' RAJA FAYYAZ AHMAD, J.---This Criminal Appeal No,31 of 2001 has been directed against the judgment dated 2-1-2001 whereby, Ehtesab Appeal No,5 of 2000 preferred by the appellant against the judgment dated 17-7-2000 of the Accountability Court No,1, Peshawar in Reference No,2 of 2000 convicting and sentencing him under section 9 of National Accountably Bureau Ordinance, 1999 has ,been dismissed by the Special Ehtesab Bench (Division Bench) of the Peshawar High Court, Peshawar. The connected Civil Petitions Nos.751-P of 2003 and 1736 of 2005 are also disposed of by this singie judgment.
2. Appellant Syed Zahir Shah was convicted and sentenced to suffer R.I. For a period of (5) years and fine of Rs,2,15,00,000 (Rupees Two crores and fifteen lacs) required to be paid within a period of one month from the date of the judgment of learned ,Accountability Court, (hereinafter referred as the 'trial Court') failing which the amount of fine was directed to be realized by sale of his movable and immovable properties including the properties in the name of his wife and sons. Benefit of section 382-B, Cr.P.C. Was extended in his favour.
' The Learned High Court vide impugned judgment while maintaining the conviction of the appellant under section 9 read with section 10 of the NAB Ordinance, 1999 but keeping in view the facts and circumstances of the case to which no specific reference was made, reduced the sentence of imprisonment from 5 years' R.I. To 3 years' R.I. The amount of fine was also reduced from 2,15,00,000 (Rupees two crores and fifteen lacs) to Rs,1,15,00,000 (Rupees one crore and fifteen lacs) to be paid within a period of two months and in default of payment of fine to further undergo R.I. For a period of one year, as well as; the properties mentioned in paragraph No,66 of the judgment was held to be disproportionate to his known sources of income. Accordingly, the same were forfeited to the Government. With the above modification in the quantum of sentence and fine, Ehtesab Appeal No,5 of 2000 filed by the appellant was dismissed.
3. Masroor Shah son of Syed Zahir Shah petitioner in Civil Petition No,1736 of 2005 has sought for leave to appeal against the order dated 9-3-2005 passed by the learned Peshawar High Court, Peshawar whereby his Writ Petition No,51 of 2002 was dismissed, reproduced hereinbelow in extenso:--- "Respondent No,3 was tried by Judge Accountability Court at Peshawar, N.-W.F.P., who was convicted and sentenced on 17-4-2000. Respondent No,3 filed appeal before this Court bearing Ehtesab Appeal No,5 of 2000 which was partially allowed on 2-1-2001.
' Petitioners have also filed appeal before this Court but was dismissed on 4-9-2000 as not maintainable.
' Respondent No,3 has challenged his conviction and sentence before the apex Court which appeal is still pending. This Court when seized of the appeal against conviction and sentence of respondent No,3 held that certain properties were held by respondent No,3 as Benamidar. Hearing of this petition by this Court when subject-matter is presently pending before the apex Court would not be possible as any decision in the writ petition may have different effect on the conviction and sentence as was up held by this Court in appeal. This petition, therefore, at present is misconceived and is dismissed in limine."
4. Mansoor Ahmad son of Syed Ahmad Ali Shah through Civil Petition No,751-P of 2003 has called in question by seeking leave to appeal, the order dated 11-9-2003 of the learned Division Bench of the Peshawar High Court, Peshawar dismissing his Civil Miscellaneous Application No,345 of 2000 moved for the restoration of his writ petition dismissed in default. The order dated 11-9-2003 reads as under:- "Mr. Naveed Maqsood, Advocate, counsel for the petitioner in Writ Petition No,1119 of 2001 has filed this application for the restoration of the writ petition, which was dismissed in default on 20-5- 2003. The reasons stated for non-appearance of the counsel before the Court on 20-5-2003, are two. Firstly, that the case was to be argued by the senior counsel, Barrister, Jehanzeb Rahim and secondly, that the counsel moving the application was busy before another Bench of the Court.
Before dilating upon the merits of the grounds stated in application for the restoration of the writ petition it is relevant to narrate briefly the facts of the case and some of the orders passed from time to time therein.
(2) The writ petition arose from the proceedings before the Accountability Court No,1 N.-W.F.P. In Reference No,2 of 2000 under which S. Zahir Shah, a civil servant was being tried. S. Zahir Shah accused was convicted by the fine levied as part of sentence amounting to Rs,2,15,00,000 be recovered from the sale of the properties owned by the convict in his own name or in the name of somebody else as Benamidars'. The petitioner in the present writ petition, Mansoor Ahmed son of S. Ahmad Ali Shah, moved an application before the Accountability Court on 8-8-2000, claiming that some of the properties ordered to be sold was owned by IA, which came to his lot as a result of family settlement. The application was dismissed on the ground, inter alia that the Court had already disposed of the main case and the same cannot be reopened. The petitioner thereafter filed the present writ petition the appeal filed by S. Zahir Shah against his conviction and sentence has been dismissed and thus the question of maintainability of the writ petition arose.
(3) From the order sheet it appears that the counsel for the petitioner was confronted by different Benches with the question of maintainability of the writ petition in the light of the judgment of this Court in appeal filed by S. Zahir Shah convict, when the Court upheld the findings of the trial Court that the properties which the present petitioner claims to be his were owned by S. Zahir Shah. The case was adjourned by the counsel for one reason or another when on 4-7-2000 Barrister Jehanzeb Rahim,. Counsel for the petitioner, stated at the Bar that since he has been appointed as Advocate-General he would not be able to appear on behalf of the petitioner and thus nominated.
