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Petitioner: Qazi. NASEEM AHMED VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Hussain Adil Khatri Title: Qazi. NASEEM AHMED vs THE STATE Case No.: Criminal Appeal No.195 of 1986 Date of Judgment:1991-07-09 Reported As: 1992 P Cr. L J 963 Result: Appeal accepted
JUDGMENT
JUDGMENT The present appeal is directed against the judgment dated 12-10-1986 passed by the Special Judge Anti-Corruption (Provincial) Karachi. In Special Case No.27/82 whereby the appellant was convicted under section 5-C of the Prevention of Corruption Act, 1947, and was awarded sentence of R.I. For two years and fine of Rs.25,000 or in default to undergo R.I. For six months more. The property in possession of the appellant, his brother Kazi Waseem Ahmed and his mother Mst. Shakooran Bibi were also forfeited to the Provincial Government and the S.P. Anti-Corruption was directed to dispose of the above properties according to the rules. The charge framed against the accused reads as under: "It is alleged that in 1970 to 1978 you were serving as Sub-Registrar at Karachi in Grade-9 and as such you were a public servant. It is alleged that while serving as public servant, you by abuse of your official position acquired the following properties by improper means in your own name and in the name of your dependent mother and younger brother. DETAILS OF PROPERTY (1) You purchased Flat No.M-8 on Plot No.ST-10 Block No.1, F.B. Area Karachi from M/s. Rukunuddin Khan in your own name for Rs.27,649/25 in the year 1080. (2) You purchased Plot No.B-17 of 490 sq. Yards in Allahabad Town from United Housing Enterprises Co. Karachi in your own name for' Rs.1,200 in year 1970. (3) You purchased 4 plots of 80 sq. Yards each bearing Nos.N-922, N-925, N-924, N-925 in the name of your younger brother Kazi Wasim Ahmed in 32-E Area Korangi Karachi and 3 plots bearing Nos.N-926,-- 927 and 928 in 32-E Area Korangi in the name of your mother Mst.. Shakooran Bibi and
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registered the lease deeds of the above plots yourself in the capacity of Sub-Registrar Defence Housing Society Karachi in the month of July, 1980. (4) You got allotted 6 acres of Agricultural Land in Poultry Scheme in Deh Surjani (From N.C.No.99 of Surjani) Karachi Taluka in the name of your younger brother Kazi Wasim Ahmed in the year 1980. (5) You. Got allotted Plot No.1/75 of 120 sq. Yards in Block No.6, P.EC.H.K, Karachi in your own name for Rs.3,000 in the year 1973. (6) You purchased Plot No.B/612 Block 13 of 400 sq. Yards Federal `B' Area Karachi in the name of your mother Mst. Shakooran Bibi for Rs.30,000 in April 1978 and got constructed a double storey bungalow worth Rs. 3-1 /2 lacs on the aforesaid plot in 1978. (7) You own Datsun 120-Y Car Model 1976 worth Rs.00,000 bearing Registration No.963-000 in the ficticious name of Mst. Parveen Bibi showing himself as User/Keeper of the said car in the application Form for Registration filed by you in your own hand; in June, 4979. (8) You visted Hong Kong, Malaysia, Bangkok, Thailand in January, 1979 on Passport NoAG-077527, showing yourself as businessm an without obtaining N.O.C. Or Ex-Pakistan Leave from Department and spent huge amount on his pleasure trips to foreign countries. (9) Again you visited Dubai in June 1980 on passport NoAG-077527, showing himself as businessm an and'spent huge amount on your pleasure trips. And thereby you committed offence punishable under section 5(2)--Act II of 1947 and 5-C of Act 11 of Prevention of Corruption Act of 1947, within the cognizance of this Court". The prosecution examined following witnesses in support of the aforesaid charge'-- P.W.1 Abdul' Hameed Qureshi, P.W.2 Syed Aijaz Ahmed, P.W.3 Abdul Rehman, P.W.4 Hussain Hyder, P.W.5 Akhlaque Ahmed, P.W.6 Muhammad Naqi, P.W.7 Syed Aijaz Ali, P.W.8 Syed Mubarak Raza, P.W.9 Syed Izhar Abbas, P.W.10 Ramesh, 'P.W.11 Siddique-uz---Zaman, P.W.12, Muhammad Ismail, P.W.13 Gul Muhammad, P.W.14 Mouladad Khan, P.W.l5 Shamshad Khan, P.W.16 Nazar Muhammad, P.W.17 Ch. Muhammad Hussain and P.W.18 Inspector Muhammad Amin. The prosecution also produced documents in evidence which will be referred to at appropriate place in so far as they are relevant. The appellant examined himself as D.W.6 and also examined following witnesses in defence:-- D.W.1 Ghulam Nabi, D.W.2 Iqbal Ahmed, D.W.3 Raja Riar, D.W.4 Mumtaz Baig and D.W.5 Kazi Wasim Ahmed. Before considering the above evidence it may be pointed out that the appellant was - prosecuted as -a result of an enquiry conducted by P.W.18 Muhammad Amin, Inspector Anti-Corruption Establishment Karachi. It is however not known as to on what basis the enquiry was initiated against the appellant. Neither formal complaint from any quarter against the appellant has been produced, nor any intelligence received otherwise has been disclosed. The appellant in his statement under section 342 and deposition under section 340(2), Cr.P.C. Had stated that