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Petitioner: Anjum Ageel Khan VS Respondent: National Police Foundation through its M.D., etc.
Court Name: Supreme Court of Pakistan Judge(s): Nasir-ul-Mulk, Ijaz Ahmad Chaudhry, Amir Hani Muslim Title: Anjum Ageel Khan vs National Police Foundation through its M.D., etc. Case No.:C.R.P.. Nos. 309 to 312, 320, 321, 323 to 327, 348, 349, 354 to 356, 361, 362, 364
JUDGMENT
Reported As: 2015 P.S.C. 1160 Result: Civil revision petition dismissed Judgment JUDGMENT IJAZ AHMED ,CHAUDHRY, J, Through these review petitions, the petitioners seek review of this Court's judgment dated 31.10.2013 passed in SMC No, 11/2011 whereby the said SMC was disposed of with the following directions:--- "1. The illegalities and irregularities in the procurement of land committed by the Board of Directors in connivance with Anjum Aqeel Khan are worst examples of corruption and corrupt practices and those who are responsible are liable be penalized in accordance with the law of the land and also to make the loss good by recovering the said loss through coercive measures. 2. All the plots, one, two or more than that which have been illegally and un-authorizedly allotted without entitlement, as discussed above, to any person, whether police officials, employees of NPF, other government officials or the civilians, businessmen, etc. or their dependents are declared to be illegally allotted and are thus cancelled forthwith. However, if they are interest to retain the plots in their names they are directed to pay price thereof according to the present market value within a period of two months from today 3. Anjum Ageel Khan or his shall be entitled to retain only those plots in lieu whereof he has given land or being affiliated and not otherwise, that too subject to payment of development charges according to the nature of the plots within two months, in case he or his nominee fails to pay the development charges within a period of two months, he shall not be entitled to retain them.
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4. Anjum Aqeel Khan is directed to fulfill his outstanding liability of 126 kanals of land as undertaken by him through agreement dated 27.5.2011 reproduced in para No, 31 and if he is not in a position to provide 126 kanals of land to the Foundations then he will pay present market price of 88 developed plots Hi accordance with 54:46 ratio formula of CDA and adopted by the Foundation within the period of two months from today, otherwise law will take its own course by initiating penal action as well as attachment of all his property, moveable or immoveable and that of his dependents. 5. The persons who are nominated for allotment of plots by Anjum Aqeel Khan without having corresponding land transferred in the name of NPF or who have filed miscellaneous applications against Anjum Aqeel Khan, shall not be allotted plots until and unless they are found legally entitled to such allotment by way of affiliation or through any other mode. They are at liberty to launch any sort of proceedings against Anjum Aqeel Khan, if so desired. However, it is clarified that the Foundation will not be responsible for any act or omission of said Anjum Aqeel Khan while nominating the persons for allotment of plot in the Foundation. 6. Any other shortfall of land is directed to be made up by Anjum Aqeel Khan of M/s. Land Linkers. 7. The Managing Director of the National Police Foundation js directed to ensure compliance with the aforesaid directions in letter and spirit within a period of two months from today and submit compliance report thereof to this Court, whereafter the Auditor General for Pakistan shall get the accounts of the Foundation audited as well as transactions of allotment of plots, affiliation of land as well as transactions of allotment of plots, affiliation of land and deposit of development charges with the Foundation and submit report to this Court within a month. He shall also submit audit report regarding receipts and payments by the Foundation from the date of its creation till date. 8. As a consequence of our above conclusion, it has been found necessary to initiate proceedings against Anjum Ageel Khan and other responsible persons, whose reference has been made in the preceding paras. Chairman NAB is directed to initiate the proceedings under the NAB Ordinance, 1999 as amended, promptly, so it may serve the deterrence of like minded people. It is further directed that the progress report shall be submitted by the Chairman NAB through the Registrar of this Court for the action taken by him within 90 days." 2. Mr. Makhdoom Ali Khan, learned counsel for the petitioner Anjum Aqeel Khan in CRP No, 309/2013 seeks review of the impugned judgment by contending that there are errors apparent on the face of record in the judgment under review which need to be corrected; that this Court in exercise of Suo Motu jurisdiction cannot side step and bypass the safeguards which are available to a party under the law in civil proceedings; that this Court during the pendency of the criminal proceedings could not make observations and record findings without recording of evidence as would seriously prejudice the right of the petitioner in the criminal proceedings; that by means of the judgment under review, right to fair trial as envisaged .under Article 10-A of the Constitution has been denied to the petitioner; that the petitioner cannot be declared as corrupt without recording of evidence as required under Qanoon-e-Shahadat Order, 1984; that in the presence of conflicting reports by the various authorities and without conducting a land audit, the petitioner cannot be directed to provide 126 kanals of land; that the cost of the land was actually fixed by the head of the Police Foundation, which was accepted by the petitioner, rather he paid the extra amount; that the petitioner was not afforded an opportunity to confront and cross-examine the author of the report i,e, former M.D. National Police Foundation; that this Court cannot record finding of fact in exercise of Suo Motu jurisdiction; that this Court has not taken into consideration the fact that criminal proceedings against the petitioner had already been undertaken by the Federal Investigation Agency (FIA) in which he was declared innocent and in this view of the matter, the Reference could not have been sent to NAB against the petitioner; that exorbitant liability has been imposed on the petitioner, which is against the facts and circumstances of the present case.
