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Petitioner: Chaudhary AAMIR ALI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mian Muhammad Najum-uz-Zaman, Mian Nazir Akhtar Title: Chaudhary AAMIR ALI vs THE STATE Case No.: Criminal Appeals Nos.753 and 765 of 2001 Date of Judgment:2002-06-08 Reported As: 2002 YLR 1902 Result: Order accordingly
JUDGMENT
JUDGMENT MIAN NAZIR AKHTAR, J.---This judgment will dispose of Criminal Appeal No,753 of 2001 and Criminal Appeal No,765 of 2001 in which common questions of law and fact are involved. 2. The appellant has preferred this appeal under section 32 of the NAB Ordinance, 1999 to challenge his conviction for an offence under section 9(a)(v) read with section 10(a) of the NAB Ordinance, recorded by the Judge, Accountability Court No,1, Rawalpindi vide his judgment dated 10-5-2001. He was sentenced to undergo R.I. For two years with a fine of Rs,5 millions and in default of payment to undergo R.I. For another two years. He was given benefit of section 382-B of the Criminal Procedure Code. His share in the property situated in Aamir Town, Gatwala, Faisalabad was ordered to be forfeited in favour of the Federal Government. He was disqualified for a period of 10 years (to be reckoned from the date of his release after serving out his sentence) from seeking or from being elected, chosen, appointed or nominated as member or representative of any public office or any statutory or local authority or the Government _ of Pakistan. The Court further ordered that he will not be granted or allowed any financial facility in the form of any loan or advances or other financial accommodation by any bank or financial institution owned and controlled by the Government, for a period of 10 years. 3. The appellant was tried on two charges, one under section 9(a)(v) read with section 10 of the NAB Ordinance and the other under section 9(a)(viii) of the Ordinance read with section 10 of the Ordinance for committing wilful default. He was acquitted of the charge under section 9(a)(viii) .Of the Ordinance but, as mentioned above, was convicted for the offence under section 9(a)(v) of the Ordinance in relation to the acquisition of properties beyond his known sources of income. The first charge was based on the following allegations:-
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"(1) In the year 1989, you purchased land measuring 27.5 Acres in your own name and in the names of your family members and after developing a Housing Scheme as 'AAMIR TOWN' you sold away the same and you still own 7 Kanals of land in the said town and which has the market value of Rs,42,90,000. (2) You and your wife are partners in Al-Shafi Sardar & Sons Chemicals, Multan and the Capital invested by your family amounts to several lakh rupees, (3) You are a share holder in Sandal Bar Textile Mills Ltd., Faisalabad. (4) During the period of your Mayorship, you deposited 4,27,700 U.S. Dollars in Account No,130-01, in Soneri Bank Chiniot Bazar, Faisalabad and the balance in the said account at the time of filing this reference was 4,12,688 U.S. Dollars (roughly equal to Pak Rs,2,10,52,340). (5) During the period of your Mayorship you deposited Rs,25,37,825 in ACcount No,1972-01 of Soneri Bank, Faisalabad. (6) You own 50% share in House No,27, F-10/4, Islamabad, valuing Rs, 1 ,03 ,00,000. (7) In the year 1990, you had purchased 1 Kanal, 3 Marlas land in your name in Madina Town, Faisalabad and after construction of Show Rooms on that land, sold away the same to one Safdar Ali. (8) You purchased land measuring 19 Kanals 18, marlas land situated in W-Block, Madina Town, Faisalabad on 11-1-1990, in your own name as well as in the name of your brother Abid Ali and you kept selling the same from time to time and at present land measuring 4 Kanals, 8 Marlas and 8 Sarsahis still exists in your and your brother's names and which is presently of the value of Rs,1,10,00,000. (9) In the year, 1992, you purchased House No,106-C Peoples Colony, Faisalabad measuring 4 Kanals, 6 Marlas in your name and in the name of your brother Abid Ali and the same was sold out to one Khurram Shahzad. The house was very expensive but you claimed to have purchased it for a nominal price of Rs,71,279 whereas the present value of the said house is Rs,1,72,00,000. (10) You possess two passports which were issued on 17-10-1996 and 31-5-1999 respectively and which contain visas of U.S.A., U.K., Canada and Saudi Arabia. ' And that you thereby committed offence of corruption and corrupt practices within the meaning of section 9(a)(v) and punishable under section 10 of the National Accountability Bureau Ordinance, 1999 within the cognizance of this Court. ' Secondly, that during the period of your Mayorship of Municipal Corporation, Faisalabad, you did not declare many of your properties such as the property situated in. Aamir Town, Gatwala, Faisalabad and also the property situated in Madina Town, Faisalabad in your Income Tax, and Wealth Tax returns, committing wilful default in the payment of dues to Government Department and thus you committed the offence,of wilful default within the meaning of section 5(r) read with section 9(viii) of Ordinance No,XVIII of 1999 and which is punishable under section 10 of the National Accountability Bureau Ordinance, 1999, within the cognizance of this Court". ' The appellant pleaded not guilty to all the above-referred charges and claimed to be tried. The prosecution produced 18 witnesses in support of its case. The gist of their evidence is given in paras.8 to 26 of the judgment of the trial Court, which need not be reproduced. The trial Court relied on the statements of P.Ws.5, 12 to 14 and 18, convicted and sentenced the appellant as . Mentioned above. 