1. MUHAMMAD MUJIBULLAH SIDDIQUI, J.---Both these appeals are directed against the judgment dated 28-6-2002 by the learned Accountability Court No.IV, Sindh Karachi, in Reference No.44 of 2001. As both the appeals arise out of the same reference under section 18(a) of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as NAB Ordinance) and the same judgment of learned trial Court, therefore, they have been heard together and are disposed of by this single judgment.
2. The relevant facts giving rise to these appeals are that, on receipt of information that appellant Abdul Aziz Memon acquired assets/properties disproportionate to his known source of income, the Competent Authority under the NAB Ordinance, ordered investigation by the F.I.A. During the course of investigation it was found that not only appellant Abdul Aziz Memon but his wife, appellant Farida Abdul Aziz was also holding properties/assets acquired by the appellant Abdul Aziz Memon through corruption and corrupt practices. In pursuance of direction given by the Chairman, NAB, the Assistant Director, F.I.A. CBC Karachi, submitted report under section 173, Criminal Procedure Code.
3. On the basis of above report the Chairman, NAB submitted a reference before the Accountability Court, against both the appellants under section 18(a), NAB Ordinance, which is reproduced below: -- "BEFORE THE ADMINISTRATIVE JUDGE, ACCOUNTABILITY COURTS SINDH AT KARACHI Accountability Reference No.44 of 2001 State versus
1. Abdul Aziz Memon son of Abdul Ghani (At present in NAB custody since 23-8-2001).
2. Farida Abdul Aziz wife of Abdul Aziz Memon, both resident of Bungalow No.15/1, 30th Street, Phase- V, Ext. DHA, Karachi Accused REFERENCE UNDER SECTION 18(a)
4. READ WITH SECTION 24 (b) OF THE NATIONAL ACCOUNTABILITY BUREAU ORDINANCE, 1999 Respectfully sheweth
1. That accused No.1, joined United Bank Limited (UBL) as a typist in 1970 and, later on, took part in labour union activities and, ultimately, became General Secretary of the United Bank Employees Federation of Pakistan and belonged to an ordinary poor family.
2. That UBL, being a nationalized bank. its employees are holders of public office as envisaged under the NAB Ordinance, 1999. In addition, accused No.1, in the year 1993, contested general elections on P.P.P. ticket from NA 190, Karachi South and was elected MNA and thus was holder of public office from 1993 to 1996.
3. That g credible information was received that accused No.1 had acquired, assets/properties dispro-portionate to his known sources of income which he cannot reasonably account for. It was, therefore, considered necessary to refer the matter for investigation to ascertain the factual position. The FIA was, therefore, directed to conduct investigation and submit report under section 173, Criminal Procedure Code.
4. That during the course of investigation it was revealed that accused No.1 with the abetment of accused No.2, who was a housewife and at the time of their marriage, was not involved in any business activities, has amassed illegal wealth and immovable/ movable properties/assets and enterprises during the check period as envisaged in the NAB Ordinance, 1999 i.e. since 1985 onwards.
5. That the assets, properties and shares owned/held by accused No.1 are in his own name or in the name of accused No.2 being his dependent/wife and same have been found to be disproportionate to the known sources of income of the accused persons for which no reasonable justification has been given or is forthcoming.
6. That details and other particulars of the assets/properties and shares in business found to be in the name of the accused persons held by them in collaboration with each other established to be the result of the illegal gains of corruption and corrupt practices committed by accused No.1 as holder of public office with connivance of accused No.2 who has abetted him in acquiring the assets.
5. Properties in the name of accused No.1 S. No. Description of propertyValue(Rs.)
6. 1 Plot Hawksbay, Karachi45,000 2 Residential plot at Saudabad, Malir, Karachi.4,048 3 Residential Plot at Gulshane Karim Landhi, Karachi.14,000 4 Residential plot at Gulshan-80,000 e-Iqbal Karachi.
7. 5 Residential plot at Shah Latif Town6,316 6 Costa Living Clifton (Advance for flat) 50,000 7 Rabia Bungalows, G.T.
8. Road, Rawalpindi (Advanced for residential plot). 5,50,000 8 Parliamentarian Housing Society, Islamabad (Advance for residential plot). 200,000 9 Cash Bank Accounts and Prize Bonds 393,746 13,43,110 Properties in the name of accused No.2 S.No.Description of PropertyValue in Rs.
9. 1 Plot at Hawksbya Town, Karachi.18,000 2 Flat at Jilani Palace, Old Town, Karachi.90,000 3 1/3 share in Industrial Plot, North Karachi.93,353 4 Plot at K.D.A.
10. Scheme lA Extension, Karachi.5,701,080 5 House No.15/1, Khayaban- e - Shamsheer Phase V- Ext. DHA Karachi67,00,000 6 Cash Bank and Prize Bonds164.362 TOTAL 1,27,66,795
7. That besides the above said assets, held by the accused persons, it has been revealed that accused No.1 had invested various amounts in the Government securities i.e. FEBCs which were purchased by the accused No.1 in his own name or in the name of his dependent i.e. his wife to cover and take shelter on exemption provided under the relevant laws from this ill-gotten money.
8. That although accused No.2 has attempted to show her independent income and attempted to reconcile her wealth from 1-1-1989 when accused No.1 was in the employment of UBL yet she was not assessee before the assessm ent year 1988-89 and through deceptive means such income has been manoeuvred in the record in her name through impersonation.
9. That the known source of income of accused No.1, through salary and other means as calculated till 1993 are about Rs.787,657 and in the year me 1999 the declared income has been and shown to the Rs.72,000 the net as wealth as on 30-6-1993 has been given as Rs.700,000. Similarly, accused No.2 has been assessed in the tax since 1988 and her wealth has been declared in the record in the year 1999-2000 as Rs.41,41 285:
10. That since his joining service in the UBL and being elected MNA as holder of public office, the total salary and allowances received by the accused No.1 is Rs. 787,657 And thereafter the income has been shown having been generated from the ill-goften properties by illegal means in his own name and in the name of his dependents.
11. That from the material collected and the circumstances and the evidence it has been established that accused No.1 as holder of public office, with the abetment of other accused person, has been living a lavish life beyond his means and through the acts of corruption and corrupt practices as holder of public office has amassed illegal wealth through illegal means, disproportionate to his pecuniary resources and thus has committed an offence under section 9 of the N.A.B. Ordinance, 1999, and us liable to punishment under section 10 of the ibid law.
11. 12.Report under section 173 Criminal Procedure Code list of witnesses/documents are filed herewith.
12. It is, therefore, prayed that this Honourable Court be pleased to take cognizance of the matter and of the offences committed by the accused persons and they may be punished in accordance with law.
13. Rt.-General Chairman (Munir Hafiez).
14. National Accountability Bureau, Islamabad.
15. Dated 20-11-2001"
16. The learned trial Court framed charge against both the appellants in the following terms:-- "CHARGE I, Muhammad Jawaid Alam, the Judge, Accountability Court No. IV, Sindh, Karachi, do hereby charge you:--
1. Abdul Aziz Memon son of Abdul Ghani
2. Farida Abdul Aziz wife of Abdul Aziz Memon That you accused Abdul Aziz Memon were an employee of United Bank Ltd. during the period 1972 to 1993 and Member of National Assembly from 1993 to 1996 and being holder of public office, you by abusing your official position and authority and using corruption and corrupt practices accumulatedmovable/immovable properties in your name and in the name of your dependent/wife worth Rs.14,109,905 as detailed below which are quite disproportionate to your known legal sources of income:
1. Plot at Hawksbay, Karachi.
2. Residential plot at Saudabad, Malir, Karachi.
3. Residential plot at Gulshan-e-Karim, Landhi, Karachi.
4. Residential plot at Gulshan-e-Iqbal, Karachi.
5. Residential plot at Shah Latif Town, Karachi.
6. Costa Living Clifton (Rs.50,000 as advance for flat).
7. Rabia Bungalows, G.T. Road, Rawalpindi (Rs.550,000 as advance for plot).
8. Parliamentarian Housing Society, Islamabad (Rs.200,000 as advance for residential plot).
9. Cash, bank accounts and prize bonds worth Rs.393,746.
10. Plot at Hawksbay Town, Karachi.
17. 11.Flat at Jilani Palace, Old Town, Karachi.