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3. Mr. Hamid Khan, learned counsel for the petitioners/ex-officials of National Police Foundation/Board of Directors in CRP Nos. 310 to 312 & 349 of 2013 has contended that the officials had acted in good faith and the alleged irregularities and illegalities cannot be attributed to the petitioners; that the petitioners cannot be held guilty by solely relying upon the report of Mr. Lafar Ahmed Qureshi, former M.D. of the National Police Foundation; that the definition of 'charitable purpose' as appeared in Section 2 of the Charitable Endowments Act, 1890 is non-exhaustive: that the news reporter Mr. Rauf Kalasra, on whose report the Suo Motu action was taken, was not legally bound to appear or to file his affidavit as provided in the Supreme Court Rules; that even he was not cross-examined by the petitioners and in such circumstances his statement could not have been relied upon by this Court. He further added that due process of law has not been adopted and right to fair trial as provided under Article 10-A of the Constitution has also not been given to the petitioners, that the petitioners while discharging their duties have exercised their powers in the best interest of the Foundation for making the housing scheme successful; that the Constitution of the National Police Foundation does not restrict its Board of Directors from allotting more than one plot to any person: that there is no legal restriction or bar against allotment of plots by the Committee of Administration as a reward for good service by its employees who fell within the definition of beneficiaries or allotment of plots to the relatives of the employees of the NPF; that under Section 18 of the NAB Ordinance, 1999, only the Chairman of NAB or the person duly authorized by him is empowered to take a decision regarding initiation of proceedings against anyone; that petitioners in the earlier investigation conducted by the FIA had been declared innocent by the Special Judge Central and holding them guilty amounts to violation of Article 13 of the Constitution which inter alia provides that a person could not be prosecuted or punished for the same offence twice and that the judgment under review is liable to be reviewed on the points mentioned above. 4. Learned counsel for the petitioners/allottees of the plots Syed Ali Zafar in CRP Nos. 320, 321, 323 to 327, 348 & 378 of 2013 has submitted that the petitioners had purchased the plots from National Police Foundation about 25 years ago when the area was totally undeveloped and barren and in fact the Foundation was not in possession of any land; that in spite of such conditions the petitioners paid the market price for the plots in the hope that one day they will be able to live in a peaceful environment; that to determine whether the petitioners had purchased the plots below market price, as a first step an inquiry should have been conducted as to what was the market price of the land in question in the year 1989 or at the time when the same was purchased, which admittedly has not been done and in the absence of such an inquiry this Court could not have decided that the petitioners had obtained plots at cheaper rates; that the judgment under review is based on conjectures and assumptions and not on any direct or indirect evidence and the same is violative of Article 10A of the Constitution and the law laid down by this Court regarding due process of law. Regarding the issue whether the public or other family members of a police officer could purchase the plots, learned counsel contended that there is no such law in which an individual is stopped from owning property and the Court in coming to the conclusion that the family members of a police