4. The appellant's learned counsel submits that the appellant became Mayor of Municipal Corporation, Faisalabad on 18-12-1998 and was removed on 14-12-1999; that he did not acquire any property during the said period and all the properties mentioned in the charge against him, were acquired by him long before he became a Mayor; that the prosecution did not establish any nexus with the exercise of powers by the appellant as a public servant and acquisition of the said properties; that the prosecution is not absolved from proving that acquisition of properties by the
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accused is coupled with the elements of mens rea and corruption; that burden of proof is primarily on the prosecution, which must establish basic facts to make out the offence as held in the case of Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division Islamabad and others (PLD 2001 SC 607); that so far as the foreign currency account is concerned, mere holding of such an account does not constitute an offence; that it is only on proof of corruption that a case goes out of the protection provided to the holder of a foreign currency account. In this connection he relies on the following cases: (i) Hudabiya Engineering (Pvt.) Limited v. Pakistan, through Secretary, Ministry of Interior, Government of Pakistan and 6 others (PLD 1998 Lahore 90). (ii) Federation of Pakistan and others v. Shaukat Ali. Mian and others (PLD 1999 SC 1026). (iii) Irshad Ahmad Sheikh v. The State (2000 SCMR He further submits 'that an innocent holder of the property rendering sufficient explanation cannot be hooked up for the offences under section 9(v) of the NAB Ordinance; that there was no independent complaint or inquiry against him regarding the alleged commission of corruption or corrupt practices; that the appellant was falsely implicated because of being nephew of Ex-Prime Minister Mian Muhammad Nawaz Sharif; that initially his father Sher Ali was pressurised to become an approver against Mian Muhammad Nawaz Sharif and on his refusal to do so the appellant was maliciously involved in the case; that the prosecution was bound to bring on record the known sources of the appellant's income and then to show that various properties held by hint were disproportionate to his income; that mere vague allegations of corruption are not enough and the, prosecution must come out with definite facts to enable the Court to decide under section 10(a) of the Ordinance whether some of the assets and properties of an owner are disproportionate to his known source of income; that the trial Court has accepted the fact that the appellant's properties except the one situated in Aamir Town Gutwala, Faisalabad were , not disproportionate to his known source of income, that is why the Court confiscated the said property alone; that the prosecution witnesses admitted that the appellant did not in any manner misuse his authority as Mayor and acquired properties through corruption and corrupt practices; that P.Ws.12 and 18 had admitted that the appellant is a reasonable businessm an and that they (the witnesses) could not point out any property which had been acquired during his tenure of Mayorship; that the prosecution did not produce the Investigating Officer. Haji Habib-ur-Rehman, Deputy Director, FIA but instead produced Abdul Latif, Inspector, as P.W.18, who had merely assisted the Investigating Officer that the appellant was illegally convicted by the trial Court and that his appeal merits acceptance. 5. On the other hand, the learned Deputy Prosecutor General NAB (Mr. Ahmer Bilal Soofi) submits that under the NAB Ordinance, "any person" can be tried and convicted and he need not necessarily be a public servant; that acquisition of property by the appellant prior to his becoming a Mayor can also constitute an offence. As regards the immunity under the protection of Economic Reforms Act, 1992, he also relies on the judgment in the case of Irshad Ahmed Sheikh v. The State (2000 SCMR 814). The case was further argued by Mr. Tanvir-ul-Islam, Additional Deputy Prosecutor General NAB. He urged that the appellant acquired foreign currency account during the period, when he remained Mayor of the Corporation but it was not mentioned in his tax papers, Exh. PN that the trial Court has rightly recorded/ a finding that the appellant's foreign currency account is disproportionate to his known sources of income but failed to confiscate it in violation of the provisions of section 10 of the Ordinance; that the appellant's shares in business as on 9-1-1996, are shown as Rs,16,96,500 and each share is of the value of Rs,10, therefore, the total amount comes to Rs,16,69,00,000; that the protection granted under section 5 of the Protection of Economic Reforms Act, 1992 is limited to an inquiry by the Income Tax Department or any other Tax Authority regarding the source of financing of the foreign currency accounts but it did not extend to corruption charges against the account holders. He explained that this view was expressed by the Sindh High Court in
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the case of Irshad Ahmad Sheikh (supra) which was upheld by the Supreme Court of Pakistan. As regards non-production of Haji Habib-ur-Rehman, Investigating Officer he submits that in fact P.W.18 had mainly investigated the case and Haji Habib-urRehman had only taken into possession the appellant's Passports which are not relied upon as incriminating articles, therefore, non- production of Haji Habib-ur-Rehman was inconsequential. 6. In reply the appellant's learned counsel explained that the appellant had foreign currency account since 1982 in which he had received substantial amounts earned through his business. 7. In the connected appeal (Criminal Appeal No,765 of 2001) filed by the State for enhancement of the respondent's sentence, the learned Additional Deputy Prosecutor General NAB submits that the sentence awarded to the respondent is wholly inadequate; that lesser sentence was granted on the irrelevant consideration of young age of the appellant; that the trial Court had merely confiscated the respondent's property situated in Aamir Town, Faisalabad but failed to confiscate the foreign currency account as well as other properties without any valid reason. He also submits that the respondent was wrongly granted remissions from the date of his arrest although he could have been allowed remissions from the date of his conviction i,e, '10-5-2000. He relies on the judgment in the case of "Inayat Bibi v. Amjad Ali etc." (2001 PCr.LJ 1453). 8. On the other hand, the respondent's learned counsel submits that remissions were rightly allowed to the respondent; that the quantum of sentence is a matter of discretion with the trial Court and the superior Court should not interfere unless it is clearly shown that the discretion was exercised in a perverse and arbitrary manner. He relies on the judgment in the case "Rab Rakhio and 2 others v. The State" (1992 SCMR 793 at page 802) and "Sh. Abdul Hamid v. Muhammad Malik alias Mikki and another" (1992 SCMR 966); that the word "acquired" used under section 9(a)(v). Of the Ordinance means acquisition of movable or immovable property on or after 1-1-1985 and cannot cover cases of acquisition of property prior to the said date. 9. There is weight in the submission made by the learned Law Officer that not only holder of a public office but also 'any other person" can be tried for the offence of corruption and corrupt practices under section 9 of the Ordinance. This is'clear from the plain reading of section 9 of the Ordinance. Therefore, the prosecution need not establish any nexus with the exercise of powers by the appellant as Mayor of the Corporation and acquisition of the disputed properties by him. He can be tried in his position as an ordinary person and be held guilty of the offence of corruption and corrupt practices. However, there is weight in the submission made by the appellant's learned counsel that it is for the prosecution to establish the basic facts constituting the offence and only then burden is shifted to the accused person and presumption. Raised against him under section 14(c) of the Ordinance. The Ordinance has been made applicable w,e,f,. 1-1-1985, although it was actually published on 16-11-1999. The offence of corruption and corrupt practices as defined under section 9 of the Ordinance, includes the offence as specified in section 161 of the Pakistan Penal _Code as well as the one defined under section 5 of the Prevention of Corruption Act, 1947. However, it goes beyond the said offences and even covers cases of acquisition of Property beyond the known pecuniary- resources of income of an accused, misuse of authority, issuance of directive of policy or SRO (statutory regulatory order) to grant any concession or benefit in any taxation matter or law or to benefit himself or relative or associate or benamidar or commits an offence of wilful default. In the present case, the prosecution has claimed that the appellant had committed the offence of corruption and corrupt practices covered under section 9(a)(v) of the Ordinance. It reads as under: "(v) If he or any of his dependents or benamidars owns, possesses, or has any right or title in (acquired) move able or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for;"
