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Petitioner: Rashid Minhas VS Respondent: National Accountability Bureau through Chairman, JUDGMENT
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani, Fiaz Ahmad Anjum Jandran Title:Rashid Minhas vs National Accountability Bureau through Chairman,
JUDGMENT
Reported As: 2021 YLR 1072 Result: Appeal dismissed Judgment JUDGMENT MOHSIN AKHT AR KAYANI, J.---Through this single judgment, we intend to decide the captioned criminal appeals and writ petition arising out of judgment, dated 13.07.2018, passed by the learned Accountability Court-II, Islamabad in Reference No.13/2014 (State v. Rashid Minhas etc.), whereby Rashid Minhas (appellant) has been convicted and sentenced in following manner: "For what it has been discussed above, this Court is firm in its view that prosecution has successfully established beyond shadow of doubt that accused Rashid Minhas has committed offence unde r section 9(a) (ix) of NAO, 1999 and 1 do hereby convict him under section 10 of the NAO, 1999 and accordingly sentenced him to 14 years R.I. with fine of Rs.14 Crores. The amount of fine shall be recoverable as arrears of land revenue. NAB is also directed to trace the properties of the accused Rashid Minhas made by him through corruption and corrupt practices of this scam and confiscate it in favor of state. Convict Rashid Minhas forthwith will cease to hold public office, if any, held by him and further he shall stand disqualified/debarred for a period of ten year to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as the member or representative of any public body or any statutory local authority or in service of Pakistan or of any province, he shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances or other financial accommodation by any bank or financial institution owned or controlled by the Government for a period of ten years from the date of conviction. The convict shall be entitled to the benefit of section 382-B, Cr .P.C. for the period he has already undergone."
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2. Brief and consolidated facts are that on receiving a number of complaints from general public against Rashid Minhas (appellant ), the Director General, National Accountability Bureau, Rawalpindi, on 26.02.2015, authorized an inquiry to Farzana Parveen and PW-276 Shahzad/Asst Director to be conducted against the appellant. During the inquiry , it revealed that FIR No.279, dated 12.08.2013, under sections 420, 406, 468, 471, 291, 109, P.P.C., Police Station RA Bazaar , Rawalpindi has also been registered by some of the complainants against the appellant and Abdul Rehman/acquitted accused (Respondent No.2), who was already arrested in that case. On moving application under Section 16-A of the NAO, 1999 by the NAB authorities the case was transferred from the Court of Area Magistrate, Rawalpindi to Accountability Court, Islamabad. The inquiry was converted into investigation on the allegation of corruption and corrupt practices and the investigation was assigned to PW-276 Shahzad, Assistant Director/Deputy Director . Total 276 complainants have turned up and produced different documents relating to investment of their amount/hard earned money with the appellant and Respondent No.1, which were taken by the Investigating Officer through different recovery memos. An advertisement about the scam was also published in different dailies, whereby some other complainants from Karachi also approached the NAB authorities with their respective claims and documents. Precisely , allegation against the appellant is that he with mala fide intention, dishonestly and fraudulently induced the public at large to invest their amount in the Mudaraba business from a period starting from 2011 to May, 2013, as the appellant impersonated himself as Director/Sub-Director of Elixir Group of Companies and Capable Asia (Pvt.) Ltd., whereas, evidence brought on record by the SECP establishes that appellant had no connection whatsoever with the said two companies, even said companies were not authorized from Mudaraba/Musharaka evidence, however on inducement of appellant many affectees had made investment in the name of Mudaraba/ Musharaka agreements with the hope to earn profit under Islamic scheme of businesses. The approximate amount received by the appellant through cash and banking channel summed up to Rs.144,10964 Million. After recording of evidence, the learned trial Court, vide impugned judgment dated 13.07.2018, convicted the appellant as referred above and acquitted Respondent No.1 of the charge. Hence, the captioned criminal appeals and writ petition. 3. Learned counsel for appellant at the very outset contends that the appellant does not dispute the conviction awarded, rather prayed for reduction of his sentence on the ground that he had already served 09 years and 06 months in jail i.e. w .e.f. 28.1 1.2013 and as such, he had served major portion of his sentence. 