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Petitioner: Asadullah Solangi and another VS Respondent: The State (NAB) through Director JUDGMENT
Court Name: Sindh High Court Judge(s): Muhammad Iqbal Kalhoro, Shamsuddin Abbasi Title:Asadullah Solangi and another vs The State (NAB) through Director
JUDGMENT
Reported As: 2022 PCRLJ 1032 Result: Appeals dismissed Judgment JUDGMENT SHAMSUDDIN ABBASI, J.---Through listed appeals, Asadullah Solangi and Ali Akbar Parhiar, appellants have challenged the vires of the judgment dated 29.09.2018, penned down by the learned Accountability Court No.I {Sindh}, at Karachi, in Reference No.62 of 2013, through which they were convicted under section 10 of National Accountability Ordinance, 1999 (NAO, 1999) for commission of offences of corruption and corrupt practices as defined in section 9(a)(vi)(x)(xii) of NAO, 1999, and sentenced them to undergo rigorous imprisonment for ten (10) years and to pay a fine of Rs.10,00,000/- {Ten Lac} each, recoverable as arrears of land revenue in terms of section 33- E of the Ordinance, and to suffer a further period of six months rigorous imprisonment each in lieu of fine, disqualified them for a period of ten {10} years to be reckoned from the date they are released after having served the sentence from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province and from seeking any financial facility in the form of loan or advances from any financial institution controlled by Government for a period of ten {10} years from the date of their conviction, however, the benefit in terms of section 382-B, Cr.P.C. was extended in their favour. 2. The facts giving rise to these appeals, briefly stated, in the reference are that pursuant to the complaints and press clippings with regard to fraudulent sale of 237 acres of government land in Deh Babar Bund, Taluka Thana Bola Khan, District Jamshoro, an inquiry was initiated against officials of Revenue Department and others, which was upgraded into investigation, wherein it was revealed that certain land of the government was sold out through fake and fraudulent entries in
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the record of rights, issuing sale certificates and execution of fake sale deeds causing a colossal loss to the national exchequer. Mst. Sabiha sold out 237 acres of government land bearing Khet Nos.228/2, 289/1, 289/2, 289/3 and 289/4, situated in Deh Babar Bund, Tapa Hathal Buth, Taluka Thana Bola Khan, District Jamshoro, to Mehmood Rangoonwala, Proprietor of Messrs Terry World Textiles, through a fake conveyance deed bearing Registration No.1014 dated 31.12.2004 in collusion with officials of Revenue Department through false and fraudulent entries in the record of rights showing herself to be the owner of the said land. She also visited the office of Sub-Registrar Kotri along with her brother Javed Akhtar Qureshi and got registered a sale deed in favour of Messrs Terry World Textile Mills through its proprietor Mehmood Rangoonwala on the basis of NOC obtained from Asadullah Solangi, the then Mukhtiarkar Revenue, Thana Bola Khan and received a sum of Rs.1.150 million in cash and Mehmood Rangoonwala purchased the land in question from Mst. Sabiha despite having knowledge that her name was not entered in the record of rights as owner of the said land and Asadullah Solangi, the then Mukhtiarkar despite having knowledge that she is not the owner of the said land recorded entry No.77 dated 20.10.1890 by removing original page and inserting another leaf in the record of rights and subsequent thereto issued sale certificate without verifying the area from Land Register. Javed Akhtar Qureshi, the brother of Mst. Sabiha accompanied her to the office of Sub-Registrar and identified her despite having knowledge that her sister was not the owner of the said land while Ali Akbar Parhiar and Abdul Jabbar Soomro, the then Mukhtiarkar and Tapedar confirmed entry No.154 dated 12.01.2005 despite having knowledge that the land belongs to government. This led to filing a reference against six accused persons namely, Asadullah Solangi {appellant}, Ali Akbar Parhiar {appellant}, Abdul Jabbar Soomro {absconding accused}, Mehmood Rangoonwala, Mst. Sabiha and Javed Akhtar Qureshi, who in connivance with each other caused a loss of Rs.9.5 million to the national exchequer by grabbing 237 acres precious land of the government through manipulation, tampering the record and fabrication of documents, which constitutes an offence of corruption and corrupt practices as envisaged under section 9(a) of NAO, 1999 and schedule thereto punishable under Section 10 of the Ordinance. 3. The learned Accountability Court, on taking cognizance of the matter, charged the appellants and other co-accused for the offence of corruption and corrupt practices as defined under section 9{a}{i}{vi}{xii} of NAO, 1999 read with Schedule attached thereto punishable under section 10 the Ordinance, who pleaded not guilty and claimed a trial. 