officer were not entitled to purchase the plots, had acted unlawfully. According to him, the only question was as to whether the market value was paid or not. Learned counsel further added that none of the ingredients which are sine qua non for the exercise of jurisdiction by this Court under Article 184(3) of the Constitution are present; that the schemes in which petitioners have purchased the plots at market price were not for the welfare of the serving or retired persons in the Police Force but those were projects launched by NPF for the purposes of sale to the public and generation of income therefrom and that it was the income from this project that was to be used for the welfare of the serving and retired persons and that there was no restriction whatsoever in the terms and conditions that a family member of a police officer cannot
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apply for purchasing the plot in her own name. 5. Learned counsel for the petitioners in CRP Nos. 361, 362, 364 to 366, 373 of 2013 & 53 & 54 of 2014 and CMA No, 1059/2014 & petitioner in person in C.R.P. No, 377/2013 and learned counsel for the applicants in CMA Nos. 2334, 2338, 2343, 2347 & 2351 of 2014 have made almost similar prayers. According to them they were bona fide purchasers for consideration and their allotment has been cancelled without notice; that the petitioners/applicants were neither, heard nor were made party; that the petitioners have unblemished service record and they have never misused or have ever transgressed their authority; that the allotment of plots in their favor was through a transparent and lawful manner and was in accordance with the relevant rules which were in vogue that time and that after a considerable long period in a Suo Motu jurisdiction, the legality of the allotment cannot be disputed. 6.The case of the petitioners in other review petitions i,e, CRP Nos. 354 to 360, 363, 367 to 372, 374 to 376 of 2013, 31 to 33, 49 & 50 to 52 of 2014 and applicants in CMA Nos. 1063 & 2353/2014 who are subsequent purchasers is that they are bona fide purchasers for consideration after having undergone a thorough process of due verification and have paid market value without getting involved in any act of omission or commission for undue enrichment or malicious gain; that they have been condemned unheard; that they have acted in good faith; that in the absence of there being any ill-gotten gain, the petitioners/applicants have vested right that their proprietary rights in the properties with constructions thereon, if any, should be protected; that the judgment under review is silent about the fixation of the fair market prices presently prevailing; that if at all the amount is to be paid, then that must be paid by the original allottees who are established to have gained unlawfully or are the beneficiaries of undue enrichment. In view of the above, they have prayed for setting aside of the judgment under review. 7. Learned counsel for the National Police Foundation, on the other hand, has inter alia contended that the Housing Schemes were established on commercial basis; that it was not mentioned anywhere in the application form that other family members cannot apply; that the schemes were launched to generate funds as the Foundation was facing acute shortage of funds. 