ABDUL MOBEEN LAKHO, J. Syed Muhammad Adnan, appellant and another were tried by learned Judge, Accountability Court No. IV Sindh at Karachi in NAB Reference No. 04-A of 2014 (offshoot of Reference No. 04/2014). After full-dressed trial, vide impugned judgment dated 03.08.2017, the appellant and co-accused Abdul Qadir were convicted and sentenced as under: "82. On evaluation of whole evidence, as discussed above, it has been emerged out that the prosecution has succeeded in bring the guilt against the present accused Syed Muhammad Adnan son of Syed Muhammad Shafiq and Abdul Qadir son of Muhammad, as such, they are liable to be convicted for having committed the offences of corruption and corrupt practices as defined under section 9(a)(i)(ii)(iii)(iv)(vi)(ix)(x)(xi) and (xii) of National Accountability Ordinance, 1999 punishable under section 10(a) of said Ordinance. Hence, I convict and sentence accused Syed Muhammad Adnan son of Syed Muhammad Shafiq under section 265-H(2), Cr.P.C. to suffer R.I for ten 10 years and fine of (Rs.15 Million) and I convict and sentence accused Abdul Qadir son of Muhammad under section 265-H(2), Cr.P.C. to suffer R.I for ten (10) years and fine of Rs.15 Million. In case of default in payment of fine, they shall suffer further R.I for two (02) years. The accused persons shall be entitled to the benefit of section 382-B, Cr.P.C.
83. The above-named accused persons shall also stand disqualified in terms of section 15 of National Accountability Ordinance, 1999 for a period of ten years to be reckoned from the date of release after serving out sentence awarded to them and also from seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or any Province and also they shall not be allowed to obtain any financial facility in the form of loan or advances from any financial institutions controlled by Government for the period of ten years. They are already in custody and remanded with conviction warrants, to Central Prison, Karachi, to serve out the sentence awarded to them.
2. The concise and relevant facts for the disposal of the instant appeal as disclosed in the NAB Reference are that some senior Officials of the Central Information Employee's Cooperative Housing Society namely Syed Muhammad Adnan (appellant) and others, who were private persons in connivance and collusion with each other misused their authority by illegally cancelling plots of the Society and re-allotting them and illegally auctioning the plots of land which belonged to the Society to the persons who were otherwise not entitled to such plots, which caused loss to the Society. It is further alleged in the NAB Reference that some of the accused illegally awarded contracts to their favourite contractors which also caused loss to the Society. The appellant deliberately misused his authority in connivance and collusion with other co-accused by allowing the Society's plots to be auctioned whilst ignoring a caution placed by NAB under section 23(a) of the NAO, for not selling out such land which caused loss to the Society and as such the appellant and co-accused had committed acts of corruption and corrupt practices under section 9 of the NAO, which led to the filing of the aforesaid NAB Reference before the Accountability Court No. IV, Sindh at Karachi.
3. In order to prove its case, the prosecution examined 49 prosecution witnesses, who exhibited and produced numerous documents before trial Court. Thereafter, prosecution side was closed vide statement at Ex.57.
4. Statement of accused was recorded under section 342, Cr.P.C, in which he denied the prosecution allegations and claimed his false implication. However, he neither examined himself on oath in disproof of the prosecution allegations as provided under section 340(2), Cr.P.C, nor examined any witness in his defence.
5. After hearing the respective arguments of learned counsel for the parties, the learned trial Court vide judgment dated 03.08.2017, convicted and sentenced the appellant as stated above, hence the appellant preferred instant appeal.
6. Mr. Shoukat Hayat learned advocate for the appellant has contended that appellant has been falsely implicated in the NAB Reference; that there was no evidence to connect the present appellant in the commission of the offences as alleged by the prosecution; that it was wrongly mentioned that appellant being Honorary Secretary had gained illegal benefits for himself and his relatives; that the auction of the plots was held in accordance with the bye laws of the Cooperative Societies Act and no violation of section 23(a) of NAO has been committed by him; that no plot was allotted by him and no contract was awarded by him; that no amount was transferred from Society account into his account; that prosecution has failed to prove its case against accused Muhammad Sadiq Rajar who was Registrar of the Society, hence he has been acquitted by this Court. Lastly, it is argued that prosecution has also miserably failed to prove its case against accused too beyond reasonable doubt, hence the appellant deserves acquittal. He relied upon the cases reported as The State v. Idrees Ghauri and others (2008 SCMR 1118), The State v. Anwar Saifullah Khan (PLD 2016 SC 276), Pir Mazharul Haq and others v. The State (PLD 2005 SC 63), Muzzafar Ali Abbasi and another v. The State (2020 PCr.LJ 1403), Mansoor ul Haque v.
