' WAQAR AHMAD SETH, J.---The appellant Muhammad Zamarud stood trial in Reference No,12 of 2009 before Accountability Court No,IV, N.-W.F.P., Peshawar and after having been found guilty under section 10 of the NAB Ordinance vide judgment dated 26-2-2010, he has been convicted and sentenced to two years' rigorous imprisonment with a fine of Rs, 1,77,82,866 recoverable under section 33-E of NAB Ordinance, however, benefit of section 382-B, Cr.P.C. Was extended to him.
2. The allegation against the appellant is that during service in Customs Department, he acquired huge assets in his own name, in the name of his dependents and benamidars amounting to Rs,1,77,82,866 and also spent huge amount on the education of his children and visits abroad, which. Are disproportionate to his known sources of income. He joined the Customs Department as Upper Division Clerk, in the year, 1976 and got promoted to the post of Superintendent (BPS-16), on 19-12-2002. NAB (F) took cognizance of the matter and authorized' Mr. Amjad Naseer to investigate.
During the investigation, the I.O. Collected necessary evidence and found that the appellant gained certain movable and immovable properties/assets, which are fully detailed in the Reference as well as in the judgment of Accountability Court.
3. The I.O. After collection of evidence, compiled his Final Report Exh.P.W.17/20 and forwarded it to the D.G. NAB (F) on the basis of which the instant Reference was shaped and then submitted to Accountability Court No,1, Peshawar for adjudication. Thereafter, the same was transferred to Accountability Court No,IV, Peshawar. Statement of appellant on oath was recorded. Benamidar Mst. Kaneez Fatima contested the notice issued to her and in support of her claim she produced four witnesses. The appellant denied none of the properties, constructions and expenditures etc. However, claimed the same to have been obtained within lawful sources.
' The prosecution in support of its allegation produced the following evidence, gist whereof is as under:-- ' Sheikh Ibrar Ahmad P.W.1 is the neighbour of appellant, who too constructed his house in 1982-83, whereas Nasir, Clerk, DOR Office, Rawalpindi produced the original record of registered Deed No,17751 executed on 24-12-1981, which pertains to the house of the accused allegedly purchased by his wife from one Chaudhry Muhammad Akram.
' Sardar Muhammad, Chief Accounts Officer, Customs Collectorate, Peshawar appeared as P.W.3 and produced the detail of rewards, pay and allowances received by the appellant during his service.
' Muhammad Ramzan, Deputy Vice-Principal, Cadet College Hassan Abdal, appeared as P.W.4 and produced the complete record pertaining to the tuition fees and other expenses of two sons of the appellant. According to him, total expenses from the year, 1995 to 2001 came to Rs,4,65,464.
' Shahid Iqbal, Executive Engineer, Pak PWD, Islamabad appeared as P.W.5, who carried out the assessm ent of record incurred on House No,3 Swan, Rawalpindi in the year, 1983-84, which came to Rs,4,61,680, however, the same did not include price of the plot.
' Hafiz Ibrar, representative of Lawrence College, Murree appeared as P.W.6, who produced the record of fees and other charges pertaining to the third son of appellant, namely, Jawad Zamarud, who was admitted in the College in March, 1995 and studied there up to 2005. During this 10 years academic session, the appellant paid Rs,11,35,827 as tuition fee and other miscellaneous charges of his son named above.
' Muhammad Ijaz, Patwari appeared as P.W.7, who produced Mutations Nos.855 and 878 through which the appellant and his wife inherited landed property measuring two kanals, five marlas and 4-1/2 marlas from their respective fathers. This witness also produced Revenue Record on the basis of which appellant purchased or received in gift landed property from his brothers and sisters, which comes to 5 kanals and 4 marlas in toto.
'Awal Khan, Office Qanoongo, Haripur appeared as P.W.8, who produced the annual agricultural income of the landed property in the name of appellant from the year, 1992 to 2005.
' Imran Naseer, Manager Operation, Citibank, Rawalpindi appeared as P.W.9, who produced the record pertaining to Account No,5-310247-016 maintained in the name of Mst. Kaneez Fatima, wife of appellant.
' Raja Saparas Khan, 0G-II, NBP, Rawalpindi P.W.11 and Muhammad Javed Khan, AVP, NBP, Rawalpindi P.W.13, produced the three accounts in the name of appellant.
' Muhammad Shakeel Saghar, Manager Operation, HBL Rawalpindi appeared as P.W.12, who produced record in respect of two accounts, one in the name of appellant and his wife while the other in the name of Asad Mehmood son of Muhammad Akram.
' Atif Bin Zahoor, Manager HBL appeared as P.W.14, who deposed that both account holders Asad Khan and appellant used to visit the bank, jointly operated the said account and made transactions therein. This witness went on to say that on 28-8-2004 Asad Khan came to his bank along with an application to replace his brother-in-law i.e, appellant with Javed Akhtar, his brother.