8. We have heard learned counsel for the petitioners/applicants as also learned counsel for the NPF and have deeply considered the submissions made by them. 9. It is on record that National Police Foundation has been established in the year 1975 under Charitable Endowments Act, 1890. The main purpose for its establishment was to provide relief to the poor police officials of throughout the country in the shape of medical, education, one time grant, artificial limbs, scholarships, dowry, vocational training centres etc. Word 'charitable purpose' has been defined in Section 2 of the Act which includes relief of the poor, education, medical relief and the advancement of any other object of general public utility, but does not include a purpose which relates exclusively to religious teaching or worship. As such the benefit could be given only to poor who are entitled to have share from charity. No one has argued that the NPF was not a charitable institution. We have noticed that the Committee of Administration of the NPF has framed rules according to their own choice irrespective of the scope of the Charitable Endowments Ac under which the charitable institution was formed aiming at welfare and benefit of poor and needy police officials of all over the country. The NPF has deviated from the basic purpose of charitable for which it was established. So far as the question as to whether the NPF was authorized to launch private housing schemes for the general public is concerned, it has been discussed at length in the main judgment that the Foundation could do so only for the help of beneficiaries but not for private persons or officers/officials of other departments under the garb of beneficiaries. Establishment and launching of private housing schemes for the general public is against the very object and aim of the Foundation. We have noted that only the influential persons have gotten the benefit of the schemes launched by the Foundation and the needy poor police officials have been deprived
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of their right. The argument that the schemes were launched only to generate funds is a belated argument just to save the skin. Such valuable plots have been squandered only to favor the higher police officers and other persons as also to their family members who were not at all entitled to the allotment of plots. Even the balloting was not done. If generation of funds was the main purpose, then the plots should have to be sold in open market so as to get maximum price. It was for these reasons that we have observed in the main judgment that "in the garb of such objectives of the National Police Foundation the administration of the NPF decided to enrich their own pockets and to dole away the plots to the higher police officials and other higher government officials for a consideration which was not in consonance with the market price prevailing at that time." We had also taken note of the fact that no criterion for allotment of plots was made and had observed in para 38 of the impugned judgment as under:-- "The Board of Directors of the Foundation while establishing housing schemes did not at all fix the criterion by making bye-laws/terms and conditions for allotment of plots in the housing schemes and divided plots to their nears and dears without there being any logic for such allotments. Even the Board of Directors did not frame any rules/bye-laws for allotment of plots to the general public and allotted plot to the persons of their choice without having published in the newspapers the policy or criteria regarding allotment of plots. The plots in the said scheme were also not put to auction in accordance with law by the Board of Directors, as such, the Board of Directors has been utilizing the foundation for their personal gains for the benefit of their nears and dears." ' It is correct that plots could be allotted to the officials/employees by the Committee of Administration but in all the process impartiality should be the most important factor, which as discussed above, was unfortunately found lacking in the instant process, which lea to initiation of Suo Motu proceedings. In the main