4. Conversely , learned Special Prosecutor NAB contends that Abdul Rehman (Respondent No.2/co-accused) was acquitted of the charge by the learned trial Court while ignoring his connivance and sharing of the crime proceeds, who is otherwise liable for conviction; that overwhelming evidence brought on record in shape of 276 PWs, including the affectees together with the financial experts of SECP and banks, left nothing in favour of the appellant and Respondent No.1 to take a lenient view, whereby public at large has been deprived of their hard earned money for the illegalities and fraud committed by the appellant and Respondent No. 1 . 5. Arguments heard, record perused. 6. Perusal of record reveals that the appe llant as well as Respondent No.1 were tried by the learned Accountability Court in Reference No.13/2014 on the complaints of approximately 300 individ uals, who have allegedly been deprived of their hard earned money to the tune of Rs.144.10964 Million invested in the name of Islamic financing i.e. Mudaraba/Musharaka business having been operated by the appellant. One of the prosecution witnesses, Saeed Ahmad, lodged FIR No.279, dated 12.08.2013, under Sections 420, 406, 168, 471, 291, 109, P.P.C., Police Station Raja Bazaar , Rawalpindi against the appellant, which led to the arrest of accused persons. During the course of inquiry by the NAB authorities, the NAB filed an application under Section 16-A of the NAO, 1999, whereby the case had been transferred from the Court of Area Magistrate, Rawalpindi to the Accountability Court, Islamabad to be tried on the allegations of corruption and corrupt practices. 7. In essence, private individuals/ affectee s i.e. PW-2, PW-7, PW-9 to PW-266, PW-271 and PW-272, strengthened their claims by producing different documents, agreements and receipts, which have further been supported by official witnesses i.e. PW-267 Nasir Ahmad Shah being Moharrar . P.S. Raja Bazaar, Rawalpindi, PW-268 Amir Hussain being Investigating Officer of case FIR No.297/13, PW-269 Zubair Altaf being Financial Expert of NAB, Rawalpindi for analyzing the bank record, PW-270 Muhammad Arshad being recovery witness of motorcycle
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recovered from the house of respondent No. 1, PW-273 Mazhar Iqbal as well as PW-274 Wajahat being the witnesses of seizure memo of the relevant record, PW-275 Mustansar Hussain being associate of the Investigating Officer and PW -276 Shahzad being the Investigating Of ficer of the case in hand. 8. In order to straighten out the case, it is necessary to consider the status of agreement at first stage, therefore, only one document/agreement i.e. at Page-968 (Paper Book Part-3) is to be considered for being identical to rest of the agreements available on record. The document/agreement is reproduced as under: 01 April, 2013 AGREEMENT BASED ON MUSHARKA A/C# 34-1 1 The state that investor S/o W/o Die: Bearing NIC#:Muhammad Shafiq Muhammad Saddique 37402-0975607-3 Phone# Residence of: 0323-5274526 Kaka post office Bhora Hayat Teh.Kahota Dist Rawalpindi. Hand over a sum of PKR 45000 Only/- to director of ELIXIR Group of Compa nies Pvt. Ltd. for the period of 3 (three) years on investment based on Musharka also this agreement cannot be cancelled by any single party without informing and willingness of any other party . Following condition will also be applied 1. The first party (investor) is willingness to invest an amount of PKR 45000 Only/-equivalent to the amount in words Four Lac Fifty Thousand Only . 2. Profit will be divided in the ratio of 50% '(fifty present). 3. The 1st party (investor) will start receiving profit after 1 (one month) of the agreement date. 4 From the date of this agreement (writte n on the stamp paper issued by Governm ent of Pakistan) all the previous agreement will be considered as cancelled. 5. As investment has been made in PKR currency so in future all the matters between both the parties related to profit and loss will be settled in the same currency . Agreement Signed by 1st Party Agreement Signed by 2nd Party (Investor) (SUB-DIRECT OR OF ELIXIR GROUP OF COMP ANIES (PVT .) LTD.) Investor Name:- Signature:-Muhammad Shafiq Rashid Minhas Signature: NIC# 37101-7231465-7
NOK and Designed by 1st Party NOK and Designed by 2nd Party Nosheen Akhtar NIC # 37402- 0902672-2Abid Hussain NIC# 37101-5758038-7 Resident of: Kaka post office Bhora Hayat Teh.Kahota Dist RawalpindiResident of: Mohalla Bilal Colony Dhamiyal Road Rawalpindi Cantt Tehsil and Dist Rawalpindi. Witness Witness Wasim Rauf Signature:-NIC# 37405-4266651- 9Abdul Rehman Signature:-NIC# 37405-0861 107-7
9. The above referred document as well as receipts available on record confirm that the appellant while impersonating himself as Director of Elixir Group of Companies received huge capital from majority of the individuals on the inducement of making investment in Mudaraba business in the name of Islamic financing. This aspect proves that the appellant is a key person in the entire scam and all the witnesses are consistent on a question of payment to the appellant.