Mr. Naveed Maqsood, Advocate to appear for the petitioner in the case. Since then Mr. Naveed Maqsood, Advocate, has been appearing for the petitioner. Another connected writ petition titled S. Fayez Ali Shah v. National Accountability Bureau (Writ Petition No,1119 of 2000) involving the same question and also arising out of the same Reference against S. Zahir Shah was clubbed along with the present writ petition and heard together. That petition was dismissed as not maintainable on 6-2-2003 and when the present writ petition came up for hearing immediately thereafter the learned counsel for the petitioner requested for adjournment as he wanted to move an application for the conversion of writ petition to an application under section 12(2), C.P.C. The counsel was aloe fortnight (sic) to move such an application has also not been moved since then it would not be necessary to comment upon the maintainability of such application had it been moved. Eventually, the writ petition was dismissed for non-prosecution on 20-5-2003.
(4) It may be noted that the writ petition was filed on 10-9-2002, and the case had been adjourned time and again at the request of the counsel for the petitioner on one pretext or another. Reverting to the reasons given in the application for restoration of the writ petition seen in the light of the above narration of facts, the same are not acceptable. As earlier stated Barrister Jehanzeb Rahim, is still Advocate-General and he had stated at the Bar that he will not be appearing in this case for the petitioner on account of his appointment to that office since then Mr. Naveed Maqsood, Advocate, has been regularly appearing for the petitioner on six subsequent dates. As for the second reason that he was, busy before another bench the learned counsel has not given the title of the case nor the Bench before he was appearing. Even if that had been so he could have informed the reader of the Bench before which the case was fixed of his engagement before the Bench. He in fact never appeared before the Court on that 'date. The writ petition can, therefore, not be restored as the counsel for the petitioner has failed to furnish reasonable explanation for his non-appearance on the day on which the petition was dismissed. The application is, therefore, dismissed."
5. Reference No,2 of 2000 under section 18(g) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the NAB Ordinance) after completion of investigation along with the final report of the Investigating Officer was submitted in the trial Court for trial of the offence against the appellant under section 9(v)(vi) read with section 10 of the NAB Ordinance, on the allegations that during his tenure of service and his last posting as Director-General, Peshawar Development Authority (PDA) by misuse of his Authority and corrupt practices acquired movable and immovable properties worth Rs,2,15,00,000 beyond and disproportionate to his known source of income in the name of his wife Mst. Tasneem Begum with a fake name of Mst. Ruhi Zahir, Yasir Shah (son) and Benamidar Syed Manzoor Ahmed, thereby committed the offence under section 9(v) (vi) read with section 10 of NAB Ordinance. The allegations against the appellant, as contained in the report submitted in the light of the material collected during the investigation of the case are as under:-- "NAB Reference vide letter No,CES (NAB) U.O.No,7(4) 2000 DD (I&M) dated 29.1.2000 was received on February, 2000 for investigation. It was alleged that Mr. Zahir Shah professionally Engineer joined Government Service as SDO way back 1987 since 1975 he remained posted in PDA. He served t is Authority as D.G. PDA during 1990 to 1996. During: service Syed Zahir Shah has been involved in massive corruption and made property both movable and immovable of million of rupees.
Following are the few aspects of his corrupt practices which during investigation have been proved against him.
' He purchased Plot No,96 Defence Colony Peshawar from one General Ghulam Hassan Khan son of Retired Caption Ghulam Nabi resident of Mulazai Peshawar, but cleverly instead of executing registered sale-deed, he obtained a general power of attorney on 18-11-1978 from vendor (late)
General Ghulam ' Hassan Khan. He later on, transferred the said Bangalow through a consent decree in the name of his wife on 9-6-1981. It is not worthy that Syed Zahir Shah filed a cognovit in reply the suit of his wife and also got his statement recorded on 9-6-1981. Zahir Shah further got allotted an area of 200 Sq.
Yards from the Cantonment Board in the name of his wife Mst. Tasneem Begum, in lieu of Rs,3,90,000 and thereaftei reconstructed a Bungalow purchased from Ghulam Hassan Khan. The value of the said Bungalow was assessed by Executive Engineer Zafar Ullah Khan after spot inspection, which came out Rs,30,34,000.
' Syed Zahir Shah purchased five Shops bearing Nos.CA-24/1, CA-25/1, CA-25/2/3B, CA-25/3/3 CA- 24/2/3/K-2 at Saddar Road Peshawar and instead of executing a regular sale-deed, he got executed a general power of attorney on 12-11-1976 from the vendor Shams Din and Ahmad Khan son of Haji Mir Bahadur Khan resident of G.T. Road Peshawar in his favour later on he transferred the said property vide registered sale-deed dated 15-4-1978 in favour of his wife Mst. Tasneem Begum and brother-in-law Syed Mansoor.Ahmad, Sindbad Hotel has been constructed after demolishing of above said property. The value of Sindbad Hotel has been assessed through Mr. Zafar Ullah Executive Engineer Pak PWD Rs,49,50,000.
' Similarly Property bearing old No,27 New No,91-C, CB-15/91/27 with Bala Khana which was rented out to United Bank Limited situated at Saddar Road Peshawar was purchased by Syed Zahir Shah in the name of his wife Mst. Tasneem Begum and Brother-in-law Mansoor Ahmed through a registered deed dated 29-10-1974. It is not worthy that the endorsement of Sub-Registrar would make it clear that the said sale consideration was paid by Syed Zahir Shah to the vendors in the presence of Sub-Registrar. The valuation of his building was assessed through Zafar Ullah Executive Engineer which came to Rs,11,80,000.
' Syed Zahir Shah realizing the facts that the above properties are disproportionate to his known resources got executed on exchange deed between his wife and his brother-in-law on 14-5-1999.