Government of Pakistan (PLD 2008 SC 166), Naimatullah Shah v. Farmanullah and another (1980 SCMR 953), Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), Wahid Bakhsh Baloch v. The State (2014 SCMR 985), Irfan and another v. Muhammad Yousaf and another (2016 SCMR 1190) and Muneer Ahmad Sheikh and another v. DG NAB Karachi and another (2019 SCMR 1738).
7. Conversely, learned Special Prosecutor NAB fully supported the impugned judgment and contended that prosecution has proved its case beyond any shadow of reasonable doubt through cogent and confidence inspiring evidence. He further submitted that colossal loss to the Society as well as National Exchequer had been caused, hence prayed for dismissal of appeal.
8. We have heard learned counsel for the parties and have minutely gone through the evidence of the prosecution witnesses as well as impugned judgment with their able assistance.
9. Before entering into the merits of the case, it would be pertinent to refer to the reasons of acquittal of accused Muhammad Sadiq Rajar, Registrar of the Society, on which learned counsel for the appellant has relied upon and contended that on the basis of same set of facts and evidence, the appellant also deserves acquittal. The relevant portion of the judgment reads as under: "The only evidence that the appellant might have had any knowledge of the caution before the auction is provided by PW.33 Muhammad Akram who sent a letter to the appellant to this effect although the value of this letter is damaged to a certain extent as no seizure memo was produced in respect of the same. Significantly this letter is marked to have been received in the appellant's office a day after the auction which would tie in with him later stopping any further action being taken in respect of the auction once he clarified the actual position from the record. Even otherwise, significantly PW 33 Muhammad Akram states as follows in his cross-examination, "It is a fact that no separate NOC was issued by accused Muhammad Sadiq Rajar and he has recorded words "please attend" on Society's letter dated 12.09.2013 whereby the Registrar was requested to depute his representative to attend the auction proceedings" and "It is correct to suggest that auction proceedings were stopped by accused Sadiq Rajar ride his letter dated 11.10.2013. Voluntarily says that a C.P. bearing No. 4686 of 2013 was filed by accused Syed Muhammad Adrian against Registrar and others showing the apprehension of cancellation of auction of 40 commercial plots on various grounds." and "It is correct to suggest that accused Muhammad Sadiq Rajar had no criminal intent while issuing directions to attend."
When read in a holistic manner we find that the evidence of PW.33 Muhammed Akram suggests that (a) the appellant gave no specific NOC for the auction to go ahead (b) once the appellant realized that the auction was not permissible he immediately prevented any further action being taken pursuant to the auction such as mutation of the plots which shows that he prevented any further unnecessary loss and (c) he had no criminal intent in allowing the auction which in terms of mens rea is a essential element of the offence as was held in the case of M. Idrees Ghauri (supra) at P.1129 as under: "There is no cavil to the proposition that an illegal order in a particular set of fact, may have the penal consequence but the question required to be adhered in the present case, was as to whether the act of grant of propriety rights of the land without the power of Collector, by itself would constitute an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance without proof of essential ingredient of illegal gain and undue favour to constitute such an offence and the answer would certainly be in the negative. The concept of criminal administration of justice is based on the assumption that criminal act is injurious not just to an individual but society as a whole and violation of the criminal law which is built upon constitutional principles of the substantial as well as procedural law, has the consequence of punishment, therefore, the prosecution in the light of constitutional principle is under heavy duty to establish the violation of criminal law to award the punishment. The striding of law to bring an action within its compass is in conflict to the concept of fair treatment, 'therefore it is primary duty of the Court to ascertain whether the alleged offence was outcome of an act in violation of some law which can be termed as actus reus of the crime (guilty act) and if this essential element of crime is missing, the breach may not subject to the sanction of criminal law, therefore, a person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subject to the prosecution. The mens rea (guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without the proof of concurrence to commit the crime, the offence is not complete. In addition to the above basic components of a crime, the harm caused in consequence to an act is also considered an essential element of a crime because the act if is harmless it may not constitute a crime. The above components of an offence of corruption and corrupt practices are not traceable in the series of transaction in the present case." (bold added)
(c) The fact that the appellant sent a letter within 20 days of the auction which prevented any further action being taken pursuant to the auction such as mutation of the plots shows that he prevented any further unnecessary loss and fits in with the fact that he did not have the necessary mens rea. This is because if he had the necessary mens rea and was in league with the other co- accused he would not have issued, any such letter which in effect stopped the scam in its tracks. If the appellant was in collusion and connivance with the other co-accused it also does not appeal to logic, common sense or reason that he would have sent such a letter. Rather he would have kept quiet and allowed the will gotten gain to be made and possibly taken his share in the same.