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10. Regardless of settled position, prosecution has to establish their own case as primary onus is upon the prosecution to discharge the burden to fulfill the requirement of law for the purpose of conviction and as such, the availability of overwhelming evidence is confidence inspiring and links the appellant with receiving of huge capital on his inducement from the public at large, however the technical experts i.e. PW-1 Saila Jamshed and PW-211 Muhammad Usman Mirza of SECP produced the record of Messrs Capable Asia (Pvt.) Ltd., Analyzer Housing (Pvt-.) Ltd. and Elixir Trading (Pvt.) Ltd. (Exh.PW21 1/1-5), wherein appellant has not been referred as Director of any of said companies, hence the initial allegation referred against the appellant has been substantiated by the private witnesses, but on the other hand the record negates the version of appellant, who impersonated himself to be the Director of said companies in order to receive investment from individuals through fraudulent means. 11. Similarly , PW-215 Muzaf far Abbas, PW-230 Muhammad Adnan Feroz, PW-265 Muzammil Subhani, PW-228 Yasir Rehman Siddique, PW-266 Imran Siddique and PW-254 Muhammad Jave d Rafique, who are bankers by profession, have produced number of banking record confirming that the appellant has maintained different bank accounts having several debit and credit transactions. The documents reflect that appellant is a religious teacher at Jamia Farooqia, Rawalpindi. 12. Similarly , PW-52 Zahid Mehmood, Stamp Vender , produced different pages of the register pertaining to year 2012, whereupon Mudaraba agreement of the Elixir Group of Companies and Capable Asia (Pvt.). Ltd. was issued to appellant. 13. While recording statement of appellant under Section 342 Cr.P.C. on 21.02.2017, he has been confronted with all the documentary evidence as well as oral evidence in 268 questions, whereby he put forward his defence in the following manner: i. I did not instigate anyone for the purpose of investment in Elixir/Capable Asia, neither did 1 play any fraud nor misrepresented for the purpose of investment. ii I was requested to deposit the amount in the companies, which was duly done. iii. It is correct that I executed the agreement, however this agreement and anothe r like it were standard in nature and were provided by Abdul Rafay , Director of Elixir Company . iv. I was merely an employee/ commission agent for the aforementioned companies. 14. The appellant has also recorded his own statement in terms of section 340(2) Cr.P.C. in order to prove his case, which is reproduced as under: "Statement under section 340(2), Cr .P.C of accused Rashid Minhas son of Fida Hussain: On Oath, It is stated that I completed my F.sc on 1988 and simultaneously started the course of Darse Nizami which was completed in the year 2005 from Dar ul Aloom Karachi. From 2005 till 2013, 1 was teaching the course of Darse Nizami at Dar ul Aloom Farooqia Rawalpindi. The course included Arabic gramm ar, Islamic jurisprudence, Arabic Literature and others. One of the teachers at our madrissa situated at Rawalpindi namely Qazi Abu Bakar Randawa and another namely Molana Shahid Aziz were associated with a company being run in the name of Friendship Telecom. I acquired knowledge about their association with afore mentioned company during casual discussion over a course of time. The information acquired by me from such discussions revealed that the company was dealing in PCO Sets, installment thereof and ancillary matters related therewith. At the said time, I was also informed due to my close proximity with teachers as we were teaching in the same institution that the company wants to expand its business in Malaysia as well and initiate other ventures. I was informed by Qazi Abubaqar that the owner of the company studied with him at the same madris sa and on his instigation Qazi Abubaqar had invested his own amount along with some others in the company . One namely Shahid Aziz sold his own house and deposited the proceeds in the company where after I along with other teachers were also asked to invest. Since one of the senior teachers had sold his own house it instilled trust in us to also invest in the company . I upon the inducement of one Shahid Aziz met the owner of the company Friends hip Telecom namely Osama Zia and he informed me about the entire business of the company in detail." 15. The appellant was cross-examined at length, which led to following facts: i. All the investments made in the separ ate offices were finally deposited on monthly basis in main office at 6th Road.
