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Petitioner: Brig. (R) IMTIAZ AHMAD VS Respondent: STATE
Court Name: Lahore High Court Judge(s): Ali Baqar Najafi, Syed Muhammad Kazim Raza Shamsi Title: Brig. (R) IMTIAZ AHMAD vs STATE Case No.: Criminal Appeal No, 25-E of 2002 Date of Judgment:2015-06-19 Reported As: 2015 LHC 4038, PLJ 2015 Cr.C. (Lahore) 594 Result: Appeals allowed
JUDGMENT
JUDGMENT All Baqar Najafi, J.--This judgment shall dispose of the instant appeal as well as Criminal Appeal No, 24-E of 2002 titled "Adnan A. Khawaja Vs. The State", Criminal Appeal No, 26-E of 2002 titled "Mrs. Nasreen Imtiaz Vs. The State" and Writ Petition No, 20208 of 2010 titled "Brig. (R) Imtiaz Ahmad Vs. The State", as all the above matters arise out of Reference No, 21 of 2000 and involve common questions of law and facts. 2. The appellants, Brig. (R) Imtiaz Ahmad, Adnan A. Khawaja and Mst. Nasreen Imtiaz, challenge judgment dated 31.07.2001 passed by the Accountability Court No, III Rawalpindi passed in Reference No, 21 of 2000 whereby the learned Judge Accountability Court convicted and sentenced the appellants, Brig. (R) Imtiaz Ahmed and Adnan A. Khawaja, under Section 10 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance, 1999) to suffer 8 years R.I. Besides fine of Rs,70,00,000/- with the direction to pay the same within one month failing which the same shall be recovered in accordance with law. The appellant Adnan A. Khawaja was further sentenced to 2 years R.I. With fine of Ra.2,00,000/- which shall be paid within one month failing which the same shall be recovered from him in accordance with law. The convicts were also extended the benefit of Section 382, Cr.P.C. They were also disqualified for a period of 10 years, reckoning from the date of their release after serving sentence, from seeking or from being elected, chosen, appointed or nominated as member or representative of any public office, any statutory or local authority of Government of Pakistan and shall also be debarred 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 10 years. The properties acquired by the appellants in their own name or in the name of
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their dependents or co-accused were also directed to be forfeited in favour of the Federal Government. 3. As per the allegations made in the reference filed by. Chairman NAB, Brig. (R) Imtiaz Ahmad, accused served as Director Intelligence Bureau, Government of Pakistan from 31.03.1990 to 23.04.1993 and he had accumulated vast properties both movable and immovable which appear to be disproportionate to his known sources of income, therefore, it was deemed necessary to conduct investigation to ascertain the facts. The accused was arrested and remanded to custody of NAB and the case was accordingly investigated during which the allegations were found correct. It was also found that co-accused Nadeem Imtiaz, Abdul Ghaffar Chohan, Shamshad Ali and Adnan A. Khawaja aided and abetted principal accused Brig. (R) Imtiaz Ahmad in the acquisition of properties and assets for which they offered no explanation. Properties and assets are as under:-- I. Foreign Exchange Bearer Certificates which were encashed by Brig. (R) Imtiaz Ahmad, accused or his dependent family members of the value of Rs,20.08 million. II. Unit No, 9, 1-S, Plaza F-10 Markaz, Islamabad purchased in the name of Abdul Ghaffar Chohan, accused. III. Unit No, 8, 1-S, Plaza F-10 Markaz, Islamabad purchased in the name of Shamshad Ali, accused. Nadeem Imtiaz, accused actively participated in the purchase of this property and in fraudulently concealing that it was purchased for Brig. (R) Imtiaz Ahmad and with the money provided by him. IV. Unit No, 2, 1-S, Plaza F-10 Markaz, Islamabad purchased in the name of Adnan A. Khawaja, accused. Nadeem Imtiaz, actively participated in the purchase of this property and in fraudulently concealing that it was purchased for Brig. (R) Imtiaz Ahmad, accused and money was provided by him (Brig. (R) Imtiaz Ahmad). V. House No, 286, Sector F-10/4, Islamabad measuring 1022 Sq.Yards purchased in the name of Shamshad Ali, accused and subsequently transferred in the name of Abdul Ghaffar Chohan, accused. VI. House No, 7, Street No, 20, Sector F-7/2, Islamabad measuring 2000 Sq.Yards purchased in his own name. VII. House No, 6, 9th Avenue, Sector F-8/2, Islamabad measuring 2000 Sq.Yards purchased in the name of Nasreen Imtiaz, wife of accused. She is house wife and she has no source of income other than that of her husband. ' During investigation it also revealed that appellant/Brig. (R) Imtiaz Ahmad, accused and his dependent family members had bank accounts in the Union Bank, Islamabad where heavy transactions had been made without