' Nasir Saeed Akhtar, Section Officer, Establishment Division, Islamabad appeared as P. W.16, who conducted inquiry in the instant case after transfer of Saqib Farooq to another wing of NAB. He through FCIW, NAB Islamabad sought the information regarding the country wide bank accounts of the appellant from the State Bank of Pakistan, which they did and as per information three hidden accounts pertaining to appellant, his wife and Asad Khan were traced out.
' Amjad Naseer, Assistant Director, NAB, who investigated the present case, appeared as P. W.17. He gave the detail of evidence, which he collected during the investigation, reference whereof has been given in the preceding paras, hence need not to repeat it. He obtained the record of awards given to appellant by the Customs Department, which is Exh.P.W.17/3. He prepared a detail report in respect of salary of appellant, which is Exh.P.W.17/4. He also obtained the record of registered deeds and other Revenue Record in respect of the house in question. He also obtained the Revenue Record in respect of landed property of appellant in his village. Likewise, he also obtained the detail of fees and other charges incurred on the education of three sons of appellant studied in different colleges. He also collected record from Ticket Office of PIA regarding fare from Islamabad to UK, which is Exh.P.W.17/13. He also collected record from the entire banks where the appellant, his wife and Asad Khan had maintained accounts, the reference whereof has already been given. He analyzed the record and prepared inflow and outflow chart in respect of the income and expenditure of the appellant, which is Exh.P.W.17/17. He also collected record in respect of the landed property purchased by the appellant, his wife including the house in Rawalpindi. He tabulated the objectionable transactions, which is Exh.P.W.17/18 and transpire that transactions to the tune of Rs,1,61,23,000 were disproportionate to their known sources of income. Lastly, this witness stated that total disproportionate/ unexplained amount against the appellant is Rs,1,77,42,866, the present approximate market value of which comes to Rs,2,89,87,740.
4. After close of prosecution evidence, the appellant was examined under section 342, Cr.P.C., wherein, he denied the allegation. He gave statement on oath and also produced evidence in his defence, which is as under:-- ' Asad Khan, brother of Mst. Kaneez Fatima appeared as D.W.1, who stated that he was maintaining Account No,17209-5 in HBL Rawalpindi Branch and had nominated the appellant his next of kin for some time. Further alleged that he took loan from Sagheer Hussain for Visa purpose and thereafter returned the same.
' Abdul Razaq appeared as D.W:2, who stated that in the year, 2001, he executed an agreement to sell with the appellant in respect of the house in dispute and out of total price of rupees four millions, he paid him rupees 2.5 millions on 15-11-2000 as advance. He produced the said sale agreement, which is Exh.D.W.2/1. Further stated that after a year, the appellant resiled from his commitment and returned the earnest money in 2004.
' Sagheer Hussain appeared as D.W.3, who stated that he gave Rs,25,00,000 to Asad Khan in July, 2000 as loan, who needed it so as to make bank statement for visa purpose. Further stated that the said money was returned to him in July, 2002.
' Mir Haider Mirza appeared as D.W.4, who stated that the appellant borrowed an amount of Rs,8,00,000 as loan from him in January, 1999 and then returned it in June, 2004.
' Mian Muhammad Yaseem appeared as D.W.5, who stated that Akram Khan, father-in-law of appellant purchased a piece of land in Rawalpindi in Swan Cantt. From Chaudhry Muhammad Akram upon which later on, Bostan Khan, father of the appellant constructed the house in question.
' Amjad Khan appeared as D.W.6, who stated that he is tenant of appellant Muhammad Zamarud and used to cultivate the land of appellant on the basis of 1/3rd share of the produce and gave him the profit of the crops and vegetables amounting to Rs,1,50,000.
' D.W.9 is Khalid Mehmood Butt, who stated that appellant obtained a loan of rupees two million from him on 31-8-2005 and later on returned the same to him.
' Qazi Muhammad Irshad appeared as D.W.10, who testified that he gave an amount of Rs,12,00,000 as loan to appellant, who returned it subsequently.
' Salman Yousaf, Branch Manager Citibank, Rawalpindi appeared as D.W.13, who produced the original record in respect of Account No,5310247016 maintained in the name of Mst. Kaneez Fatima.
He also produced the statement of account, which revealed that various amounts were credited in the said account at different dates.
5. In his statement recorded on oath, the appellant denied the allegations as false. He explained the acquisition of land, transactions in the banks, expenses on children education and foreign visits etc.
6. Mst. Kaneez Fatima, the alleged Benamidar appeared and contested the Show Cause Notice.
She recorded her statement through attorney/Javed Akhtar, who was examined as R.W.4. She claimed that the plot of the house situated in Swan Rawalpindi was purchased by her father Muhammad Akram Khan in 1981 after her marriage with the appellant in 1980.
