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Petitioner: ASIF ALI ZARDARI VS Respondent: THE STATE through NAB, Islamabad
Court Name: Lahore High Court Judge(s): Sardar Muhammad Aslam, Maulvi Anwar-ul-Haq Title: ASIF ALI ZARDARI vs THE STATE through NAB, Islamabad Case No.: Criminal Appeal No, 42-E of 2002 Date of Judgment:2004-09-09 Reported As: 2005 YLR 717 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MAULVI ANWARUL HAQ, J.-This case was re-heard on 9-9-2004 and we had announced a short order allowing the Criminal Appeal and acquitting the appellant. Following is the judgment containing the reasons for our said short order. 2. Upon presentation of Ehetsab Reference No,33 of 1998 later numbered as Reference No,27 of 2000 under section 15(1) of the Ehtesab Act, 1997, a trial was commenced by a learned Ehtesab Bench of this Court and concluded by a learned Judge, Accountability Court No,1, Rawalpindi/Islamabad, who vide judgment, dated 12-9-2002 convicted the appellant under section 4 of the Ehtesab Act, 1997 and sentenced him to seven years imprisonment and a fine of Rs, 4,00,00,000 (Rupees Four Crores) or in default to undergo one year imprisonment. The disqualifications prescribed in section 9 of the said Act were imposed, after holding the appellant guilty of the following charge to which a plea of not guilty had been entered by him:- "That you in the first week of September, 1995 at the Prime Minister House, Islamabad (where you lived with your spouse, the then Prime Minister) in your capacity as a holder of a Public Office, being a Member of the Parliament of Pakistan, called Sajjad Hussain (approver), the then Chairman, Pakistan Steel Mills Corporation Ltd., Karachi and you ordered him to ask Messrs Mercury Corporation, Karachi, who were holding a Contract, dated 28-7-1993 of $ 22 Million for supply and installation of 130 Tons Converter No,3 at the above Steel Mills, to seek and obtain for you an amount of $ 2 Million failing which their above contract would have ended in cancellation. ' That on 12-9-1995, in the area of Pakistan Steel Mills, Bin Qasim Karachi, in pursuance of your aforementioned demand, Sajjad Hussain (approver), under colour of his office, as Chairman (bestowed) upon him w.e.f, 8-5-1995 when your spouse was the Prime Minister), summoned Javed
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Sultan of Messrs Mercury Corporation, Karachi and asked him to arrange an amount of Rs,4 Crores in dollars, for payment to you as a motive or reward forbearing you to show disfavour in cancellation of the above mentioned contract. ' That on said date, time and place, on Javed Sultan's having shown inability to arrange the amount demanded by you, on direction of Sajjad Hussain, he had submitted an application to the Chairman of Pakistan. Steel Mills Ltd. Karachi, for approval of an advance loan of Rs,4 crores towards the above contract and his application was entertained and processed on the Same day. ' That on 13-9-1995 Sajjad Hussain (approver) on directing approval of loan of Rs,4 crores to facilitate cash payment desired by you, got issued a cheque of said amount in favour of Messrs Mercury Corporation, Karachi, drawn on Allied Bank Ltd. Bin Qasim Branch, Karachi and deposited it same day in the account of Messrs Mercury Corporation Ltd., in Prudential Commercial Bank Ltd. ' Chundrigar Branch, Karachi and the amount of Rs,4 crores was then credited to the account of Messrs Mercury Corporation in the Prudential Commercial Bank on 14-9-1995. ' That to make good the above payment to you on 13-9-1995, Javed Sultan arranged 140 F.E.B.Cs., each of value of Rs,one lac through S.M. Saleem, a Stock Exchange broker and delivered this amount same day to Sajjad Hussain, who on 14-9-1995 in the morning left by PIA for Islamabad, and on his instruction Javed Sultan further arranged 149 F.E.B.Cs. Each of the value of Rs,one lac and an amount of Rs,60 lacs, converted into dollars and went to Islamabad by PIA flight and delivered to Sajjad Hussain the said amount at V.I.P. Lounges, Islamabad with a view to further pass it on to you. ' That on 14-9-1995, in the evening, Sajjad Hussain (approver) went to the Prime Minister House, Islamabad, where you were already present. He met you and delivered to you F.E.B.Cs. And cash, in dollars, amounting to Rs,3 crores and 12 lacs in all, whereas, Sajjad Hussain (approver) himself retained F.E.B.Cs. Worth Rs,37 lacs and thus by corrupt and dishonest and illegal means and further by abuse of your position as a holder of a public office, utilizing the services of the then Chairman, Pakistan Steel Mills Ltd., Karachi, you obtained an amount of Rs,3 crores and 12 lacs from Javed Sultan of Messrs Mercury Corporation under threats of cancellation of contract, and thereby committed an offence within the meaning of section 3(d)(e) punishable under section 4 of the Ehtesab Act, 1997, and within the cognizance of this Court." 