4. The prosecution, in support of its case, examined eight witnesses. Khalil Memon, who is Micro Filming Officer, Board of Revenue, Sindh, Hyderabad, appeared as PW.1 Ex.14. He handed over the record pertaining to land in question to the investigating officer viz registered sale deed dated 31.12.2004 and village Form VII of Deb Babar Bund. Kunwar Aezaz M. Khan {Assistant Superintendent Stamps appeared as PW.2 at Ex.15. He produced certain record including bank challan dated 21.12.2004 amounting to Rs.30,000/-, original entry No.34 dated 21.12.2004 of daily receipt register, entry No.27 dated 21.12.2004, bank scroll sheet showing entry No.46 dated 21.12.2004 to investigating officer and also exhibited the same in his evidence. Ghulam Mustafa {Tapedar Tapo Huthal Buth, Taluka Thana Bola Khan appeared as PW.3 Ex.17. He produced mutation entries Nos.154 and 77 dated 12.01.2005 and 20.10.1990 of Deh Form VII A of Deh Babar Bund Tapo Huthal Buth, Taluka Thana Bola Khan, District Dadu, mutation entry No.154 to investigating officer and also exhibited the same in his evidence. Haji Hasan Ali {Revenue Surveyor Zabit Branch, Hyderabad} appeared as PW.4 Ex.20. He produced revenue record relating to accused Mehmood Rangoonwala and Mst. Sabiha and Abdullah Solangi to investigating officer, who took custody of the same under a seizure memo and obtained his signature on it. Ramesh Kumar {Incharge Sub-Registrar Kotri} appeared as PW.5 Ex.21. He provided attested copies of receipt book No.011 dated 31.12.2004 for Rs.11,600/-, receipt book No.014 dated 31.12.2002 for Rs.400/-, cash book register dated 31.12.2004, day book
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dated 31.12.2004, thump print register to investigating officer and also exhibited the same in his evidence. Abdul Hameed {Mukhtiarkar Thana Bola Khan} appeared as PW.6 Ex.23. He provided original complete volume containing 112 pages to investigating officer, who took custody of the same under a seizure memo prepared in his presence, and also exhibited the same in evidence. Ramesh Kumar {Land Revenue Expert} appeared as PW.7 Ex.24. He gave his opinion on investigation file sent to him by investigating officer along with relevant documents. Naveed Rehman [investigating officer) appeared as PW.8 Ex.25. He verified that whole investigation was conducted by him and on completion thereof the reference was filed in Court on the recommendation of the competent authority. All of them have exhibited number of documents in their evidence and subjected to cross-examination by the defence. Thereafter, the prosecution closed its side vide statement Ex.27. 5. The appellants and co-accused were examined under section 342, Cr.P.C. All of them have denied the allegations imputed upon them by the prosecution, professed their innocence and stated their false implication in this case. Both appellants have further stated that the witnesses examined by the prosecution are government officials and they have falsely deposed against them being interested witnesses. They opted not to examine themselves on Oath under section 340(2), Cr.P.C. nor adduce any evidence in their defence. 6. The trial culminated in conviction and sentence of the appellants as stated in para-1 {supra}, hence necessitated the filing of listed appeals, which are being disposed of together through this single judgment. 7. It is contended on behalf of the appellants that they are innocent and have been falsely implicated in this case with mala fide intention and ulterior motives as otherwise they have nothing to do with the alleged offence and have been made victim of the circumstances. It is next submitted that before filing of reference no proper exercise was conducted in the light of guidelines highlighted by the Hon'ble Superior Court and the mandatory commands of law and in absence thereof the NAB was not competent to initiate inquiry and file a reference. It is also submitted that the prosecution has failed to produce any iota of evidence against appellants to substantiate their involvement in the commission of offence. None of the witnesses have uttered a single word with regard to issuance of sale certificate or NOC for sale by appellant Asadullah Solangi or that entry No.77 was signed by him. The prosecution has failed to discharge its legal obligation of proving the guilt of the appellants as mandatory requirement of section 14 of the NAO, 1999, and the appellants were not liable to prove their innocence. The investigating officer has conducted dishonest investigation and involved the appellants in a case with which they have no nexus while releasing the real culprits who were actual beneficiaries of the transaction, hence it is a case of clear discrimination. The case against the appellants lacked mens rea or commission of any illegality while endorsing transfer mutation entry No.154 dated 12.01.2005 and in absence thereof no criminal liability could be penned down on them. Per learned counsel such entry was kept on record in due compliance of the registered