' SYED MAHMOOD ALAM RIZVI, J.--- As the Criminal Accountability Appeal No,53 of 2001 filed by Syed Saadat Ali (now deceased) and Constitutional Petition No,1506 of 2005 filed by the wife of the above appellant, were heard together, and are jointly disposed of by this common judgment.
Though, the impugned judgments are different, nevertheless, both are the offshoot of the same reference. Furthermore, the points involved are identical, as immovable property bearing House No,A-51, Block "D", North Nazimabad, Karachi was forfeited in favour of the Government of Pakistan by the impugned judgment passed on 22-11-2001 by the learned Accountability Court No,3, Karachi in Reference No,42 of 2001, whereby the appellant, the husband of the petitioner, was convicted and sentenced to suffer R.I. For three years and to pay a fine of Rs,7,500,000 and in case of non- payment of fine to further undergo R.I. For one and half years, as well as confiscated the House bearing No,A-51, Block "D", North Nazimabad, Karachi, a Suzuki Baleno Car as well as three bank accounts. The appellant was granted benefit under section 382-B, Cr.P.C. The appellant was in custody and he was remanded back to serve out the sentence.
2. Petitioner Mst. Tanveer Saadat had also preferred appeal under section 32 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the "Ordinance, 1999") read with section 520, Cr.P.C., regarding the forfeiture of the above-mentioned house. The said appeal was allowed as this Court remanded back her case to the trial Court for adjudication of the claim of the petitioner in respect of the above-mentioned house by recording of evidence. After recording of the evidence, the learned Accountability Court No,2, Karachi, was pleased to reject the claim of the petitioner.
3. The appellant/convict served out the substantive sentence expired on completion of such sentence he was released, but later on 7th January, 2008 he expired. Appeal could not abate due to the forfeiture of the house and sentence of fine under section 430, Cr.P.C.
4. Precisely, the facts of the case are that as per allegations made in the reference, the appellant was said to have accumulated assets beyond his known sources of income, within the mischief of section 9 of the NAB Ordinance, 1999. The appellant (deceased) while employed as Assistant in Karachi Water and Sewerage Board, had indulged in acts of corruption and corrupt practices. He had assumed assets/properties beyond his known source of income. The appellant's had bank account in M.C.B. Citi Bank and Standard Chartered Grindlays Bank, in which transactions of more than Rs,50,00,000 were made by the appellant.
5. It was further alleged that the appellant maintained a house (supra) valuing Rs,20,00,000 suzuki Baleno Car bearing No,ADF-707, acquired in the name of his wife through car financing scheme from Standard Chartered Grindlays Bank. As regards to his monthly expenditures, it was found that the same was more than Rs,55,000 per month. The Chairman, NAB had sent a reference to the Accountability Court.
6. Formal charge was framed against the appellant, to which he pleaded "not guilty". The prosecution produced eight witnesses and closed the side. Thereafter, the statement under section 342, Cr.P.C. Of the appellant was recorded. He examined himself on oath and also produced three witnesses in his defence i.e., the petitioner, Ali Adeel and Ali Raheel (both sons). The learned trial Court was not satisfied with the arguments of the counsel for the appellant and his defence witnesses and was pleased to convict the appellant vide impugned judgment.
7. Criminal Accountability Appeal filed by the petitioner came up for Katcha Peshi on 24-10-2005 and on the same day, on the point of maintainability as to how under section 13(c) of the NAB Ordinance this appeal was maintainable, the learned counsel for the appellant/petitioner conceded to the objection and requested that the same may be converted into a petition under Article 199 of the Constitution. As a result, the same was converted into a constitutional petition and thereafter, it was allotted number bearing C.P. No,D-1506 of 2005.
8. It is, inter alia, contended by the learned counsel for the appellant/petitioner that the impugned order is not sustainable in law as the learned trial Court illegally and without jurisdiction framed and adjudicated the point No,2 viz. "whether the property in question has been acquired as Benami in the name of claimant/petitioner by accused Saadat Ali through corruption and corrupt practices disproportionate to his known source of income which could not reasonable account for".
9. The learned counsel has further contended that the said property was gifted to appellant/petitioner by her maternal-uncle, but the learned trial Court failed to appreciate the same, while the evidence produced by the appellant/petitioner corroborated each other and the learned trial Court should have accepted her claim. He further' argued that the learned trial Court candidly failed to appreciate the evidence and the fact that some time the amounts were sent by appellant's maternal-uncle through banking channel from Saudi Arabia to Pakistan as the maternal-uncle of the petitioner/claimant was then residing and serving at Saudi Arabia and had sufficient means/resources to purchase the said property. On the contrary the prosecution had failed to bring any evidence on record to substantiate the allegation against Saadat Ali, that he acquired the said property through corruption.And corrupt practices.