' Saqib Farooq, I.O. Of the NAB examined as R.W.1, who stated that during the investigation he collected the documents including the affidavit of Chaudhry Muhammad Akram.
' Chaudhry Muhammad Rashid appeared as R.W.2, who produced the original NIC of his father and admitted signature of his father on the above affidavit as correct.
' Muhammad Saleem appeared as R.W.3, who stated that he knew the father of appellant being his co-villager, who was running a General Store and also owned agricultural land and some buffaloes;
7. At the conclusion of trial, the appellant was convicted and sentenced as mentioned above, hence instant appeal.
8. It merits mention here that during pendency of this appeal, the appellant died and his legal heirs have already been brought on file, therefore, conviction and sentence of imprisonment of two years' R.I. Awarded to him stood abated, however, the question of sentence of fine of Rs,1,77,82,866 is to be decided through this judgment.
' Both the parties submitted their respective written arguments, which are available on file.
9. Learned counsel for. Appellant through his written defence contended that the prosecution has failed to bring home the charge against the appellant through cogent and reliable witnesses; that the witnesses produced by prosecution were inconsistent with each other rather contradicted on crucial points benefit whereof must go the appellant; that the witnesses produced by prosecution were interested and were pressurized, thus, they deposed against the appellant favouring the prosecution, hence their testimony was wrongly relied upon by learned trial Court; that the charge against the appellant has not been established through evidence but the learned trial Court has wrongly and illegally sentenced the appellant imposing upon him fine of Rs,1,77,82,866 advancing no valid reason, thus, the same require reversal, learned counsel was of the view.
10. On the other hand, in the written arguments it is contended on behalf of NAB that the appellant joined the service as UDC in the Customs Department and earned sources in millions, which are much beyond his lawful sources. Further submitted that the appellant spent millions of rupees on the education of his children, which are certainly beyond the means of a government employee like the accused. He was of the view that the prosecution in support of its allegations produced oral as well as documentary evidence, which was rightly relied upon by learned trial Court; that the witnesses produced by prosecution were subjected to lengthy and taxing cross-examination but nothing favourable to the appellant could come out from their mouth, thus, the reasons advanced by learned trial Court in the impugned judgment are based on documentary as well as oral evidence, hence the same require no interference by this court.
' We have heard learned counsel for the parties and perused the record with their able assistance.
11. The allegation against the appellant is that during his service in the Customs Department, he acquired huge assets, which are disproportionate to his known sources of income. It is alleged that he purchased 5 kanals, 4 marlas at Mouza Maqsood, District Haripur against sale consideration of Rs,80,333 through different mutations and in this respect the prosecution produced Muhammad Ijaz, Patwari Halqa of the said Mouza, who produced the entire mutations. The appellant did not deny its acquisition, however, claimed to have acquired through lawful sources of income vis-a-vis valid transactions. The explanation given by the appellant in his statement under section 342, Cr.P.C. Is not believable, hence was rightly not relied upon.
12. The other allegation against him is the purchase of one kanal residential plot in the name of his wife Mst. Kaneez. Fatima in the year, 1981 situated at Mouza Kotha Kallan, Rawalpindi and thereafter constructed a double storey house thereon in the years, 1982 and 1983, however, the appellant claimed tnat the said plot was purchased by his father-in-law for his wife whereas the house was constructed on it by Bostan Khan, however, this contention of appellant has no force at all as P.W.1 admitted in his deposition before the court that as per admission of original owner of the said plot, the same had been purchased by appellant.
13. As far as the bank assets are concerned, the appellant claimed to have taken loans from his friends and deposited the same in his accounts and denied the availability of amount in the account of his wife and brother-in-law. In support of his explanation, he produced the above D.Ws., who instead of supporting the claim of appellant, strengthen the prosecution version.
14. As far as the allegations of expenses incurred on education of children by the appellant as well as performance of Umra and fare of UK, the same has been proved by the prosecution through oral and documentary evidence. The P. Ws. Were found, consistent and confidence-inspiring, hence their stance could not be shattered despite lengthy and taxing cross-examination. On the other hand, the appellant produced cryptic and inconsistent evidence, which was rightly not believed.
15. The learned trial Court after scrutinizing the material available on record convicted and sentenced the appellant. No misreading or non-reading of evidence has been pointed out by learned counsel for appellant, which could justify interference by this court. The impugned judgment is in accordance with law and material available on record.
16. From the combined study of material available on record, it is held that as the appellant had died, therefore, his sentence of two years' R.I. Shall stand abated, however, the imposition of fine as recorded by the learned trial Court shall remain intact, hence this appeal being devoid of legal merits is dismissed. #EndJudgment