any means. The appellant Brig. (R) Imtiaz Ahmad, remained in service of Pakistan and his source of income was the pay he derived from his service, but he acquired Foreign Bearer Certificates and assets in the shape of US Dollars and other properties through corruption and corrupt practices, therefore, he cannot claim immunity from criminal liability under Rule 4 of the Foreign Exchange Bearer Certificates Rules, 1985 or under Section 5 of the Protection of Economic Reforms Act, 1992. ' The Chairman mentioned that earlier FIR No, 10/94 dated 21.10.1994 was registered against accused (Brig. (R) Imtiaz Ahmad) with FIA/SIU, Islamabad regarding acquisition of assets and properties and later on challan was submitted against accused. He further mentioned that Brig. (R) Imtiaz Ahmad filed Writ Petition No, 1379/97 before Honourable High Court, for quashment of said case and the same was accepted vide judgment dated 04.07.1997. The Chairman also mentioned that properties which were subject of said case are not subject of this reference. ' PW-34, Khalid Rasool is the Investigating Officer in this case. He stated that investigation of this case was entrusted to him by Chairman NAB. During investigation it came into his notice that case FIR No, 10/94 was also registered against Brig. (R) Imtiaz Ahmad, accused. He collected documents pertaining to the said case. The allegation against accused in the said case was that he acquired
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assets valuing Rs,2,65,00,000/- and FIR of said case is Ex.PS whereas report u/S. 173, Cr.P.C. Is Ex.PT. Riaz Ahmed, PW produced before him notification regarding appointment of Brig. (R) Imtiaz Ahmad, accused on contract as OSD. He also obtained documents, EX.PW-34/1-5 regarding appointment and termination of accused as Director Intelligence Bureau by Government of Pakistan. Haq Nawaz, PW produced before him wealth tax documents of Brig. (R) Imtiaz Ahmad, accused and his family members and the same were taken into possession vide memo. EX.PH. Nasir Ali Qureshi produced before him income tax return etc. He also collected evidence of PEBC encashment regarding Brig (R ) Imtiaz Ahmad, accused and his family members which were valuing Rs,20.08 million. During investigation it was found that aforesaid amount (Rs,20.08 million in the shape of FEBC encashment) was not detected during investigation of case FIR No, 10/94 and the same was not included in its challan. The accused declared the said assets in their wealth tax statement during year 1996-97 (revised statement for the years 1990 to 1993). It was found that Brig. (R) Imtiaz Ahmad, accused purchased Unit No, 9, 1-S Plaza in F-10 Markaz of Islamabad from Mst. Sharam Bibi for Rs,28,00,000/- in 1993 in the name of Abdul Ghaffar Chohan as Benamidar. Later on Brig. (R) Imtiaz Ahmad obtained General Power of Attorney to sell from Abdul Ghaffar Chohan in 1998-99. He recorded statement of son of Mst. Sharam Bibi in this connection. Brig. (R) Imtiaz Ahmad, accused also purchased Unit No, 8, 1-S Plaza in F-10 Markaz, Islamabad from Irshad Ahmed in the name of Shamshad Ahmed for Rs,29,32,500/- in 1993 as Benamidar. Nadeem Imtiaz son of Brig. (R) Imtiaz Ahmad, accused paid Rs,16,00,000/- through pay order. EX.PW12/2. Later on Brig. (R) Imtiaz Ahmad sold the said property to Qasim Hafeez for Rs,70,00,000/- in year 2000. He paid Rs,5,00,000/- to Mehmood Ahmad for getting possession of the said property. Brig. (R) Imtiaz Ahmad, accused purchased House No, 286 in F-10/4 Sector, Islamabad in the name of Abdul Ghaffar Chohan as Benamidar. He purchased this property in 1993 for Rs,63,00,000/- from Chaudhary. Asif. During investigation it was found that Brig. (R) Imtiaz Ahmad, accused obtained General Power of Attorney with power to sell from Abdul Ghaffar Chohan. At the time of said sale Nadeem Imtiaz paid Rs,20,00,000/- to the vendor through pay order. The signatures of Nadeem Imtiaz were sent to handwriting expert for comparison and the result was positive. Brig. (R) Imtiaz Ahmad, accused purchased Unit No, 2 1-S Plaza in F-10 Markaz, Islamabad in the name of Adnan A. Khawaja, accused as Benamidar in 1996. He purchased this unit from Muhammad Zakria for Rs,30,48,000/- and Nadeem Imtiaz, accused paid sale price in Court on behalf of vendee. He obtained certified copies of civil suit (Muhammad Zakria Vs. Nadeem Imtiaz) and order passed by civil Court and Appellate Court. He also collected evidence from CDA about the aforesaid property. The Power of Attorney executed by Muhammad Zakria in favour of Adnan A. Khawaja, accused was obtained from CDA. During investigation employee of CDA, Syed Sabir Hussain Shah stated that original Power of Attorney was received by Mukhtar Hussain, servant of Brig. (R) Imtiaz