' MUHAMMAD HASHIM KHAN KAKAR, J.---By this common judgment, we intend to dispose of Criminal Ehtesab Appeals Nos.50, 53 and 54 of 2011, arising out of the common judgment dated 25th June 2011, rendered by the Accountability Court No-I, Quetta (the "trial Court"), whereby the appellants, Faiz Muhammad Jaffar, Sikandar and Muhammad Rasheed Anjum, were held guilty under section 10(a) and (b) of the National Accountability Bureau Ordinance, 1999 (the "NAB Ordinance') and sentenced in the following manner:--
(i) Accused Faiz Muhammad Jaffar to suffer five (05) years' RI and to pay a fine of Rs,25,00,000 (rupees twenty five lacs only). The amount of fine was directed to be recovered by way of forfeiture of his movable/immovable properties through Collector concerned. In case of non-recovery of amount of fine to suffer undergo RI for' one and half (11/2) year.
(ii) Accused Sikandar to suffer ten (10) years RI and to pay a fine of Rs,50,00,000 (rupees fifty lacs only). The amount of fine was directed to be recovered' by way of forfeiture of his movable/immovable properties through Collector concerned. In case of non-recovery of amount of fine to suffer undergo RI for three (3) years.
(iii) Accused Muhammad Rasheed Anjum to suffer twelve (12) years RI and to pay a fine of Rs,90,00,000 (rupees ninety lacs only). The amount of fine was directed to be recovered by way of forfeiture of his movable/immovable properties through Collector concerned. In case of non- recovery of amount of fine to suffer undergo RI for four (04) years.
' The accused persons were barred from holding any public office, taking part in any election and obtaining loan from any financial institution for ten (10) years and the said period was ordered to be counted from the date of release of the convicts after serving their sentences. They were also extended the benefit of section 382-B of the Cr.P.C.
2. Briefly stated the facts of the case are that the Chairman, NAB filed a Reference bearing No,22.Of 2000. Under sections 18(g) and 24(b) of the NAB Ordinance before the trial Court, stating therein that in the month of September, 1997, the Primary Education Directorate, assisted by the World Bank, called for tenders from the qualified contractors for provision -of mat, furniture and reading and writing material. The contractors (53 firms) participated in the bidding process, however, despite higher rates than that of the other contractors, Messrs Ghazi Trading Company, owned by accused Muhammad Nadeem Waris, .Was awarded the contract for supply of the items for an amount of Rs,18.37,681 (rupees eighteen lacs thirty seven thousand six hundred eighty one only).
The firm, thereafter, succeeded in getting contract of Rs, 1,41,14,462 (rupees one crore forty one lacs fourteen thousand four hundred and sixty two only) with the cooperation of accused Sardar Abdul Rehman Khethran, Muhammad Rasheed Anjum and Khan Muhammad Bhangar, thus, the genuine tenders of low rates of the other contractors were ignored. It is alleged that the above firm did not supply the items in the Districts, but managed to get receipts from DEOs and SDEOs and by this way, without supply of the items, an amount of Rs,1,28,25,808 (rupees one Crore twenty eight lacs twenty five thousand eight hundred and eight only) was paid to the firm and on the basis of fake receipts, an amount of Rs,69,13,554 (rupees sixty nine lacs thirteen thousand five hundred and fifty four only) was drawn.
' Similarly, in Social Action Programme, tenders were also invited in February 1999 by the Director, Primary Education Directorate for the supply of reading and writing material, mats and furniture, in which 23 firms participated, however, before submitting the tenders, accused Sikandar Khan, Accounts Officer, PED, on the directives of accused Muhammad Rasheed Anjum, summoned a meeting of representatives of dealers Messrs Majid and Sons, Azhar Brothers, Muhammad Mohi- ud-Din Traders, Bilal Traders and Fahad Furniture and directed them to include 25% in excess in their tenders for the Minister and Accountant General Office. Hence supply order after opening of tenders were issued and from the first bill, 25% commission amounting to Rs,29,55,000 (rupees twenty nine lacs fifty five thousand only) was deducted. It is further the case of prosecution that in addition to an amount of Rs,69,00,000 (rupees sixty nine lacs only), accused Muhammad Rasheed Anjum received an amount of Rs,48,07,320 (rupees forty eight lacs seven thousand three hundred and twenty only) as commission from Ghazi Trading Company and further drew an amount of Rs,12,00,000 (rupees twelve lacs only) on the pads of Messrs Mohiud-Din and Iqra Furniture and embezzled the same. It is further alleged that accused Faiz Muhammad Jaffar, who was dealing the financial matters of World Bank, received an amount of Rs,29,00,000 (rupees twenty nine lacs only) with the connivance of accused Muhammad Rasheed Anjum from Messrs Khawaja Furniture, Mohi-ud-Din Traders, Bilal Traders, Hamid and Sons and Fahad Furniture. Thus, the accused persons, in their respective capacity, violated the rules and regulations, received receipts from DEOs/SDEOs under threat and embezzled millions of rupees without supply of material on fake receipts. The cause of education was badly hit, students were deprived of reading and writing material and the Province was defamed.