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ii. I also issued stamp papers to those commission agents with my signatures and those of witnesses who normally were the people who brought the investment. iii. Since there were huge sum of investm ent, hence many commission agents were hired by the company through its Director . iv. 500 people used to receive profit through myself including many people who made investment directly with Elixir Group of Companies through me. Initially , investments were made and agreements used to signed by Abdul Rafay himself directly , however , with passage of time he authorized myself as Director to collect the amount from people making investment in Capable Asia. v. Business name from Capable Asia converted into Elixir Group of Companies (Pvt.). Ltd. wherein 12 Directors were nominated. I asked Abdul Rafay who told me that everyone could not be indicated as Director same will result in complication and he stated that you will remain connected with me and I was designated as sub-Director . vi. All the stamp papers used for execu tion of modarba agreements with investors were not purchased by me directly rather it was the duty of Abdul Rafay who arranged stamp papers for the purpose of execution of agreement with investors. vii.In June 2013, Elixir Group of Companies announced profit at rate of Rs.600 per each lac over which I approached Abdul Rafay who told me that he will contact the company and same shall be enhanced in due course of time. viii. Abdul Rafay told me that number of investors had withdrawn their investments due to which number of projects of company are yet to be completed while Mufti Ehsan has also been arrested by NAB due to which investors lost their trust and profit shall not be disbursed for sometimes. ix. I was arrested and after lapse of one year the case was transferred to NAB. I joined investigation with 1.0. of the NAB, narrated afore referred facts and handed photocopies of the receipts. I.O. did not record my true version nor initiated any proceedings against Elixir Group of Companies. x. I performed the duty of post office and transmitted profit to the investors as paid for disbursement to me by the Elixir Group of Companies. xi. I neither induced any investor nor committed fraud, rather fraud has been played upon me and investors. ADMISSIONS i. It is correct that Exh.PW -142/4 bears my name and signatures on the receipt as it was issued to me volunteered the same amount in the receipt was included in the stamp issued by the company . ii. It is correct that Exh.PW -2/1 and 2/2 bears my name and signatures on the receipt as it was issued to me volunteered the same amount in the receipt was included in the stamp issued by the company . iii. It is incorrect to suggest that Exh.PW 6/7 at page 805 and 808 of the reference was issued in my personal capacity . iv. No FIR was either lodged by me or any of my relatives. v. I did not move any application before Chairman NAB or Accountability Court narrating my grievance against admin of Elixir Group. It is incorrect to suggest that I did not move application against Elixir Group at any forum because I am running forged and fabricating business in name of Elixir Group. vi. It is correct that in the reference no document has been placed whereby Elixir Group of companies were authorized to run modarbat business / modarba company . I cannot produce any document showing that Elixir Group of companies was authorized as modarba by competent authority / SECP . cannot produce any instrument or resolution of the company whereby amou nt from investors through receipts collec tion was authorized by modarba business volunteered we collected amount on the verbal direction of Director namely' Abdul Rafay . vii. I did not move any application before any agency or police station against said Mudassir was carrying business of modarba volunteered I had informed I.O. of this case1O. did not investigated with regard to said Mudassir . viii. I do not produce any resolution or instrument whereby merger of Capable Asia into Friendship Telecom and Elixir had taken place. ix. I did not produce any document in support of my appointment in Elixir or Capable Asia before I.O. or this Court.
