' ALI NAWAZ CHOWHAN, J.---Through this appeal, the judgment dated 14-11-2001 handed down by Mr. Yar Muhammad Nizafni, Judge Accountability Court No,V, Lahore, in Reference No,22 of 2001, is impugned. Whereby he convicted and sentenced the appellant as follows:- "Five years' R.I. Under section 10 of the NAB Ordinance, 1999 and also to pay a fine of Rs,10,00,000 and in default thereof to undergo R.I. For two years. The accused is allowed the benefit of section 382-B, Cr.P.C. From the date of his arrest. The accused shall stand disqualified for a period of ten years to be reckoned from the date he is released after serving the sentence from being elected, chosen or nominated as a member or representative of any public body or statutory or local authority in the service of Pakistan or of any Province. He shall not be allowed or granted any financial facility in the form of loan o advances by bank or financial institution for a period of ten years from the date of conviction i,e. 14-11-2001."'
2. The altered/amended charge against the appellant was somewhat as follows:-- "That you being holder of a public office as MPA and Advisor to the Chief Minister Punjab by corrupt, dishonest and illegal means got allotted 01 Kauai plot bearing No,327 Block G-3 from the discretionary quota of the Chief Minister of Punjab in M.A. Johar Town Scheme Phase II by submitting false affidavit in the year 1990.
' Thus you committed an offence under section 9(iv) NAB Ordinance, 1999, which is triable by this Court and ispunishable under section X of the NAB Ordinance. And I hereby direct that you be tried by this Court for the said charge/offence."
3. The factual position as culled out from the statement of Bashir Ahmad (P.W.1) a Junior Clerk of L.D.A., Lahore is reproduced below:-- "Originally plot No,235 Block. M.A. Jauhar Town,Lahore was allotted to the accused. The accused then made a written reference Exh.P.W.1/2 for the exchange of plot. It is dated 25-3-1990. By virtue of letter Exh.P.W.1/3 the allotment of the plot No,235, (note: at this stage the learned prosecutor submitted that in the second line of the examination -in-chief the No, of plot was wrongly stated by the P.W. As it was 235.) (Contd.) was withdrawn from the name of Manzoor Hussain and the exchange/allotment of plot No,327 was made in the name of the accused, vide order Exh.PW.1/4."
"The accused thereafter filed documents namely copy of Identity Card, Exh.PW.l/5, copy of domicile Exh.PW.1/6, original affidavit Exh.PW.1/7. On the record of this reference the attested copy of the said affidavit has been placed."
"The LDA thereafter issued a demand notice Exh.PW.1/8 asking the accused to make payment of Rs,96,000 as price of the land. This was the reserve price of the land. The amount of Rs,96,000 was deposited and the receipt is Exh.PW.1/9. The accused then submitted Acceptance Letter Exh.PW.1/10.
Possession Letter, Exh.PW.1/11, was issued by the LDA. The accused then moved the application before the LDA for taking loan Exh.PW.1/12 (two pages). Thereafter an agreement for sale was executed between the parties Exh. PW.1/13 consisting of four pages. The LDA then delivered sketch of the plot Exh.PW.1/14."
4. The following portion is taken from his cross-examination:-- "Affidavit Exh.PW.1/17 submitted by the accused for the allotment of the plot in question is also on the same pattern of the specimen. It is not within my knowledge whether. The Chief Minister can dispense with the requirement of filing of the affidavit for the allotment, of plot. It is correct that some files pertaining to the allotment of plots on the basis of incorrect affidavits prior to the case of Riaz Fatiana accused, were taken by the NAB."
"I have not been called in any other case of such nature as a witness."
5. Ghulam Sabir Qureshi, the Deputy Director, Anti-Corruption Establishment, had investigated this case. The following excerpts are taken from his cross-examination:-- "The allegations in the complaint were of different nature including one for obtaining the plot in the.