(d) That there is no evidence that the appellant made any financial gain or received any favour on account of the auction taking place.
(e) The appellant's section 342, Cr.P.C. statement is consistent with his defence case throughout trial which provides a believable alternative explanation to the offence for which he is charged.
(f) It is well settled law that the benefit of doubt must go to the accused by way of right as opposed to concession. In this respect reliance is placed on the case of Tariq Pervez v. The State (1995 SCMR 1345), wherein the Honourable Supreme Court has observed as follows:- "It is settled law that it is not necessary that there should many circumstances creating doubts. If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
9. The appeal is allowed and disposed of in the above terms."
10. From perusal of the above reasons, we are not persuaded to agree with the contention of the learned counsel for the appellant and find that the case of the appellant is quite distinguishable from the case of acquitted accused Muhammad Sadiq Rajar. As regards to the role of the appellant in the present case is concerned, we have considered the evidence of- the prosecution witnesses minutely and have come to the conclusion that amongst other crimes committed by the present appellant, the appellant was also found involved in cancelling 24 plots and allotting the same to the favorites and to prove the above prosecution examined Syed Israr Hussain (PW-01), who was a private person who stated that he knew, accused Muhammad Adnan, who came to his house and disclosed that a plot bearing No. A-53 admeasuring 240 sq. yards was available in the said Society. The said witness gave Rs.1,23,600/- to the appellant through cheque in the name of Society, which plot was transferred in his name and file was given to him. After 5/6 months, he was called in the office where it was informed to him that said plot had been sold out. He further stated that he had no knowledge about the actual sale consideration. After signing the sale Agreement and Transfer letter appellant came to him and asked his share on which Syed Israr Hussain issued a cheque of Rs.950,000/- in the name of one Javed which was received by appellant. He further stated that he had paid Rs.71,000/- or Rs.70,000/- to the appellant through a cheque. It is pertinent to mention here that counter folio of the cheque was duly signed by appellant Adnan which is available at Ex.5/3 and it has not been denied by the learned counsel for the appellant that the same are fake, forged or fabricated. Faheem Ahmed Zaidi (PW-02), who was Ex-President of the Society stated that absconding accused Muhammad Azam Brohi who was Administrator of the Society in order to give benefit to the appellant transferred allotted plot No. C34 to Sheikh Muhammad Shahzad in back date and he also prepared fake receipt showing amount of Rs.90,035/- was paid to Sheikh Muhammad Shahzad. The said plot was originally allotted to Mrs. Akhtar Shakoor, which was subsequently allotted to appellant. Even the said amount was not shown in the bank statement of the Society. He further stated that appellant also cancelled his plot, hence, P.W Faheem Ahmed Zaidi made a complaint to D.G NAB on 31.05.2011 upon which investigation was carried out and Reference had been filed.
11. Syed Riaz Hussain Zaidi (PW-03) deposed that his maternal uncle Syed Muhammad Hanif purchased a plot No. A-8, admeasuring 240 sq. yards in the Society from the amount which was sent by his father. In the year 2003 it was transferred in his favour. In the year 2011 when he visited the office of the Society, where appellant informed him record of the Society had been lost and he should deposit his original file with them in order to prepare record of plot. Syed Riaz Hussain Zaidi met with Ex-Honorary Secretary of the Society, who disclosed that Administrator had been appointed who had cancelled plots including his plot and re-allotted the same to their favourite.
