ABDUL MOBEEN LAKHO, J. Muhammad Azam Brohi (appellant) was tried by learned Judge, Accountability Court No. IV, Sindh at Karachi in NAB Reference No. 04-C of 2014 (offshoot of Reference No.04/2014). After full-dressed trial, vide impugned judgment dated 03.08.2017, the appellant was 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 bringing the guilt of accused Muhammad Azam Brohi son of Haji Ghulam Hussain at home, as such, he is 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 him under Section 265-H(ii), Cr.P.C. to suffer R.I for fourteen (14) years and to pay fines Rs. 30 Millions. In case of default in payment of fine, he shall suffer further R.I for two (02) years. The accused shall be entitled to the benefit of Section 382-B, Cr.P.C.
83. The above named accused shall 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 him 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 he 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. He is already in custody and remanded with conviction warrants, to Central Prison, Karachi to serve out the sentence awarded to him."
2. The facts relevant for the disposal of the aforementioned Appeals are that appellant who was Ex-Administrator of Central Information Employees Cooperative Society in collusion with co- accused had committed gross violation of rules and bye-laws of the Society by misusing their official positions and authority embezzled Society's funds, made deposits in his personal bank accounts, illegally and unlawfully cancelled 24 plots of the previous allottees and re-allotted them to their favorites, caused loss to the Society by allotting 03 amenity plots of the Society in favour of Fahad Naseem Khan, Muhammad Shoaib Khan (who entered into PB with NAB) and absconding accused/ beneficiary Rasheed Gul, allotted 40 commercial plots without approval of layout plan and even in presence of caution of the NAB and illegally awarded different contracts of civil and electrical works which unduly benefited and favoured contractors of his choice and as such the appellant 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. Amended charge was framed against accused to which he pleaded not guilty and claimed trial.
4. The role assigned to the present appellant was in his capacity of Administrator CIECHS and his involvement in corruption and corrupt practices by misusing his authority. He has committed serious violations in clear disregard of the bye-laws of the Society, cancelled 24 residential plots and re-allotted the same to his favorites and obtained wrongful gain of Rs.36,808,000/- causing loss to the original allottees and wrongful gain to the new allottees. Appellant also caused loss of Rs.27,133,264/ - to the Society in allotting of three amenity plots to Farhad Naseem Khan, Muhammad Shoaib Khan and absconding accused/beneficiary Rasheed Gul. He was also found involved in conversion of one commercial plot into 40 commercial plots and their allotment to their favorites inspite of caution under section 23 of the NAB in connivance and collusion with other co- accused. Appellant embezzled an amount of Rs.88,24,568/- in the shape of civil and electrical works. He during his tenure withdrew huge amount from the Society's fund from the resale of the cancelled plots and deposited the same in his personal account bearing No.1001861 maintained with MCB Bank. Furthermore, the appellant awarded contracts to the contractors who had neither paid Income Tax nor had the NTN which resulted in the loss to the national exchequer to the tune of Rs.16,80,000/-. Appellant also awarded contract of plantation and development of Society's park to Messrs Choudhry Nursery for an amount of Rs.340,000/- without following the relevant legal procedure in order to favour them.
5. At the trial, prosecution examined 49 witnesses, who exhibited and produced numerous documents before trial Court. Thereafter, prosecution side was closed vide statement at Ex.56.
6. 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.
7. 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.
8. Mr. Farooq H. Naek 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 to the commission of the offences as alleged by the prosecution; that appellant held office of Administrator of the Society from November 2009 till May 2011 by the order of the competent Authority and during such period he exercised his powers diligently and honestly; that appellant had never obtained any illegal benefits for himself and or benefited any other person; that 24 plots were cancelled and re-allotted in accordance with the rules and bye-laws of the Society; that embezzlement of amount in civil and electrical works in connivance with other co- accused was totally baseless and without any proof; that there was also no evidence on record regarding withdrawal of huge amount-from the Society account and its deposit into his personal account and any such deposits were prior to his appointment as Administrator; that contracts were awarded on merit and no violation of either the relevant rules or law has been committed by the appellant and that prosecution has failed to prove any corruption or corrupt practices on the part of the appellant. Lastly, it is argued that the prosecution has also miserably failed to prove its case against the accused beyond a reasonable doubt, hence the appellant deserves acquittal.