3. On the basis of the aforesaid allegations, the accused persons were arrested and interrogated.
During course of the investigation, IP Muhammad Arif, Anti Corruption/NAB Quetta took into possession the relevant record including certified copies of the stock registers from the concerned offices Article All to Article A/2535 vide recovery memos Exh.P/1-A to Exh.P/17-A and Exh.P/19-A. He also recorded the statements of P.Ws. And after completion of the investigation, prepared challan Exh.P/29-A along with sanction letter of Chairman NAB Exh.P/29- B.
4. After receipt of reference and observing legal formalities, charge was framed and read over to the appellants, to which they did not plead guilty and claimed trial. Thereafter, the prosecution produced twenty nine witnesses in support of the accusation. At the end of prosecution evidence, the appellants were examined under section 342 of the Cr.P.C. In respect of incriminating pieces of evidence, which were denied by them. The appellants recorded their statements on oath, but did not produce any witness in their defence, however, appellant Rasheed Anjum examined Muhammad Ishfaq, Assistant Director (Judicial), Primary Education Directorate in his defence. On the conclusion of trial, the Accountability Court found the appellants guilty of the offence under 10(a) and (b) of the Ordinance and sentenced them as mentioned and detailed above.
5. WC have heard learned counsel for the appellants as well as learned D.P.-G. And also gone through the impugned judgment. Learned counsel for the appellants raised following contentions:-
(i) that evidence of P.W.20 Bashir Ahmed, P.W.21 Ghulam Murtaza, P.W.22 Abdul Hameed, P.W.23 Malik Muhammad Arif and P.W.25 Muhammad Mohi-ud-Din is not reliable for the reason that intrinsic value is lacking in their testimony. They are also unreliable for the reason that they never made complaints regarding commission/bribe obtained by the appellants till the investigating officer approached them;
(ii) all the witnesses have mentioned different rates of commission, which also made their testimonies doubtful and unreliable;
(iii) all the witnesses have admitted that they could not produce any evidence regarding payment of commission to the appellants, as such. The conviction could not be based only on the bald allegations of such witnesses; '(iv) all the witnesses were accomplice in the commission of the offence, as such, their evidence could not form basis for conviction until and unless corroborated by some independent evidence;
(v) there is no reference regarding Social Action Programme (SAP) and the reference was only confined to World Bank aided project, as such, the Accountability Court has wrongly taken cognizance of the alleged offence in absence of reference;
(vi) no power is vested with trial Court to order forfeiture of properties for recovery of fine, such order is in excess Of jurisdiction; and vii) the acquittal of Minister for elementary education had also bearing on the fate of other accused/appellants, but this important aspect of the case has been ignored.
6. On the other hand, learned Deputy Prosecutor General (NAB) controverting the contentions, raised by learned. Counsel for the appellants, urged as under:--
(i) the prosecution has proved its case against the appellants to the hilt and there could be no other evidence than that of the persons, who gave commission/bribe to the appellants, as such, the Accountability Court rightly relied upon their testimonies while convicting the appellants;
(ii) that the appellant Rasheed Anjum was Drawing and Disbursing Officer, whereas appellants Sikandar and Faiz Muhammad Jaffar were supervising the World Bank aided projects respectively and the cheques were to be issued by the appellants, as such, it was not unnatural on the Tart of the witnesses to have paid commission to the appellants on their demand at the time of receiving cheques; and
(iii) there was neither any previous enmity between the witnesses and the appellants, nor had they any motive or ill will to falsely rope the appellants in the commission of the offence. After their statements regarding payment to the appellants, burden was shifted to them to have disproved the charges as provided under Section 14 of the Ordinance.