in the year 1981 the aforesaid witness had come to meet him alongwith one relative of Syed Abdul Rauf, the then D.S.P. Of Anti-Corruption Establishment Karachi and asked him for registration of a conveyance deed in respect of an evacuee property and on his refusal the said witness was annoyed and there was exchange of harsh words between them. The said witness had left the office of the appellant with the threat of dire consequences. He further stated that in the year 1978 when the aforesaid Syed Abdul Rauf was D.S.P. Of the Anti-Corruption Establishment he had established a complaint cell and had directed all the Registrars to furnish the particulars of the persons who came for registration o: the documents. The appellant had refused to furnish the aforesaid required particulars when P.W. Muhammad Amin came to collect the same. On his refusal Syed Abdul Rauf had personally come to him and ordered to furnish the information but the appellant refused to do so as he was not legally bound to furnish such information. He stated that the present case was the result of personal grudge harboured by the said Syed Abdul Rauf. It may
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be pointed out that the investigation of the present case was conducted under his supervision and challan was submitted under his signature. I have heard Mr. Abdul Qadir Ralepota, the learned counsel for the appellant and Mr. Zaheer Ahmed Qureshi, the learned Advocate for the State. The learned counsel for the appellant has contended that the prosecution has failed to establish the charge that the appellant while serving as public servant, by abusing his official position acquired the properties listed in the charge, by improper means in his own name and in the names of his dependants or that such properties that are in the names of his mother and brother Qazi Waseem Ahmed were purchased by him or that the properties that were in his name were beyond his means or his known sources of income or that he was in possession of any property movable or immovable either in his own name or in the name of any other person, which there is reason to believe were acquired by improper means and are disproportionate to the known income of the appellant. It was therefore contended that the charge levelled against the appellant has not been proved. The learned counsel for the State has supported the impugned judgment Before I proceed to consider the evidence brought on record with regard to the items mentioned in the charge made against the appellant it is necessary to refer to the provision of section 5-C of the Prevention of the Corruption Act, 1947. The said section reads as under: "5-C. Possession of property disproportionate to known sources of income.-- (1) Any public servant who has in his possession any property, movable or immovable, either in his own name or in the name of any other person, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to the known sources of income of such public servant shall, if he fails to account for such possession to the satisfaction of the Court trying him, be punishable with imprisonment for a term which may extend to seven years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government. (2) The reference in subsection (1) to property acquired by improper means' shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the force of law or by coercion, undue influence, fraud or misrepresentation within the meaning of the Contract Act, 1872". The reading of the aforesaid section makes it clear that the prosecution is required to prove the following facts: (i) The accused was a public servant, (ii) As such public servant he is in possession of any property, movable or immovable, either in his own name or: in the name of any other person, (iii) There is reason to believe that he has acquired such property by improper means; which is disproportionate to- the known source of income. When the above facts are proved, it will be for the accused to account, for such-possession to the satisfaction of the-Trial Court. The present case is therefore to fee examined keeping in view the above requirements of law. For the sake of convenience each item, detailed in the charge is proposed to be taken up in the same order,. In which it has been dealt with by the learned Judge Anti-Corruption. Item No.1 is a flat which was booked by the appellant with. Messrs Rukunuddin Ltd, for total consideration of. Rs.27,649. Out of this amount Rs.14,000 was to be realized from the loan arranged by the builders Messrs Rukunuddin Ltd. From the House Building Finance Corporation of Pakistan and the balance amount was payable in: the installments.Of Rs.200 per month. This flat was booked by the appellant in the year 1973 when he was working as Head Clerk in the :office of District Registrar of Properties Karachi. The prosecution had examined P.W.17 Ch. Muhammad Hussain who