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Originally, the. Word "any" was used which was substituted with the word "acquired" in the above referred provision of law through the National Accountability Bureau (Second Amendment) Ordinance, 2000 (Ordinance XXIV of 2000). The learned Law Officers appearing on behalf of NAB, have admitted that the Ordinance has been given retrospective effect from 1-1-1985 and it does not cover any offence committed prior to the said date. They have not controverted that the word "acquired" connotes acquisition, of property after 1-1-1985. Therefore, any property acquired by a person before 1-1-1985 cannot form subject-matter of a charge before an Accountability Court under the NAB Ordinance. Looked at from this angle, the following properties are relevant (i) Land measuring 27.5 Acres acquired by the appellant in the year 1989 in his own name and in the names of his family members, which was developed into a Housing Scheme known as Aamir Town. Major part of the land was sold but 7 Kanals of land remained in the name of the appellant. (ii) Deposit of 4,27,700 US Dollars in Account No,130-01 in Soneri Bank, Chiniot Bazar, Faisalabad during the period of the appellant's Mayorship. (iii) Deposit of Rs,25,37,825 in Account No,1972-01 in Soneri Bank, Faisalabad during the same period. (iv) Purchase of House No,106-C Peoples Colony, Faisalabad measuring 4 Kanals and 6 Marlas in year 1992. ' The trial Court has forfeited the appellant's share in the property situated in Aamir Town, Gatwala, Faisalabad, which was considered to be disproportionate to his known sources of income. However, in the operative part of the judgment, the trial Court had held in para. 55: "The prosecution has clearly established its case, i,e, the charge of corruption and corrupt practices against the accused under section 9(a)(v) read with section 10 of National Accountability Bureau Ordinance, 1999 as it had established beyond reasonable doubt that properties of the accused were disproportionate to his known source of income and which he could not reasonably account for." This finding apparently covers all the properties mentioned in the charge and in case the appellant is held guilty of the offence, then the properties acquired (after 1-1-1985) which are disproportionate to his known sources of income or which are acquired from money obtained through corruption and corrupt practices become "liable" to be forfeited to the Government. The law does not say that all such properties shall be forfeited. The use of the word "liable" is significant and gives a discretion to the Court to forfeit all or any of the properties falling within the ambit of section 10 of the Ordinance, keeping in view the facts and circumstances of the case. 10. The first property discussed by the trial Court is the Housing Scheme known as Aamir Town, Faisalabad. The appellant admitted in his statement under section 342 of the Criminal Procedure Code that he had purchased 14 Kanals, 13 Marlas and 2-1/2 Sersahis of land in Aamir Town on 16-11- 1992 and had declared the same under the Tax Amnesty Scheme and paid the taxes in accordance with law and his returns were accepted by the Income Tax Department. The trial Court has rightly held that by virtue of Circular No,4 of 2000 (Income Tax) dated 1-3-2000 issued by the 'CBR, the said scheme did not apply in the appellant's case as proceedings under, the NAB Ordinance were pending against him. The appellant's income for the year 1992-93 was declared as Rs,78,000. The appellant is a partner of AlShafi Sardar & Sons, Multan and a shareholder in Sandal Bar Textile Mills (Pvt.) Ltd., Faisalabad. The next property discussed in para.50 of the judgment is the appellant's US $ Account No,130-01 in Soneri Bank Chiniot Branch, Faisalabad. The appellant has claimed immunity provided by Act No,XII of 1992 qua the Dollars Account but the said immunity pertains to any inquiry from the Income Tax Department or any other taxation authority regarding the source of financing of the foreign currency account it is not available in respect of the criminal offence under the NAB Ordinance, 1999. The judgments in the cases Hudabiya Engineering (Pvt.) Limited and Shaukat Ali Mian relied upon by the appellant's learned counsel take care of the protection provided to the foreign currency account holders but do not deal with the question