7. Before dilating upon the respective contentions put forth by the parties learned counsel, we deem it appropriate to give resume of the evidence produced during course of the trial:
(i) P.W.1 Haji Abdul Manan is Supervisor Education Department, Pishin, who handed over certified copies of stock register Article A/1 to Article A/55 along with certificate of DEO Pishin vide Article.
A/56, which were taken into possession vide memo Exh.P/1-A;
(ii) P.W.2 Piral Khan is Junior Clerk, Education Department, Quetta, who handed over record of mat, furniture, reading/ writing material, pertaining to the period of accused Muhammad Rasheed Anjum, vide Article A/57 to Article A/366, which were taken into possession vide memo Exh.P/2-A.
He further handed over record of bills of five firms vide Article A/368 to Article A/1499, which was taken into possession vide memo Exh.P/2-B;
(iii) P.W.3 Syed Ghulam Sarwar Shah, Sub-Divisional Education Officer, Thal Magsi, deposed that accused Khan Muhammad Bhangar, called him on telephone that 2000 mats have been sanctioned for their area and to contact Ghazi Trading firm, but only 500 mats were received and for the remaining mats, promises were made, but with no fruitful results. He further deposed that bill Article A/61 was signed by accused Faiz Muhammad Jaffar and Rasheed Anjum;
(iv) P.W.4 Najeebullah, Store Keeper/Junior Clerk, District Education Officer office (Female), Pishin, deposed that in the year 1998, he was posted as Store Keeper and during his tenure, he has not received any item from Ghazi Trading Company, Quetta, however, Ghazi Trading Company sent a bill of 1000 mats to DEO (Female), Killa Abdullah for payment of an amount of Rs,200,000 (rupees two lacs only). He handed over the certified copies of the stock register to NAB authorities vide Article A/1500 to Article A/1586, which were taken into possession vide recovery memo Exh.P/4-A;
(v) P.W.5 Muhammad Qasim, Learning Coordinator, Education Department, Pishin, deposed that 6000 mats were issued for the office of SDEO, Pishin, but the same were not provided to them, however, Ghazi Trading Company had shown issuance of 3000 mats, but they received only 2000 mats in different time;
(vi) P.W.6 Muhammad Ibrahim is Assistant, Education Department, Quetta, who provided record of firms to the NAB authorities on the directives of Director Education vide Article A/1689 to Article A/1844, which was taken into possession vide memo Exh. P/6-A;
(vii) P.W.7 Khuda-e-Dad, Store Keeper, Sub Divisional Education Officer, Primary Sibi, received 25 tables from Ghazi Trading Company, about which he had made relevant entry in the stock register, however, he deposed that he had not received any mats, reading/writing material from the firm. He handed over certified copies of stock register vide Article A/1845 to Article A/1947 to the NAB authorities, which were taken into possession vide recovery memo Exh.P/7-A;
(viii) PW-8 Shah Nawaz, Junior Clerk/Store Keeper, District Education Officer (Female), Dhadhar, handed over certified copies of stock register to the investigating officer on the directives of Director Primary Education vide Article A/1948 to Article A/2083, which were taken into possession vide memo Exh. P/,8-A;
(ix) P.W.9 Muhammad Asif, Store Keeper, District Education Officer (Female), Sibi, handed over certified copies of stock register to the investigating officer on the directives of Director Primary Education vide Article A/2084 to Article A/2103, which were taken into possession vide memo.