Johar Town Scheme, Lahore. I called for the record of the property of Riaz Fatiana accused from the Municipal'Committee, Kamalia District Toba Tek Singh. According to Mutation No,1580,dated 11-7- 1987 Riaz Fatiana was found to own a house of about 15/16 Marlas in Kamalia City. The Mutation is Exh.PW.2/3. I took into possession the said record from Abdul Qayyum, Tax Clerk, Municipal Committee Kamalia vide memo. Exh.PW-2/4. I then summoned the record of Plot No,327/G-III, M.A.
Johar Town Scheme, Lahore, which was allotted to Riaz Fatiana by the LDA, Lahore. All the documents Exh.PW-1/1 to Exh.PW-1/14 were taken into possession vide Memo. Exh.PW-1/15. I took into possession the policy of the allotment of the plot from the Government of the Punjab, Housing and Physical Planning Department Exh.PW-2/6 (6 pages). The said policy was supplied to me vide covering letter of the Section Officer (D-III), Housing and Physical Planning Department Exh.PW-2/6 under clause VIII of the allotment policy Exh.PW-2/5. It was found that the allotment of plot No,327/G-III was made in the name of the accused due to the filing of false affidavit by him and against the allotment policy."
"I called Sardar Waheed Anwar and Malik Muhammad Yaqoob the complainant but they did not appear before me. It is correct that I did not adopt coercive measures through NAB to secure their presence. I did not go to Kamalia city in order to record the statement of the complainant and also to verify the allegations levelled by them against the accused."
"I do not know whether LDA had cancelled the plot of any one which was got allotted by submitting false affidavit. I did not however make any enquiry from LDA in this behalf as it was not my job. I do not know nor did I make any enquiry from the Law Department of the Provincial Government or the Legal Cell of NAB as to under what law the allotment policy Exh.P.W.2/5 was formulated. Volunteers: It was not needed by me. I have not gone through LDA Act, 1975, its Rules and Building Regulations, 1984 and as such cannot tell as to under what provisions of the LDA Act, 1975 the allotment policy Exh.PW2/5 was adopted by the LDA."
"It is correct that neither the application form for the allotment of plot nor any simple application moved by Muhammad Riaz Fatiana accused was produced before me by any LDA Officer nor did I make any written request for the production of the same. Volunteers: I verbally asked for production of the application form or application but they told me that it was not available with them. It I incorrect to suggest that in the application/Application form submitted by Muhammad Riaz Fatiana accused for the allotment of the plot in question it contains an explanation that he was owning a house at Kamalia city which is his ancestral property but he was not having a house anywhere in Lahore or any part of Punjab."
6. Ahmad Ghazali, a Director Estate Management, LDA, informs us of the culture which existed at the relevant time with respect to Government plots in the following words:-- "Approximately 2750 plots in the different Housing Schemes of the LDA were allotted from the discretionary quota of Chief Minister Punjab from December, 1985 onwards. I have examined 400 files and out of the said 400 files I found that the relaxation of the rule in the allotment policy was allowed in 94 cases. No application of Riaz Fatiana for the allotment of the plot in the Johar Town Scheme of LDA was received in the office of the LDA. No auction price for the year 1990 in G-II Block of Johar Town Scheme is available. In the office of the LDA however in the same block plot No,481 was put to open auction on 28-11-1993 and it was sold for Rs,8,60,000. LDA is not a prosecuting agency as such I cannot tell whether out of total plots 2750 allotted from the discretionary quota, any case for the violation of the allotment policy is sub judice before any Court or whether the files of some cases were called by the NAB for the investigation purpose."
7. The following excerpt from his cross-examination is reproduced below:-- "The complaint is Exh.PW-2/1. The photocopy of exemption of submission of affidavit is Mark `13' produced by the accused. (The learned Special Prosecutor raised the objection that the said document is inadmissible in evidence.) I have no particular case in my mind in which an action has been taken for filing of the false affidavit for obtaining-the allotment of the plot."