12. 1/3 share in Industrial Plot, North Karachi.
13. Plot at KDA Scheme. No. 1-A Ext. Karachi.
14. House No. 15/1, Khayaban-e-Shamsher, Phase-V, Ext. DHA, .Karachi.
15. Cash, bank and prize bonds worth Rs.164,362.
18. And you accused Farida Abdul Aziz being wife/dependent of Abdul Aziz Memon in collusiori, abetment and criminal conspiracy with him acquired the following movable/immovable properties worth Rs.1,27,66,795 which are quite disproportionate to your known legal sources of income but actually the same are the pecuniary advantages obtained by accused Abdul Aziz Memon through corruption and corrupt practices in your name:--
1. Plot at Hawksbay Town, Karachi.
2. Flat at Jilani Palace, Old Town, Karachi.
3. 1/3 share in Industrial Plot, North Karachi.
4. Plot at KDA Scheme No.1-A Ext. Karachi.
5. House No. 15/1, Khayaban-e-Shamsher, Phase-V, Ext. DHA, Karachi.
6. Cash, bank and prize bonds worth Rs.164,362.
19. Thus you both in collusion, connivance and abetment with each other have committed the offence of corruption and corrupt practices as defined under section 9 of the National Accountability Bureau Ordinance, 1999 punishable under section 10 of the National Accountability Bureau Ordinance, 1999 within the cognizance of this Court.
20. And I hereby direct that you both be tried by this Court on the aforesaid Charges."
21. Both the appellants/accused pleaded not guilty to the charge.
22. The prosecution in support of the charge examined. Riaz ud din Ahmed, Divisional Head Establishment. Division UBL, Exh 8 (his examination-chief was partly recorded and thereafter he was given up by the prosecution), P.W.-2, Abdul Ghaffar, Exh. 10, P.W.-3, Shaukat Ali, Exh.11, P.W.-4, Irshad Ahmed Qureshi, Exh. 12, P.W.-5 Sultan Mahmood Khan Exh.13, P.W.-6, Abid Raza, Exh.6, P.W.-7, Abdul Razzaq, Exh. 16, P.W. 8, Muhammad Yamin, Exh. 17, P.W.-9, Mohammad Naeem Khan, Exh. 19, P.W.-11, Abdul Aziz, Exh.20, P.W.-12, Haji Iqbal Exh.11, P.W.-13, Nazarul Hassan, Exh. 22, P.W.- 14, Ghulam Farooq, Exh.23, P.W.-15, Muhammad Jameel Khan, Exh. 25.
23. Four other witnesses were examined as Court witnesses namely C.W.-4, Abdul Qadir, C.W.-5, Rafique Ahmad, C.W.-6, Syed Abdur Rehman and C.W.-7, Yousaf.
24. Three witnesses were examined as Court witnesses at the request of accused persons, C.W.-1 Tanveer Ahmed, C.W.-2, Abdul Jabbar and C.W.-3 Abdul Majeed.
25. Accused Aziz Memon, was examined under section 342 of the Criminal Procedure Code, vide Exh.
27. He admitted that he was appointed as Typist in UBL on 5-9-1970. He stated that he resigned from UBL on 16/19 of September, 1989 but resignation was accepted on 15-4-1993. He admitted that he was elected as M.N.A. in the year 1993. He further admitted that in his capacity as employee of United Bank Limited and as MNA, he was holding public office. In reply to the question that besides monthly salary and admissible allowances he had no other source of income, he stated that it is incorrect. While replying to the question that he was brought as a ward in Hussaini Yateem Khana from May, 1960 to August 1965, he stated that Hussaini Yateem Khana is a Boarding House of his community and for better education he was lodged there by his maternal uncle. He admitted that as a member of National Assembly, he filed declaration of assets and liabilities with Election Commission of Pakistan and the list of movable and immovable assets held by him, his wife and dependents being Exh. 25/1 (comprising 16 pages). In reply to a question that, he started filing income-tax returns from the year 1991-92 and wealth statements from the year 1993-94, being Exhs. 1 to 15/20, he stated that during his service in UBL his income-tax was deducted from his salary and after the acceptance of his resignation, he was assessed to income-tax. In reply to the question that he accumulated movable and immovable properties in the name of his dependent wife, Farida Abdul Aziz, as detailed in the charge, he stated that he accumulated the movable and immovable assets out of his funds and so was the case of his wife. He denied the allegation that the properties /assets accumulated by him in his name and in the name of his wife were disproportionate to his known legal sources of income.
26. While replying the question that he accumulated the properties/assets by abusing his official position and authority being holder of public office by corruption and corrupt practices, he stated that it was incorrect and he has been victimized for his labour leadership activities and because of political affiliation. He further stated that he resisted . privatization of U.B.L. and therefore, he has been put behind the bar. He also denied that the value of properties declared before the Election Commission were less. He did not examine himself on oath but furnished a detailed written statement which reads as follows:-- "I was born in a well-established effluent business family of Memon Community. Unfortunately, I lost my parents at very tender age. I as well as my brothers and sister were brought up by my maternal uncle Mr. Noor Muhammad son of Abdul Ghani and his wife Khadija Bai who were living in a joint family and were issueless. Since educational environments in Old Town Area, Karachi where we were living were not conducive, I as well as my brothers Abdul Habib Memon and Jamil Memon were lodged in Hussaini Yatimkhana for proper education and discipline and upbringing, the same being an established institution of repute in our community. My said uncle bore all our boarding, lodging and educational expenses. Our family also owned property in Old Town Area bearing No. O.T. 7/22, Kagzi Bazar, Karachi. (The original certified copy of an extract of City Deputy Collector is annexed A herewith it.)
27. We have always lived as a joint family and contributed, and shared the household expenses to the best of our respective abilities. After passing matriculation I joined United Bank Limited and resigned in the year 1989 from service. During my service I actively participated in labour union activity of the Bank, also as a labour leader and held offices of General Secretary as well as the President of the UBL Employees' Union so also UBL Employees Federation. In these capacities I had constant confrontation with the UBL Administration regarding the welfare of Bank employees/workers (copies attached Annexure B). I graduated in law during my service and attended National and International seminars and conferences pertaining to labour activities.
28. It pains me to submit that in spite of my requests directly, through jail, through Investigating Officer and through this Honourable Court UBL Authorities still do not provide me the data statement of my salary, allowances, entitlements and loan facilities given to me from time to time and adjustment/deduction, thereof from my monthly salary so also the amount, deducted for income- tax purposes at source from my monthly salary. I still do not know nor there is any thing on record to suggest about this said year wise data. This honourable Court will appreciate that the grant of loan by itself is the major legal source and deductions from salary are by themselves the major expenses and it was for this reason that I had applied for the same. Suffice it that for my service period not even the income-tax deductions at source have either been obtained from the Income- tax Department nor produced in the Court. The statement given by P.W.-II Abdul Ghafoor in this respect is vague and expected to be taken as a gospel's truth by the prosecution without any documents to substantiate it. I specifically submit that my income-tax was deducted at source details whereof are neither provided to me nor brought on record. I also specifically submit that likewise, item-wise and year-wise data of loans and facilities deductions of my monthly salaries have purposely been withheld and not brought on record in order to damage my reputation. All I know is that at the time of full and final adjustments of my dates and liabilities at the time of my retirement Rs.540,594 were adjusted from my dues as loan. I also specifically state that in 1989 I had resigned from service and in 1993 I contested elections for the National Assembly seat N-A 190, South, Karachi where Mr. Hanif Tayyab was my main rival candidate who had also filed objections to my candidature/nomination itself. His objection was rejected by the learned Returning Officer by a detailed order. I produce copy of the order of Mr. Ashfaq Baloch, the learned Returning Officer as Annexure C, which also confirms that I was an employee of UBL till 1989 only. Thereafter, I won the National Assembly seat in NA 190, South, Karachi by defeating Mr. Hanif Tayyab and remained the Member of National Assembly throughout this period till 1996 (when Assembly was dissolved) I also say that not only that I defeated Mr. Hanif Tayyab in the National Assembly elections but also that I defeated him in All Pakistan Memon Federation Election where also he was my main rival/opponent for the post of President (Annexure D). In 1997 I was also a candidate for National Assembly seat from NA 189, South, Karachi but I was defeated.