10. That, the matter came up for hearing on 27-2-2008, learned counsel for the NAB sought time to apprise the Court of consequences followed the death of the accused, as, besides the substantive sentence of three years, undergone by the accused, a fine was also imposed. In support of the above contention, Mr. Tarar has relied upon an order, dated 27-8-2003, passed in Criminal Accountability Appeal No,40 of 2000, by a Division Bench of this Court, whereby the order of the forfeiture of the property of the accused was set aside.
11. That, again the matter came up for hearing on 25-4-2008, as the only question, requiring consideration pertains to forfeiture of the property of the accused. Mr. Chaudhry Muhammad Iqbal, learned counsel for the NAB sought adjournment for verification of the status of the property left over by the deceased in the name of the appellant/ petitioner, being his wife.
12. Mr. Tarar has further argued that now the whole scenario has changed. The appellant/petitioner has only this property, which is admittedly in her name and it is also an admitted fact that the deceased had no other immovable property and the prosecution has failed to prove that the said house was the outcome of the income of the deceased through corrupt practices and particularly.
The substantive sentence was also undergone by the deceased and later on he died. Therefore, in such circumstances, the order of the forfeiture of the said property may be set aside. He relied upon the cases of Farrukh Javed Ghumman v. The State PLD 2004 Lah. 155, Misbahuddin Farid v.
The State 2002 MLD 480, Muhammad Hayat and 2 others v. The State PLD 2002 Pesh. 18, Mst. Zahida Sattar v. Federation of Pakistan and others PLD 2002 SC 408 and Mirza Zahid Amin (bearing C.P.
No,D-40 of 2000).
13. The learned counsel for the NAB conceded the above position that neither deceased was the owner of the said property nor it was acquired through corrupt practices.
14. Heard both the counsel and perused both the judgments and evidence on record and the judgments cited by the learned counsel for petitioner/widow.
15. VIt is, an admitted fact that the subject house is in the name of the petitioner and the prosecution has miserably failed to prove that the amount was paid to the seller/previous owner from the account of the appellant (deceased). On the contrary the petitioner has proved through evidence on oath and through witnesses, namely, D.W.1 Mst. Iffat Jabeen, who has deposed that her husband Syed Safdar Ali owned the house, which she was gifted to petitioner on 29-9-1992 through a deed. It is specifically denied that the said house was purchased by appellant Saadat Ali. The D.W.2 Mst. Shahnaz Akhtar deposed that in the year 1978 she purchased the said house at a cost of Rs,1,50,000 with a loan of Rs,53,000 of H.B.F.C. And she had resided up to 1991 in the said house. She sold the same to Safdar Ali and she has produced all such documents regarding the transaction.
D.W.3 Rahmatullah, who is the friend of appellant (deceased), has deposed that the appellant had worked under his advertising concern and it is in his knowledge that Safdar Ali was a relative of the petitioner and the said Safdar Ali had purchased the house from Mst. Shahnaz Akhtar in the year 1991 in the sum of Rs,11,75,000 in his presence. D.W.4 Muhammad Tariq was the estate agent, who has deposed that Safdar Ali visited his estate agency for purchasing the house and subsequently, the said house was purchased by him from Mst. Shahnaz Akhtar in the year 1991. The instalments were paid by the wife of Safdar Ali, as he had left Pakistan. Power of attorney was executed by Mst.
Shahnaz in favour of the appellant (deceased), but the learned trial Judge disbelieved the evidence.
16. It is, an admitted fact that the appellant (deceased) was convicted, served the substantive sentence, later released. Per learned counsel for the petitioner, the petitioner has sought modification in the impugned judgment, regarding the imposition of fine of Rs,75,00,000 and forfeiture of her house. Learned counsel for the petitioner has relied ID on the case of Mirza Zahid Amin, relevant portion is reproduced as under:--- "The appeal of the appellant is dismissed. However, his sentence of imprisonment is reduced from five years to the sentence he has already undergone by now, which is about 26 months. The amount of fine of Rs,50,00,000 is reduced to Rs,10,00,000 in default of payment whereof the appellant shall suffer further R.I. For six months more. The order relating to forfeiture of property is also set aside."
17. In such circumstances, learned Advocate for NAB has also frankly conceded, in peculiar circumstances of the case as husband of the petitioner has expired. It is a matter of record that he had not left behind any immovable property for his surviving legal heirs, in such circumstances, order regarding the imposition of fine and forfeiture of the House bearing No,A-51, Block "D", North Nazimabad, Karachi, is hereby set aside while rest of impugned judgment is upheld.
18. By the above modification the Appeal No,53 of 2001 is hereby dismissed, while C.P. No,D-1506 of 2005 is allowed.