He further stated that his plot was allotted to accused Abdul Qadir Nabi Qasid of Administrator, who became Chairman of the Society. He thereafter, filed a complaint before NAB. Appellant was called by NAB wherein he produced entry of PS Gulshan-e-Iqbal that record of the Society had been stolen by a taxi driver. However, upon verification it transpired that the said entry was made by Muhammad Ishaq driver of accused Muhammad Azam Brohi regarding loss of his wallet. SHO PS Gulshan-e-Iqbal confirmed the fakeness of such entry produced by the appellant before the NAB. He further stated that a caution under Section 23 of the NAB Ordinance was imposed by NAB dated 20.01.2012. The Honorary Secretary was informed about the above caution but the Management of the Society! Honorary Secretary continued illegal sale and allotment of the plots of the Society in flagrant violation of the caution for his personal gains that caused loss to the society.
The purchasers of the plots have also been examined by the prosecution wherein they categorically attributed the role played by appellant in collusion and connivance with other co- accused in allotting and cancelling their plots. The prosecution has further brought on record that the appellant being Honorary Secretary of the Society was involved in converting one commercial plot into 40 commercial plots and their auctioning in connivance and collusion with other co- accused, in flagrant disregard to the Circular which was issued dated 04.12.2009 as Ex. 47/2 which reads as under: CIRCULAR
1. At the time of supersession of Cooperative Housing Societies, it is invariably mentioned in the appointment orders of the Administrators that they would exercise the power of the Managing Committee under the Byelaws of the concerned society, subject to the overall supervision/control of the Sindh Cooperative Housing Authority and within the framework of instructions issued from time to time.
2. It was therefore, obligatory on the Administrators to seek prior approval of the Sindh Cooperative Housing Authority in financial and other important matters. However, in certain case it has been noticed that Administrators have exercised powers beyond their competency, which in fact has defeated the purpose of supersession of society.
3. The affairs of superseded societies shall be managed strictly according to registered byelaws of the concerned society.
Cooperative Societies Laws and provisions or Sindh Cooperative Housing Authority Ordinance 1982 and Rules 1986.
Following instructions are therefore issued for strict compliance: i. No allotment/cancellation of residential, commercial or amenity plots should be made without approval of the Government. ii. No new members should be enrolled in the society. iii. No property/assets of the society should be disposed off/sold or transferred. iv. No paid employees/legal advisor should be appointed without prior approval of the Government. v. No payment and expenditure towards development of land should be incurred without prior approval of the Government. vi. The Ban accounts must be operated under the joint signatures of the Administrator and the Secretary of the society. No new account be opened in the Bank without prior approval of the Government. vii. Only normal day to day expenditure relating to the affairs of the society is incurred. viii. Payment of Rs.500/- and above shall be made through cross cheque only with prior approval of the Authority/ Government. ix. Except for monthly salaries to the staff prior approval should be obtained from the Authority/Government for expenditure of Rs.25,000/- (Rupees Twenty Five Thousand only)."
The above cited Circular is followed by the caution letter dated 20.01.2012 issued by the NAB, which is reproduced as under: "Mr. Abdul Qadir Chairman Central Information Employees Co-op Housing Society Karachi Subject: Provision of information - inquiry against Muhammad Azam Brohi, Administrator, Central Information Employees Co-op Housing (CIECH) Society Karachi and others Reference: NAB Sindh letter No: 1015/ 6/ IW-1/ CO-A/ T-5/ NAB Sindh/ 2011/3042 and 1015/ 7/ IW-1/ CO-A/ T-5/ NAB Sindh 3162 dated: 28-11-2011 and 12-12-2011 respectively (copies attached)
WHEREAS the competent authority has taken the cognizance of an offence committed by Muhammad Azam Brohi, Administrator, Central Information Employees Cooperative Housing (CIECH) Society, and others under the National Accountability Ordinance, 1999.