29. ' It will not be out of place to submit here that in the first instance Mr. Ghulam Farooq, Investigating Officer of this case was the main worker of Mr. Hanif Tayyab in both these said elections and carries personal grudge against me and my family and in the second instance that one Mr. Siddique Bilwani (who claims to be the Life President of Abdullah Haroon Muslim Gymkhana on his own) has forcibly grabbed that office/post also and is one of my diehard rival/opponent. of this life presidency affair. This Siddique Bilwani and his supporters have lodged forged criminal complaints against me on account of this dispute of Abdullah Haroon Muslim Gymkhana grabbing by them (wherein I and my family are also members). I say that this Investigation Officer of the case Mr. Ghulam Farooque has been provided not only free membership of the said Muslim Gymkhana by the said Siddique Bilwani and his associates but also that Mr. Bilawani invites Mr.Ghulam Farooq to be a guest of honour to distribute awards, certificates etc. in order to use him against me. Mr. Hanif Tayyab and Mr. Siddique Bilawani managed to have Mr.Ghulam Farooque appointed as Investigating Officer of my case. (It is submitted that membership fees of. Abdullah Haroon Muslim Gymkhana is Rs.300,000 only whereas Mr. Ghulam Farooq has been made member without payment of any fees. Annexure-E. Unwarranted public statements and posters by both the said gentlemen i.e. Hanif Tayyab and Siddique Bilwani are also annexed.
30. I state that my maternal uncle being childless had brought up not only me but also my brothers and sister as his own children inasmu ch as that not only that he bore all our expenses but also that he gifted me' cash, amounts. Gift deeds Annexed-F. At the time of marriage with one of my cousins Mst. Farida, my wife was given solid gold and valuables in dowry by my father-in-law (who was and is a person of vast resources, who is presently living in America with his sons one of whom is doing business and the other is in service) which my wife sold for investments in business, debentures and properties at my asking. My wife and my brother Abdul Habib Memon's wife are real sister& and also that we have engaged our children with each others also due to which my brother Abdul Habib Memon has also gifted/contributed considerable amount from time to time for the future and sake of our children. (Details of the same are in the statement annexed thereinafter). My brother-in-law Haji Yousaf Mernon son of Haji Hashim who is settled in America for the last 14 years had also gifted cash to his sister Farida. I am submitting the detailed statement of sources and resources of generation of the funds lawfully acquired by me as well as my wife for favour of consideration of this Honourable Court. Statement annexed G. I specifically submit that all these assets have been legally acquired out of the funds lawfully available to me and my wife as this statement shall disclose. I also specifically submit that I, my wife and my brother Abdul Habib Memon had shown all these documents to Mr. Ghulam Farooq who. out of sheer grudge/vendetta against me for the reasons stated above neither took these from us nor made enquiries about these facts from our immediate family or from the relevant authorities. I say that whatever. I have acquired and whatever my wife acquired, we have paid the prevailing market price at the respective times of our said purchases out of our lawful funds and no concerned authority ever doubted these documents as narrated by me hereinabove.
31. I have been victimized for my trade union activities in UBL more particularly because. I opposed privatization of UBL without safeguards of the employees' interests' and welfare which were not liked by officers like Mr.Ghafoor and Mr. Zubair Soomro as I was agitating against the exploitation for their personal ends. -I reserve all my rights.... to agitate the acts of omission and commission on the part of all those who have tried to blackmail me and my family. I specifically say that one of the telephones installed for labour union activity at the expenses of the labour union who pays the bill. I also specifically say that had the investigation team just looked into and inquired into the said facts there would had been no occasion of this reference so also there would have been no wastage of public exchequer which has been spent on my detention/trial of this reference.
32. I also take exception to the fact that UBL had engaged full time Advocate to follow this reference alongwith the senior executives of UBL who have been regularly attending this Honourable Court on each date of hearing despite the facts that they have nothing to do with this reference as for that UBL's role in this reference is that one of their senior Vice-President is just the complainant and a witness of this reference while National Accountability Bureau as Investigating and Prosecuting Agency has collected evidence on its own and is prosecuting the matter. Maximum that can be said about this reference is that UBL had asked National Accountability Bureau to inquire into the matter and not that U.B.L. should assume the role of Investigating and Prosecuting Agency against me as the three representatives are following these proceedings at the expenses of Government's exchequers which should be taken judicial notice of, by this learned Court.
33. I have also been an advisor to M/s. United Memon Developers and M/s. Seven Seas International who also pay me handsome remuneration while U.B.L. Employees Federation pays me honorarium for services rendered to them."
34. The appellant Farida Abdul Aziz, in her statement under section 342 of the Criminal Procedure Code stated that, she was not totally dependent upon her husband. The appellant Mst. Farida Abdul Aziz, admitting owing of movable and immovable properties detailed in the charge. While replying another question that she has no independent source of income and the assets owned by her are actually pecuniary advantages obtained by her husband Abdul Aziz Memon, through corruption and corrupt practices, she denied the allegation. She stated that she has been investing funds and money acquired by her from her father and Habib Memon, husband of her real sister and brother of co-accused Abdul Aziz Memon. She admitted to have filed income-tax returns from the year 1988-89 onward Exh. 15 to Exhs. 15/30. In reply to another question that in the income-tax returns she wrongfully claimed to be a partner of Messrs Memon Builders impersonating for actual partner Mst. Farida Begum daughter of Muhammad Asghar Siddiq, she stated that she is partner of the Memon Builders, while Mst. Farida Begum daughter of Muhammad Asghar, is a different person who is doing some other construction business. She admitted to have filed wealth statement from the year 1990-91 Exhs. 15/36 to Exhs. 15/45.
35. In reply to the specific question about her affidavit filed before the High Court alongwith Bail Application 1756 of 2000 Exh. 23/6, she stated that it was not filed under her instructions and as soon as she and her husband came to know about the plea. and contention raised by his previous lawyer, Mr. Serki, they asked him for correction. She produced copy of the letter dated 9-1-2002 written by appellant Abdul Aziz Memon to Mr.Shahab Serki, Advocate, Exh.28/1, which reads as follows:-- "From: Abdul Aziz Mernon, son of Late Abdul Ghani, c/o Jail Superintendent, Landhi Jail, Karachi.
36. January 9, 2002 To: Mr. Shahab Serki (Advocate), M/s. Nuruddin Sarki & Associates, Room 204, Paradise Chamber, near Passport Office, Saddar, Karachi.
37. SUB: FILING OF APPLICATION ON BEHALF OF MRS. FARIDA ABDUL AZIZ MEMON IN SINDH. HIGH COURT FOR PRE-ARREST BAIL APPLICATION.
38. Dear Sir, Reference to the above, I have to inform that on having your draft letter application to be filed with Sindh High Court in the name of Mrs. Farida Abdul Aziz Memon, I had specifically requested you and had asked to add some more points covering the following in your para.C reading as under:-- That the applicant/accused has acquired the properties attributed to her either by way of financing/funding from her father and/or as Benarni transactions for which she made no personal/practical endeavour or practical participation for acquiring the same in her name independently and instead you have filed the application in the name of my wife reading as under:-- C. She is household lady and dependant/wife of the main accused of above said reference. It is respectfully submitted that the assets owned by her belong to the main accused who is already in the National Accountability Bureau custody since 23-8-2001 and facing all the charges in this respect.