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was the Manager of the aforesaid builders. This witness stated that the appellant had booked Flat No.M/8 situated on plot No.S.T.10, Block No.1 F.B. Area Karachi and he had paid theprice money amounting to R&.27,649 in instalments. According to the witness this amount included loan of Rs.14,000 taken from House Building Finance Corporation. In his cross-examination he admitted that the appellant had requested the company for payment of remaining amount in instalment of Rs.200 per month and the company had agreed to it.' The learned trial Court Judge has observed that the appellant, in the year 1973, was drawing salary of Rs.358 out of which Rs.21 being deducted towards G.P. Fund and thus he used to get Rs.337 per month. After deducting instalment of Rs.200 per month the appellant would be left with Rs.137 per month. The learned Judge from the above concluded that with the above balance it would not have 'been possible for the appellant to maintain himself and his family. The learned Judge was further impressed by the fact the appellant had to repay survival. The learned Judge has not made any further observation but it can be presumed that he speculated that the appellant used to earn money by illegal means to maintain himself. The reasoning of the learned Judge on the above account is based on his imagination rather than on the facts on record. The learned Judge has also presumed the salary of the appellant to be static and has overlooked the salary increase from time to time. Exh.15 produced by P.W.2 Aijaz Ahmed, the District Registrar Karachi shows that the salary of the appellant in January, 1973 was Rs.358 which was increased to Rs.365, then to Rs.400 and again to Rs.420 in the same year and further to Rs.470 in January 1974, then to Rs.485 in December 1974, to Rs.503.75 in February, Rs.523 in May and _Rs.528 in July 1975 and thus it went on increasing, and in January 1979 he was drawing Rs.774 P.M. In January 1980 Rs.890 and in the same year it was increased to Rs954 and then it was increased to Rs.1,042 in 1981. The learned counsel for the appellant pointed out that the aforesaid property did not find mention in the charge sheet submitted by the prosecution to the Court on the basis whereof the proceedings had commenced. Be that as it may, the fact remains that the aforesaid property is included in the charge framed against the appellant. The reasoning given by the learned trial Judge not being in consonance with the material on record and being conjectural in nature cannot be accepted. The payment of the stipulated monthly instalment was within the means of the appellant and if he chose to maintain himself within the limited means, this cannot be taken as an element to disparage the appellant. It is, therefore, held that the item No.1 does not advance the case of the prosecution. In so far as the loan of House Building Finance Corporation is concerned, no evidence has been produced whether such loan was in fact repaid by the appellant and if it was paid in what manner. The appellant in his deposition stated that he was given possession of the flat in the years 1979 and further that he could not pay the loan to the House Building Finance Corporation as a result whereof the above flat was attached by the. House Building Finance Corporation. He also deposed that the aforesaid flat was mentioned by him in the declaration of assets filed by him in the years 1974 and 1979. The above statement of the appellant was not challenged in the cross-examination and shall be deemed to have been accepted by the prosecution. It may be pointed out that in. Cross-examination of the appellant, the prosecution did not put up the, case to the effect that the purchase price was beyond his known resources and on the contrary a new case was set up to the effect that he had purchased the said flat below the market price by misusing his official position as 'Sub-Registrar. It may suffice to state that at that time appellant was not a Sub-Registrar but a clerk. The second item dealt with by the learned trial Judge is at Serial No.6 of the charge, which is regarding plot No.B/612 Block 13, F.B. Area, Karachi measuring 400 sq. Yards. The case of the appellant is that the said plot was purchased by his mother Mst. Shakooran Bibi out of the amount left with her by his father and the construction was raised partly from the amount realised from sale of the ornaments of his mother and partly from the loan borrowed from the