WHEREAS during the proceedings of inquiry information pertaining to CIECH Society was asked from current honorary Secretary vide Reference letters however the same is still not provided to this Bureau. The same is inordinately defying and hampering the proceedings of inquiry. Furthermore, it is also suggested that current administration should make all the efforts to prevent any further mutation of plots which might result in creating of third party interest. In this regard it is intimated that during the proceedings of inquiry/investigation, section 23 of National Accountability Ordinance 1999, remains invoked Which reads as under:
23. Transfer of Property Void: (a) Notwithstanding anything contained in any other law for the time being in force after the Chairman NAB has imitated [an inquiry or] investigation into [any offence] under this ordinance, alleged to have been committed by an accused person, such [accused] person or any relative or associate of such [accused] person or any other person on his behalf shall not transfer by any means whatsoever [or] create a charge or any [*] property owned by him or in his possession while the inquiry investigation or proceedings are pending before the NAB or the [****] Court; and transfer of any right, title or interest of creation of a charge on such property shall be void.
(b) Any person who transfers or creates a charge on property in contravention of subsection (a) shall be punishable with rigorous imprisonment for a term which may extend to three years and shall also be liable to fine not exceeding the value of the property involved; [Provided that such transfer of any right, title or interest or creation of a charge on such property shall not be void if made with the approval of the Court, subject to such terms and conditions as the court may deem fit].
Forwarded for information and strict compliance, please."
It has also come on record that appellant was maintaining accounts in different banks and numerous entries were found showing unexplained credits entries into his account which went unrebutted and unchallenged and for such transfer of amount no explanation has been furnished by the counsel for the appellant. Appellant has failed to bring on record any document to show that he was not responsible for such illegal transfers of the plots.
12. With regards to the above allegation of illegal conversion of one commercial plot into 40 commercial plots and thereafter, their unlawful disposal is concerned, prosecution examined Muhammad Ismail (PW-32), who stated that KDA approved only one commercial plot admeasuring 6037.77 sq. yards, which was subsequently converted into 40 commercial plots and sold out despite caution under section 23 of the NAO and without approval of the final layout plan.
This layout plan could not have been approved as the scheme falls under the jurisdiction of Cantonment Board Malir and its letter dated 13.01.2015 also cautioned the Registrar and the Honorary Secretary not to auction or allot any plot commercial or residential in the name of the said Society which was not approved by the Cantonment Board Malir, which reads as under: SUBJECT: CANCEL ILLEGAL AUCTION AND ALLOTMENTS OF 40 COMMERCIAL PLOTS MEASURING 150 SQ. YDS. EACH IN CENTRAL INFORMATION EMPLOYEES CO-OPERATIVE HOUSING SOCIETY, KARACHI Reference: This office letter No. MLR/RLP/Central/KIECHS/ Sec36/Sch-33/2013/748 dated 26.09.2013
2. It is to inform you that Mr. Muhammad Akram Ghauri has once again given an application dated 08.12.2014 (copy enclosed) complaining that the management of the society had illegally converted one comm. Plot of 6037 Sq. Yds, into 40x commercial plots of 150 sq.yds each. The management of the society has already been asked by this office vide letter referred at reference not to allot/convert any plot either commercial or residential till the time layout plan/building plan of the society is approved by the Cantonment Board Malir.
3. It is further added that on 15.01.2014 Registrar Cooperative Society forwarded 7x copies of revised layout plan of your society with you letter dated 01.01.2014. The society has not provided certain necessary documents as asked vide letter of even No. dated 11.03.2013 for approval of revised layout plans of subject society which is pending with this office. Further Straus quo has been given by the Honorable Court as well as several References are also pending in NAB, therefore, you are again advised to stop illegal conversion/ allotments of plots and cancel the allotment of illegal created commercial plots if any made by the society prior to approval of building/layout plan by the CBM.