Exh.P/9-A;
(x) P.W.10 Abdul Razaq, Assistant. District Education Officer, Sub Division Lehri", District Bolan, deposed that they have not received 1500 mats from Ghazi Trading Company, nor issued any receipt in respect thereof. He handed over certified copies of stock register to the investigating officer vide Article A/2104 to Article A/2146, which were taken into possession vide memo Exh. P/10- A;
(xi) P.W.11 Sana-ul-Haq, Store Keeper, Sub-Divisional Education Officer, Saddar Quetta, deposed that in the year 1999, the owner of Ghazi Furniture, namely, Muhammad Nadeem brought 500 mats and asked for issuance of receipt in respect of 2000 mats, at which he asked him to approach the Sub-Divisional Officer, but he does not know as to whether the said officer had issued him the receipt. In the month of May 1999, accused Muhammad Nadeem once again brought 210 mats and asked for issuance of receipt in respect of 2000 mats, but he again asked him to approach the concerned officer. He handed over certified copies of stock register to the investigating officer vide Article A/2147 to Article A/2175, which were taken into possession vide memo Exh. P/11-A;
(xii) P.W.12 Hamayun, Store Keeper, District Education Officer (Male), Quetta, deposed that on 22nd April 1999, Superintendent Muhammad Younas called and asked him that some persons are demanding issuance of a receipt in respect of 2000 mats and since he had not received the mats, therefore, he refused to do so. Thereafter, District Education Officer, Nawab Khan, called and told him that Ghazi Traders will provide 60% mats now and 40% later on, however, they, without receiving the mats, issued a receipt of 2000 mats. He handed over certified copies of stock register to the investigating officer vide Article A/2176 to Article A/2191, which were taken into possession vide memo Exh.P/12-A; (xiii)P.W.13 Jamal-ud-Din, Headmaster, Middle School, Haji Kot Barkhan, deposed that in the year 1999, he has not received any article from Education Department. He handed over certified copies of stock register to the investigating officer vide Article A/2192 to Article A/2219, which were taken into possession vide memo Exh.P/13-A;
(xiv) P. W.14 Jamal Khan, Store Keeper/Superintendant, District Education Officer (male), Barkhan, deposed that they have not received any item, from Primary Education Directorate on 25th January 1999. He handed over certified copies of stock register to the investigating officer vide Article A/2220 to Article. A/2249, which were taken into possession vide memo. Exh. P/14-A ;
(xv) P.W.15 Abdul Bari, the then Store Keeper, SDEO Office, Muslim Bagh, deposed that during his incumbency from May 1997 to 20th February 1999, as Store Keeper, he has not received any article from Ghazi Trading Company. He handed over certified copies of stock register to the investigating officer vide Article A/2250 to Article A/2388, which were taken into possession vide memo Exh.P/15- A;
(xvi) P.W.16 Muhammad Alam, Senior Clerk/Store Keeper, District Education Office, Naseerabad, handed over certified copies of stock register to the investigating officer vide Article A/2389 to Article, A/2517, on the directives of District Education Officer, Naseerabad, which were taken into possession vide memo Exh.P/16-A;
(xvii) P.W.17 Rafique Ahmed Barrech, the then Officer Grade-III, National Bank Corporate Branch, Quetta, handed over documents in respect of account of Primary Education Directorate to the investigating officer vide Article A/2518 to Article A/2537, on the directives of Chief. Officer of the Bank, which were taken into possession vide memo Exh.P/17-A; (xviii) P.W.18 Syed Athar Shah, Sub-Divisional Education Officer, Sibi, deposed that Ghazi Traders, who had to supply 1500 mats, have not been received by them;
(xix) P.W.19 Muhammad Anwar, Assistant District Education Officer, Sany Bolan, handed over the copies of stock register to the investigating officer vide Article A/2538 to Article 2553, which was taken into possession vide memo Exh.P/19- A;
(xx) P.W.20 Bashir Ahmed, Government Contractor, Education Department, deposed that he had directly paid rupees 1.6 million as 10% commission to accused Rasheed Anjum in the contracts of three firms, who had told him that the amount of commission will be paid to the high-ups and directed him to include 25 % in his tender for payment of the commission. He further told the witness that the payment is to be made to AG office and Audit parties too, at which he paid rupees 1.4 million and at the relevant time, accused Sikandar was also present. He further deposed that the amount, which was paid, was more than the amount of commission made on the amount of tender and accused Rasheed Anjum directed accused Sikandar to return the difference amount.