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House Building Finance Corporation. The learned trial Judge disbelieved the above version for the reason that D.W.5 Qazi Wasim Ahmed who was attorney of Mst. Shakooran Bibi in the transaction of purchase of the plot and through' whom the construction was raised did not mention the source of income of his father and therefore the learned Judge accepted the suggestion of the prosecution that his father was a Daftri in Government Office, and it was contended that the husband of Mst. Shakooran Bibi could not have acquired such a huge amount or ornaments from her husband. It was also observed that there was no evidence with regard to the loan taken from the House Building Finance Corporation and even if loan was taken it appeared to the learned Judge was repaid by the appellant after raising construction of the house. The learned Judge also disbelieved the source of income of D.W.5 for the reason that he was working as commission agent for the poultry products from the last thirteen years whereas the appellant stated that the said witness worked as Research Officer since 1970 after taking diploma from the Poultry Research Institute. The trial Court did not give any specific findings either to the effect that the appellant had purchased the plot in the name of his mother or that he had raised construction thereon and rightly so as there was no material before him to reach such conclusion. It was for the prosecution to first prove that the plot in question was purchased and construction thereon, was raised as a matter of fact by the appellant, by placing on record positive evidence and only thereafter, the defence was to be called upon to account for possession of such property. Merely for the reason that the appellant is living in the house of his mother, would not amount to such possession as is envisaged in section 5-C of the Act. It is therefore necessary to first determine whether the prosecution has proved the charge that the appellant purchased the 'aforesaid plot in the name of his mother for Rs.30,000 in the month of April, 1978 and constructed thereon a double storey house worth Rs.3,50,000. On the above issue the prosecution examined P.W.1 Abdul Hameed, Assistant Director KDA. Scheme No.16 who deposed that as per record of KD.A., the above plot was purchased by Mst. Shakooran Bibi from the original allottee for Rs.30,000 through her attorney Qazi Wasim Ahmed on 18-4-1978. He also stated that the said purchaser was granted permission to mortgage the said property for obtaining loan. P.W.5 Akhlaq 'Ahmed is another officer of KD.A. Who had assessed the value of the; property at Rs.3,33;000 as prevailing in the year 1978-79. He had assessed the value at the request of Anti-Corruption Establishment. He produced his report pertaining to the above assessm ent. He stated that the appellant had disclosed himself to be the owner of the building. In cross-examination he stated that he had not stated before the police that the appellant had disclosed himself to be the owner of the property. He further alleged that he had stated before the police --that the appellant had informed him that he had raised the construction in the year 1978- 79. However, P.W.18 Muhammad Amin, the Investigating Officer denied that the said witness had so stated-before him. P.W.7 Syed Aijaz Ali the Excise and Taxation Officer deposed that the said property stood in the name of Mst. Shakooran Bibi and its rental value is assessed at Rs.5,460 per annum. The property is shown as occupied by owner. P.W.8 Mubarak Raza, the Deputy Controller of Buildings Karachi produced the original plan of the said property which was submitted by the owner for approval. It bears thumb impression of Mst. Shakooran. Bibi and signature of Mr. Muhammad Arif, the Architect. He stated that the plan was approved on 15-5-1978. P.W. 18 Muhammad Amin is the Inspector Anti-Corruption, the case against the appellant was initiated at his instance and he was entrusted with the investigation of the case. He deposed that during the course of investigation it transpired that the appellant had purchased the said plot in the name of his mother and raised construction thereon. According to him the said house at that time was worth rupees eight lacs. In cross-examination he made startling disclosure. Although he had investigated the case, he was neither aware of the, fact that Muhammad Arif was the architect of the house, nor knew the person who had raised the construction, nor he examined any person
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concerned with the construction of the house. He further stated that the appellant had submitted the plan for approval. The above state of affairs speaks for itself and need no comments. The only evidence against the appellant is the alleged admission made --by him before P.W.5 Akhlaq Ahmed and the sweeping statement of P.W.18 Muhammad Amin. P.W.5 although had not in his statement under section 161, Cr.P.C. Attributed any such statement to the appellant, but in Court he asserted that he had done so. It will not, therefore, be safe to rely on this witness. So far as P.W.18 is concerned, his evidence, on his own showing, is not based on any material collected by him during the course of investigation: He did not examine the relevant persons like architect, the engineer and contractor etc. Who could have proved as to who had raised the construction on the plot in question. There is no evidence worth the name to prove that the appellant had paid the consideration of the