Ahmad, accused after signatures. Nadeem Imtiaz, accused invested Rs,39,00,000/- in Ali Plaza, Blue Area, Islamabad for purchasing three shops in the name of Faisal Sakhi Butt as Benarnidar. He purchased said property from Dr. Shaukat Ali and Faisal Sakhi Butt obtained Power of Attorney from the owner. Nadeem Imtiaz, accused had paid amount through pay order etc. Dr. Shaukat Ali has died. Brig. (R) Imtiaz Ahmad, accused purchased House No, 6 in F-8/2, Sector 9th Avenue, Islamabad in 1999 in the name of his wife, Mst. Nadeem Imtiaz for Rs,80,00,000/-. He purchased House No, '7 in F-7/2 Sector, Islamabad in 1999 for Rs,1,40,00,000/-. Brig. (R) Imtiaz Ahmad, accused and his family members had eight Pak currency accounts and eight Foreign currency accounts in Union sank, Islamabad and there were huge amounts transactions in the said accounts. The accused used to avail loan facility and he gave collateral security in the shape of US dollars etc. Brig. (R) Imtiaz Ahmad, accused and his family members obtained loan from Deutsche Bank, Islamabad against FEBC worth Rs,90,00,000/-. They had also dolloars and against the same they received loan. The accused purchased aforesaid FEBC during 1990-91. The Investigating Officer
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obtained record from CDA of remaining properties also. He also obtained certified copies of Power of Attorney from the office of Registrar, Islamabad. During investigation it was found that accused had acquired/owned assets disproportionate to their known sources of income. Brig. (R) Imtiaz Ahmad, accused also acquired property/assets in the name of his co-accused and family members as "Benamidar". The Investigating Officer recorded statements of PWs, completed investigation and challaned the accused. ' The reference was filed against Brig. (R) Imtiaz Ahmad, accused and others. However, Nadeem Imtiaz, accused did not appear in Court and he was declared proclaimed offender. Abdul Ghaffar Chohan and Shamshad Ali, accused became approver. Only Brig. (R) Imtiaz Ahmad and Adnan A. Khawaja, accused faced trial. ' Brig. (R) Imtiaz Ahmad and Adnan A. Khawaja, accused appeared in this Court and charge under Section 10 of the Ordinance, 1999 was framed against them to which they pleaded not guilty and claimed trial whereupon prosecution evidence was recorded. The prosecution examined 34 witnesses in all to prove its case. 4. On 10.03.2001 the charge against both the appellants was framed as under:- "That during period from 1990 to 1999 you Brig.(R) Imtiaz Ahmad and Adnan A. Khawja accused acquired properties and assets at different places (detail whereof has been given in the reference) which are disproportionate to your known source of income; that you Brig.(R) Imtiaz Ahmad also acquired properties and assets (detail whereof has been given in the reference) in your name and in the name of your dependents and Adnan A. Khawaja and that you also acquired properties (detail whereof has been given in the reference) in the names of Abdul Ghaffar Chohan and Shamshad Ali Chohan (approvers) as benamidars and thereby committed offence of corruption and corrupt practices as defined in Section 9 which, is punishable u/S. 10 of NAB Ordinance, 1999 within the cognizance of this Court." 5. In order to prove its case the prosecution has produced as many as 34 witnesses besides documentary evidence whereas the defence has produced as many as 8 witnesses besides documentary evidence and the Court summoned and examined four witnesses i.e, CW1 to CW7 as Court witnesses. In a statement under Section 342, Cr.P.C. The appellant/Brig. (R) Imtiaz Ahmad has denied the allegations and in response to Question No, 11 regarding the deposit of US Dollars 1,27,277 by his family members in Deutche Bank for obtaining loan of Rs,8.6 million, he replied as follows:-- "It is incorrect. Initially account was opened with US Dollars 8,000/-. We used to receive loan from Pak rupee account for purchasing dollars from the market and deposited the same in said bank in foreign currency account. So there was amount of US Dollars 1,27,287. At that time our loan in Pak rupee account increased. We had only US Dollars 8,000 and profit earned from foreign currency account and the remaining amount was for he adjustment of Pak rupee loan account." ' In response to Question No, 16 as to why this case against him and why the PWs deposed against him, he replied as follows:-- "I had been serving in Army before my appointment as Direction I.B. During Army service too I had been performing duty relating to intelligence services in most sensitive areas. I also worked as Director ISI from 1977 to 1990. In 1994 I was involved in I.B.S.S. Fund case, but I was acquitted. The case FIR No, 10/1994 