sale deed in view of the judgment of Hon'ble Supreme Court which dictates that Mukhtiarkar cannot refuse entry of registered sale deed in the revenue record. The prosecution has failed to bring home the charge against the appellants through cogent and reliable evidence. The witnesses examined by the prosecution are government officials and they have falsely deposed against the appellants being interested witnesses and inimical to the appellants as such their evidence is neither trustworthy nor confidence inspiring and the same has wrongly been relied by the learned trial Court. The witness did not ascribe any direct or indirect role to the appellants with regard to their involvement in the alleged offence. They were inconsistent with each other rather contradicted on crucial points benefit whereof must go to the appellants. The learned trial Court did not appreciate the evidence in line with the applicable law and surrounding circumstances and based its findings on misreading and non-reading of
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evidence and arrived at a wrong conclusion in convicting the appellants merely on assumptions and presumptions. The learned trial Court totally ignored the plea taken by the appellants in their defence, which was sufficient to prove their innocence. Per learned counsel, all steps taken by the appellants were in accordance with law and they have not done any illegal act, which could saddle penal consequences on them. It was a case of mere procedural illegalities and in absence of any strong evidence on record no conviction could be based for offence under Section 9(a)(vi) of the Ordinance. Thus, the conviction and sentence awarded to the appellants are illegal and liable to be set-aside. Finally, the learned counsel submitted that the appellants did not derive any personal financial gain from the acts for which they were charged, tried and convicted, thus the conclusion drawn merits reversal. Reliance has been placed on the cases of Mansur-ul-Haque v. Government of Pakistan (PLD 2008 Supreme Court 166), The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 Supreme Court 63), M. Anwar Saifullah Khan v. The State (PLD 2002 Lahore 458), The State v. Anwar Sail Ullah Khan (PLD 2016 Supreme Court 276), M. Siddique-ul-Farooque v. The State {PLD 2002 Karachi 24) and Masood Alam Niazi and others v. The State through Chairman NAB (2021 PCr.LJ 99). 8. Strongly opposing the contentions of the learned counsel for the appellants, the Special Prosecutor NAB has contended that the appellants were lawfully proceeded against under the enabling provisions of the Ordinance, which were strictly in accordance with the settled principles of the criminal justice system of providing the appellants with complete opportunity of defending them. The appellants in their official capacity have misused their authority and extended undue favour to other co-accused in respect of a government land for personal gain and caused a colossal loss to the national exchequer. It is also submitted that the prosecution in support of its case produced oral as well as documentary evidence, which was rightly relied upon by learned trial Court. Per him, the witnesses were subjected to lengthy and taxing cross-examination but nothing favourable to the appellants could come out from their mouth to show their false implication. Finally, submitted that the findings recorded by the learned trial Court in the impugned judgment are based on fair evaluation of evidence and documents brought on record, to which no exception could be taken. He, therefore, prayed for dismissal of appeals as being devoid of any merit. Reliance has been placed on the case of Malik Din v. Chairman National Accountability Bureau and another (2019 SCMR 372). 9. We have given our anxious consideration to the submissions of learned counsel for the appellants and the learned Special Prosecutor NAB and gone through the entire material available on record with their able assistance as well as perused the written synopsis separately filed on behalf of the appellants. 10. A keen look at the record reveals that entry No.77 dated 20.10.1890 was inserted in the record of rights in favour of Mst. Sabiha through manipulation by removing original page and inserting another leaf and in consequence whereof NOC/Sale Certificate was issued by Mohammad Moosa, Tapedar {since died} without verifying the area from Land Register, which was attested/confirmed by appellant Asadullah Solangi as Mukhtiarkar. The ocular account furnished by the prosecution has been supported by documentary as well as investigation report, which established the charges levelled against appellant Asadullah Solangi that he has attested/confirmed fake entry bypassing the relevant directions issued from time to time and neglecting the legal and procedural formalities, details whereof are given bellows:- {i} There is no policy to dispose of Barani Government Land on permanent tenure; {ii} The occupants of Khet numbers do not possess proprietary rights of land; {iii} The entry No.77 of VF-VII A of Deb Babar Bund does not bear reference of the previous entry;