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whether in cases involving commission of a penal offence the protection would be available to the account holders. This aspect of the matter was actually dealt with in the case of Irshad Ahmad Sheikh, (supra), in which the Honourable Supreme Court of Pakistan was pleased to hold that the protection conferred by Protection of Economic Reforms Act, 1992 did not circumvent criminal processes such as investigations or inquiries nor the consequential trials to determine punishment or penalties; that the Act would not spell out secrecy where a penal act was involved; that Constitutional law as well as laws inter-acting with criminal or penal acts of commission or omission were not affected by the provisions of the Act. While interpreting the provisions of section 3 of the Statute, it was held that it . Would have effect notwithstanding anything contained in the Foreign Exchange Regulation Act, 1947, the Customs Act, 1969, the Income Tax Ordinance, 1979 or 'any other-law for the time being in force". It was held that the expression "any other law for the time being in force", could have meant largely the fiscal and monetary promulgation having a direct nexus with economic activities and not the Constitutional law or laws inter-acting with criminal or penal acts of commission or omission. It is clear that the above-quoted precedent does not help the appellant in any manner. Therefore, the trial Court has rightly held that the appellant can be confronted with his Dollars account, while considering the charge of commission of an offence under the NAB Ordinance. The. Appellant's income as declared before the Income Tax Department does not justify acquisition of the huge amount deposited in the appellant's Dollars account. The appellant also failed to explain any lawful source of income to justify such huge deposit of amount in his account. Instead of explaining the source of funds, the appellant had merely attempted to take shelter behind the provisions of Protection of Economic Reforms Act, 1992, which do not really come to his rescue. The next property mentioned in the impugned judgment is the appellant's 1/2 share in House No,27-F-10/4, Islamabad, which was purchased by the appellant in 1991 for a total consideration of Rs,15,51,320. The appellant's share in the said house comes to Rs,7,75,660. The appellant's share in the land in Madina Town comes to Rs,2,33,303. He had further purchased land measuring 19 Kanals, .5 Marlas in W-Block, Madina Town, Faisalabad alongwith his brother, out of which 14 Kanals, 3 Mamas were sold for Rs,25,86,000 and only 5 Kanals, 2 Marlas remained in the names of the purchasers. The appellant had himself produced D.W.1 Shahid Mehmood Zia, UDC/Record Clerk of Income Tax, who produced the documents Exhs.D-14, D-19, D-42 to D-45", D-57 to D-60, D-62 to D-67 and also documents Exhs.DA and DB. The said witness produced the income taxpapers showing the appellant's income. during the years from 1983-84 to 1993-94. The income chart for the said period is reproduced below for ready reference: YEARS SOURCE OF INCOMEINCOME 1982-83 Business Rs.18,400 1983-84 Business Rs.18,400 1984-85 Business Rs.18,500 1985-86 Business Rs.25,000 1986-87 Business Rs.25,000 1987-88 Business Rs.35,000 1988-89 Business Rs.40,000 198990 Business Rs.3,87,500 1990-91 (i) Business (ii) Gift from motherRs.77,000 Rs.90,000 1991-92 (i) Business Rs.78,000 Rs.12,93,000-
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(ii) Sale proceeds of land 1992-93 Sale of commercial landRs.11,00,000 1993-94 Business + Salary Rs.2,25,000 1994-95 (i) Business + Salary (ii) Sale of land in Aamir TownRs.2,00,000 Rs.4,31,500 1995-96 (i) Business + Salary: (ii) Loan received back from Sandal Bar Textile (iii) Wife Income Rs.2,00,000
Rs.7,00,000
Rs.1,00,000
1996-97 (i) Business + Salary (ii) Wife's incomeRs.1,50,000 Rs.2,00,000 1997-98 (i) Self: (ii) Wife's income:Rs.2,00,000 Rs.2,00,000 1998-99 (i) Self. (ii) Sale proceeds of house in Peoples Colony Faisalabad (iii) Wife's income:Rs.2,00,000 Rs.17,00,000
Rs.2,00,000 1999-00 (i) Self. Rs.3,00,000 Total 82,12,300 Thus his total income from 1982-83 to 1999-2000 comes to Rs.82,12,300. The amount of his Dollars account in Pak rupees at the relevant time came to Rs.2,06,34,000. Thus his Dollars account for exceeds his total income during the period from 1982-83 upto 1999-2000. Therefore, prima facie, acquisition of cash amounts and a number of other immovable properties appears to be.
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disproportionate to the appellant's known sources of income. The appellant had opened foreign currency account in U.S.Dollars No.000130-01 with Manager Soneri Bank Ltd, Chiniot Bazar, Faisalabad on 7-12-1993. He claimed immunity by virtue of the provisions of section 5 of the Protection of economic Reforms Act, 1992 which ensured that holders of foreign currency accounts in Pakistan would continue to enjoy immunity against any inquiry from the Income Tax Department or any other Taxation Authority as to the source of financing of the foreign currency accounts. However, by virtue of B.P.R.D., Circular Letters No. 44 dated 14-10-1999, No.49 dated 27-10-1999 and No.57 dated 30-11-1999, the appellant's foreign currency account was frozen by the Manager Soneri Bank. In this connection, the appellant has filed Writ Petition No.1634 of 2000 which is still pending. During the pendency of the writ petition, the petitioner/appellant filed an application for withdrawal of the amount under Circular No.57 dated 30-11-1999. His prayer was allowed vide…
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