39. In addition to the above para, I had also sent to you the clauses to be added and followed after C, i.e. D. E. and F. but it was very surprising to note and learn that the most important matters and points which were of the favour in my wife's case and interests have been missed entirely due to which, it has resulted into damage to me and my wife and family at every level.
40. You are well-aware that the amended draft by me was handed over to you by my older brother Mr. Abdul Habib Memon at yourresidence before three days of the Eid-ul-Fitr as well as the fax was also sent to you from office by Ruknudin Ebrahim which was also confirmed having received by your staff immediately. Sir, due. to the above gross oversight or negligency, I have been put into problems which cannot be narrated on this at the moment and all the more my wife is not educated and does not know the alphabets of the legal matters which was of your responsibilities and only in good faith in you, she had given her signatures. However, please meet me on Monday the 14th January, 2002, in the City Court No.5, without fail to discuss this serious matter and finalise the same for mutual interests without further delay.
41. With regards, Yours faithfully, (Sd.)
42. ABDUL AZIZ MEMON S/O LATE ABDUL GHANI."
43. She has filed her written statement Exh.28/2, which reads as under:-- "I was born at Karachi on 14th February, 1957. I was married with Abdul Aziz Memon on 12th April, 1975. My father is an established businessman. He is engaged in the Trading and was an established transporter having (20) Mazda Mini Buses/Vehicles running at Karachi and was a founder of Bus Route No.P-1. He is doing Trading at Dubai (UAE) since 1960. At the time of my marriage with Abdul Aziz Memon he gave me 295 to 300 Tolas of gold alongwith other valuable dowry articles. My father also gave 375 Tolas gold alongwith valuable dowry articles to my elder sister Mrs. Amina wife of Abdul Habib Memon at the time of her marriage who is married with Abdul Habib Memon who is the real brother of Abdul Aziz Memon. Our two daughters namely Miss Farzeen and Miss Faiza are engaged with the two sons of Abdul Habib Memon namely Muhammad Faisal and Muhammad Naeem respectively. Their marriages are to be solemnized in near future. We basically live in joint family system and with a joint programme in view of the above-referred engagements/proposedmarriages, purchased House No.15/1, 30th Street, Phase-V (Ext.), Defence Housing Authority, Karachi from my personal funds acquired by me from my father and the finance of my brother-in-law Mr. Abdul Habib Memon and some financing from my husband Abdul Aziz Memon. At my husband's asking I also made investments in bonds and certificates, F.E.B.Cs. and also participated as a partner in the business of Memon Builders and availed profits as well. I am an Income Tax Payer and have been paying the Income Tax and Wealth Tax and have been declaring Income Tax and Wealth Tax accordingly. I produce herewith, the copies of the partnership and dissolution deed, Registration Certificate of Memon Builders from the Registrar Office.
44. The properties which I acquired since 1983 and the details as regards selling of some of them and acquiring the profits from such sales and subsequent purchase of other properties are described in detail in the chart of assets and properties produced by my husband Abdul Aziz Memon alongwith his further statement in this case which are true and correct which I am submitting alongwith this statement supported by the relevant documents. All properties and assets acquired by me in my name are acquired by me in a lawful manner and from lawful means and resources and well explained/justified as detailed in the accompanying chart. My husband never indulged in any unlawful practice and we have acquired the properties within our lawful means and resources.
45. I and my husband are falsely implicated in this Ehtesab Reference due to political reasons on the behest of UBL Administration, Mr. Hanif Tayyab and Mr. Siddique Bilwani and other persons having malicious designs and interest since my husband had been protecting the interests of UBL workers and is a hurdle in privatization of the UBL and he defeated Mr. Hanif Tayyab both in National Assembly and All Pakistan Memon Federation elections so also he is politically opposed to Mr. Siddique Bilwani who possesses out as life President of Muslim Gymkhana.
46. This Ehtasab Reference is totally false and is so framed so as to restrict my husband Abdul Aziz Memon from participating in political activities and the Labour Union activities of UBL and I am made an accused in this reference only for the reason that I am the wife of Abdul Aziz"Memon. I, my husband Abdul Aziz Memon and my brother-in-law Abdul Habib Memon had given the detailed explanation regarding the resources and funds for acquiring the properties and assets in my name and in the name of my husband supported with documentary evidence to Investigating Officer but that was not taken into consideration by them due to mala fides on their part at the instances of UBL Administration, Hanif Tayyab and Siddique Bilwani. I and my husband Abdul Aziz Memon have also submitted the list of defence witnesses who will support our contention.
47. I pray for justice and acquittal in this reference.
48. (Sd.)
49. Karachi 1-4-2002Farida Aziz w/o Abdul Aziz Memon."
50. Ten defence witnesses were examined namely D.W-1, Mst. Khadija Bai, Exh. 29, D.W-2, Haji Hashim, Exh. 30, D.W.-3, Ghulam Muhammad son of Yousuf, Exh. 31, D.W.-4, Wahab Karim, Exh. 32, D.W.-5, Muhammad Ishaque, Exh.33, D.W.-6, Muhammad Farooq Memon Faria, Exh.36, D.W.-7, Syed Rahmatullah Kazmi, Exh.37, D.W.-8, Zahid Hussain, Exh.38, D.W.-9, Habib Memon, Exh.42 and D.W.-10 Ghulam Muhammad son of Ghulam Ghous, Exh. 45.
51. The learned trial Court framed the following points for determination:-- "(1) Whether the accused Abdul Aziz Memon has been holder of public office from 1972 to 1996 within the meaning of clause (m) of section 5, NAB Ordinance, 1999 ?
(2) Whether the accused Abdul Aziz Memon and Mst. Farida Abdul Aziz held the movable and immovable properties as alleged in the charge as on 30-6-1996?
(3) Whether the movable and immovable properties held by the accused persons have been acquired from their known legitimate sources or the properties are disproportionate to their known legitimate sources of income?
(4) What offence, if any, the accused have committed ?
52. The learned trial Court after appreciation of evidence and material available on record, decided the above points as follows:- "1. Affirmative.
2. The properties alleged to have held in the name of accused persons and those which they have declared before the Election Commission, vide Exh. 25/1 and the accused have admitted the same in their statements under section 342 of the Criminal Procedure Code under Article 13 of Qanun-e- Shahadat Order, 1984, the facts admitted need not required to be proved. The valuation of the properties is not the subject-matter for decision and the Court is concerned with the amount paid by the accused persons at the time of acquiring the property and that there was no evidence that the accused had paid more sale consideration than shown in the Conveyance Deed.
(3) The properties held/owned by accused persons as on 30-6-1996 were disproportioned to their known legal sources for which the accused failed to account for.
(4) The accused persons committed the offence of corruption and corrupt practices as defined under section 9(a) (5) of NAB Ordinance, 1999. Both of them were convicted under section 10(a) of N.A.B. Ordinance and sentenced to undergo R.I. for 7 years and to pay fine of Rs.10,00,000 each. In default of payment of fine they were further sentenced to undergo S.I. for 2 years. The following properties of the accused persons were forfeited to the Government of Pakistan: "(1) Two plots at Hawksbay Town, Karachi in the name of Aziz Memon and Mst. Farida Abdul Aziz.
(2) Plot at KDA Scheme No.1-A Ext. Karachi.
(3) House No. 15/1, Khayaban-e-Shamsher, Phase-V Ext. DHA, Karachi."
53. Both the accused were disqualified for seeking or from being elected/appointed or nominated as member or representative of any public office or any statutory or local authority of the Government and it was further held that they should not be allowed to apply for being granted any financial facility in the form of any loan from any bank or financial institutions controlled by the Government for a period of 10 years.