3. Dr. Z. Babar Awan, learned counsel for the appellant, contends that the impugned conviction and sentence have been recorded by the learned trial Court by failing to read entire evidence on record and the circumstances emerging therefrom misreading the evidence referred to in the judgment and relying upon inadmissible evidence. According to the learned counsel, the entire judgment is based upon the statement Exh.PP of Sajjad Hussain erstwhile co-accused later made an approver and this stands conceded in the impugned judgment as well. The learned counsel has asserted with some vehemence that the said statement did not qualify to be a duly recorded statement under section 164, Cr.P.C. It was recorded in the presence of the I.O. And further after administering oath to the said person. Further contends that the statement was recorded behind the back of the appellant and no opportunity of cross-examination was granted. According to the learned 'counsel, the conditions precedent laid down in section 265-J, Cr.P.C. For treating the said statement as evidence in the case do not at all exist. The learned counsel also challenges the reasons recorded by the learned trial Court for admitting the said statement in evidence and basing the conviction and sentence upon the same. According to the learned counsel, the statement by no means qualified to be admitted in evidence in terms of Article 46 of the Qanun-e- Shahadat Order, 1984. He also questions that the pardon was not tendered by the Chief Ehtesab Commissioner in the manner prescribed by law. According to him, the approval of Federal Government is not there and the prosecution has not produced on record application, if any, filed by Sajjad Hussain co-accused/approver seeking the grant of said pardon. Alternately argues that
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if valid pardon was granted in terms of the provisions of the Ehtesab Act, 1997 or Cr.P.C. Then it cannot be said that the said person might have been exposed to the prosecution because of the contents of the said statement. Learned counsel then argues that the prosecution was mala fide and the person Incharge of the prosecution was biased against his client. Learned counsel has stated before us the history of his case with reference to the evidence recorded at the trial and as also the documents tendered in this Court vide Cr1. Misc. No,16-M/ 2003 and Cr1. Misc. No,54- M/2004 which form part of judicial proceedings. (We may note here that the said documents were handed over to the learned Deputy Prosecutor General and in the first instance, it was agreed that these documents be referred by the learned counsel in the course of his arguments subject to determination of admissibility at a later stage. However, ultimately, the learned DPG has expressed his consent that the said documents which are certified copies of judicial records be read as evidence in this case). According to the learned counsel. The contract was granted before the political party to which his client belongs came in power and his spouse became the Prime Minister of the country. Also points out that it was before the disposal of the said Government that a civil suit was filed for recovery of the amount, the subject-matter of this Reference against the Contractor-Firm as also Sajjad Hussain which suit is still pending. He then refers to the proceedings by Ehtesab Court in matters pertaining to the same amount of money in which a plea bargain was effected with the main accused, namely, Muhammad Asif (not the appellant) of the said Contractor-Firm and the prosecution, which was approved by the learned Ehtesab Court and one of the terms was that the entire amount including the amount in question was paid by the said Muhammad Asif to the NAB Authorities. Learned counsel points out that these proceedings were so finalized and then vide judgment of the Ehtesab Court at Karachi all the accused persons were acquitted. The appeal filed by NAB against the said acquittal was dismissed by a learned Division Bench of the High Court of Sindh. At Karachi vide judgment reported as PLD 2003 Karachi 123. The learned counsel complains that the matter was decided by the learned Ehtesab Court at a 'point of time before the impugned judgment was passed but the learned trial Court was kept in dark and so was the matter with his client. Learned counsel then proceeds to contend that there is not evidence on record that the appellant ever demanded illegal gratification from the said Sajjad Hussain or the said Contractor-Firm. According to the learned counsel, in the first instance, there is no valid evidence that Sajjad Hussain ever visited the Prime Minister House at Islamabad on the dates mentioned by the prosecution noted in the charge and in the second even if the contents of the diaries produced by the prosecution are believed, there is not an iota of evidence on record that Sajjad Hussain ever met his client on the said dates and delivered him the amount in question. He also states that the record of the issuance of F.E.B.Cs. Has been cooked up and nobody knows as to what happened to those F.E.B.Cs. Which . Were never encashed. The learned counsel further contends that the plea of alibi raised by his client stood proved on record inasmuch as it has been proved that he was not present in the Prime Minister's House at the relevant time. The learned counsel then argues that the said statement of Sajjad Hussain does not get any corroboration in law or in fact, particularly refers to the testimony of Javed Sultan P.W. To demonstrate that he was an interested witness and his deposition did not carry any credence. Then refers us to the statement of Feroze Shah, the I.O. Of the case to demonstrate the dishonest manner in which the said officer conducted the investigation, if any. 4. Mr. Abdul Basir Qureshi, learned Prosecutor General, on the other hand, supports the impugned conviction and sentence recorded by the learned trial Court. Now the learned DPG contends that pardon was granted to Sajjad Hussain by the learned Chief Ehtesab Commissioner in accordance with law after the approval of the Federal Government and what was recorded by Muhammad Ali, Magistrate P.W. Was a confession and since it was a confession that was recorded, there was no obligation upon the Magistrate to issue a notice to the appellant and to afford him an opportunity