"In the discretionary quota of the Chief Minister if the plot is allotted, the LDA follows the directive of the Chief Minister, even if there is no application along with the directive. Withregard to the allotment of plot to Riaz Fatiana and the cancellation of the plot in question from the name of Manzoor Hussain a summary was prepared and submitted to the Secretary to the Chief Minister Punjab, the said summary is Exh.CW-1/D. In the allotment of the plot in question first to Manzoor Hussain it was allotted in relaxation of allotment policy which is mentioned in the summary for the Chief Minister, Punjab, Exh. CW-1/E. "
8. The appellant was examined under section 342, Cr.P.C. And the relevant pleas which he took, are reproduced below:-- "In order to complete formalities of the file my staff officer obtained relevant papers from the LDA concerned officer including the specimen of affidavit and prepare the file and in routine my staff got my signatures on those papers being satisfied as having explained to the Chief Minister Punjab in my application that I did not own any house/plot in any scheme of the LDA in my name or in the names of my children and wife. However, there is a 15/16 Marlas house in Kamalia which is my ancestral property and for that I may kindly be granted exemption from filing affidavit and in result thereof thereafter the Chief Minister granted me the same which is Mark "B" on the record of this case. Therefore, I did not seriously examine the contents of the affidavit before signing the same due to rush of work."
"It is incorrect. In fact the provisions of allotment policy Exh.PW-2/5 in clause 8(a) had no legal sanction as in the rules of LDA Act, 1975 or in Building Regulations, 1984 there was no such provision.
In case of allotments of the plots under the Chief Minister quota the providing of statement on oath was not necessary nor the same was specifically provided under the allotment order of the Chief Minister. Further detail and reasons I have already explained while answering question No,6."
9. An affidavit was demanded by the LDA vide a document (PW-1/1) dated 19-3-1990 which in its paragraph 2 provided a specimen of the appellant. The Affidavit so given is Exh.PW-1/7, which reads as follows:-- "(i) Neither I nor my wife or any of my dependents own a residential plot or house or flat in any urban area of Punjab nor have been allotted any plot or house or flat in any urban housing scheme (Lahore).
(ii) I have not been convicted for any anti-State, anti-social or any heinous criminal offence.
(iii) I am a citizen of Pakistan Domicile of Lahore District.
(iv) The above declaration is correct to the best of my knowledge. In case of miss declaration I am liable to be prosecuted under the law and LDA will be written its right to cancel the allotment of Plot No,327, Block G-III measuring One Kanal of M.A. Johar Town Scheme, Phase-II."
10. It appears from the evidence so recorded that originally no plot was available for allotment to the appellant who has explained in his statement under section 342, Cr.P.C. That he therefore "asked his friend Manzoor Hussain to surrender his plot in his favour. The application moved by Manzoor Hussain to the Chief Minister is placed as CW-1/C.
11. For effecting the transfer of a plot to the appellant after cancellation of the same from Manzoor Hussain, a summary was moved to the Chief Minister which is Exh.CW-1/D.
12. Mark-B, a letter placed on the file, reads as follows:--"Subject: Exemption from submission of Affidavit.
' Chief Minister has been pleased to approve the exemption from submission of affidavit in favour of Mr. Muhammad Riaz."
' The case as built up by the appellant was that he was not covered under the ordinary allotment policy of the LDA requiring submission of an affidavit. That his case fell under the exemption policy of the Chief Minister about which mention has also been made by the two LDA witnesses. It was argued that when there was no requirement after the exemption was granted to the appellant for filing of an affidavit even if the affidavit under reference was filed by him, he gained nothing out of this act and the said affidavit would be regarded as a redundant document, an overdoing and nothing more than that and this will not implicate him against any offence because its production or non-production had nothing to do with the allotment of the plot to him on the basis of the exemption policy.
13. Learned counsel appearing on his behalf has placed reliance on the following cases in support of his contentions.
(1) Asghrali Mullah Ibrahimji v. Emperor, AIR 1943 Nagpur 17.
(2) Purendar Jha v. Nunulal Jha AIR 1927 Patna 197.
(3) M.M.K.A. Zai v. Settlement Commissioner, Karachi and another 1982 SCM R 788.
14. It was also argued that in fact the appellant had not availed of any previous allotment from any urban body like the LDA. That he had ahouse at Kamalia which was hardly of any worth being a rural property so as to be used against him for the alleged misstatement, that he had no house.