' There is yet another property located at Andorra Road in the shape of flats, the land underneath was purchased by Syed Zahir Shah in the name of his wife Mutation No,1855 dated 29-3-1978. He constructed two flats on the said land, the said flats were later on transferred by Syed Zahir Shah through his wife in the name of his two sons namely Syed Astir Shah and Sarwar Shah vide Mutation No,4292 dated 5-3-1984. The value of these flats has been assessed through Zafar Ullah Executive Engineer for Rs,15,00,000. S. Zahir Shah also owned a Quarter at Gharibabad worth Rs,2,00,000 presently Rs,15,00,000 approximately. He is also owner of Plot No,3-CN-3 Phase IV Hayatabad measuring one Kanal. He also got transferred 1110 square feet additional land. The valuation and additional areas comes out be 1,19,868. In the declaration of Asset Forms he has shown 40 Kanals on main Jehangira Swabi Road worth Rs,25,00,000 prize bond of Rs,2,50,000 owned by him and his wife, and Defence Saving Certificates of Rs,1,09,000.
' Record obtained from Motor Registration Office Peshawar reveals that PR No,88 Honda Civic Model 1994 is in the name of Syed Yasir Shah son of Syed Zahir Shah and the other Toyota Car No,D6725 Is in the name of Fayyaz Ali Shah son-in-law of the brother of accused. However, as per statement of three persons namely Driver Samandar Khan, Driver Wahid Gul and Guardian Feroz Khan who are PDA Employees and were working in the private house of Syed Zahir Shah accused for the last many years, Zahir Shah is the actual owner of both Cars. Statements of above persons have already been recorded in the Court under section 164, Cr.P.C. Their above referred statements clearly indicates that the actual owner of the cars is accused Syed Zahir Shah.
' Record of CNG Gas Kitt obtained from Luqman Shah Enterprises in respect of Car No,D6726 shows that the payment of Gas Kitt was made by accused Zahir Shah. Certificate and Receipt No,1116 dated 20-5-1999 is attached. Moreover, renewal and record of registration also shows that both the cars' Registration was renewed by Yasir Shah. However, Fayyaz Ali Shah stated that the Car No,D6726 is his property. Minimum value of Car comes out of Rs,8,00,000 approximately.
' Syed Zahir Shah has purchased Deposit Certificates worth Rs,25,00,000 from the Islamic Investment Bank, Main Branch Peshawar Saddar and Special Saving Certificate worth Rs,16,00,000 in the National Saving Centre Dabgari Peshawar in the name of his son Syed Yasir Shah, who is a student having no independent source of income. Syed Zahir Shah purchased National Saving Certificate worth Rs,3,00,000 in the name of his wife Mst. Tasneem Begum but she encashed it on 21-2-2000.
' Syed Zahir Shah and his wife have a Joint Locker No,187 in Grindlays Bank Peshawar.
' The wife of Syed Zahir Shah has opened US Dollar Account No,1131415352251 by a fake name of Mst.
Ruhi Zahir while Pakistani Rupees Account No,1131524461035 in the fake name in Grindlays Bank Peshawar Saddar.
' The statement of account dated 2nd October, 1998 shows that Mst. Ruhi Zahir was having 52,882/23 US Dollars in her account which were withdrawn in July, 1998 while dated 14th September, 1998 about Pakistani Rupees shows that she was having Rs,24,32,000 in her account which were withdrawn in July, 1998. She was introduced to the bank at the time of opening of account of Syed Zahir Shah and her address has been shown 56 Defence Colony Khyber Road Peshawar Cantt. All these assets belong to Syed Zahir Shah.
' The evidence collected during the investigation makes it clear that Syed Zahir Shah through his dependents i,e, Mst. Tasneem Begum with fake name of Ruhi Zahir (wife) Yasir Shah (son) and Benamidar Syed Mansoor Ahmed are owners and in possession of movable and immovable property worth Rs,2,15,00,000. This movable and immovable property is disproportionate to his known source of Income and this property has been obtained by Syed Zahir Shah and his dependent wife son and Benamidar by misuse of authority of Syed Zahir Shah and through corrupt practices and thereby committed an offence under section 9(v) (vi) read with section 10 of NAB Ordinance, 1999. So Syed Zahir Shah, is being challaned under the above section of Law for trial.
6. The trial Court indicated the appellant in the light of the above- mentioned allegation as under:- "That during the tenure of your service as a government servant you collected/gained huge amount through corruption, dishonest and illegal means and with the ill-gotten income you purchased some land at Abdarra Road, Peshawar, Plot No,56 Defence Colony, Peshawar and also got allotted an area of 200 sq. Yards from the Cantonment Board Peshawar in consideration of Rs,3,90,000 in the name of your wife Mst. Tasneem Begum and thereafter constructed a Bungalow valuing Rs,30,34,000 over the said plot/area and two flats valuing Rs,15,00,000 at Abdara Road and also purchased a quarter worth, of Rs,15,00,000 at Gharib Abad Peshawar and one Plbt No,3-C/N-3 Phase IV Hayat Abad measuring one Kanal and additional land measuring 1110 sq. Feet; and You also purchased Building No,91-C, CB-15/91/27 UBL along with Balakhana valuing Rs,11,80,000 and five Shops Nos.CA 24/1, CA 25/1/3/A, CA 25/2/3/B, CA 24/2/3/K-2 Saddar Road, Peshawar in the name of your wife above named and Brother-in-law Syed Mansoor Ahmed and after demolishing the shops you got, constructed a hotel known as Sindbad Hotel valuing Rs,49,50,000.
' You also purchased Deposit Certificates worth Rs,25,00,000 from the Islamic Investment Bank, Main Branch Peshawar Saddar and a special saving certificate worth Rs,16,00,000 front the National Saving Centre Dabgari Peshawar and a Honda Civic car in the name of your son Syed Yasir Shah and a National Saving Certificate for Rs,3,00,000 in the name of your wife and a Toyota car in the name of Fayaz Ali Shah the son-in-law of your brother.
' That your wife had also opened US Dollar Account No,113141535225 having an amount of 52,000 US Dollars and another Account No,1131524461033 having Rs,24,32,000 by fake name of Mst. Roohi Zahir in Grindlays Bank Peshawar Cantt and that the said amount was withdrawn in July, 1998.