judgment, a list has been provided according to- which more than one plot has been allotted to several police & government officials as also to other civilians. Some of the families were allotted five plots and some were allotted more than ten plots. In one case, an NPF employee was allotted 8 plots by the Foundation. There is a long list of police officials and even others who got two or more than two plots. Not only this, several plots have been allotted to family members of police officials. Some of the plots were even given at the rate of Rs, 100/-. If for the sake of arguments we admit that the schemes were launched only to generate funds, then why several plots were allotted on a cheaper price of Rs, 100/-. This clearly establishes that there was some male fide on the part of the Foundation. For ready reference the list is reproduced as under:--- Srl. No.Name & Designation Plot No. & sizeScheme Date of AllotmentCost of Land by NPF 1 . Mr. Abdul Qadir Haye, I.G. 379(50x90) E-11 6.4.2003 1130000.00 2 . Mrs. Shaheen Qadir Haye, wife of Abdul Qadir Haye380(50x90) E-11 9.3.2002 1130000.00 3 . Mr. Abdur Razzaque, I.G 480(50x90) E-11 4.7.1998 1130100.00 4 . Mrs. Farhat Razzaque, w/o Mr. Abdur Razzaque52(50x90) E-11 4.7.1998 565100.00 5 . Mr. Afzal Ali Shigri, I.G. 558(50x90) E-11 31.7.2002 463933.00 6 . Mrs. Mahlaqa Shigri, w/o Afzal Ali Shigri557(50x90) E-11 3.9.2001 1130100.0 7 . Miss Amna Rizvi, d/o Afzal Ali Shigri556(50x90) E-11 3.9.2001 1130100.00 8 . Miss Mahlaiqa Shigri, w/o Afzal Ali Shigri1027-B (35x65)O-9 4.11.2004 250100.00
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9 . Miss Amna Shigri, d/o Afzal Ali Shigri1026-B (35x65)O-9 4.11.2004 250100.00 1 0 . Mrs. Gulshan Iftikhar, w/o Iftikhar Rasheed, I.G.1011 (50x90) E-11 11.11.2002 1575100.00 1 1 . Miss Sheze Iftikhar, d/o Iftikhar Rasheed, I.G. E-11 10.5.2002 1575100.00 1 2 . Mr. Kaleem Iman, I.G. 661 (50x90) E-11 14.2.2002 1690100.00 1 3 . Mrs. Ayusha Hanif w/o Kaleem Imam, I.G.1041 (50x90) E-11 22.4.2003 1690100.00 1 4 . Mr. Muhammad Rafique Haider, I.G.485(50x90) E-11 4.7.1988 1130100.00 1 5 . Mrs. Nabeela Rafique Haider486(50x90) E-11 4.7.1998 1130100.00 1 6 . Rana Altaf Majeed, I.G. 470(50x90) E-11 4.7.1998 1200600.00 1 7 . Mrs. Salwa Rana 469(50x90) E-11 4.7.1998 1130100.00 1 8 . Saiyed Mohib Asad, I.G. 643- C(50x90)E-11 4.7.1998 393433.00 1 9 . Mrs. Nigar Mohib, wife of Saiyed Mohib Asad, I.G.722(50x90) E-11 22.8.2002 1575100.00 2 0 . Syed Abid Abbas, DSP 251(35x65) E-11 4.7.1998 565100.00 2 1 . Mrs. Romana Abid, w/o Abid Abbas, DSP774(35x65) E-11 11.11.2002 787600.00 2 2 . Mrs. Roman Abid, w/o Abid Abbas, DSP430-X (50x90)O-9 15.4.2003 500100.00 2 3 . Syed Abid Abbas, DSP 82(12x20) O-9 8.12.2001 56100.00 2 4 . Mr. Haq Nawaz Kiani, SP 807(35x65) E-11 14.2.2002 787600.00 2 5 . Mrs. Pakeeza Nawaz Kiani, w/o Haq Nawaz Kiani, SP674(50x90) E-11 14.2.2002 1575100.00 2 6 . Miss Hina Nawaz, d/o Haq Nawaz Kiani, SP540(50x90) E-11 4.7.1998 1130100.00 2 7 . Mr. Behram Tariq, I.G. 29(50x90) E-11 4.7.1998 1130100.00 2 8 . Mrs. Farida Sultana, w/o Behram Tariq, I.G.29(50x90) E-11 4.7.1998 1130100.00 2 9 . Ch. Muhammad Akmal, Inspector546(50x90) E-11 4.7.1998 1130100.00 3 0 . Mrs. Farzana Akmal, w/o Ch. Muhammad Akmal, Inspector545(50x90) E-11 4.7.1998 1130100.00 3 1 . Mr. Wajahat Latif, I.G. 476(50x90) E-11 4.7.1998 1200600.00 3 2 . Mr. Ahmad Latif, Banker, s/o Wajahat Latif477(50x90) E-11 4.7.1998 1200600.00 3 3 . Mr. Mohammad Nawaz Malik, I.G.632-F (50x90)E-11 14.2.2002 1575100.00 3 4 . Mrs. Surriya Nawaz, w/o Mohammad Nawaz Malik632-G (50x90)E-11 20.2.2002 1575100.00 3 5 . Mr. Naseer Ali, Banker, s/o Muhammad Nawaz Malik2112- A(50x90)O-9 11.9.2003 500100.00
