6-1994 (Exh.P.W.1/25) was gifted by his mother Mst. Rehmat Bibi; that the said Rehmat Bibi obtained this land through her son vide gift deed Exh.P.W.1/24,, who obtained the said piece of land through 'exchange mutation vide Exh.P.W .1/23 after giving 3-Kanals and 17-Marlas to one Abdul Latif sio Abdul Rashid, that it is also admitted in evidence that measuring 107Kanals, 4-Marlas vide gift Mutation No .498, dated 7-8-1997 (Exh. P. W . 6/1) one Mst. Parana Kausar had gifted in the names of Iftikhar Rasool and Imtiaz Rasool; that one Muhammad Hussain Shah vide Gift Mutation No. 500, dated 7-8-1997 (Exh. P.W.6/2) gifted 46 Kanals arid 15 Marlas in the names of Iftikhar Rasool and Imtiaz Rasool and right after two months another person Arif s/o Ahmed vide Gift Mutation No.506, dated 16-10-1997 (Exh.P.W.6/3) gifted 26- Kanals and 4 Marlas in the names,of Iftikhar Rasool and Imtiaz Rasool: that one Muhammad Hayat through Gift Mutation No.400, dated 6-3-1996 (Exh. P. W. 6/4) gifted 8-Kanals and in 4-Marlas in the name of Mst. Mumtaz Bibi, wife- of the appellant: that the lands of above three gifts Mutations, i.e, 498, 500 and 506 vide further gifted by the some of the appellant through gift Mutation No,558, dated 15-8-1998 in the name of their mother. Mst. Mumtaz Bibi and that the persons who have gifted the property had no direct or indirect relationship with wife and sons of the appellant.
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19. Generally his arguments were that all the acquisitions of assets and the transactions effected by the appellants were never reported to the Department which was his legal obligation under the Punjab Conduct Rules, 1963. His next argument was that after having been pointed out the properties the prosecution had done its job under the relevant law and thereafter it was for the appellant to establish that he bona fidely purchased the properties out of his bona fide income which he failed. Thus, the requirements of Sections 14(c) of the NAB Ordinance were not fulfilled by him. He has ago not produced any evidence that gifts and exchanges were bona fide and correct. 20. The learned counsel for the appellant after conclusion of the arguments from the NAB addressed this Court for a few minutes and raised the following points in rebuttal:--- (a) That no presumption can be drawn w,ith respect to an offence under the provisions of Section 14(c) of the NAB Ordinance and that law requires that every -offence to be established beyond reasonable doubt. (b) The non-declaration of assets by a Government servant is a departmental wrong and not a penal offence. (c) That the property belonged to the appellant and he did not owe any explanation with respect to accretion of those properties rather, it was for the NAB to establish that the said accretion was through commission of offences. (d) That to dub the exchanges as fake was only a rhetoric and was never established. (e) That P.W.16 admits that he has not been able to calculate the profits accruing from his agricultural property or fourteen shops under reference or the sale price received by him of the properties sold. Likewise, meritorious prizes and awards given to him were not taken into consideration. (1) That he did not bother to record the statements of the parties to the transactions in which the appellant was involved for drawing his inference which he drew without such examination. 21. The argument of the learned counsel for the appellant that non-declaration of assets by a government servant was a pure departmental wrong and not a penal offence, is a strange argument. A government servant is required to make a declaration and explain how he acquired assets in case a question is raised against him. Even in a departmental investigation if he is unable to satisfactorily answer a question of bona fide purchase with bona fide funds, this matter becomes actionable under the penal law. Why will a government servant suppress declaring assets to his department on a yearly basis under the law if these are purchased bona fidely? The presumption is that some facts are suppressed so as to avoid an explanation and that this is done because there is no explanation and when there is no explanation, the presumption is that property has not been purchased with bona fide funds'and in case of a government servant an inference would be that these would be purchased through corrupt means. 22. It was also argued by the…
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