' That in your annual assets statements you have declared only 40 Kanals Agriculture land valuing Rs,25,00,000, Prize Bonds worthy Rs,2,50,000 and Defence Saving Certificate worth Rs,1,09,000 while the total value of your movable and immovable assets is Rs,2,15,00,000 which is disproportionate to your known source of income and this fact also reveals that you have earned the above referred through corruption, dishonest and illegal means and thus you committed an offence punishable under section of NAB within cognizance."
7. The appellant pleaded not guilty to the charge and the prosecution in order to substantiate the accusation produced documentary and oral evidence. The prosecution examined (24) witnesses and abandoned the remaining witnesses. After close of prosecution evidence, the appellant was examined by the trial Court under section 342, Cr.P.C.. He denied and disputed the allegations and the accusation by explaining his position in view of the incriminating material adduced during the course of the trial. The answers to crucial questions formulated by the trial Court are reproduced hereinbelow:-- "Answer to question No,5.--- ' My wife is the owner of the property known as Sindbad hotel Peshawar Cantt: prior to 1-1-1985 and is getting rent of the property and is regular assessee of income tax and wealth tax. My son Yasir Shah received 500,000 from State Bank of Pakistan as prize money on his bond of Rs,500 as a result of the draw held on 1-4-1997 and my son Yasir Shah paid income tax of Rs,37,500 for the year, 1997- 1998. Besides that both my sons are receiving rent of their flats on Abdara Road, since 1995, which property was purchased by my wife prior to 1-1-1985 in the form of plot and she gifted the plot to both the sons, who constructed flats on the plot with the money of Rs,300,000 each gifted to them by their cousin and admitted by the income tax/wealth tax department after due verification. My wife is the daughter of Syed Ahmad Ali Shah a known industrialist who owns Abaseen Flour Mill, Pakistan Flour Mills also other business. Syed Yousaf Ali Shah (Late) the younger brother of Syed Ahmad Ali Shah was elected Member of the West Pakistan Assembly in 1965 and was then elected Senior Deputy Speaker of the said Assembly. His other brother Syed Ali Shah was Minister till 12-10- 1997 in N.-W.F.P. Government.
' Answer to question No,6.--- ' I have explained above that an amount of Rs,500,000 was paid to my son Syed Yasir Shah by State Bank of Pakistan at Peshawar on 10-5-1997 as a result of the draw of prize bond of Rs,500 held on 1- 4-1997, wherein the prize bond of Yasir Shah bearing No,Ay 024118 won the prize. Yasir Shah purchased Honda Civic Car No,PRU-88 against the sale of Rs,360,000 in August, 1997. The car was second hand already been used by the previous owner. Said Car is still in use of my son Yasir Shah.
' Answer to question No,7.--- ' Motor Car No,PRR-1347 is the property of Syed Fayyaz Ali Shah. The Car is registered in his name and was recovered from his possession by the Investigating Officer Fayyaz Ali Shah has his own business and is the owner of Shaji Motor Bargain Centre.
' Answer to question No,8.--- ' The question as drafted is not correct. Fitting CNG kitt with the permission and licence of the owner; would not make the owner of the car.
' Answer to question No,9.--- ' The saving certificates mentioned in question were purchased by my son Syed Yasir Shah from his personal savings plus the money of the encashment of the Foreign Currency Account and I had no contribution in the purchase of the Saving Certificates except to the extent of Rs,400,000 which was my saving from my salary and Agricultural/rental income.
' Answer to question No,10.--- ' It is in evidence that one of the Special Saving Certificate bearing No,K-029225 for Rs,500,000 was encashed by your son Syed Yasir Shah.
' Answer to question No,11.--- ' The Saving Certificate mentioned in the question were purchased by Syed Yasir Shah from his savings plus savings of his brother who is abroad and who's rent and income is received by Syed Yasir Shah. I have neither purchased the Saving Certificate nor there is any contribution by me.
' Answer to question No,12.--- ' The Certificates referred in the question were purchased by my wife from her own saving and income: I had no contribution in these certificates.
' Answer to question No,13.--- ' The Certificates referred in the question were purchased by my wife from her own saving and income. I had no contribution in these certificates.
' Answer to question No,1 --- ' The Certificates were purchased by Yasir Shah from his savings plus his brother's savings plus the amount of the encashment of Foreign Currency Account. I contributed only Rs,5,00,000 from my savings of the salary and Agricultural plus rent income plus encashment of the Policy of State Life which matured on 28-6-1998.
' Answer to question No,15.--- ' Roohi Zahir is not the fake name but in fact is the nick/family name of my wife. In the family and even outside she known by this name. The Foreign Currency Account was opened by my wife with the Foreign Currency which she received from Fayyaz Ali Shah and Sardar Hussain Shah who are settled in USA. In the ID Card number is one and the same with both the names i,e, Roohi Zahir and Tasneem Begum. Similarly the name of the husband and the address is the same.
' Answer to question No,16.--- ' The land at Abdara Road was purchased by my wife Mst. Tasneem Begum in the year 1976 and ttie mutation was attested on 29-3-1978. Subsequently my wife gifted this land in equal share to two sons namely, S. Yasir Shah and S. Masroor Shah who constructed flats on the land each spending Rs,300,000 which was verified and accepted by the Tax Department i,e, Income Tax and Wealth Tax Department value given in the question is the assessment by XEN Pak PWD of the prevailing Market value and which was got assessed by the Investigating Officer during the pendency of the trial of this case.
' Answer to question No,17.--- ' The plots in Hayatabad were allotted to the employees of PDA from a Special quota meant for the employees of the PDA.
' Answer to question No,18.--- The additional land was allotted in accordance with the rules of PDA.
' Answer to question No,19.--- ' The built up Bungalow No,56 purchased by my wife from Maj. Ghulam Hassan Khan and the Bungalow was decreed in favour of my wife on 20-5-1981 and it is in the prosecution evidence that at the time of the transfer to my wife it was already constructed and built-up. The additional land of 200 Sq. Yards is the lawn of the Bungalow and no construction has been made on the additional land. The area is in the limits of Cantonment Board and no construction, addition, alteration can be made in the Cantonment area without the permission of the Cantonment Board under the provisions of the Cantonment Board Act, 1924. The prosecution has not produced any evidence that after the purchase of Bungalow in 1981 there was any change reconstruction or demolition. The transfer of the Bungalow in the name of my wife in 1981 is beyond the scope of the NAB or distance.
