1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.-This appeal under section 32 of the NAB Ordinance, is directed against the judgment dated 30-4-2002 passed by the learned Administrative Judge, Accountability Court Sindh Karachi, whereby the appellant has been convicted for the offence punishable under section 409, P.P.C. Read with section 10 of the NAB Ordinance, 1999 and has been sentenced to suffer R.I. For 7 years and to pay a fine of Rs,75,00,000. In case of non-payment of the fine, the appellant shall further undergo R.I. For a period of 2-1/2 years. It has been further ordered that the appellant shall forthwith cease to hold public office if any held by him and stand disqualified for a period of 10 years to be reckoned from the date he is released after serving the sentence, for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or any service of Pakistan or of any province. The appellant was extended the benefit of section 382-B of the Criminal Procedure Code.
2. ' The relevant facts are that the Chairman NAB filed a reference against appellant Tariq Siddiqui and co-accused Mumtaz-ul-Haque, Shoukat All and S.M. Ahmed Madani to face trial, for an offence punishable under section 10 of the NAB Ordinance. Three co-accused persons were present before the Court while the appellant was absent. The learned trial Court issued N.B.Ws., against the appellant which was returned unserved. Proclamations were issued under sections 87 and 88,Cr.P.C. And thereafter the three co-accused were tried and acquitted vide judgment dated 27-10-2001. The case against the present appellant was kept on dormant file. Subsequently, appellant was arrested and the case of appellant was taken up.
3. ' The prosecution case is that acquitted accused Mumtaz-ul-Haque and the appellant being Additional Director and Assistant Director, K.D.A. Respectively abused their official position and in the year 1988 carved out 27 residential plots of various categories ranging between 120 sq. Yards to 235 sq. Yards from Plot No, ST-37/2 P.B. Amenity, S.A. Type (Commercial) and ST-9, Block 4 (Commercial) of the lay out plan of Qasba Township Scheme No,27, K.D.A., Karachi and then allotted the said plots to fictitious persons. It is further alleged that the appellant and acquitted accused persons caused loss of Rs,53,31,500 to K.D.A. And misappropriated the said amount. During the pendency of case, Investigating Officer, recorded statements of P.Ws. Sher Muhammad, Sarfraz, Gul Muhammad, Muhammad Yaqoob, Abdul Hameed and Zakir Rehman and secured the documents from the witnesses in respect of the plots in their possession. The I.O., obtained specimen signatures, handwriting and initials of the appellant and sent them to the Handwriting Expert along with 27 files for his opinion.
4. ' Learned trial Court framed the following charge against the appellant.
5. "Charge I, Rahmat Hussain Jafferi, Administrative Judge, Accountability Courts, Sindh, Karachi, hereby charge you:-
(1) Tariq Siddiqui son of Raziuddin, as follows:--- ' That in the years 1998 and 1999, you along with acquitted accused Mumtazual Haque, while serving as Assistant Director, K.D.A. And Additional Director K.D.A. Respectively, by abuse of your official position as public servants and in furtherance of your common dishonest intention and criminal conspiracy and that of acquitted accused Shoukat All and S.M. Ahmed Madani, Accounts Officers K.D.A. Were entnisted with and had dominion over the land vested in K.D.A. And in flagrant violation of law/rules and director had converted 2 chunks of land bearing Plots Nos.ST-37/2 (P.B.)
6. Amenity S.A. Types (Commercial) and ST-9 Block-4 (Commercial) of the layout plan of Qasba Township Scheme No,27 of P.B. 27/6, into 27 residential plots of various categories ranging between 120 Sq. Yards to 235 Sq. Yards each and fraudulently disposed them off in the name of fictitious persons and thus by dishonest and illegal means, obtained pecuniary advantage for yourself causing loss to the public exchequer amounting to Rs,53,31,150 and misappropriated the said money and in violation of direction of law prescribing the mode, in which the trust was to be discharged and thereby you committed the offence of criminal breach of trust and corruption and corrupt practices as defined under section 405, P.P.C. And 9(a) (vi)(viii) of the NAB Ordinance, 1999 and punishable under section 409/34, 109, P.P.C. Read with section 10 and Sr. No,2 of the schedule of the offences appended with the NAB Ordinance 1999 and with in the cognizance of this Court.