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3 6 . Mr. Arif Hussain, Accountant, s/o Muhammad Nawaz Malik2093-T (50x90)O-9 11.9.2003 500100.00 3 7 . Mr. Manzoor Ahmad, I.G. Sub-1068 (50x90)E-11 1.12.1999 1200600.00 3 8 . Mrs. Qaisar Sultana, w/o Manzoor Ahmed670 (50x90) E-11 1.12.1999 1130100.00 3 9 . Ch. Manzoor Ahmad, I.G. 400-B (35x65)O-9 7.10.2011 251000.00 4 0 . Mr. Zaheed Waheed Butt, Brig.676(50x90) E-11 29.3.2002 1575100.00 4 1 . Mrs. Zille Huma Dar, w/o Zahid Waheed Butt, Brig645(35x65) E-11 29.3.2002 105400.00 4 2 . Mr. Muhammad Afzal Rana, Lt. Col.708(50x90) E-11 20.2.2002 787600.00 4 3 . Miss. Sadia Afzal Rana, d/o Muhammad Afzal Rana1035(50x90) E-11 11.11.2002 1500350.00 4 4 . Agha Baqir Ali, Foreign Service Officer871(50x90) O-9 4.4.1991 240100.00 4 5 . Agha Sibtain Raza s/o Agha Baqir Ali873(50x90) O-9 4.4.1991 240100.00 4 6 . Mr. Amjad Bashir, s/o Mr. Muhammad Bashir1845-V (50x90)O-9 26.2.2005 958100.00 4 7 . Mian Imtiaz Bashir, s/o Mr. Muhammad Bashir1845- H(50x90)O-9 25.2.2005 500100.00 4 8 . Mr. Shaukat Aziz, Ex-Prime Minister411(50x90) E-11 20.8.2002 1105100.00 4 9 . Mr. Shatikat Aziz. Ex- Prime Minister357(50x90) O-9 7.10.1990 245100.00 5 0 . Mrs. Rukhsana Aziz, w/o Shaukat Aziz, Ex- P.M.358(50x90) O-9 7.10.1990 245100.00 5 1 . Mr. Israr Ahmed, I.G. 594(50x90) O-9 22.10.1990 245100.00 5 2 . Mr. Israr Ahmed, I.G. 286(50x90) E-11 4.7.1998 1105100.00 5 3 . Mrs. Maimoona Israr, w/o Israr Ahmed593(50x90) O-9 22.10.1990 240100.00 5 4 . Mr. Sagheer Ahmed, PIA 143(40x60) O-9 10.12005 1066880.00 5 5 . Mrs. Shaista Sagheer, wife of Sagheer Ahmad76(12x20) O-9 19.12.2002 106780.00 5 6 . Malik Nazir Ahmad, Banker 34(15x30) O-9 28.12.1999 104100.00 5 7 . Mrs. Nasim Akhtar Naz, w/o Malik Nazis Ahmad33(15x30) O-9 28.12.1999 101100.00 5 8 . Syeda Farzana Hussain, w/o Syed Shaukat Hussain130(15x30) O-9 28.10.2002 200100.00 5 9 . Syeda Nauman Batool, d/o Syed Shoukat Hussain122(15x30) O-9 28.10.2002 200100.00 6 0 . Mr. Sulran Azam Temori. IG 718(50x90) E-11 14.2.2002 1665100.00 6 1 . Mr. Sultan Azam Temuri, DIG 88(12x20) O-9 14.12.2001 56367.00
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6 2 . Mrs. Rabia Temuri, w/o Sultan Azam Temuri160(15x30) O-9 4.11.2003 200100.00 6 3 . Mr. Siraj Din, Businessm an, s/o Muhammad Din52 (12x20) O-9 18.7.2002 53434.00 6 4 . Mr. Naik Bakht s/o Muhammad Din53(12x20) O-9 18.7.2002 43434.00 6 5 . Mrs. Bilqees Akhtar, w/o Ghulam Ali121(15x30) O-9 18.10.2002 200100.00 6 6 . Miss Batool Akhtar, d/o Ghulam Ali113(15x30) O-9 18.10.2002 200100.00 6 7 . Mr. Ahsan-ul-Haq s/o Abdul Aziz109(15x30) O-9 19.12.2002 200100.00 6 8 . Mr. Rizwan-ul-Haq s/o Abdul Aziz108(15x30) O-9 19.12.2002 200100.00 6 9 . Mr. Arif Qayum, Businessm an148(1500) O-9 17.8.2011 200100.00 7 0 . Mrs. Najma Arif, w/o Arif Oayyum147(15x30) O-9 18.6.2003 200100.00 7 1 . Mr. Humayoun Javaid, @ Director FIA184(12x20) O-9 22.2.2010 1491000.00 7 2 . Mr. Humayoun Javaid, OD Director FIA185(12x20) O-9 22.2.2010 1491000.00 7 3 . Mr. Fazal Mehmood Malik. Businessm an187(12x20) O-9 22.2.2010 1521000.00 7 4 . Mr. Fazal Mehmood Malik, Businessm an188(12x20) O-9 22.2.2010 1521000.00 7 5 . Mr. Zaheer Mahmood, Businessm an, s/o Mahmood Khan2093-13 (50x90)O-9 8.3.2003 100.00 7 6 . Mr. Mudasser Sheraz. s/o Mehmood Khan2093-C (50x90)O-9 8.3.2003 100.00 7 7 . Mrs. Ghulam Sughra, w/o Mr. Muhammad Bashir Shakir, Captian119-K (50x90)O-9 31.3.2003 500100.00 7 8 . Mr. Javead Bashir, s/o Muhammad Bashir Shakir119-L O-9 31.3.2003 500100.00 7 9 . Mrs. Zahida Parveen, w/o Ch. Imtiaz Ahmad119-G (50x90)O-9 1.4.2003 500100.00 8 0 . Miss Zebra Imtiaz, s/o Ch. Imtiaz Ahmad119-H (50x90)O-9 1.4.2003 500100.00 8 1 . Syed Muhammad Shahwaze Abbas Sherazi, s/o Syed Safeer Hussain Shah Sherazi, DSP698-L (50x90)O-9 25.2.2003 100.00
8 2 . Syeda Saffia Kazmi, w/o Syed…
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