4. You are once again informed that Cantonment Board Malir has not accorded municipal approval to your subject scheme secondly the subject society is situated within the limits of Malir cantt since 1994, but the society got the approval from KBCA knowing the fact that the area is not under the jurisdiction of KBCA. You have been informed vide letter of even No. dated 14.06.2007, again on 25.09.2007 when society was illegally constructing boundary wall and subsequent letters dated 11.03.2008, 28.01.2007. Society on 03.03.2009 submitted layout plan for formal approval. This office vide letter of even No. dated 26.06.2007 asked the society to furnish 6x copies of layout plan along with attested copies of title documents but the society vide letter dated 16.03.2010 informed that the construction work in society is legal as layout plan is approved by KBCA, hence not to disturb/harass society's members. On 19.04.2010 society finally requested for approval of revised layout plan admitting that the society is within the municipal limits of Malir Cantonment. Accordingly the case was processed and certain information/documents were asked by CBM vide letter of even No. dated 26.11.2010 and 11.30.2013 which were provided by the society on 01.08.2011. The case was forwarded to MEO Karachi for grant of N.O.C. from land point of view that No defence land is involved in the proposed Housing Scheme. One Mr. Tanzeem Ahmed Khan also filed Suit No.995 of 2010 against Mr. Imran Atta Soomro and Administration Central Information Society regarding allotment of plot No. 13-22 of the society. Meanwhile Muhammad Akram Ghauri also launched application dated 18.09.2013 that the society's management without approval of CBM converted commercial plot of 6037 Sq. yds into 10x commercial plots and sold out illegally to innocent people. Said application was forwarded to you and informed the society not to allot any commercial or residential plot title the time approval of layout plan is granted by the CBM. In reply you told that the auction proceedings have already been completed. Society further informed that Muhammad Ghauri is no more member of your society. On 06.11.2013 Mr. Fahim Ahmed Zaidi and others floated application dated 06.11.2013 again pointed out that society is illegally disposing off 40x commercial plots without the approval of layout plan of the society.
5. In view of above, you are once again advised not to auction or allot any plot commercial/residential in the name of said society which has not yet been approved by Cantonment Board Malir.
The documentary evidence in this regard has not been denied by the defence to be false or managed one which leads us to the conclusion that appellant also actively participated and was involved in illegal conversion of one commercial plot into 40 commercial plots and selling out the same despite having caution under N.A.O., 1999.
13. It has also been established by the prosecution by producing documentary evidence on record that huge corruption had been made by the appellant in collusion and connivance with the co- accused by misusing his authority. The defence has failed to bring on record anything to suggest that the appellant was not involved in corruption and corrupt practices.
14. The appellant is not only involved in cancelling, and allotment of the plots to his favorites but also involved in converting one commercial plot into 40 commercial plots and their sale despite having caution under section 23 of the N.A.O., 1999. The witnesses being independent and private persons, specifically implicated the appellant in the commission of the above offence. The appellant's failure in not giving evidence under Oath under section 340(2), Cr.P.C. in disproof of the prosecution allegations and not uttering a single word as w why the witnesses have deposed against him or he has falsely been implicated in this case is not sufficient to put any dent in the prosecution case particularly in view of the fact that the prosecution witnesses were consistent and their evidence could not be shattered in cross-examination. In the circumstances, the learned trial Court has rightly appreciated the evidence on record and conviction was recorded against the appellant acting upon the material available with the learned trial Court by holding that the prosecution has succeeded to establish its case against the appellant beyond a reasonable doubt.
The law cited by the learned counsel for the appellant is on different footings and is distinguishable from the facts and circumstances of the instant case.
15. For the foregoing reasons and in the prevailing circumstances, no misreading or non-reading of evidence has been pointed out by the learned defense counsel, hence, the impugned judgment is based on proper appraisal of evidence. Therefore, the findings of the learned trial Court are fully supported by the evidence on record, as such, the judgment dated 03.08.2017 is hereby upheld.
16. With regard to sentencing however, we consider that the sentence of 10 years' R.I imposed on the appellant is somewhat excessive keeping in view the amount of loss caused to the Society and national exchequer. As per Jail Ro the appellant has served sentence including remission approximately 8-1/2 years up till 30th March 2021, as such the appellant's sentence is modified to time served and his rule is reduced to Rupees One Crore and in the event of failure to pay the fine of Rupees One Crore, the appellant shall serve one year more R.I.
17. The appeal is disposed of in the above terms, as such the petition is dismissed as having become infructuous.