' Answer to question No,20.--- ' Everybody living in the Cantonment area has lease rights which are extended from time to time by the Concerned authority. The Bungalow No,56 was initially in the name of Lt. General Ghulam Hassan Khan and leasehold rights of which were transferred to my wife in 1981. Such leasehold rights were further extended by the competent authority for another 70 years in favour of my wife against the premium of Rs,3,30,975 which were paid by my wife from her income plus my income.
' Answer to question No,21.--- ' The property at Gharibabad was inherited by me from my father and similarly my other brothers also inherited the property in equal share in Gharibabad which was initially purchased by my father in 1952. My father is buried in front of the quarter which was subsequently constructed by me. The construction cost incurred by me was Rs,84,000 in the year, 1994. It is in my statement of declaration of assets where I had disclosed this property as my inherited property though it is not in my name in the Revenue Record. The valuation by XEN Pak PWD is excessive and is based on the market value on the day of the visit of the said XEN. The property was got inspected by the Investigating Officer during the pendency of the trial without any notice to me. The XEN has not prepared detail estimate and also did not apply government scheduled rates.
' Answer to question No,22.--- ' The shops referred in the question were transferred to my wife in year, 1978 and therefore the transaction in favour of my wife and her brother Syed Mansoor Ahmed is beyond the scope of NAB Ordinance.
' Answer to question No,23.--- ' The property was demolished and the construction started by my wife and her brother named above immediately after the purchase of the property in 1978 and the construction was completed in 1982 and the income from the property is referred in the wealth and income tax statement of my wife i,e, 1983. The demolition and construction is beyond the scope of NAB Ordinance.
' Answer to question No,24.--- ' The property was purchased by my wife and her brother Syed Mansoor Ahmed vide sale-deed Ex- P.W.17 dated 28-10-1974. This property after the partition has gone to the share of S. Mansoor Ahmed and it has been so admitted in the prosecution evidence. The transaction also is prior to 1- 1-1985 and is not covered by the NAB Ordinance. The property was purchased for Rs,70,000 mentioned in EX P.W.16/7. In 1974 I was not in the service of PDA and nor PDA was in existence.
' Answer to question No,25.--- ' I have declared my assets and also the assets of my wife and dependents correctly in the prescribed forms.
' Answer to question No,26.--- ' The assets are within my means and the assets of my wife and the sons are proportionate to their sources of income.
' Answer to question No,27.--- ' I have neither gained wealthy money through illegal and corrupt means nor I have purchased property nor constructed buildings. The property purchased by my wife is within her means and so is the case with my sons. Except Gharibabad Quarter and landed property at Toordher which also is inherited and the Hayatabad plot which was allotted to me like other employees I have no assets in my name.
8. The appellant appeared, as his own witness in defence within the meaning of section 340(2), Cr.P.C. Wherein, he as compared to his answers and explanations given in his examination under section 342, Cr.P.C., provided the details in relation to the properties acquired etc., by him during the tenure of his service and the incriminating material brought on record by the prosecution.
' Oral and documentary evidence in defence was also produced, D. Ws produced by the appellant are Ihsan Ullah, Accounts Officer, Prize Bond Section, State Bank of Pakistan, Peshawar (D.W.1), Abdur Rehman, Sub-Registrar, Peshawar (D.W.2), Adan Malik, Deputy Manager State Life Insurance Corporation, Peshawar, (D.W.3), Gul Manazar Patwari Halqa Tor Dher, District Swabi (D.W.4), Ghulam Mustafa, Director Finance Peshawar Development Authority, Peshawar (D.W.5), Mian IQaeem Ullah Kaka Khel Contractor, Peshawar (D.W.6), Qadir Ali Consulting Architect, Peshawar (D.W.7), Adnan Inam Ullah Khan, Assistant Commissioner, Income Tax, Peshawar (D.W.8) Muhammad Qasim Samad Khan, Deputy Commissioner Income Tax, Peshawar (D.W.9) Mohsin Khan Assistant Commissioner Income Tax/Wealth Tax, Peshawar (D.W.10), Mir Salam (D.W.11), Abdul Salam (D.W.12), Syed Yasir Shah son of Syed Zahir Shah (D.W.13) and Mst. Tasneem Begum (D.W.14).
9. After close of parties' evidence, the learned trial Court convicted and sentenced the appellant.
The appeal filed by the appellant was dismissed subject to the modification of sentence above- mentioned.
' Civil Petition No,1736 of 2005.
10. Petitioner namely Masroor Shah and Syed Yasir Shah are the sons of Syed Zahir Shah appellant whereas; petitioner No,3 Mst. Tasneem Begum is wife of the appellant and; Syed Fiaz Ali Shah is the husband of the appellant's niece.
' These petitioners consequent upon the conviction and sentence awarded to the appellant by the trial Court filed Appeal before the Peshawar High Court challenging the order of the trial Court to the extent that in case of default in payment of fine by the appellant, the properties owned by the petitioners can be utilized for the recovery of fine and this Appeal was dismissed by the High Court vide judgment dated 4-9-2005 as being incompetent by observing as under:--- "We are also conscious of the fact that irrespective of filing an appeal or a writ petition, the main appeal of Syed Zahir Shah convict has been admitted and this Court while appraising the evidence can acquit/maintain the conviction, can alter the conviction and can also look into the fact if property not belonging to convict could be confiscated."
' This order was assailed in Criminal Petition No, Nil of 2001 before this Court. Also Criminal Miscellaneous Application No,53 of 2001 was filed with the main petition, which came up for hearing before this Court and was dismissed on 27-9-2004 through a detailed order by holding that the applicants have absolutely no right to file appeal against the judgment passed by the trial Court.