He further deposed that a contract for World Bank Fund in the name of Fahad Furniture was awarded for rupees 0.88 million commission of rupees 0.1 million and the same was paid to accused Khan Muhammad Bhangar. He further stated that accused Faiz Muhammad Jaffar also obtained Rs,6,00,000 as loan from him, but the same has not been \ returned as yet;
(xxi) P.W.21 Ghulam Murtaza, Furniture Supplier, deposed that in the year 1999, tenders were invited for supply of furniture. He was awarded two contracts, in which he had paid commissions to accused Sikandar, Jaffar and Rasheed Anjum;
(xxii) P.W.22 Abdul Hameed, Furniture Dealer, deposed that he paid an amount of rupees 0.25 million to accused Jaffar in the work of Social Action Programme, rupees 0.4 million to Sikandar Khan Jamali, rupees 0.15 million to accused Rasheed Anjum, Rs,50,000 on the occasion of Eid and Rs,1,00,000 was paid subsequently towards commission. The work order was for rupees 6.5 million, but the work could not be done because the funds were withheld; (xxiii) P.W.23 Malik Muhammad Asif, Businessman, deposed about the procedure being adopted by the Education Department towards the amount of commission. He paid an amount of rupees 1.50 million to accused Rasheed Anjum towards the work of SAP Programme, rupees 0.50 million in presence of accused Sikandar Jamali. He paid rupees 0.4 million to accused Faiz Muhammad Jaffar as loan, out of which he returned rupees 0.3 million to him;
(xxiv) P.W.24 Muhammad Asghar, Officer Grade-I, National Bank, Corporate Branch, Jinnah Road Quetta, deposed that on his request, accused Sikandar opened an account in his branch. He further deposed that the cheques were presented in the bank by the parties in whose name the same were issued. This witness was declared hostile; (xxv)P.W.25 Muhammad Mohi-ud-Din, Contractor, deposed that he had paid an amount of Rs,400,000 as commission to accused Rasheed Anjum. He further paid an amount of Rs,600,000 to accused Sikandar as commission and an amount of Rs,200,000 to accused Faiz Muhammad Jaffar as loan, which was, later on, returned;
(xxvi) P.W.26 Sultan Muhammad, District Education Officer, Killa Saifullah, deposed that accused Khan Muhammad Bhangar called him on telephone to Quetta, where he asked him to sign two receipts regarding issuance of 2000 mats. Initially he refused, but, subsequently, he signed the same as accused Khan Muhammad Bhangar advanced threats; (xxvii) P.W.27 Ali Dost, Principal, Government High School, Dera Allah Yar, deposed that accused Khan Muhammad Bhangar called him to Quetta and obtained his signatures on a receipt, pertaining to 2000 mats, however, the mats have not been received; (xxviii) P.W.28 Pir Bakhsh, Superintendant, Education Office, Dera Bugti, deposed that on the directions of accused Khan Muhammad Bhangar on telephone, he issued a receipt of 2000 mats to accused Nadeem of Ghazi Traders, however, the mats have not been received, and
(xxix) P.W.29 Muhammad Arif, Circle Officer, AntiCorruption/NAB Quetta, is the investigating officer of the case, who produced the relevant record, as mentioned and detailed above.
8. The appellants in their statements on oath deposed that the tenders were not awarded to the undeserving firms, having excessive rates. They also denied obtaining of 10% to 25% commission from the representative of different firms, who were given the tenders under the World Bank aided projects. They further denied that the amount was drawn without supplying material to the DEOs and SDEOs.
9. We have considered the respective contentions put forth by the parties learned counsel in the light of above discussed evidence. According to prosecution's allegation, the appellants, being in- charge of World Bank aided projects, received commission from different representatives of firms, who supplied furniture and reading/writing material to different DEOs and SDEOs.
10. The prosecution has produced the documents including cheques pertaining to supply of furniture, mats, reading/writing material etc. To the DEOs and SDEOs during the period, when the appellants were in-charge of the World Bank aided projects. The perusal of these documents shows that P.W.20 Bashir Ahmed (Fahad Furniture), P.W.21 Ghulam. Mumaza (Bilal Traders), P.W.22 Abdul Hameed (Hameed Furniture), P.W.2.5 Malik Muhammad Asif (Khawaja Furniture) and P.W.25 Muhammad' Mohi-ud-Din (Mohi-ud-Din Furniture) have supplied the aforesaid 'artcles to the DEOs and SDEOs and were issued cheques in lieu of such supply, therefore, there is no doubt in the depositions of above mentioned witnesses that they had supplied the furniture and other allied articles to tile Education Department during the period, when the appellants were in charge. It is also not denied by the defence that appellant Rasheed Anjum was the Drawing and Disbursing Officer, whereas appellants Sikandar and Faiz Muhammad Jaffar were in charge/supervisors of both the World Bank aided projects. All the aforesaid witnesses have specifically stated that at the time of delivery of cheques, they paid commission to the appellants, because in case of non payment of the commission, they used to withhold the cheques.