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{iv} He did not verify the area of subject Khet numbers from Land Register before issuance of sale certificate. {v} The year mentioned against entry No.77 is 1890 whereas record of rights was prepared in the year 1926-27; {vi} In column No.5 of VF-VII A the name of deceased {whose so-called land is inherited by Mst. Sabiha is not mentioned; {vii} In column 5 of VF-VII A the reference of Book of statements, wherein statements of witnesses were corded and decision of Disputed Register {Takrari Register} are not mentioned; {viii} Land Utilization department issued circular dated 16.11.1992 regarding regularization of HAQ QABZA lands and directed that in case of Haq Qabza rights no mutation be made in VF-VII {record of rights} except on the basis of genuine and old documents registered as per rules prior to the year 1947; {ix} The land was surveyed in 1986 prior to that Deh Babar Bund was comprised of different area numbered as NA Class No.1; and {x} After survey conducted in the year 1985 of all the chaks, survey Nos.88 and 89 in each chak have different area which does not tally with the area mentioned in sale certificate. 11. The record also reflects that on the basis of sale certificate, Mst. Sabiha appeared before the office of Sub-Registrar, Kotri, duly identified by her bother Javed Akhtar Qureshi, and executed sale deed in favour of Mehmood Rangoonwala, Proprietor of Messrs Terry World Textile Mills and based on such deed an entry No.154 dated 12.01.2005 was kept in the record of rights in favour of Mehmood Rangoonwala. The prosecution has brought on record sufficient evidence proving appellant Ali Akbar Parhiar guilty of the charges levelled against him and detailed below:- {i} According to the instructions of Village Manual, the Tapedar/ Mukhtiarkar while entering/confirming the transaction have to compare the new entry with previous entry relating to the same land. But without referring the previous entry made a new entry in favour of Messrs Terry World; {ii} There is no policy to dispose of Barani Government Land on permanent tenure; {iii} The occupants of Khet numbers do not possess proprietary rights of land; {iv} The entry No.77 of VF-VII A of Deb Babar Bund does not bear reference of the previous entry; {v} He did not verify the area of subject Khet numbers from Land Register before issuance of sale certificate. {vi} The year mentioned against entry No.77 is 1890 whereas record of rights was prepared in the year 1926-27; {vii} In column No.5 of VF-VII A the name of deceased {whose so-called land is inherited by Mst. Sabiha is not mentioned; {viii} In column 5 of VF-VII A the reference of Book of statements, wherein statements of Witnesses were recorded and decision of Disputed Register {Takrari Register} are not mentioned; {ix} Land Utilization department issued circular dated 16.11.1992 regarding regularization of HAQ QABZA lands and directed that in case of Haq Qabza rights no mutation be made in VF-VII {record of rights} except on the basis of genuine and old documents registered as per rules prior to the year 1947; {x} The land was surveyed in 1986 prior to that Deh Babar Bund was comprised of different area numbered as NA Class No.1; and {xi} After survey conducted in the year 1985 of all the chaks, survey Nos.88 and 89 in each chak have different area which does not tally with the area mentioned in sale certificate. 12. What we understand from the record is that an inquiry was initiated on the basis of certain complaints and press clippings highlighting fraudulent sale of 237 acres of government land in Deh Babar Bund, Taluka Thana Bola Khan, District Jamshoro, followed by an investigation, which led to
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filing of a reference nominating six accused persons. The accused appearing at serial Nos.4 to 6 (Mehmood Rangoonwala, Mst. Sabiha and Javed Akhtar Qureshi) are private persons whereas accused appearing at serial Nos.1 to 3 (Asadullah Solangi, Ali Akbar Parhiar and Abdul Jabbar Soomro) are shown to be officials of revenue department. It has come in evidence that entry No.77 dated 20.10.1890 was arranged in VF-VII, rewritten in the year 1985, in the name of Mst. Sabiha showing her to be the owner of Survey Nos.288/2 {46-10 acres}, 289/1 {36-30 acres}, 289/2 {45-10 acres}, 289/3 {55-30 acres) and 289/4 {53-0 acres), total measuring 237-00 acres in Deb Babar Bund, Tapa Hathal Buth, Taluka Thana Bola Khan, District Jamshoro purported to have been inherited land from old occupant/possession holder, which numbers do not exist in the survey record. The record also reflects that Deh Babar Bund was an un-surveyed land comprised of five parts and each part known as chak and each chak contained one survey number. In the year 1985 the Directorate of Settlement Survey and Land Record, Hyderabad surveyed the