The petitioners in C.P.No,751-P of 2003 claim to be owners in possession of the Building No,91/C, CB- 15.91 known as UBL Building, 27 Saddar Road, Peshawar Cantt. This property was claimed to have been jointly purchased by the petitioner Mansoor Ahmed with his sister Mst. Tasneem Begum wife of Syed Zahir Shah (father of Masroor Shah) from Shamim Ahmad and 7 others vide registered sale-deed dated 28-12-1974 and after purchase was rented out to the UBL by the Mansoor Ahmed and his sister through lease deed dated 24-7-1979. It was also claimed that the property known as Sindbad Hotel, 2-Saddar Road, Peshawar Cantt. Was also jointly purchased by the said petitioner and his sister through Syed Zahir Shah appellant/convict vide registered sale-deed dated 18-3- 1978, and as per alleged family settlement between the petitioner and his sister, the above-said two properties were settled between them and thus, it was alleged that the property known as UBL Building came to the share of the petitioner Mansoor Ahmed and the Sindbad Hotel fell to the share of his sister vide a registered settlement dated 14-5-1990. Consequently, the said petitioner claimed to have executed a fresh rent deed dated 1-7-1990 with the UBL and applied to the Cantonment Board for the change of the ownership in his exclusive name, which request was allowed and the ownership of UBL was recorded in his favour. Later on, according to the case of the petitioner, he initiated ejectment proceedings against the UBL on the ground of personal need and the Cantonment Rent Controller passed the ejectment order in his favour, which eventually, was maintained by this Court pursuant to which vacant possession of the said premises was delivered to him by the UBL on 31-8-1999.
' The above-said petition on 8-8-2000 submitted an application in the trial Court along with documents praying that the properties subject-matter of the reference owned by him, may be deleted from the list of properties, as well as; free from any incumbrance notwithstanding the conviction of Syed Zahir Shah (appellant in Criminal Appeal No,31 of 2001). This application was contested seriously and was dismissed by the learned trial Court as not maintainable under the law which order was assailed by the petitioner in Writ Petition No,1119 of 2000 admitted to regular hearing on 21-12-2000 but was dismissed for non-prosecution on 20-5-2003. The Civil Miscellaneous for restoration of the writ petition has also been dismissed vide order dated 11-9- 2003 reproduced hereinabove.
11. The learned Advocate Supreme Court for the parties as well as; Mr. Khan Dil Muhammad Alizai, D.A.-G. For the respondents have been heard at length. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court contended that it was obligatory for the trial Court as well as; the learned High Court to have determined in view of the provisions of section 2 of the NAB Ordinance, 1999 as to whether the properties subject-matter of the reference could be made applicable for trial of the offence alleged to have been committed prior to 1st day of January, 1985. The NAB Ordinance came into force on 16-11-1999 which as per deeming provisions contained in section 2 to have come into force from 1-1-1985 although according to the prosecution case, the properties in question or interest therein was acquired during the period from 1974 to 1981. This legal aspect of the case was not brought under consideration by the Accountability Court and, the learned High Court dealt with the same randomly, by observing that Ordinance would be applicable and would even cover the cases from 1947 while in the same judgment concluded that the properties in question stand covered under the relevant provisions of the Ordinance, therefore, trial under the NAB Ordinance, 1999 was bad. According to learned counsel the properties or any interest acquired therein prior to the deeming date of the enforcement of the Ordinance could not have been made subject-matter of the Reference nor the appellant thus, could have been tried on the charge by the Accountability Court. The observations recorded in the impugned judgment, according to the learned counsel even amounts to the nullifying of the effect of the law laid down by this Court in the case of Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026 and Irshad Ahmad Sheikh v. The State 2000 SCM R 814.
' The learned counsel argued that the initial onus was not successfully discharged by the prosecution under section 9(iv) and contrary to it, the appellant through documentary and oral evidence adduced in defence as well as; by his statement made under section 340(2), Cr.P.C.
Successfully substantiated that the properties actually owned and possessed by him and in the name of his wife Mst. Tasneem Begum or the alleged Benamidars was not the result of any corrupt, dishonest or illegal means and thus through such evidence appropriately accounted for his known sources of income but both the learned Courts on wrong appraisal of evidence based on conjectures, concurrently found the appellant guilty on the charge. Reliance was placed in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 and Mansur-ul-Haq v. Government of Pakistan PLD 2008 SC 166. He further argued that income tax, capital value tax and other dues since to the extent of properties actually owned and possessed by the appellant described in detail in his statement recorded under section 340(2), Cr.P.C. Is being paid regularly and the appellant reasonably through documentary evidence, accounted for the same. Not a single property according to the learned counsel was acquired on or after 1-1-1985 except that renovation of the properties was done jointly by him, his wife and brother-in-law Syed Mansoor Ahmad. Further, reference in support of his arguments was made to the reported judgments including the two cases from foreign jurisdiction i,e, Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others PLD 1969 SC 599, Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26, Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607, 1994(94) All England Law Reports, 323 and 1994 (1) All England Law Reports, 447. In addition to the submission noted above, the learned counsel pointed out that the real owners of the main properties are the petitioners before this Court in connected civil petitions in whose names such properties existed and recorded in the official documents forfeited vide impugned judgment were not given any notice by the Accountability .Court nor were heard by the Court before passing adverse order against the alleged Benamidars.