11. The record is also indicative of the fact that under the World Bank aided projects, Education Department invited tenders for supply of furniture, mats, reading and writing material and out of twenty firms, in spite of exorbitant rates, tender of accused Muhammad Nadeern Waris (since acquitted on the basis of plea-bargain) of Messrs Ghazi Trading Company was accepted, who, without supplying complete material, through fake and forged receipts managed from Districts Quetta, Pishin, Killa Saifullah, Barkhan, Bolan, Sibi and Jaffarabad, drawn illegally certain amount. In this connection, besides the documentary evidence, comprises of supply orders, receipts, cheques, bank record and certified copies of stock registers, ocular account has been furnished by the employees of Education Department i,e, the Store Keepers, ADEOs and DEOs, who categorically stated that the proprietor of Messrs Ghazi Trading Company did not supply the material in accordance with the tender and obtained receipts without supply of material.
12. Though the prosecution witnesses were cross-examined at length, yet nothing was brought on record, which could shake the intrinsic value of their depositions. Even no ill will or malice was alleged against these witnesses to falsely implicate the appellants in the commission of the offence. Merely because they have paid commission, which was illegal, is not sufficient to disbelieve their straightforward and confidence inspiring evidence. All the witnesses have deposed that on refusal of payment of the commission, the appellants withheld the cheques, as such, under such circumstances, they were forced to pay the commission to the appellants and by no stretch of imagination, they could be termed as accomplice in the commission of the offence being consenting parties.
13. After specific allegation regarding payment of the commission/ bribe to the appellants, onus under section 14 of the Ordinance shifted to them to prove that they accepted or obtained the gratification no as a motive or reward other than legal remuneration, but they . Failed to discharge their onus and only denied to have received any such commission, which assertion on their part cannot be believed the light of overwhelming evidence in shape of the statements of P.Ws. 20 to 23 and 25, whose statements are straightforward and confidence inspiring and fit in the probabilities of the case.
14. Learned counsel for the appellants urged that the statements of P.Ws. 20 to 23 and 25 are liable to be excluded from consideration. According to the prosecution's own showing, there were 23 suppliers, out of whom, only five had, allegedly, made the payment of the commission, whereas none of the remaining supplier was produced in order to substantiate the allegations, but we find no substance in such arguments, as by now it is settled that the Courts are required to see quality of the evidence and not the quantity produced during the trial. Even if it is presumed that the other suppliers have not paid any commission to the appellants, such fact alone is not sufficient to discard the statements of P.Ws. 20 to 23 and 25, who have categorically stated that they had paid the commission/ bribe to the appellants, as they were forced to pay the same, otherwise the cheques would have been withheld by them.
15. Coming to the next contention of learned counsel for the appellants that the witnesses have not approached or complained to any authority regarding payment of commission prior to the approach by the investigating officer, we are of the opinion that prior to promulgation of the Ordinance, the corruption was a menace in our country, as highlighted by the then Transparency International and other Organizations, which necessitated in promulgation of the Ordinance to curb the corruption with iron hands, therefore, the payment of commission by the said witnesses to the appellants for timely release of their cheques during the period when corruption was un- checked, was neither improbable nor unnatural and under the circumstances, non-complaining about the receipt of the commission by the appellants by itself is not sufficient to discard the testimonies of these witnesses, which is, otherwise, found consistent and confidence inspiring.
16. Coming to the next contention of learned counsel for the appellants that the appellant Sikandar could not have been tried and convicted in the Reference in hand, as there was no Reference regarding Social Action Programme (SAP). It is sufficed to observe that Exh.P/29-A and Exh.P/29-B clearly demonstrate that the matters regarding both the projects aided by the World. Bank were referred to the Chairman, NAB for sanction, which was, accordingly, given by way of making reference for the prosecution of the appellants along with co-accused. Even otherwise, a Reference is not supposed to be encyclopedia of the prosecution case. Two conditions are to be satisfied under section 18(g) of the Ordinance; firstly, that there is sufficient material to justify filing of Reference and secondly, the Chairman NAB decides that it would be proper and just to file Reference, then matter can be referred to the Accountability Court. The cognizance by the Accountability Court was taken on the Reference made by the Chairman, NAB under sections 18(g) and 24(b) of the Ordinance. Those offenders can be tried, whom the Chairman, NAB finds liable to be tried and, therefore, names them in the Reference, The Chairman, NAB, had before him the complete report submitted by the investigating officer, in which complete details regarding both the projects, were given.