54. Heard Mr. Khalid Anwar, learned counsel for the appellants and Mr. S. M. Zafar, learned counsel for the State.
55. Mr. Khalid Anwar, has submitted that the appellant Abdul Aziz Memon, joined U.B.L. in the year 1970 and resigned in the year 1993 with effect from 16-9-1989. The complaint forming basis of reference was filed on 28-1-1998 much after the appellant Abdul Aziz Memon left U.B.L. However, he continued to be most important member of the U.B.L. Trade Union. The Government wanted to privatize U.B.L. and the appellant Abdul Aziz Memon firmly opposed the privatization 'of bank taking plea that this action was mala fide and therefore, the appellant Abdul Aziz and his wife Mst. Farida Abdul Aziz, have been falsely implicated in this case of corruption and corrupt practices just to remove the appellant Abdul Aziz, from the path of privatization of U.B.L., taking him to be stumbling block in pursuance of the privatization policy. He contended that the U.B.L. did not produce any evidence of misappropriation and according to him there is no evidence whatsoever, to establish corruption or corrupt practices against the appellant Abdul Aziz Memon and of abetment against appellant Mst.
56. Farida Abdul Aziz. He has proceeded on to argue that, there are generalized allegation in para.6 of the reference to the effect that the details and other particulars of the assets/properties, shares of the business found to be in the name of accused persons, held by them in collaboration with each other, have been established to be the result of illegal action of corruption and corrupt practices committed by the appellant Abdul Aziz Memon, as holder of public office with connivance of appellant Mst. Farida Abdul Aziz, who abetted him in acquiring the assets. According to Mr. Khalid Anwar, the prosecution gave exaggerated valuation of the properties shown in the table contained in the reference and the trial Court has not accepted the exaggerated valuation of the properties.
57. So far, the investment in F.E.B.Cs is concerned, Mr. Khalid Anwar, maintained that, firstly, the prosecution has failed to establish that it was purchased out of the money acquired through corruption and corrupt practices and secondly, no probe can be made into the source of acquiring F.E.B.Cs. which enjoys protection under the Protection of Economic Reforms Act (XII of 1992), He has next submitted that in para. 11 of the reference, it is alleged that from the material collected and the circumstances and the evidence, it has been established that appellant Abdul Aziz, as holder of public office with the abetment of appellant Mst. Farida Abdul Aziz, have been living a lavish life beyond their means and as holder of public office has amassed illegal wealth, through illegal means disproportionate to their pecuniary sources. However, no such evidence has been produced by the prosecution to substantiate the contention.
58. Mr. Khalid Anwar, has urged that the learned trial Court has stated in the charge that, the appellants accumulated the assets in their name which are disproportionate to their "known legal sources of income". He has vehemently objected to the use of expression "legal sources of income", contending that this expression has not been used in law..
59. After addressing the arguments generally and assailing the impugned conviction and sentence being result of non-application of mind by the trial.Court to the prosecution evidence/material as well as the defence evidence available on record, he has addressed arguments on the specific points for determination framed by the trial Court. 'Dealing with point No.1, he has submitted that the undisputed facts are that, appellant Abdul Aziz Memon, was appointed as Typist in U.B.L. in the year 1970 and resigned from the service of the bank in the year 1993 which was accepted with retrospective effect, to wit, 16-9-1989. He thereafter contested general elections in the year 1993 and was elected as MNA from Constituency No,190 Karachi .South. He remained as such, up to the dissolution of the National Assembly in 1996. Mr. Khalid Anwar has vehemently assailed the findings of the learned trial Cowl. that appellant Abdul Aziz Memon, was holder of a public office from the years 1972 to 1996 within the meaning of clause (m) of section 5 of the NAB Ordinance. Mr. Khalid Anwar, has argued that the learned trial Court, fell in serious error by coming to this conclusion and had not adverted to the provisions contained in clause (m) of section 5 of the NAB Ordinance, which contains the definition of, 'holder of a public office'. Mr. Khalid Anwar has submitted that appellant Abdul Aziz Memon was Member National Assembly from the years 1993 to 1996 and during this period he was holder of public office within the meaning of section 5(m) which inter alia includes a member of Parliament. However, from the years 1972 to 1989 he was not the holder of public office as the prosecution case itself is that during this period the appellant Abdul Aziz Memon was holding a post of Typist in the U.B.L. In this behalf he has referred to section 5 (m)(iv) of the N.A.B. Ordinance. Mr. Khalid Anwar, has contended that appellant Abdul Aziz Memon, never held an official post in the service of Pakistan or any service in connection with the affairs of Federation or of a Province, or any local council constituted under any Federal or Provincial Law relating to the constitution of local councils, or in the management of corporations, banks, financial institutions, Cooperative Societies, firms, concerns, undertakings or any other institution or organization established, controlled or administered by or under the Federal Government or a Provincial Government. He has forcefully argued that a Typist, cannot be termed as holding an office or post in the management of bank and thus, the appellant Abdul Aziz Memon having held the post of Typist from the years 1972 to 1989 the date from which his resignation was accepted in 1993 was never holder of a public office and thus, the learned trial Court has totally misdirected in coming to the conclusion that the appellant Abdul Aziz Memon was holder of a public office in between 1972 and 1993.
60. Mr. Khalid Anwar, contended that appellant Abdul Aziz Memon has been indicted with the charge of indulging in corruption and corrupt practices being holder of public office and he was holder of a public office from the years 1993 to 1996 with the result that he is not accountable for the period between 1972 and 1993. He has submitted that the prosecution has failed' to establish that appellant Abdul Aziz or his wife appellant Mst. Farida acquired any assets in between the years 1993 and 1996 disproportionate to their known sources of income which they cannot reasonably account for as provided under section 9 (a)(v) of the NAB Ordinance. In this regard he has referred to the provisions contained in section 9(a)(v) of the NAB Ordinance, which provides that, a holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices if he or any of his dependents or benamidars owns, possesses or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for. He has contended hat the learned trial Court has used the expression "known legal sources of income" in the charge, as a result of misreading of the law. According to him Legislature has used the expression "known sources of income" and not the "known legal sources of income". He has proceeded on to argue that, first the trial Court ought to have confined its consideration to assets held by the appellants during the period between 18-10-1993 and 7-11-1996, when appellant Abdul Aziz Memon was holder of a public office and should have examined if the assets so held were disproportionate to the known sources of appellant Abdul Aziz Memon and whether he was able to reasonably account for the same or not. In order to determine these facts, the learned trial Court should have determined the assets held by the appellants on 18-10-1993 and the assets held by them on 7-11-1996 and should have worked out the increment in the assets between this period and if there was any increase, the trial Court was required to consider whether it was disproportionate to the known sources of income of the appellants and whether the appellants were able to reasonably account for the same or not.
61. Mr. Khalid Anwar, has vehemently argued that the trial Court has exceeded its jurisdiction by extending the scope of inquiry from the year 1972. He hap continued to argue that in addition to the fact that appellant Abdul Aziz was holder of a public office in between 18-10-1993 and 7-11-1996 only, the period from 1972 to 1984 is out of the pale of NAB Ordinance. In this regard, he has referred to section 2 of the NAB Ordinance, which provides that, NAB Ordinance, shall be deemed to have come into force from the 1st day of January, 1985. Concluding his arguments on point No.1, Mr. Khalid Anwar, has submitted that under the NAB Ordinance, the appellants were accountable for the period in between 18-10-1993 and 7-11-1996 only and the prosecution has utterly failed to establish that during this period the appellants held, acquired or possessed any assets disproportionate to'known sources of income.
62. Dealing with the impugned findings on point No.2, Mr. Khalid Anwar, submitted that the prosecution has mainly relied on the assets declared by the appellants in the income-tax and wealth tax returns. He has contended that the assets declared by the appellant before the Income-tax and Wealth Tax Authorities were accepted and the tax authorities initiated no proceedings alleging that the assets were acquired out of undisclosed sources of income. He has contended that the Income Tax Authorities had jurisdiction to initiate proceedings calling upon the appellant to disclose the sources of income out of which the assets were acquired and had further authority even to prosecute the appellants but the tax officials did not resort to any such proceedings which gives presumption to the inference that all the properties declared by the appellants were found to have been acquired from known sources of income. Mr. Khalid Anwar, has contended that the prosecution has not been able to unearth any assets not declared by the appellants with the tax officials or Election Commission, with the result that the entire assets held by the appellants shall be deemed to be acquired from known sources of income and further the appellants have reasonably accounted for the assets by leading evidence in defence. Mr. Khalid Anwar, has very frankly stated that he is not contending that the assessment orders are binding on the Criminal Courts but he intends to show that the act of declaring the assets by the appellants and acceptance thereof by the Competent Authorities has the effect of creating doubt in the prosecution story and in a criminal case, an accused is entitled co acquittal if he succeeds in creating a dent in the prosecution case which has the effect 0, creating doubt in the prosecution story. He has contended that the law has provided that an accused person has to merely show that the assets held by him/her have been acquired from known sources of income and can be reasonably accounted for. He has contended that the defence witnesses have stated that Mst.