12. Mr. Fakhruddin G. Ibrahim learned Senior Advocate Supreme Court for the petitioner Mansoor Ahmad in C.P. No,751-P of 2003 pointed out that C.M.A. For the impleadment subject to all just exceptions was allowed. The petitioner was condemned unheard and declared to be Benamidar of two properties commonly known as UBL, building acquired on 29-10-1974 and later on, the petitioner purchased second property for consideration of Rs,60,000 on 18-3-1978 on which he constructed a hotel with the name of Sindbad hotel. The petitioner as a result of family settlement of these properties became the exclusive owner of UBL Building, whereas; Sindbad hotel came to the share of his sister Mst. Tasneem Begum (wife of appellant) in 1990. The property exclusively owned and possessed by the petitioner and occupied by his tenants without any legal basis or cogent evidence was made subject of proceedings of Reference as well as; wrongly concluded to be in the name of the Benamidars. Further the learned counsel vehemently contended that findings of facts in respect of these properties without notice to the petitioner were recorded by both the learned Courts and thereby the petitioner has been condemned unheard. According to the learned counsel in view of the statement of the appellant recorded under section 342, Cr.P.C.
The alleged Benamidars including the petitioners should have been provided opportunity of hearing in the light of their claim of being the real owners of these properties. Hence; the impugned judgment to the extent of forfeiture of these properties to the State could not sustain, as during the pendency of proceedings before the Accountability Court in the light of the material available on record, it was obligatory for the trial Court to have issued notice to the owners of the properties alleged to be Benamidars. The learned counsel placed reliance on the judgment of this Court in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408.
13. The learned counsel for the petitioner in Civil Petition No,1736 of 2005 adopted the arguments of Mr. Fakhruddin G. Ibrahim, Senior Advocate Supreme Court. He added that in the light of the statement of the appellant recorded under section 342, Cr.P.C. It was obligatory for the trial Court to have issued notice to the alleged Benamidars but the permissible course was not followed which consequently, resulted in the forfeiture of the properties of the petitioners.
14. The learned Additional P.-G. At very outset stated that notice essenti tly was required to have been issued to the alleged Benamidar Mansoor Ahmed, as the other Benamidars appeared before the Accountability Court as defence witnesses of the appellant by claiming themselves to be the real owners of the properties to the extent of their claimed entitlements. He explained that the wife of the appellant namely Mst. Tasneem Begum and his son Yasir Shah appeared before the trial Court, made detailed statements in respect of their claims which was duly considered and repelled by both the Courts hence; no prejudice to them was caused. The learned counsel cited two judgments in support of his submissions i,e, in the case of Khan Asfandyar Wali and others v.
Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 and Mst.
Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 in which reference to paragraphs Nos. 215, 216, 218 and 224-227 was made besides Bindra's Interpretation of Statues, 7th Edition, 1984 page 849 was also referred as to the retrospective application of the NAB, Ordinance.
15. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court replying to the arguments advanced on behalf of the respondents submitted that ratio decidendi in the reported case e.g. Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 would be applicable.
16. In this case, the allegations against the appellant Syed Zahir Shah is that during the tenure of service and his last posting as Director General, Peshawar Development Authority by misuse of his authority and corrupt practices, he acquired movable and immovable properties worth millions of rupees made beyond and disproportionate to his known source of income in the name of his wife Mst. Tasneem Begum with a fake name of Mst. Ruhi Zahir, Yasir Shah (son) Syed Mansoor Ahmed Benamidars and thereby, committed the offence under section 9 (v) (vi) read with section 10 of the NAB Ordinance, 1999. The movable properties alleged to have been acquired by the appellant besides the other immovable properties namely Quarter at Gharibabad, (40) Kanals irrigated agricultural land situated at Jehangira-Swabi Road, plot at Hayatabad Township, Bungalow in Defence Colony in the name of his wife, shops at Saddar Road, Peshawar later on, converted into Sindbad Hotel and a Building commonly known as UBL, Building, out of which Sindbad Hotel as per case of the appellant on the basis of family settlement of properties; fell to the share of Mst.
Tasneem Begum wife of (appellant) whereas; the UBL Building which was reconstructed on the site came to the share of her brother namely Mansoor Ahmad. Out Of alleged Benamidars Mst.
Tasneem Begum and Yasir Shah (wife and son of the appellant) respectively appeared before the trial Court as D.Ws 13 and 14 to support to the explanations offered by the appellant in respect of the immovable properties alleged to have been acquired by the appellant in his statement redorded under section 342, Cr.P.C. The appellant also appeared as his own witness in defence within the purview of section 340(2), Cr.P.C. The immovable properties i,e, subject-matter of the Reference and the report submitted under section 173, Cr.P.C. Were not forfeited by the trial Court though the appellant was found guilty on the charge. The learned trial Court in the concluding paragraph of its judgment has concluded that the assets and properties acquired by the appellant are disproportionate to his known sources of income and the presumption is that the accused amassed and earned the properties through corruption, dishonest and illegal means, so was sentenced to suffer R.I. For a period of 5 years and to fine of Rs,2,15,00,000 (Two crores and fifteen lacs) to be payable within a period of one month; failing which the amount of fine shall be recovered by sale from his movable and immovable properties including in the name of his wife Mst. Tasneem Begum and sons. The Special Branch of the Peshawar High Court, seized of Ehtesab Appeal No,5 of 2000 vide judgment dated 2-1-2001 while maintaining the conviction of the appellant (Syed Zahir Shah) reduced the sentence of imprisonment and the amount of fine respectively to 3 years and fine to the tune of Rs,1,15,00,000 (one crore and fifteen lacs) which shall be paid within the period of two months, failing which the appellant to further undergo one year R.I.
As well as; the assets and properties mentioned in paragraph No,66 of the judgment in the name of the wife of the appellant (Mst. Tasneem Begum), Yasir Shah (son), Mansoor Ahmed (brother-in- law) and Fayyaz Ali Shah (son-in-law of the Mansoor Ahmed) on appraisal of evidence by the learned Bench found to be actually owned by the appellant and all the transactions made in respect of these assets and properties held to be Benami transactions except some of the properties lawfully acquired by the appellant namely, a Quarter at Gharibabad, a plot at Hayatabad Township and agriculture land measuring (40) Kanals in village Tordher whereas; the other mentioned assets and properties held to be disproportionate to his known source of income.