7. ' I further charge you that from 15-9-2001 non-bailable warrants were issued against you to procure attendance but you absconded in order to avoid being served with the said non-bailable warrants issued by the Court under the NAB Ordinance, 1999 and prevented avoided or evaded the service on yourself of such process and concealed yourself to screen yourself from the proceedings and punishment under the said Ordinance and further proclamations under section 87, Cr.P.C. Were issued against you but even then you did not appear before the Court and thereby committed an offence punishable under section 31-A of the NAB Ordinance 1999 and within the cognizance of this Court.
8. ' And I hereby direct that you be, tried by the said Court on the above said charge.
9. ' Dated 9-4-2002.
10. (Sd.)
11. (Rahmat Hussain Jafferi)
12. Administrative Judge, Accountability Courts Sindh, Karachi."
13. ' The appellant pleaded not guilty to the charge.
14. ' In support of the charge, prosecution examined the following witnesses:-- ' P.W.1, Syed Jamil Ahmed. He produced 27 files Exhs.119 to 145 and attested copies of pages 219 to 235 from register of allotment as Exh.146 and attested copies of pages 18-19 of Dispatch Register Exh. 147 .
15. ' P.W.2, Muhammad Saleh. He stated that he is Deputy Director Master Plan, K.D.A. And was Assistant Director, Qasba Township up to 1-7-1985. He stated that files Exh.Nos.120 to 127 and 135 to 145 were forged and that his signatures on the allotment and transfer order were forged and that the documents do not bare his signatures.
16. ' P.W.3, Illahi Bux, Assistant Engineer, K.D.A. He stated that the files Exhs. 119 to 145 pertained to the plots whose record was not available.
17. ' P.W.4, Gul Muhammad Khan. He stated that he occupied Plot No,6 of ST-9, Qasba Township, without allotment order from any authority. He has further stated that in the year 1998, appellant visited him and asked him to get the papers prepared. He then went ,to the office of K.D.A. New Karachi and met the appellant. The appellant stated to him that the plot which was occupied by him belongs to some widow and if he does not prepare the papers then he will be evicted. The witness then gave Rs,1,60,000 to accused Tariq Siddiqui for two plots who handed over papers of two plots to him. One was Plot No,6, in which he is residing and the second was Plot No,1 in Qasba Township, which he has sold to one Grahan Badshah, about one year before his testimony for a consideration of Rs,1,80,000. He produced Indenture of Lease in his favour in respect of Plot No,6, Exh.153-A. He has further stated that appellant Tariq Siddiqui signed the lease deed Exh.153-A on behalf of K.D.A. He has further stated that appellant Tariq Siddiqui, has given documents to occupants of houses namely Shah Alam, Amiruddin, Naeem and his two brothers in his presence.
18. In cross-examination he stated that appellant was not paid illegal gratification but was paid money for the plot in his illegal occupation. The appellant had informed him that the amount would be paid to the widow and then the plot will be transferred in his name. He has further stated that the lease-deed in his favour Exh. 153-A was signed by the appellant in his presence.
19. ' P.W.5, Mushtaq Ali Khan, and P.W.6, Mst. Noor Jehan, have not deposed anything about the alleged offence committed by the appellant and therefore, their statements are not material.
20. ' P.W.7, Sher Muhammad. P.W.8, Muhammad Yaqoob. P.W.9, Zakir Rehman, P.W.10, Abdul Hameed, and P.W.11, Sarfraz have deposed the similar facts as stated by P.W. Gul Muhammad. All these witnesses have testified that they were encroachers and lease-deeds were prepared, signed and handed over to them by appellant after receiving different amounts from them. P.W.12, Shabbir Ahmed Rizvi, a retired Assistant Research Officer, K.D.A. Has explained the procedure adopted by the K.D.A. Pertaining to the preparation of site plan of the plots and the preparation of master plan.