63. Farida wife of appellant Abdul Aziz Memon was given 300 Tolas of gold in dowry in the year 1975 and that in the 1995 Mst. Fardia sold her ornaments. He has further submitted that the appellants have brought evidence in defence to the effect that gifts were given to the appellants and that evidence in defence is sufficient to meet the requirement of law which provides that the assets held by an accused person should be reasonably accounted for. He has submitted that the expression "reasonably accounted for cannot be equated with production of conclusive piece of evidence. He has submitted that the expression "reasonably accounted for", means that such material has been produced which is not totally devoid of reason and is probable in ordinary course.
64. Mr. Khalid Anwar has next contended that, it stands established with the testimony of defence witnesses that 300 Tolas of gold were given to Mst. Farida in dowry and D.W.9 Habib Memon brother of appellant Abdul Aziz Memon, gifted an amount of Rs.19,78,200 on 15th of July, 1995, and that he had sent Rs.4,86,000 to Mst. Farida in the year 1987 through banking channel and Mst. Farid purchased Defence Saving Certificates in the sum of Rs.5,00,000 on different dates in the year 1989, and were encashed in the year 1993, before Abdul Aziz Memon, became holder of a public office.
65. Mst. Farida purchased F.E.B.Cs. worth Rs.Ten lass and Rs. 5,00,000 in the year 1995 and D.W.9, Habib Memon brother of appellant Abdul Aziz Memon had gifted an amount of Rs.19,78,200 by encashment of F.B.E.Cs. worth Rs.8,50,000 and conversion of U.S. dollars 10,000 and Saudi Rial 100,000 to Mst. Farida. Mr. Khalid Anwar, has contended that no' probe is allowed into the sources of purchasing the F.E.B.Cs. and the encashment of F.E.B.Cs. also enjoys protection from any probe or inquiry. He has contended that protection with regard to the F.E.B.Cs. is available in the Protection of Economic Reforms Apt, 1992. He has submitted that the assets held by the appellants do not exceed the amount representing F.E.B.Cs. and by virtue of the protection allowed under the Protection of Economic Reforms Act, 1992, the appellants enjoy immunity from any probe/inquiry into the source with the result that they are absolved of the liability of accounting for the assets acquired out of encashment of F . E. B. Cs .
66. Concluding his arguments, Mr. Khalid Anwar submitted that the purpose and object of promulgating the NAB Ordinance is to be discerned from its preamble which lays emphasis on eradiction of corruption and corrupt practices and the expressions get their colour and complexion by reading with the preamble and the substantive provisions in the Ordinance. He has vehemently argued that under the language of law the legal source of income is not required to be considered but the sole requirement of law is that the assets should be shown to have been acquired from known sources and the Courts are supposed to interpret and apply the law as emanating from the language used in the statute. He has further submitted that the conviction and sentence awarded to Mst. Farida is 'not sustainable in law as she has not been convicted as a benarni or on account of abetment but independently for holding 'the assets not acquired from the known legal sources.
67. He has submitted that the conviction and sentence awarded is not sustainable in facts and law and is liable to be set aside. In support of his contentions Mr. Khalid Anwar, has place reliance en the following judgments:--
(1) 2002 MLD 480i (2) 2002 pc (Cr.C) 779; (3) 1997 PCr.LJ 101.
68. On the other haw!, Mr. S.M. Zafar, learned counsel for the respondent has fully supported the impugned judgment, conviction and sentence. He has submitted that the appellant Abdul Aziz Memon comes from a very poor family which is indicated from the fact that he was sent by his family to Yateem Khana (orphanage) where he was maintained and brought up. His guardians were not able to maintain him and bear expenses of education. He has further pointed out the extract from the record of Permanent Transfers Exh. 50/1 showing that premises measuring 48 'sq. yds. was transferred to Mst. Hajran mother of Abdul Aziz Memon, and this is the only property which devolved on appellant Abdul Aziz Memon and on his brothers Noor Muhammad, Jamil and Habib and the Sisters Mst. Hameeda and Mst. Rabia. He has further submitted that the financial status of -appellant Abdul Aziz Memon is evident from the fact that he was appointed as a Typist in U.B.L. and continued to be a Typist till he submitted his resignation in the year 1993 with effect from the Aar 1989. He referred to the letter written by United Bank Limited, to Chairman, Ehtesab Commission, Government of Pakistan, Islamabad, dated June 20, 1998, Exh.10/1. According to this letter the total emoluments paid by the bank to appellant Abdul Aziz Memon during his entire service were Rs.787,657.58 and the total salary, allowances and perequisites received by appellant Abdul Aziz Memon as Member of National Assembly were Rs.12,22,715. So far, appellant Mst. Farida wife of Abdul Aziz Memon is concerned he has contended that she was a housewife and had no independent source of income. In this regard he has referred to the letter, dated 7-2-1996 written on behalf of Mst. Farida by her tax advisor, to the Deputy Commissioner of Income Tax, Circle 17, Zone-D, Karachi. In reply to the notice under section 61 of the Income Tax. Ordinance, in respect of the assessm ent years 1993-94 and 1995-96, it was stated that Mst. Farida wife of Abdul Aziz Memon was a household lady and had not done any personal business. It is further stated in Exh. 15/28 that Mst. Farida is fully dependent upon her husband who is M.N.A. Mr. S.M. Zafar, has read over the statement of P.W.2, Abdul Ghafoor Exh. 10, who was posted as Executive Vice-President in U.B.L., in the year 1998. He stated that accused Abdul Aziz Memon on his resignation in the year 1993 which was from the year 1989 refunded a sum of Rs.2,16,935 representing the salaries which he received during the period 1989 to 1993 out of the total emoluments. He had certain )oans outstanding against him totalling Rs.5,40,594 which were also paid by him at the time of his resignation. He has further referred to the contents of Exh. 10/1, according to which the declaration of assets was filed by Abdul Aziz Memon with the Election Commission on 30-6-1996. The total assets declared by the appellant Abdul Aziz Mernon before Election Commission are as follows:-- Assets held in the name ofDeclared market value Mr. Abdul Aziz Memon Rs.1,451,000 Mrs. Farida wife of A.
69. Aziz MetnonRs.5,052,000 Mr. Javed son of A. Aziz MemonRs. 125,000 Total: Rs.6,628,000 This letter further shows that the appellant Abdul Aziz Memon, purchased following properties in the year 1995-96:-- (1 ) House No.15/1, StreetNo.30, Khayaban-e-Shamsher, Phase V- (Extension), Defence Housing Authority, Karachi value whereof as per-his return is Rs.2.5 million whereas its .market value as on 30-6-1996 was estimated to be Rs.12.5 million.
(2) Plot at. Islamabad---advance payment of Rs.200,000 made by him.
(3) Flat No.1, Kutiyana Plaza, Liaquat Colony, Karachi which his sons received from his grandfather with a value declared at Rs.0.125 million whereas the estimated market value of the said property was Rs.2. million.
70. Mr. S.M. Zafar, has submitted that, appellant Abdul Aziz Memon on his own declaration possessed the assets worth Rs.1,451,000 on 30-6-1996 while the total amount of salaries received by him which is the only known source of income are much less as explained above. The assets held by his wife appellant Mst. Farida were declared at Rs.50,52,000 as on 30-6-1996, while she is all along stated to be housewife dependent on his husband appellant Abdul Aziz Memon, from which an inference can 'be drawn that the entire assets held by Mst. Farida were acquired by appellant Abdul Aziz Memon, out of the undisclosed sources of income and the appellants were not able to reasonably account for the same with the result that the presumption in law would be that the assets were acquired out of corruption and corrupt practices.