17. Mr. Muhammad Aslan Chishti, learned counsel for the appellant Sikandar (since dead), next contended that the property left by deceased stands inherited by his legal heirs in accordance with law and the heirs of the deceased cannot be saddled with the criminal liabilities of late Sikandar, which ended with his death and further contended that no power is vested with trial Court to order forfeiture of the properties for recovery of fine and the order to that effect is in excess of jurisdiction. It is true that the estate of a deceased devolves on his heirs at the moment of his death, but it is equally true that it is the religious duty of the legal heirs of a Muslim deceased to discharge the debts of the deceased out of the estate left by him, before distributing the same among themselves. On the authority of the Holy Qur'an and traditions of the Holy Prophet (P.B.U.H), the estate of a deceased Muslim is not to be divided amongst his heirs until all his debts are paid out of it. Unless that is done, the ownership of the estate remains under a legal pledge. In this regard, we are fortified by Sura Nisaa IV verses 11 and 12. There is no cavil to the proposition that the heirs are not responsible to pay debts of a deceased Muslim, nor are they responsible collectively for payment of the debts. In fact, a Muslim is personally responsible for his debts during his lifetime and after his death, his property is to be used for the discharge of his obligation. If heirs or anybody else pays his debts, it will not be under any obligation, but an act of charity.
18. We are in agreement with Mr. Muhammad Aslam Chishti, learned counsel for appellant Sikandar that criminal liability ends with the death of convict, but the civil liability of the accused/offender is still there and the death of offender regarding the payment of fine, does not operate as a discharge or satisfaction of the order for payment of fine. In this behalf, we are fortified by the dictum laid down in a case of "Muhammad Yousaf v. Syed Ghayyur Hussain Shah" 1993 SCM R 1185.
19. Besides, the above legal and factual position, it would be sufficed to add here that under section 33-E of the Ordinance, any fine or other sum due under the Ordinance or as determined to be due by a Court shall be recoverable as arrears of land revenue. In this regard, it would be advantageous to reproduce herein below section 80 of the West Pakistan Land Revenue Act, 1967, which reads as under:-- "80. Processes for recovery of arrears.---Subject to the other provisions of this Act, an arrear of land-revenue may be recovered by any one or more of the following processes, namely:
(a) by service of a notice of demand on the defaulter under section 81;
(6) by arrest and detention of his person under section 82;
(c) by distress and sale of his movable property and uncut or untethered crops under section 83;
(d) by transfer, under section 84, of the holding in respect of which the arrear is due;
(e) by attachment, under section 85, of the holding in respect of which the arrear is due;
(i) by annulment, under section 86, of the assessment of that holding;
(g) by sale of that holding under section 88;
(h) by proceedings against other immovable property of the defaulter under section 90."
From plain reading of the above provision of law, it is crystal clear that this provision of law, which authorizes any statutory body to recover any amount as arrears of the land-revenue, can be invoked, subject to the condition that the dues should be determined, affixed and ascertained and, obviously, in the case in hand, the amount of fine has been determined by the trial Court i,e, Rs,50,00,000 (rupees fifty lacs only), to be recovered from the deceased by the Collector concerned, therefore, in view of the aforesaid provisions of law and the dictum laid down by Hon'ble Supreme Court in the above noted reference case-law, the legal heirs of the deceased cannot take advantage of the death, of their predecessor-in-interest i,e, deceased Sikandar, particularly when it has been observed hereinabove that the fine amount can be recovered from the assets/ properties of the deceased.
19(sic) After reappraisal of evidence on record, as discussed above, we are of the considered view that the prosecution has successfully brought the guilt home against the appellants and they were rightly found guilty by the trial Court. The appellants have already undergone the substantive period of their sentence, as such sending them back to jail will not be appropriate and keeping in view the peculiar circumstances of the case, the period already undergone prior to their release on bail is sufficient to meet the ends of justice. However, the amount of fine imposed by the trial Court shall remain intact.
' With the Above modification in the quantum of sentence of imprisonment of the appellants, we find no merit in the appeals, which are, accordingly, dismissed.