21. P.W.13, Ghulam Muhiuddin Qadri, Executive Engineer, K.D.A., has explained the procedure for issuing site plan. He stated that 6 files out of Exhs.119 to 145 do not have the site plans and the site plans in the remaining files do not bare his signatures or signatures of any of his predecessor or of his Assistant Engineers. P.W.14, Ghulam Akbar, a Handwriting Expert and Incharge of Forensic Science Department, Karachi. He stated that he compared the admitted signatures of appellant with the signatures on 27 files and found that the signatures on the files were similar to the signature of appellant Tariq Siddiqui. P.W.15, Syed Ubaid Ahmed, Accounts Officer, K.D.A., has stated that in the year 1998-1999 some payments were made against the plots shown in Exhs. 119 to 145 and loss was caused to the K.D.A. At Rs,5,30,550 in the category of residential plots and Rs,58,36,350 in the case of commercial plots. P.W.16, I.D. Mangi, the Investigating Officer, stated that he issued notices to the alleged allottees and subsequent transferees of the plots and recorded statements of P.Ws. Sher Muhammad, Sarfraz, Gul Muhammad, Muhammad Yaqoob, Abdul Hameed and Zakir Rehman. He secured documents from them in respect of plots in their possession. He obtained the specimen signatures of appellant and referred the same along with 27 files containing forged documents to the Handwriting Expert. P.W.17, Karim Akhtar, S.I.P., has deposed about the abscondance of the appellant.
22. ' After completion of the prosecution evidence, the statement of the appellant was recorded. He denied all the prosecution allegations. He stated that files Exhs. 119 to 145 were in the custody of Inam, Head Clerk of Qasba Township Scheme and he has nothing to do with the files. He did not examine himself in defence on oath and did not produce any witness in defence.
23. ' The learned trial Court framed the following points for determination:-- Point No,1 Whether the accused had allotted/transferred 27 plots from plots numbers ST-37/2 amenity, S.A. Type (commercial) and ST-9 Block 4 (Commercial) of the layout plan of Qasba Township Scheme No,27 Karachi to persons who are occupying the plots as encroachers?
24. Point No,2 Whether the accused had handed over false and fabricated documents to the above mentioned encroachers after getting money from them and misappropriated the said amount?
25. Point No,3 Whether the accused had absconded in order to avoid being served with warrants of this Court or prevented the service upon him or concealed him to screen him from the proceedings of this case?
26. Point No,4 What offence if any the accused has committed?
27. ' The above points were decided as follows:-- Point No,1------------- Proved.
28. Point No,2------------- Proved.
29. Point No,3------------- Not Proved.
30. Point No,4-------------- The accused has committed an offence punishable under section 409, P.P.C. Read with section 10 of the NAB Ordinance, 1999.
31. ' We have heard Mr. Azizullah K. Shaikh, learned counsel for the appellant and Mr. Namat Ali Randhawa, learned counsel for the State.
32. ' Mr. Azizullah Shaikh, initially addressed arguments on the points of law. He contended that reference was forwarded by the Chairman NAB to the Accountability Court under section 18(g) of the NAB Ordinance, against three acquitted accused persons and the present appellant. The appellant was not present before the Court and the case proceeded against three co-accused persons who were ultimately acquitted. The prosecution evidence was found deficient which resulted' in the acquittal of three co-accused persons. In the light of observations and findings of the learned trial Court while delivering judgment in respect of three acquitted accused persons, the prosecution collected further evidence. When the present appellant was arrested and produced before the trial Court, a fresh trial commenced against him. The evidence collected after acquittal of three accused persons and during the pendency of case against appellant, while on dormant file, was produced before the learned trial Court. Mr. Shaikh, has contended that this requires fresh submission of reference by the Chairman NAB, in the absence whereof the evidence collected by the prosecution after the submission of reference and acquittal of three accused persons could not be considered by the learned trial Court.
33. ' Replying to this contention, the learned State counsel, has submitted that the reference was duly forwarded by the Chairman, NAB to the trial Court and the cognizance was taken by the trial Court.
34. Once the cognizance was taken, no fresh reference was required. So far, the collection of fresh evidence is concerned, neither it is prohibited under any law nor there is any restriction on the trial Court for considering the same. He has submitted that the entire evidence collected which was not available at the earlier trial of three acquitted co-accused is relevant and germane to the charge for which the appellant was tried.
35. ' Mr. Azizullah Shaikh, is not able to show any law under which fresh reference was required under section 18 of the NAB Ordinance, in the facts and circumstances of the present case. We are of the considered opinion that the reference is to be made once only and thereafter if one or more accused persons who were absconding, are tried subsequently in fresh proceedings no second or third reference is required. It is provided in section 18(a) that the Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman NAB, or an officer duly authorized by him. Once the Court takes cognizance as required under section 18 of the NAB Ordinance, thereafter no further reference is required and in the absence of any prohibition in any law, further evidence can be collected and produced before the Court to which no exception can be taken.