71. Mr. S.M. Zafar, has referred to the declaration of assets made by the appellant Abdul Aziz Memon and Mst. Farida before the Election Commission of Pakistan, dated 24-9-1995 Exh. 25/1, according to which Mst. Farida wife of Abdul Aziz Memon held a Residential Flat, 44 Safari View Apartment, Ghulshan-e-Iqbal, for which she paid Rs.1,60,000 Residential Flat at Hawksbay, Karachi, which was acquired on cash payment of Rs.18,000, Residential Flat at Bombay Bazar, acquired on cash payment of Rs.90,000, an Industrial Plot at North Karachi, which was acquired on cash payment of Rs.93,353, a Residential Plot in K.D.A. Scheme No.1, acquired on cash payment of Rs.15,59,285, Cash in Bank and Prize Bonds worth Rs.1,64,362, a Residential Flat which was stated to have been received in gift from grandfather and a Residential House 15/1, Street 30th, Khayaban Shamsher, Phase-V, Extension Defence Housing Scheme, Karachi, which was purchased for Rs.23,50,000. He has further pointed out that comparison of the assets held by appellant Abdul Aziz as declared to the Election Commission on 30-6-1995 and 30-6-1996 shows the appellant Abdul Aziz Memon had declared advance payment for residential bungalow, Rabia Bungalow, G.T. Road, Rawalpindi at Rs.1,50,000 and on 30-6-1996 the advance payment for this bungalow was declared at Rs.5,50,000, meaning thereby that an amount of Rs. 4,00,000 was invested during the period 1-7-1995 and 30- 6-1996 when appellant Abdul Aziz Memon was M.N.A. Likewise in the statement, dated 30-6-1995 nine (9) assets were declared to be held by him while in the declaration, dated 30-6-1996 Ten (10) properties were declared. The new property acquired during this period was a Residential Plot in Parliamentarian Housing Scheme, Islamabad, for which an amount of Rs.2,00,000 were paid while the Cash in Bank and Prize Bonds in both the years were declared to be same i.e. Rs. 3,93,746. It means that neither there were any deposits in the bank nor any withdrawal during this period. This investment of Rs.6,00,000 declared by appellant Abdul Aziz Memon has not been reconciled with any known source of income. Likewise in the declaration in respect of Mst. Farida wife of Abdul Aziz Memon, dated 30-6-1995 7 (seven) properties were declared while in the declaration, dated 30-6- 1996 8 (eight) properties were declared. The 8th property is residential House 15/1, Street 30th, Khayaban-e-Shamsher, Phase-V, Extension, D.H.S., Karachi, which was declared to have been purchased for. Rs.23,50,000. From a comparison of the two declarations made, to the Election Coinmission and produced at trial by P. W.15 Muhammad Jamil Khan Exh.25 it appears that the investment of Rs.23,50,000 was made by appellant Mst. . Farida for purchasing bungalow at the Defence Housing Scheme, Karachi. The cash in bank and prize bonds as on 30-6-1995 were at Rs.1,64,362 and the same amount was declared as on 30-6-1996 meaning thereby that there is no deposit or withdrawal in the bank account. Mr. S.M. Zafar has subnlitted that, this investment also remains unexplained. He has further submitted that acquiring of this property by Mst. Farida in the year 1995 stands established with the production of Irrecoverable General Power of Attorney executed by Mst. Farida in favour of Muhammad Faisal son of Abdul Habib. According to this document produced by P.W.3, Shoukat Ali Exh.11, the property was purchased by Mst. Farida wife of Abdul Aziz vide registered Conveyance Deed, dated 27-9-1995, Mst. Farida got property mortgaged with Allied Bank Limited as Guarantor for Advancement of Loan of Rs.5.5 million to Muhammad Faisal son of Abdul Habib (nephew of appellant Abdul Aziz) and in the Valuation Report the cost of building was valued at Rs.37,52,000 the cost of the land was at Rs.42,00,000. In the application for credit facilities, dated 13-10-1998 gross value of assets held by Mst. Farida were declared at Rs.22 million, the liabilities and encumbrances were declared at Rs.2.5 million and net worth of the assets held by Mst. Farida were declared at Rs.17.50 million.
72. Mr. S.M. Zafar has submitted that, the appellants had tried to reconcile the increment in their assets through transaction of purchase and sale of the F.E.B.Cs. He has maintained that, all the F.E.B.Cs, were purchased and sold by the' appellants on the same date and the gift by Abdul Habib brother of appellant Abdul, Aziz is also alleged to have been made out of the encashment of F.E.B.Cs, which were purchased and sold on the same date. He has submitted that, the source of purchasing F.E.B.Cs. have not been disclosed and the Protection sought under the provisions of Protection of Economic Reforms Act, 1992 are not available to the appellants in a criminal prosecution for the offence of corruption and corrupt practices. He has submitted that, this point already stands decided by this very Bench in the case of Hakim Ali Zardari v. The State PLD 2002 Karachi 374 and the Hon'ble Supreme Court in the case of Irshad Ahmed Shaikh v. The State 2000 SCMR 814.
73. Mr. S.M. Zafar while responding to the contention of Mr. Khalid Anwer that accused Abdul Aziz was holder of a public office in between 1993 and 1996 only, therefore, the learned Accountability Court has misdirected in extending the probe into the assets, acquired/held by the appellant prior to the year 1993, has submitted that although the appellant Abdul Aziz Memon was a holder of a public office as defined in section 5(m)(iv) of the NAB Ordinance in between the years 1993 and 1996 but the applicability of the NAB Ordinance is not confined to the holders of public office only He has submitted that section 9 of the NAB Ordinance, which defines the offence of corruption and corrupt practices is applicable to a holder of a public office "or any other person" and therefore, unlike earlier laws enacted to curb and eradicate corruption, which were restricted to the holders of public offices and public servants only, the NAB Ordinance is much wider in its scope and application. According to Mr. S.M. Zafar the menace of corruption has crept in, all the sections of Society and a need was felt to eradicate the corruption committed by all the persons, holding a public office or otherwise, therefore, the net of accountability was thrown to catch all the persons including the holders of public office. In support of his contention he has referred to the p...ovons contained in sections 4 and 10(b) of the NAB Ordinance. In this regard he has referred to the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607. He has referred to the contentions raised on behalf of Federation, appearing at page 792 as follows:-- "The word 'person' used in various provisions of this law is wide enough to cover any person and thus, nobody is being spared and across the board accountability is being conducted throughout the length and breadth of the country with no discrimination whatsoever, inasmuch as there is no political bias, no provincial bias."
74. On the same page it was contended as follows:-- "The impugned law is applicable to the politicians, bureaucrats and other persons, it is vast in its application and the exceptions are very exceptional and very limited."
75. Again on page 864 the contention appears as follows:--- "The NAB Ordinance is a special law following in the series seeking to combat the evil of high level corruption. For the first time, through the NAB Ordinance, members of hitherto an untouchable class of influential and powerful persons, not merely restricted to holders of public offices, but also including bankers, businessm en, industrialists, bureaucrats and other persons, who are involved in corruption and corrupt practices as defined in the NAB Ordinance, fall within the purview of accountability in an effective and coherent manner,"
76. He has next contended that merely because appellant Abdul Aziz Memon is referred to as holder of public office in the charge .by the trial Court, he or co-accused Mst. Farida Begum shall not. be absolved of the accountability for the period between 1985 to 1993. He has proceeded on to argue that, admittedly appellant Abdul Aziz Memon was holder of a public office in between the years 1993 and 1996 and co-accused Mst. Panda Begum wife of Abdul Aziz Memon is mainly dependent on Abdul Aziz Memon, therefore, both of them are accountable in respect of the assets acquired/held by them during the period between the years 1985 and 1996. He has further submitted that the mere description of appellant Abdul Aziz Memon as a holder of public office in the charge shall not have the effect of restricting the charge to the period between the years 1993 and 1996. According to him, the charge is to be read as a whole and therefore, the contention of Mr. Khalid Anwar that the appellant Abdul Aziz Memon could be held accountable for the period between the years 1993 and 1996 when he was holder of public office is not tenable, because, mere description of the appellant Abdul Aziz Memon, as holder of public office has not caused any prejudice to the appellants. In this regard, he has referred to the provisions contained in sections 225, 535 and 537, Cr.P.C.