regarding assets was registered against me but the same was quashed by Hon'ble High Court. In this reference assets mentioned in case FIR No, 10/1994 have been again included. My assets were declared lawful by Hon'ble High Court in Writ Petition No, 1379/97. Different governments involved me in different cases due to their political designs. I was arrested by the present government on 17.10.1999 and kept me in illegal detention till 26.05.2000 and showed me arrest on 26.05.2000. However they took me to different hospitals for treatment but never produced before any Magistrate during said period. The approvers have made statements under pressure and promise because present government and NAB authorities have promised to exonerate them
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from Income Tax, wealth tax, banking circle and foreign exchange inquiries which are pending against them. The PWs have made statements against me under the pressure of NAB. The approvers made statements to save their contracts and business relating to government. They deposed against me to get crores of rupees from government." 6. Adnan A. Khawaja/appellant also denied the allegations against him and to a question why this case against him and why the PWs have made statements against him, he replied as under:- "The I.O. Pressurized me to become a false witness against Brig (R) Imtiaz Ahmad co-accused but I refused. On my refusal he falsely implicated me in this case due to his malafide. None of the PWs made statement against me." ' After the evidence, the appellant was convicted as mentioned in para 2. 7. M/s. Kh. Haris Ahmad and Syeda Maqsooma Zahra Bokhari, Advocates for the appellants contend firstly, that the charge was defectively framed and necessary legal requirements of Section 222, Cr.P.C. Were not followed inasmuch as it was joint in nature, comprising of two paras and the precise allegations were not mentioned but only a reference was given to the report under Section 173, Cr.P.C. Secondly, contend that the investigation was not properly conducted, the appellants were not given fair chance to incorporate his defence, therefore, violation of provision of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 was made. Places reliance upon Ghumman case PLD 2004 Lahore 155. Thirdly, contends that in the statement under Section 342, Cr.P.C., the evidence collected against him was not put to him in the form of questions, therefore, the prosecution had not been able to fulfill the legal requirements. Fourthly, contended that the requirement of Section 26 of the Ordinance, 1999 for declaring a person as an approver was not fulfilled as there does not exist any order by the Chairman declaring PW1 and PW2 as approvers. Fifthly, contend that FIR No, 10/1994 registered under Section 5/2/47 at P.S FIA SIU, Islamabad,, related to the period 1980-1993 on the same allegations of misappropriation of Rs,15/20 million, whereafter the investigation was conducted and the said FIR was quashed in W.P.No, 1379 of 1997 titled "Brig. (R) Imtiaz Ahmad Vs. Federation of Pakistan" on 04.07.1997, therefore, the same allegations cannot be re- agitated, otherwise it would be violation of Article 13 read with Section 403, Cr.P.C. Sixthly, contend that no illegal source of income was investigated by the NAB authorities, therefore, the question as to whether the assets built by the appellants were beyond the valid source of income cannot be proved. Places reliance upon GHANI-UR-REHMAN versus NATIONAL ACCOUNTABILITY BUREAU and others (PLD 2011 SC 1144). Seventhly, contend that the prosecution has not levelled any allegation of misappropriation of the government funds, therefore, in a case for assets beyond means, the allegations must have nexus with the allegation of misappropriation of government funds. Eighthly, contend that the income tax returns and wealth tax statement are for the purposes of tax collection and not for the purposes of making out a NAB case for which the NAB authorities have the exclusive jurisdiction to investigate and dig out any illegal source of income which they have failed to do. Ninthly, contend that there was no law stopping the NAB authorities to probe the source of income of the appellant who happened to be the former head of the Inte lligence Bureau, Government of Pakistan, as under Section 27 of the Ordinance, 1999 all the said agencies are bound to provide information to the NAB authorities. Finally contend that the involvement of appellant/Brig. (R) Imtiaz Ahmad has not been proved and Adnan A. Khawaja/appellant had successfully proved his valid source of income, therefore, pray for setting aside of the conviction order.. 8. Conversely, M/s. Muhammad Shoaib Khan, Addl. Deputy Prosecutor General and Muhammad Shahid Mehmood, Senior Special Prosecutor for NAB contend that it is a fit case on the basis of the written admission by appellant made on the basis of documentary proof of declaration by appellant filed in his parent Department and in the income tax and wealth tax returns in which the appellants have categorically stated about their valid sources. Refer to Para 33 of the judgment on