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of cross-examination. According to the learned D.P.G., in the matter of grant of pardon, specific provision had been made in the Ehtesab Act, .1997 in the form of section 18 of the Ehtesab Act, 1997 and this being a special provision in a special law, the general provisions contained in Cr.P.C. Shall stand excluded. Learned D.P.G. Argues that the confession was not recorded on oath. Learned D.P.G. While admitting that the amount involved in the present case is the same amount which was involved in the Reference decided at Karachi and that the same has been recovered by NAB, insists that the primary rather the sole allegation made by the prosecution was that the appellant demanded illegal gratification and received the same in tile manner proved by the prosecution at the trial. According to the D.P.G., the statement of Sajjad Hussain Exh.PP was admissible in evidence in terms of Article 46 of the Qanun-e-Shahadat Order, 1984, as he had confessed having committed a crime and the contents of the statement could have exposed him to prosecution. Learned DPG then refers us to the several pieces of evidence to demonstrate the movements of the said money commencing with the order of Sajjad Hussain for release of payment and ending in its delivery to Sajjad Hussain by Javed Sultan P.W. And then by Sajjad Hussain to the appellant in the Prime Minister's House at Islamabad. Regarding the F.E.B.Cs. Learned DPG opines that these are bearer certificates and negotiable and the fact that there is nothing on record to show as to what ultimately happened to those F.E.B.Cs. And as to whether they were enchasded or not would not matter. According to the learned DPG, the appellant was prosecuted in good faith and the impugned judgment is based on legal evidence. 5. We have gone through the voluminous trial Court records and additional documents in the form of copies of judicial record tendered in this Court, with the assistance of the learned counsel for the appellant and the learned DPG. Having gone through the said records, we deem it proper to make an attempt to place the facts in chronological order as we have been able to understand upon a reading of the entire material available on record. On 28-7-1993 when the country was being taken care of by a Care Taker Government, a contract (Exh. PJ at pages 65 to 109 of the reference) was awarded to Mercury Corporation for installation of 130 Tons Converter No,3 at Steel making department of the Pakistan Steel Mills Corporation Limited. According to this document, the tender inquiry was floated on 22-11-1992 and a letter of intent was issued on 26-7-1993. According to P.W.14 Javed Sultan this is a business in the name and style of Messrs Mercury Corporation at L-13 Block No,21 Federal B Area, Krachi and he is a partner in the same and there are three other partners, namely, Muhammad Asif, Muhammad Razi and Muhammad Saleh. The delivery period was settled at 18 months after the effective date of contract, the total price which was to be firm and fixed was $ 22.5 Million. 20% of this amount was to be paid by the customer (Pakistan Steel Mills) to the said contractor in three equal monthly instalments against Bank Guarantee. The remaining payment was to be released as per clause 3.3 of part-2 of the said contract. The said schedule was revised vide letter, dated 19-54994, present at pages 106 and 107 of the reference. According to Hamid Pervaiz P.W.9, Sajjad Hussain joined Pakistan Steel Mills as Director Finance in the year, 1992 (Exh. PR). He was given acting charge of Chairman on 4-8-1994 vide Notification Exh.P.S. He was regularly appointed as Chairman vide Notification, dated 8-5-1995 (Exh. PT). He was removed from the said post and made an OSD on 5-12-1995 as stated by the said P.W.9 in response to a question in cross- examination put to him with reference to the file of Establishment Division. 6. Saleem Ullah Khan P.W.7 produced an application Ex. PL with noting part Exh. PM and the payment voucher Exh.PN. Exh. PL is dated 12-9-1995 (pages 58 and 59 of the reference). This is addressed by Javed Sultan, Director, Mercury Corporation to the Chairman, Pakistan Steel Mills. After referring to several reasons as to the non-performance of the said contract in the manner stipulated attributing the same mostly to the said Customers, a prayer was made that an advance payment of Rs,40 Million be released forthwith to enable the said Corporation to ship the material and to take up the installation work in the right earnest.