Therefore, the same were forfeited to the Government, subject to the above-mentioned modifications in the punishment and amount of fine. Being relevant and for brevity paragraphs Nos.66, 68 and 69 of the impugned judgment are reproduced hereinbelow:--- "(66) In these circumstanceswe conclude that as the charges framed against the appellant to the extent of Bungalow No,56 in Defence Colony, Sindbad Hotel, UBL Building, two motor cars, one Honda and other Toyota, two Flats at Abdara Road, the holding of Special Saving Certificates of the Islamic Investment Bank and the National Saving Certificates held in the names of his wife Mst.
Tasneem Begum, son Syed Yasir Shah, brother-in-law Syed Mansoor Ahmed and the son-in-law Fayyaz Ali Shah, of his brother, are proved to be actually owned by the appellant and all the transactions made in respect of afore-said assets were Benamidar, therefore, it was for the appellant to have satisfactorily explained his pecuniary means through which he has acquired such property and it will be lawful for us to draw a conclusion against the appellant that the assets were acquired by illegal means and corruption.
(68) However, we would recognize some of the properties to be lawfully owned by the appellant which shall include a quarter at Gharib Abad, a Plot at Hayatabad Township, total salary and allowances amounting to Rs,23,45,462 encashment of Insurance Policy and agriculture land measuring 40 Kanals in village Tordher.
(69) In view of what has been held above, we would maintain the conviction of the appellant under section 9 read with section 10 of the Ordinance but keeping in view the facts and circumstance of the case we would reduce the sentence from five years rigorous imprisonment to three years rigorous imprisonment and the fine is also reduced from rupees two crores fifteen lacs (Rs,2,15,00,000) to rupees one core fifteen lacs (Rs,1,15,00,000). Such fine shall be paid within a period two months failing which the appellant shall undergo one year further rigorous imprisonment. The property mentioned in para 66 above is held to be disproportionate to his known sources of income, therefore, liable to be forfeited to the Government which we order accordingly. The benefit of section 382-B, Cr.P.C. Shall remain extended to the appellant. With the above modification in the sentence, the appeal stands dismissed."
17. In the peculiar circumstances of this case discussed hereinafter, these matters are being disposed of without dilating upon the arguments advanced in Criminal Appeal No,31 of 2001.
18. It is an admitted feature of the case that the stated Benamidars and the dependents of the appellant, in view of the accusation and the allegations, as well as; contained in the Reference and the report filed in the trial Court under section 173, Cr.P.C. Supported by the incriminating material; notice was not directed to be issued to the alleged Benamidars by the trial Court nor they were heard obviously before passing of the final judgment in the case although, it was evident that they were fully aware and in the knowledge of the proceedings before the trial Court, which related to the assets and properties in which right and interests have been claimed by the petitioners before us in these two civil petitions for leave to appeal, as well as; interesting to note that out of the alleged Benamidars Mst. Tasneem Begum and Yasir Shah wife and son respectively of the appellant had appeared as D.Ws. Before the trial Court yet, their appearance as D.Ws. For the accused would not by itself be a valid substitute of notice to Benamidars, affording them opportunity of hearing and leading evidence if so deemed proper by them in support of their claims to be the legitimate owners as having rightful interests in such properties. Besides these petitioners, the other petitioner, Mansoor Ahmed in C.P. No,751-P of 2003 has claimed rights and interests in the properties forfeited to the Government was admittedly not issued any notice by the trial Court nor opportunity of hearing was afforded to them by the learned trial Court, as well as; by the learned Special Bench of the Peshawar High Court before passing the final judgments. In the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others PLD 2002 SC 408 in which somewhat identical questions of law and facts were involved, this Court in paragraph No,16 of the judgment reproduced hereinbelow has held:--- "The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB Ordinance, we would hold that he (Benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as Benamidars, the Court F should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless conferred by the statute. Under the relevant provisions of NAB Ordinance as regards appeal against final judgment of the Accountability Court, it can only be maintained by the State or the accused person. This being so, the ostensible owners or Benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution."
19. As regards the other assets and properties such as Foreign Currency Accounts etc., this appeal can be disposed of on merits but it would not be appropriate and just to decide the same in segments, as it would involve deep and serious implications, as well as; carry a substantial impact on the guilt or innocence of the appellant and if found guilty on the quantum of punishment likely to be awarded twice by the trial Court in the same case depending upon the adjudication of the alleged claim of the petitioners besides the extent of properties liable to forfeiture. In view of the dictum, laid down by this Court in above-mentioned reported case, there is no cavil with proposition that it was obligatory on the part of the trial Court to have issued notice to the alleged Benamidars during proceedings and to have afforded the opportunity of hearing and to produce evidence in support of their alleged claims if so deemed proper by them or either of them which course having not been followed, offended the guaranteed right of hearing before passing an adverse order against any person or property in which a vested right or interest has been claimed or be even ostensibly the recorded owner/s or appears in the names of the petitioners consequently, rendered the forfeiture of the properties as unlawful and unsustainable unless the questions relating to the Benami transactions in which certain rights and interests claimed by the petitioners were determined by the trial Court in the overall perspective of evidence. Moreover; on determination of the same the criminal liability of the appellant in the case and the extent to which he could actually be found liable can be effectively determined.
20. Thus, for the foregoing reasons both the civil petitions are converted into appeals and are allowed in the terms that the said appellants shall have opportunity of hearing and production of evidence before the trial Court in the light of their alleged claims about properties in question; resultantly Criminal Appeal No,31 of 2001 of Syed Zahir Shah is partly allowed. The consequence is that the impugned judgment in these matters are set aside. The case is remanded to the trial Court (concerned Accountability Court) with the direction to afford opportunity of hearing to the alleged Benamidars mentioned in this judgment, to produce evidence if so deemed proper and likewise the official respondents shall have the right of rebuttal and hearing. This exercise is required to be completed by the trial Court within (8) weeks from the date of receipt of this judgment and the case to be finally disposed of within next two weeks thereafter or earlier as the case may be.