9. 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 huge loss to the Society as well as National Exchequer had been caused, hence prayed for dismissal of appeal.
10. We have heard learned counsel for the parties and have minutely gone through the evidence of the prosecution witnesses, material available on record as well as impugned judgment with their able assistance. We find that the prosecution has successfully proved its case against the appellant for the following reasons.
11. Appellant Muhammad Azam Brohi was appointed Administrator of the said Society vide Notification dated 10.11.2009, however, Zarar Ahmed (PW-43), who was Office Superintendent in the office of Managing Director Sindh cooperative Housing Authority stated that on 14.12.2009, a Circular was sent to appellant, which contained certain directions. The Circular is reproduced 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 Bye-laws 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 cases 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 bye-laws of the concerned society. Cooperative Societies Laws and provisions of 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 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 Bank 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).
12. 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-I/CO-A/T-5/NAB Sindh/2011/3042 and 1015/7/IW-I/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."
13. 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, final layout plan could not have been approved as the scheme fell 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/CIECHS/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 40 x commercial plots of 150 sq. yes 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 7 x copies of revised layout plan of your society with your 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 Status 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 illegally 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 format approval. This office vide letter of even No. dated 26.06.2007 asked the society to furnish & 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(sic) 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. B-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.
14. The documentary evidence in this regard has not been denied by the defence to be false or managed one, which leads us to the only 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 NAO, 1999.
15. It appears from perusal of the record that appellant had also cancelled 24 residential plots of the members of the Society, which were re-allotted in connivance with other accused to their favorites. Such fact is supported by the evidence of P.Ws Syed Riaz Hussain Zaidi (his father purchased Plot No.A-8), Hyder Hussain (Plot No.R-32), Arif Shakoor (Plot No. A-5), Masood Ali (Plot No. A-6), Hyder Hussain (Plot No.R-32), Sheikh Saleh Muhammad (purchase of 09 plots out of which 06 plots were cancelled), Rana Hashmat (his sister-in-law Dr. Akhtar Shakoor allottee of Plot No.34), Mansoor Ahmed this mother Mrs. Hameeda Khatoon purchased plot No.26-B), Muhammad Akram (Plot No. C-6), Taqi Ahmed (his father Syed Anwar Ahmed allottee of Plot No.C-18), Syed Alay Ali (General Attorney of purchaser Mst. Shagufta Hassan [sister-in-law], purchase of Plot No. C-1), Saima Imran (purchaser of Plot No. A-57) were examined by the prosecution who were allottees/purchasers of the plots of the said Society. Their plots were cancelled by the appellant in connivance with other accused and such plots were further re-sold/ re-allotted to their favorites.
These witnesses were cross-examined at length but nothing favourable to the appellant could be brought on record. The fact of cancellation of 24 plots was supported by documents produced by the I.O. during his evidence at Ex.56/3. The learned defense counsel has failed to bring on record anything to show that the appellant did not cancel such plots, even otherwise no enmity or has been pointed out against these witnesses.
16. The prosecution in order to prove allotment of amenity plots, examined P.W-2 Faheem Ahmed and P.W-08 Raziuddin Siddiqui, who stated that appellant allotted amenity plots reserved for school, Clinic and public welfare building to private persons. These witnesses were cross-examined at length but their evidence could not be shaken. P.W-33 Abdul Rahim Shoro and Waliullah Investigating Officers during investigation found that three amenity plots were allotted to Fahad Naseem Khan, Muhammad Shoaib Khan (who entered into plea bargain with NAB) and absconding accused/beneficiary Rasheed Gul. Learned counsel for the appellant could not bring or record any material which could suggest that appellant was not involved in illegal allotment of such amenity plots and no illegal monetary gains were obtained by the accused by allotting said amenity plots to the aforesaid persons. Plea bargain made by Fahad Naseem Khan and Muhammad Shoaib Khan further strengthened the case of the prosecution which fact also went unrebutted.
17. Despite clear directions as contained in the above Circular dated 14.12.2009, duly served upon the appellant, even then the appellant in connivance with other accused unlawfully cancelled/re- allotted the residential commercial/amenity plots to their favorite persons in clear disregard of the bye-laws of the Society for wrongful gains without approval of the competent authority. The learned counsel for the appellant has failed to controvert such position which stand proved by the prosecution beyond a reasonable doubt.