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' There is a note recorded on the said application that the addressee agrees in principle with the applicant and the Director Finance may see to it that the amount is released. There is another noting of Director Finance to put up summary. Exh.PM is the summary ultimately leading to the release of the said amount vide voucher Exh. PN, dated 13-9-1995. The cheque of the same date issued in favour of Mercury Corporation is Exh.PA produced by Samoon Khan P.W.2 vide recovery memo Exh.PB. 7. According to Haji Abdul Sattar P.W.13, he was posted as Operation Manager in the Prudential Commercial Bank Limited, I.I. Chundrigar Road, Karachi, in the year, 1995 and Javed Sultan was client who is account holder of the Bank. On 13-9-1995 Javed Sultan brought the said cheque Exh.P.A. And he issued receipt Exh. PU/1 and sent the cheque to Allied Bank of Pakistan for clearance. The amount of Rs,4 crores (we may note here that in the opening lines of the statement of this witness, as per record of the learned trial Court, the amount is typed as Rs,14 Millions, which to our mind is obviously a clerical error) was credited to the account of Mercury Corporation as per statement of account Exh.PV. On the same day after the banking hours, Javed Sultan visited him in the said Branch of the Prudential Commercial Bank. He delivered him cheques Exh.PU/2 in the sum of Rs,22 Millions and Exh.PU/3 in the sum of Rs,14,518,000. The said amount was debited in the said account of Mercury Corporation. The P.W.13 then contracted a broker S.M. Saleem in the Stock Exchange, Karachi, who was holding a Foreign Currency Account in the said bank and introduced him to Javed Sultan. The said S.M. Saleem issued a cheque Exh.PU/4 in the sum of $ 9,02,176 along with application Mark B' (Exh . PU/5) . This amount of US Dollars was debited to the account of S.M. Saleem. On 13-9-1995 F.E.B.Cs. In the sum of Rs,14 Millions were 'issued to S.M. Saleem who delivered the same to Javed Sultan. On the next date Javed Sultan and S.M. Saleem again came to the bank and another lot of F.E.B.Cs. In the sum of Rs,14.3 Millions were issued to S.M. Saleem who delivered the same to Javed Sultan. 8. On 17-4-1996 Pakistan Steel Mills filed a suit for recovery of Rs,43,500,000 against Messrs Mercury Corporation, Sajjad Hussain, Ex-Chairman, S.N. Abbasi, Ex-Director Finance of Pakistan Steel. The plaint of this suit is Exh.PZ. It was complained that the work under the said contract (which is Exh.PJ) ought to have been completed within 32 months of the effective date which was 23-10-1993 but it was not done. Then there is reference to a revised schedule. It is then stated that a mobilization advances in the sum of Rs,13,50,00,000 has been paid to the Mercury Corporation. However, it was stated that this is not the subject-matter of the suit. The grievance under out was that the said Sajjad Hussain and the said S.N. Nabi in collusion with Mercury Corporation proceeded to pay the said amount of Rs,40 Millions when there was no provision in the contract for payment of the said amount either as an advance or by way of loan by the plaintiff in the case to the Mercury Corporation. The pr:.Yer made was for the recovery of the said amount with 15% per annum interest which was the term of the release of the said amount. A decree for the said amount was thus prayed for. The written statement was filed by the Mercury Corporation and the copy is Exh.PZ/1. This document bears the signatures of Javed Sultan who admitted having filed the said document when confronted. The document is duly verified upon oath before a Commissioner for taking affidavits. The document is dated 21-8-1997. The plea taken is that the payment was released with authority after scrutiny and the intention was to provide mobilization advance to the Mercury Corporation in relation to implementation of the said contract. Further plea was that the amount stands utilized for the purpose of the contract. It was further stated that the original mobilization advance was given against performance guarantee which have been renewed and is fully secured. Accusation was made against the plaintiff that the breach is on its part in the matter of performance and completion of the said contract. 9. On 1-12-1996 with reference to an inquiry a case under sections 409/109/34, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947, was registered vide F.I.R. No, 17, dated 11-12-1996