The appellant's counsel went on to say that his application to the Chief Minister was not produced by the prosecution which mentioned that he owned a house in the rural area of Kamalia having no worth and that he did not own any other house in any urban area of the Punjab and that he required a house in Lahore for pursuing his politics. It was said that had the said application been moved to the Chief Minister for purposes of allotment, the intention on the part of the appellant would have been made clear. That he was after all an Advisor to the Chief Minister and when exemption was being allowed from filing of an affidavit, he too must have obtained it which he did vide Mark-B.
15. It was argued before this Court that the appellant was singled out and many others who had submitted such-like affidavits under the exemption policy of the Chief Minister remained untouched and in this connection reference was repeatedly made to the statement of P.W.1 in cross-examination.
16. We have heard the learned counsel from both the sides.
17. The National Accountability Ordinance came about with an ambition to eradicate corruption and corrupt practices and try those who misused or abused power and involved themselves in misappropriation of property and received kickbacks and commissions and defaulted in making payments due to the financial institutions. Its purpose was also to create awareness amongst the society against corruption and corrupt practices.
18. Pakistan is not the first country where an accountability body has been created. This has happened in other countries as well and some of these countries have better paradigms. One good example is that of South Africa where a Truth and Reconciliation Commission was established. The purpose of this Commission was to review cases of persons alleged to be at fault and after due screening the cases of those entitled to amnesty were separated from the cases of others who were to be prosecuted. Thus a sifting process was established and institutionalized as a prelude to prosecution. Whereas, in case of National Accountability Bureau, it appears, it enjoys all the authority and the power in this connection and one day we have to assess its performance as a repository of such a power with the aim of further improving its working through curative measures.
19. It was also the intention of the legislature to vest inquisitorial powers in the NAB Court, the purpose was to discover the truth and in this pursuit it was allowed to transcend the procedural limitations. This intention is manifested in section 17-C of the National Accountability Ordinance which reads as follows:-- "(a) (b) (c)' Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Court may, for reasons to be recorded dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case. (d)
Since, it is a national body and accountability is its main aim and recovery of ill-gotten wealth is a consequential act, it was not required of this body to weigh evidence in a typical adversarial framework but a body aiming at discovering the truth and then proceeding with the accountability against its own citizens on the basis of this discovery and in all fairness. If we understand this rationale, many misgivings with respect to the NAB Ordinance will get removed and it will then inspire confidence and trust, so essential for a public body with the mandate of accountability. Of course, it has to deal with the worst kind of white-collar criminals. The criminal justice system of the world and particularly of the first world have also to confront with the worst species of white-collar criminals and while dealing with them the Investigating Agencies there strictly follow the due process, transparency and fairness and no one loses hope in the system, its affairs, integrity and sense of justice.
20. Having said that, let us apply these requirements to this case. We find that Mark-B was produced during the cross-examination of a prosecution witness and the document was placed on the file. The discovery of truth in which case would have been for the trial Court in ascertaining whether the Chief Minister had at all given exemption for filing of the affidavit and if so, what consequences the filing of the affidavit notwithstanding the requirement had. The trial Court and even the NAB Prosecutors after this stand taken by the appellant were under a bounden duty to check whether Mark-B was issued in due course by the Principal Secretary of the Chief Minister then who incidentally is available in the Punjab even now and if so, to have then dealt with this question fairly.
21. Before this Court it was said that Mark-B has not come from the Principal Secretary to the Chief Minister. This abjection was not taken below. There is no explanation as to why this aspect of the case which provides an alternate version was not gone into by the trial Court.
22. Obviously, the main allegation against the appellant was misuse of policy, but the question will be, which policy, the one requiring the affidavit or the one where an exemption has been granted. It has come on record that a large number of people were granted such an exemption and, therefore, such a statement about exemption does not prima facie appear to be a cooked up story and definitely calls for a serious probe. Therefore, the judgment of the Court below appears infirm, inadequate not covering all aspects nor meeting the pleas or the versions advanced, therefore, it is not sustainable in law and we set it aside while remanding the case to the NAB Court for determination of the version based on Mark-B after adducing additional evidence and re-writing of the judgment thereafter.
23. Parties are directed to appear before the learned trial Court on the 5th of December, 2005.