area and assigned survey number to all five parts of Deh Babar Bund according to which Survey Nos.288 and 289 in all chaks comprised of an area of around four acres and not as mentioned in the record of rights based on fake entry No.77, the then Tapedar issued sale certificate dated 16.12.2004, which was attested/confirmed by appellant Asadullah Solangi and based on which Mst. Sabiha transferred the land in question in favour of Mehmood Rangoonwala through a registered sale deed before the office of Sub-Registrar, Kotri. The record is also suggestive of the fact that in the year 1985 the entire record of rights was rewritten according to which original entry No.77 was recorded in respect of survey No.289 comprised of 10 acres in favour of Walidad and 16 other persons, but it was changed by removing original page and inserting another leaf in the record of rights in favour of Mst. Sabiha showing her to be owner of 237 acres of government land and subsequent thereto NOC/sale certificate was issued in favour of Mst. Sabiha. Based on the sale deed, Abdul Jabbar Soomro {absconding accused) inserted entry No.154 dated 12.01.2005, which was attested/confirmed by appellant Ali Akbar Parhiar. Worth to mention here that at trial Mst. Sabiha denied to have obtained sale certificate as well as her ownership over the land in question and also execution of registered sale deed in favour of Mehmood Rangoonwala. Javed Akhtar Qureshi also denied to have visited the office of Sub-Registrar and identified her sister at the time of execution of sale deed while accused Mehmood Rangoonwala also denied the prosecution case and claimed that he purchased the land in question from Mst. Sabiha after completing all codal formalities and paid the entire sale consideration to her, who produced fresh form VII, and also obtained NOC for Sale from the office of revenue department. Surprising to note that at trial the three accused claimed their innocence, but after recording conviction they entered into plea bargain, in terms whereof Mst. Sabiha and Javed Akhtar Qureshi voluntarily paid a total sum of Rs.10,75,000/- each towards illegal gains earned by them including fine of Rs.500,000/- each imposed by this Court vide order dated 31.01.2020 in their respective appeals. We are also conscious of the fact that accused Mehmood Rangoonwala also entered into plea bargain and voluntarily surrendered the entire land to the Government and also paid a sum of Rs.500,000/- towards fine vide order dated 11.12.2019 passed by this Court in Criminal Accountability Appeal No.53 of 2018. This fact, thus, established guilty conscious of three accused, who voluntarily entered into plea bargain admitting their guilt and based on such PB their conviction of five years rigorous imprisonment each was set-aside by this Court, however, the sentences awarded in terms of section 15 were ordered to be maintained. It will not be out of place to mention here that accused Abdul Jabbar Soomro {Tapedar} after recording of his section 342, Cr.P.C. statement absconded away perhaps due to possibility of trial ending into his conviction, which too proved his guilty conscious. Insofar as the appellants are concerned, suffice to observe that they being holder of public office and custodian of state assets failed to discharge their duties honestly, diligently in a carefully manner, but they become instrumental and facilitated the corrupt practices by way of negligence and connivance with
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others, thereby aided and abetted private accused persons in usurping the government land and causing a colossal loss to the national exchequer. Appellant Asadullah Solangi in his capacity as Mukhtiarkar T.B. Khan attested/confirmed fake sale certificate on the basis of fake entry No.77 in favour of Mst. Sabiha, who got the land transferred in the name of Mehmood Rangoonwala through a registered sale deed No.1014 dated 31.12.2004 before the office of Sub-Registrar, Kotri, and on the basis of such registered deed Abdul Jabbar Soomro {Tapedar} inserted entry No.154 dated 12.01.2005 in the record of rights, which was attested and confirmed by appellant Ali Akbar Parhiar. At this juncture, we are of the considered view that all the accused persons, nominated in the reference, in connivance with each other committed an offence of corruption and corrupt practices and misuse of authority and sold out 237 acres of government land through fake entries in record of rights, manipulating and removing the original record and managing fake and fabricated documents and the acquisitions against them stand proved. 13. As to the contention that NAB was not competent to file a reference against the appellants without completing proper exercise in the light of the guidelines highlighted by the Hon'ble Superior Court before initiation of inquiry and filing of a reference, suffice to observe that subsection (b) of section 18 of the Ordinance deals…
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