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at P.S. FIA/SSC, Karachi. (This document is Exh. DA/23). The , allegation was that Lt.-Gen. (Rtd.). Sabeeh Qamaruz Zaman while posted as Chairman, Pakistan Steel Mills (PSM) in collusion with Habibullah Siddiqui, Director (Procurement) fraudulently and with criminal intent manipulated the purchase of 3rd Converter which was not required. The services of Mr. Asif owner of Mercury Corporation were obtained who had come in contact with the said former Chairman during his visit to Rassia. A sum of Rs,135 Millions was paid to the. Mercury Corporation as mobilization advance against Bank Guarantees in three instalments w.e.f, 30-8-1993 to 12-10-1993 but the contractual commitment was not fulfilled and the amount was misappropriated without any material progress. The said Asif of Mercury Corporation did not deal in machinery and being the Sole Garment dealer exported from Pakistan to Russia on barter system and was facing some problems with the realization of their export bills while the Russian Government was inclined to make payment in the shape of Machinery/Hardware. The said Lt. Gen. Sabeeh Qamaruz Zaman facilitated Asif of Mercury Corporation while placing the osier of 3rd Converter for realizing the outstanding export bills from Russia. It was then narrated that Sajjad Hussain while posted as Chairman, PSM also availed the opportunity and facilitated by extending advance payment of Rs,40 Millions without any lawful justification with the connivance of S.N. Nabi, Director (Finance) and other officers of PSM and thus used the funds of PSM for their pecuniary advantage and for the advantage of co-accused Asif of Mercury Corporation. In this manner, a total loss of more than Rs,175 Millions was caused to PSM. 10. On 26-12-1996 challan Exh. DA/24 was put up against Lt.-Gen. (R.) Sabeen Qamaruz Zaman, Habibullah Siddiqui, Muhammad Asif, Sajjad Hussain and S.N. Abbasi, Sajjad Hussain was sent up in custody and was remanded to judicial custody on the same date. 11. On 2-5-1997 yet another interim challari Exh.DA/25 was put up against Lt.-Gen. (R.) Sabeeh Qamaruz Zaman, Habib Ullah Siddiqui, Muhammad Asif, Muhammad Ehsanullah Sharif, M. Israil Khan, Sajjad Hussain and S.N. Abbasi. According to this document, Sajjad Hussain had been granted bail on 11-3-1997. 12. A third challan Exh.DA/26 was put up on 11-12-1996 against the above-noted seven persons. On 6-2-1998 a learned Special Judge (Central) II, Karachi, framed charge (Exh. DA/29) against Sajjad Hussain, S.N. Abbasi, Lt. Gen (R.) Sabeeh Qamaruz Zaman, Habibullah Siddiqui, Muhammad Ehsanullah Sharif, Muhammad Israil Khan and Syed Mazhar Alam. Sajjad Hussain was charged for making unauthorized payments of Rs, 40 Millions at the behest of Asif of Mercury Corporation with the collaboration of Syed Mazhar Alam, S.N. Abbasi and Muhammad Israil Khan. Vide Exh.DA/30, Sajjad Hussain pleaded not guilty to the said charge. 13. In the meanwhile on 13-6-1997 writ petition Exh.DA/32 was filed by Mst. Amna Hussain through Mr. Talib H. Rizvi, Advocate, D.W.2 in the High Court of Sindh at Karachi. After mentioning that Sajjad Hussain was first detained under the . M.P.O. On 26-11-1996 and was released by the said learned Court. Thereafter, he was again arrested on 11-12-1996 and was granted bail on 11-3-1997. However, before his release, he was arrested in case F.I.R. No,1 of 1997 and was granted bail by the said learned Court. According to the contents of the said writ petition, Sajjad Hussain has become a mad man having developed extreme depressive condition. She accused the Ehtesab Cell of coercing her husband into making a statement in accordance with.Their wishes. There is then reference to recording of statement implicating the present appellant in the matter of payment of Rs,323 Millions by Sajjad Hussain to him; that her husband is being forced by one Waseem Afzal to make a statement on Television as also before the Press. The Television Team came to her house and found her husband under heavy sedation. The relief prayed was that Sajjad , Hussain the interrogated in the presence of the said writ petition or her Advocate and should not be taken out of the jurisdiction of the said Court. He should not be removed from the Hospital where he is under
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treatment and he should not be forced to make statement on Television or before the Press and the statement already recorded be not used illegally. 14. On 3-2-1998 (this is the date verified by the Hon'ble Members of the Ehtesab Bench who recorded the evidence in this case), the present Reference was prepared (Exh.PA/C) naming Sajjad Hussain and appellant as accused persons. Following are the contents of this Reference:-- "Mercury Corporation at Karachi based firm, entered into a contract vide No, 22470/PP(PC)/BMR /92 -…
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