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x. I did not produce any document whereby Abdul Rafay , Director Elixir and Capable Asia was authorized to appoint me as Sub-Director . xi. It is correct that all the six bank accoun ts record of which has been produced by prosecution were open by me in the year 201 1 or afterwards. xii. Amount of investment received through online banking used to receive in my said accounts. xiii. Exh.DW -40 bears my signatures on one side. Receipts Exh.DW -39, 40, 41, 42, 43, 44, 47 and 50 also bear my signatures. 16. The juxtaposition of prosecution case and stance taken by the appellant in his statement under section 342, Cr.P.C. read with statement recorded under section 340(2), Cr.P.C. reflects that execution of Mudaraba agreements in favour of investor/af fectees has been acknowledged and admitted by the appellant. Whereas, there is no denial that he claimed himself to be Director of the companies, signed the Mudaraba agreements and received huge capital in cash as well as through banking channel, as also confirmed by the banking witnesses and financial experts of the SECP/NAB authorities. 17. Likewise, the appellant has admitted all the facts in terms of Articles 33 and 34 of the Qanun-e-Shahadat Order , 1984 (hereinafter referred to as "Order , 1984" ) i.e. regarding due execution of the agreements, his signatures and receiving of payments, which are key factors in such type of cases to be proved by the prosecution and as such, the burden has been discharged by the prosecution in terms of Article 117 of the Order , 1984. It is also well settled that admitted facts need not to be proved independently and as such, the statement of appellant recorded under section 340(2), Cr.P.C. qualifies the test of admissibility regarding contents of the documents in terms of Article 35 of the Order , 1984, therefore, this Court while applying the principle in terms of Article 131 of the Order , 1984, the admissibility of evidence is clearly established on record and all the allegations have been proved against. the appellant as he could not prove his stance of being an employee of the companies, therefore, the charges under Section 9(a)(ix) of the NAO, 1999 have rightly been established and proved in the trial. ROLE OF ABDUL REHMAN (ACQUIT -TED ACCUSED)/RESPONDENT NO.2 18. On the other hand, on the basis of same set of prosecution evidence, the learned trial Court has acquitted Abdul Rehman (Respondent No.2/co-accused) of the charge in the following manner . "As far as Abdul Rehman accused is concerned it is alleged that he abetted the accused Rashid Minhas and issued receipts of receiving of the amount. Many of the PWs/affectees have not named Abdul Rehman accused in the deposition before the Court. Only few of the affectees while deposing on oath came forward with stance that accused Abdul Rehman induced them and signed Modarba agreement. During cross-examination these PWs admitted that they have not named Abdul Rehman as accused in their applications submitted before the Chairman/DG NAB or before the I.O. while confronting them with their statement under section 161, Cr.P.C. In scenario depicted by the PWs, the possibility that Abdul Rehman accused might have been acting as employee of Rashid Minhas accused cannot be ruled out in tow. In given circumstances mens rea cannot be out rightly attributed to accused Abdul Rehman. Hence, prosecution has failed to bring home the guilt of Abdul Rehman accused beyond shadow of doubt and while extending benefit of doubt I do hereby acquit him on the charge. He is present in Court on bail his surety stand discharged of liable of Bail Bond." 19. The impugned judgment to the extent of role of Respondent No.1 is to be reappraised from the stance recorded by PW-4, PW-108, PW-222, PW-223, PW-227, PW-229, PW-246, PW-250 and PW-261, who have referred the role of Respondent No. 1 . However , said witnesses have placed on record certain documents, which render Respondent No.1 as an employee of the appellant. Such stance has further been substantiated from the statement of PW -276 Shazhad/ I.O., the relevant portion of his evidence is reproduced as under: "Accused Abdul Rahman belongs to AJK and presently residing at Rawalpindi. Accused was working with co- accused Rashid Minhas at his offices situated at Mall Plaza, Saddar and Jawad Plaza, Kalma Chowk, Bakkra Mandi, Rawalpindi. He also lured in and received investments from general public and issued Cash Received Receipts under his signatures as Accountant. He was arrested by RA Bazaar Police in FIR No.297/13 registered under section 420, 406, 468 and 471, P.P.C. and was granted bail after arres t by the Judicial Magistrate on 06.12.2013. During investigation, the accused Abdul Rahman was summoned through police to join investigation
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but he never turned up to avoid the process of law. Accused Abdul Rahman assisted, aided and abetted the co- accused Rashid Minhas in commission of crime and lured in and induced general public to receive investments from them dishonestly , illegally and fraudulently ." However , during the course of cross-examination, PW -276 Shazhad/I.O. acknowledged the following facts: i. It is correct that no specific application was moved against accused Abdul Rehman by any member of general public. ii. It is correct that none of the witnesses in their written applications levelled allegations against Abdul Rehman accused that he was having business of Mudaraba or investment or induced investors to make investment in any business. iii. None of the investors/applicants menti oned in their applications that they made investment with Abdul Rehman accused. iv. None of the applicants/investors ment ioned in their applications that amount was entrusted to Abdul Rehman accused who misappropriated the same, similarly , none levelled allegation of cheating in their applications. v. None of the applicants mentioned the allegation of abetment, instigation and facilitation against Abdul Rehman accused regarding investment. 20. The circumstances acknowledged by PW-276 Shahzad/I.O. clearly…
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