36. ' Mr. Azizullah Shaikh, raised second objection to the trial of appellant by the learned Judge who acquitted three co-accused persons. Mr. Shaikh maintained that the fresh evidence was collected under the direction of learned trial Court therefore, the learned Judge was disqualified from proceeding with the trial of appellant and the conviction on the basis of such evidence stands vitiated. In support of his contention he has placed reliance on the following judgments:--
(1) Muhammad Usman and others v. The State 1991 M LD 17.
(2) Mian Manzoor Ahmed Wattoo v. The State 2002 YLR 2362.
37. ' A perusal of the entire record in this case shows that the learned trial Court has not given any direction for filling up the lacunas in the prosecution case and has not examined any Court witness.
38. The learned Judge while deciding the case against the three acquitted co-accused persons examined the evidence on record threadbare and by an erudite judgment held that the prosecution failed to bring home the guilt to the acquitted co-accused persons. The learned trial Court while giving findings assigned the reasons for such conclusion. After the acquittal of the three co-accused persons, the prosecution became wiser and collected the evidence on its own which was lacking earlier. There is no substance in the contention that the learned trial Court directed for collection of the evidence. On the contrary the prosecution itself acted smartly and collected sufficient evidence connecting the appellant with the commission of offence with which he was charged. The ratio of the judgments cited above are not attracted to the present case. In the cited judgments the trial Courts examined Court witnesses and made hectic efforts to supplement the prosecution evidence with above intention to fill up the lacunas in the prosecution case and awarded conviction on the basis of evidence collected by the trial Court in pursuance of a fishing and roving inquiry. The facts and circumstances of the cited cases are totally distinguishable from the facts and circumstances of the present case. The learned trial Judge has acted impartially and has not given any direction whatsoever for collection of any evidence or examination of any witness. In these circumstances second contention raised by Mr. Azizullah Shaikh, is also without substance. addressed arguments on merits. He submitted that the plots were allotted in the year 1985 while the appellant was posted in Qasba Township in the years 1998 and 1999, therefore, the appellant cannot be held responsible for carving out the plots or their disposal. It was pointed out to Mr. Shaikh, that the appellant was not charged for illegal issuance of any allotment order in the year 1985 but the charge against him was of fraudulently disposing of 27 residential plots in the name of fictitious person and obtaining pecuniary advantage causing loss to the public exchequer in the years 1998 and 1999.
39. ' Mr. Azizullah Shaikh, was confronted with the lease-deed issued in favour of P.Ws. Gul Muhammad, Sher Muhammad, Muhammad Yaqoob, Abdul Hameed, Sarfraz and others and preparation of documents of transfer of plots in the name of persons whose whereabouts are not known at all. Mr. Azizullah Shaikh was specifically shown the documents in respect of plot transferred to P.W. Gul Muhammad, bearing signatures of the appellant Tariq Siddiqui. The evidence on record is so overwhelming establishing the guilt of the appellant that Mr. Azizullah was not able to pursue his arguments any further on facts.
40. ' Realizing that the witnesses in whose favour the documents were prepared by the appellant have fully supported the prosecution case and have identified the appellant as the person to whom they had paid the money and the person who prepared the false documents and delivered to them, Mr. Azizullah Shaikh, submitted that the appellant has already served out the sentence for a period of more than three years and therefore, while upholding the conviction, the sentence may be reduced to the period already undergone. However, we do not find any mitigating circumstances warranting reduction in the sentence. The white-collar crime and the corruption has become a great menace to the entire country and society and therefore, we do not find any justification for reducing the sentence awarded to the appellant.
41. ' A perusal of the entire material on record shows that the prosecution has brought home the guilt to the appellant up to the hilt, by producing overwhelming evidence of unimpeachable character.
42. The prosecution witnesses have fully implicated the appellant and they had no axe to grind against the appellant. The learned trial Court has rightly appreciated the evidence on record and the impartially and independent application of mind by the learned trial Court is demonstrated from the fact that the learned trial Court has convicted the appellant for the commission of offence under section 409, P.P.C. Read with section 10 of the NAB Ordinance, while has absolved him of the offence punishable under section 31-A of the NAB Ordinance and has acquitted him of this charge.
43. The impugned findings of the learned trial Court are not open to any exception. The findings recorded by the learned trial Court and the conviction and sentence awarded to the appellant is hereby upheld. The appeal is without substance which stands dismissed accordingly.
44. ' After hearing the learned Advocates for the parties on 4-2-2005, the appeal was dismissed by a short order. These are the detailed reasons in support thereof.