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the strength of their arguments. Also give reference to Exh.PW21/1-173 and letter Exh.PM as well as Exh.PW21/174-184 along with letter Exh.PN. Further contend that PW1 and PW2 were legally declared as approvers and finally pray for dismissal. 9. We have heard the learned counsel for the parties as well as learned Special Prosecutor and Addl. Deputy Prosecutor General for NAB and perused the record. 10. Under Section 222, Cr.P.C., the framing of charge has been explained which is reproduced as under:-- "222. Particulars as to time, place and person. (1) The charge shall contain such particulars as to the time and place of alleged offence, and the person (if any) against whom; or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged. (2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and in the charge so framed shall be deemed to be charge of one offence within the meaning of Section 234: ' Provided that the time included between the first and last of such dates shall not exceed one year." ' It reveals that the above said charge was not framed in accordance with its requirements. 11. Moreover, a perusal of above charges reveals that in all these charges, the known illegal source of income of the appellants has not been given and it was left to the defence to prove that they owned these properties out of their illegitimate sources of income. In order to understand whether this approach is legal, here it will be appropriate to reproduce Section 9(a)(v) and sub-clause (vii) of the Ordinance, 1999. 'Corruption and Corrupt Practices. (a) A holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- (i) (ii) (iii) (iv) (v) If he or any of his dependents or benamidars owns, possesses, or has [acquired] right or title in any [assets or holds irrevocable power of attorney in respect of any assets] or pecuniary resources disp roportionate to his known sources of income, which he cannot reasonably account for; [or maintains a standard of living beyond that which is commensurate with his sources of income] (vi) (vii) If he has issued any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or [attempts to grant] any [undue] concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar, [or any other person] or 12. The above clause of the Ordinance, 1999 has been abundantly made clear that disproportionate assets can only be ascertained with reference to the known source of income and the burden to prove this known source of income has been primarily upon prosecution as interpreted by the apex Court in KHAN ASFANDYAR WALL versus FEDERATION OF PAKISTAN through Cabinet Division, Islamabad and others (PLD 2001 SC 607), the relevant extract is as under:-- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. The above provisions do not constitute a
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bill of attainder, which actually means that by legislative action an accused is held guilty and punishable, For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of Section 14(d): (1) The prosecution shall first make out a reasonable case against the accused charged under Section 9 (a)(vi) and (vii) of the National Accountability Bureau Ordinance, 1999. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt." 13. The overall effect of the above provisions as well as the law laid down by the Supreme Court of Pakistan is that an accused person cannot be held responsible for having owned the properties purchased through unknown source of income or illegitimate means. We have scanned the entire evidence but could not find a word in the prosecution case under which the accused was required to explain the-specific source beyond the known source of income. 14. The accused was made to explain his legal source of income and in response to which he has not only produced his own defence witnesses but has also explained his entire assets and has reasonably explained the source to purchase those assets which were in the form of profits in various business which he has declared in the Wealth Tax Statement. And Income Tax Returns as well as in Declaration Form prescribed for a government servant. In our considered opinion by merely showing the details of assets and without disclosing the source of income; the prosecution has not…
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