plot or had spent money on the construction. On the contrary, it was the appellant's mother who is shown to have purchased the plot and raised construction thereon through her son Qazi Wasim Ahmed. This is what the prosecution evidence has established through P.Ws.1 and 8. Now the question arises whether the assumption on the part of the learned trial Judge that the father of the appellant did not leave behind enough, in the hands of his wife to purchase the property is to be considered. As noted above, the learned Judge had inferred that the appellant's father was a Daftri. The appellant in his deposition has stated before the Court that his father was in business and used to deal in iron scrap. This statement of the appellant wasnot challenged in the cross-examination and the suggestion put to him that his father was a Daftri, was denied by him. The above evidence was not noted by the learned trial Court Judge. Under these circumstances, there was no material before the learned trial Judge to make any inference as he has done. So far as D.W.5, Qazi Waseem Ahmed is concerned, he had deposed that he was working as Commission Agent in Poultry products and also used to sell medicines, equipments and other products relating to poultry farming. He had also deposed that he was a Member of Pakistan Poultry Association and had acquired a plot for poultry farming. Therefore, the assumption of the learned Judge that the loan if borrowed must have been. Paid by the appellant is also without any basis as appellant was not the only earning member of his family. It is further to. Be noted that the learned Judge has not applied his mind to the' defence evidence. D.W.1, Ghulam Nabi has specifically stated that he had entered into a contract for raising building for the mother of the appellant, through her Attorney D.W.5 from whom he had taken Rs.1,55,000 as cost of construction. This witness specifically deposed that the payments used to be made to him by D.W.5. The witness has not been shaken in cross-examination and there is nothing on record to discredit the said witness. The agreement also has been placed on record. Not a single word has been uttered by any of the prosecution witnesses either to the effect that the payment of the sale consideration or on account of construction, or any part of the either, was made by the appellant. No effort has been made and no evidence has been brought on record to prove the allegation under consideration. I am, therefore, of the opinion that the prosecution has failed to prove the above item of the charge. The learned Judge then dealt with alleged possession of a car bearing registration No.063-600, registered in the name of Mst. Parveen Bibi. It is Item No.7 of the charge. The prosecution examined P.W.4, Hussain Haider, a Clerk from the Excise & Taxation Department. He deposed that he had given the record pertaining to the aforesaid car to P.W.18. He produced the said record as Exhs.37 and 38. He stated that Mst. Perveen Bibi had made an application for registration of the aforesaid Car and she had given the address and phone, number of the keeper of the car as Oazi Naseem Ahmed. In cross--examination, he deposed -that he was not in a position to state whether the particulars given in Exhs.37 and 38 were correct or not. The other witness on the issue is P.W.14,
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Maula Dad Khan who was examined as Handwriting Expert. He gave his opinion that the entries in Exhs.37 and 38 were in the handwriting of the appellant, on the basis of his comparison of writing on the said documents with admitted writing of the appellant on Exh.74. The learned trial Judge has relied on the evidence of the aforesaid Handwriting Expert to reach the conclusion that the appellant had sought the registration of the car in the name of Mst. Parveen Bibi. I have compared the handwriting on Exhs.37 an4 38 with the other material that was used by the Handwriting Expert. I do not find any similarity whatsoever with the handwriting on Exh.74 and Exhs.37 and 38. Even otherwise the evidence of Handwriting Expert in absence of any corroborative evidence, is not sufficient to hold that the appellant had forged the document and to base conviction on such evidence, as such evidence is very weak type of evidence and not infallible. In this respect reference may be made to the cases of Ahmed Bux v. The State 1982 P Cr. L J 758; Jaffer Alain Choudhery v. The State 1969 P Cr. L J 260 and Toharak Ali Majhi v. The State 1969 P Cr. L J 569. The possibility that some other person impersonated himself as appellant cannot be ruled out. If the said car was actually in possession and use of the appellant, there would have been no difficulty for the prosecution to procure such evidence. There would be many persons in the office where the appellant was employed and also in the neighbourhood of the appellant, who must lave seen him using the said car, if…
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