18. As regards to the al egation against the appellant in respect of embezzlement of the Society funds and deposits of amount in his personal bank account is concerned, - prosecution examined P.Ws Manazir Ali, Inaam Murtaza Zuberi, Moni Faheem, Munawar Ali, Kashif Ali Khan, Muhammad Usman Amir, Syed Nasir Hassan and Syed Muhammad Tariq, who were related to different banks.
All these P.Ws have produced documents relating to the account of appellant and account of Society showing withdrawals of huge amounts from Society account and deposits made in his personal account.
19. However, we find that the prosecution has failed to produce any evidence against the present appellant to prove beyond a reasonable doubt any embezzlement in awarding of contracts in shape of civil and electrical works by the appellant.
20. In the case reported as Malik Din v. Chairman National Accountability Bureau and another (2019 SCMR 372), the Honourable - Supreme Court while dealing with the appeal preferred by Administrator of the Federal Government Employees Housing Society, who was indulged in illegally allotting and converting plots, has held as under: "13. The terms of the above appointment order is very clear in its intent. The petitioner has been expressly barred, inter alia, not to make any allotment of plot, whether fresh or pending. In view of the said express bar stipulated in the very appointment order of the petitioner, he has exceeded his said authority by not only allotting fresh plots, but also converting amenity plots reserved for the graveyard for commercial purposes benefiting the two beneficiaries namely Rana M. Javed and Mian Sohail Iqbal Qureshi. There was no plausible explanation brought on record by the petitioner to justify this action. In addition thereto, it is noted that the prosecution produced sufficient evidence to prove the illegal exercise of authority, by the petitioner during his fifteen months stint as Administrator of the Society; the transfer of eleven plots, the merger of two residential plots with part of land reserved for the graveyard and converting the same for commercial purposes for a twelve storey building thereon; and finally, the adverse financial implications of Rs. 686 million to the Society. The sole defence witness produced by the petitioner was his son-in-law, namely Mudassar, whose testimony was mainly aimed to discredit the mode and manner of the search and recovery of material seized by the NAB personnel at the time of the petitioner's arrest. The testimony in no way justifies the illegal allotments and conversions carried out by the petitioner in favour of the two above named beneficiaries. Interestingly, the said beneficiaries, vide their joint application dated 17.4.2014 applied for voluntary return to NAB offering the reversal of all allotments and conversion of plots illegally carried out by the petitioner. The said joint request was accepted by NAB vide order dated 28.7.2018."
21. In the present case also the appellant, who was Administrator of the Society, in presence of the above mentioned Circular coupled with caution of NAB cancelled/re-allotted 24 plots of the old members of the Society, illegally allotted three amenity plots to three different persons out of whom two had entered into plea bargain with the NAB. Further he converted one commercial plot into 40 commercial plots with subsequent allotment to his favorites inspite of the caution issued by the NAB, he also withdrew huge amount from the Society funds from the resale/cancelled plots into his own personal account and thus caused loss to the Society as well as to the National Exchequer for his personal gain. Therefore, we have no hesitation to hold that the conviction and the sentence recorded by the learned trial Court do not require any interference by this Court in respect of these offences committed by the appellant and as such his conviction in respect of these offences is maintained.
22. For the reasons discussed above, the impugned judgment and its convictions, except in respect of award of contracts for electrical and civil works is maintained.
23. With regard to sentencing however, we consider that the sentence of 14 years R.I imposed on the appellant is somewhat excessive keeping in view the amount of loss caused to the Society and national exchequer and the fact that the prosecution has not been able to prove beyond a reasonable doubt the offence in respect of the illegal award of electrical and civil works contracts and 14 years is a maximum sentence under the NAO which is usually applicable to accused who have caused loss running into Billion of rupees. As per Jail Roll the appellant has now served a sentence including remission of almost 7 years, as such the appellant's sentence is modified to time served and his fine is reduced to Rupees One Crore and in the event of his failure to pay the fine of Rupees One Crore, the appellant shall serve one year's R.I in default thereof.
24. The appeal is disposed of in the above terms along with all pending applications. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.