77. He has next argued that from a bare reading of the charge it appears that, the two appellants were clearly made aware that they were required to furnish the known sources of income in respect of the assets held by them and in their statements under section 342, Cr.P.C. the evidence in respect of the assets held by the two appellants throughout were put to them and the learned trial Court accepted the assets declared by the appellants themselves as well as the known sources of income. He has maintained that the learned trial Court has accepted the valuation of the assets as declared by the appellants and has not accepted the valuation of the assets as alleged by the prosecution. Although the learned trial Court ought to have accepted the mark t value of the assets held by the appellants but still the appellants were not able to reconcile the assets held by them with their known sources of income. He has submitted that the assets to the tune of Rupees Ten lacs have not been explained by appellant Abdul Aziz Memon and to the extent of Rupees thirty-nine lacs by appellant Mst. Farida. He has contended that the appellants have tried to explain the acquisition of assets by taking refuge in the so-called gifts and the encashment of F .E B . Cs . The F . E . B . Cs , were admittedly purchased and encashed on the same day and the sources of acquiring the F.E.BCs, have not been explained at all while the gifts are also fake as the donors are merely name lenders and have not explained the sources available to them. The donors are near relatives of the appellants and the assets acquired by the appellants out of corruption and corrupt practices have been attempted to be camouflaged in the smoke screen of the gifts and F.E.B.Cs. He has vehemently argued that even if the evidence brought LI( record through prosecution witnesses is ignored and the declaration of assets to the Election Commission of Pakistan under the provisions of Representation of the People Act, 1976, are considered alongwith the explanation furnished by the appellants in their statements under section 342, Cr.P.C. the appellants are not able to give reasonable explanation of acquiring the same from known sources of income. He has further submitted that mere use of the word "legal" alongwith expression, "known sources of income", by the trial Court shall not have the effect of vitiating the findings of facts. Mr. S.M. Zafar, has laid great emphasis on the point that, the public representatives are, "Amins" and their entire rife and character should be totally transparent, beyond doubt and should not be tainted one. In addition to the fact that the NAB Ordinance is applicable to all citizens of Pakistan inclusive of holders of public office, the public representatives should explain the properties acquired/owned by them during their entire life. Replying to the contention of Mr. Khalid Anwar, that on the basis of superior Courts' judgments enunciating the principle that in a criminal case the benefit of doubt is always to be extended to an accused person, Mr. S.M.Zafar, learned counsel for the respondent has vociferously argued that the principles pertaining to the benefit of doubt in murder cases and other cases of ordinary crimes should not be extended to the cases arising out of the proceedings under the NAB Ordinance. He has contended that the cases dealt with under the NAB Ordinance are directed towards eradication of corruption from the society at large and such white collar crimes are to be dealt with on different footing. He has contended that the NAB Ordinance is a special law and the benefit of doubt as propounded in Safdar. Ali's case (Safdar Ali v. Crown, PLD 1953 FC 93) should not be extended to the cases dealing with the corruption and corrupt practices. He has submitted that ordinarily there is no presumption of guilt against an accused person in cases of ordinary criminal trial but in special laws dealing with the corruption, special provisions are made whereby the Courts are required to presume certain facts, which is deviation from the ordinary principle applicable to the criminal .trials. In this regard, he has specifically referred to the provisions contained in section 14(c) of the NAB Ordinance, which reads as follows:- "14. Presumption against accused accepting illegal gratification.--
(c) In any trial of an offence punishable under this Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of property of pecuniary resources disproportionate to his known sources of income or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices and his conviction, therefor, shall not be invalid by reason only that it is based solely on such a presumption."
78. He has further submitted that the principle relied upon by Mr. Khalid Anwar, Advocate to the effect that if narrow and wider interpretations are possible in a criminal case the narrower interpretation should be applied, thereby extending benefit to an accused person, is not applicable to the special cases of corruption and trial under the special laws dealing with the matters pertaining to corruption and corrupt practices and the laws specifically enacted with the avowed intention of the Legislature to eradicate corruption and corrupt practices and holding accountable all those persons who are accused of such practices and the matters ancillary thereto. He has contended that the provisions contained in the special laws shall override the provisions and the principles attracted to the general principles of law and while applying the provisions of special statutes the intention of the Legislature is always to be kept in view. In this regard, the deviation made by the Legislature from the general principles applicable to the normal criminal trial should receive the special attention of the Courts, so that the intention and purposes of enacting the special laws are achieved and the purpose of law is served.
79. Mr. S.M. Zafar, learned counsel for the respondent has concluded his arguments contending that the learned trial Court has correctly appreciated material on record and has arrived at the proper conclusion which is in consonance with the provisions of law contained in special statute to wit, NAB Ordinance and the impugned conviction and sentence is not open to any exception.
80. We have given anxious consideration to the contentions raised by the learned Advocates for the parties and ha'e very carefully examined the entirematerial available on record.
81. Before adverting to the points for determination framed by the learned trial Court, the findings there in and the respective contentions of the learned Advocates for the parties before us, we would like in the first instance to dilate on the scope of NAB Ordinance and the persons to whom the process of accountability envisaged under the NAB Ordinance is applicable. The contention of Mr. Khalid Anwar is that the NAB Ordinance is attracted to the holder of public office, as defined in section 5(m) of the NAB Ordinance only. On the other hand, Mr. S.M. Zafar has asserted that the NAB Ordinance in its contents, scope and applicability is much wider as compared to its predecessor statutes in Pakistan. According to him, all the earlier statutes were limited in their applicability to the public servants and holders of public offices and the persons associated/connected with them.
82. However, the accountability net under the NAB Ordinance is much wider and encompasses all the citizens of Pakistan and persons other 'than holders of public offices also.
83. For the purpose of determining the scope and applicability of the NAB Ordinance, we will confine our consideration to the contents of the. NAB Ordinance only. However, while considering the issue we will keep the principle in view that in order to ascertain the intention of Legislature the entire scheme of law is to be examined in its totality and the entire statute is to be considered.
84. Keeping the above principle in view, we will commence our scrutiny of the NAB Ordinance from its preamble. In doing so we are conscious and cognizant of the principle that the preamble is not a substantive part of the statute, however, as rightly argued by Mr. S.M. Zafar, it is forerunner of the law and walks in ahead of the substantive provisions of the law. Thus, the preamble not being a part of the substantive law itself, cannot be enforced or implemented by its own force, but it is always helpful in ascertaining the intention of Legislature and the purpose of enacting a law.
85. A perusal of the first para. Of preamble shows that it envisages setting-up of National Accountability Bureau so as to eradicate corruption and corrupt practices and to hold accountable all those persons accused of such practices and matter ancillary thereto. In this para. the purpose of setting-up of National Accountability Bureau has been given very vividly which is to "hold accountable all those persons accused of such practices and matters ancillary thereto".
86. Thus, the purpose of setting up of National Accountability Bureau is not confined to eradication of corruption committed by the holders of public offices only but to hold accountable to all those persons who are found involved in corruption. Again in section 4 of the NAB Ordinance, dealing with the application of said Ordinance, it is provided that, "it extends to whole of Pakistan and shall apply to all persons in Pakistan". Again it is stated by the Legislature in very -clear and unambiguous terms that the NAB Ordinance extends to all persons in Pakistan. Thus, no section or group of persons or individuals have been excluded from the applicability of the NAB Ordinance.
87. Section 5 of the NAB Ordinance contains the definitions. in clause (a) of section 5, the term "accused" has been defined to include a person in respect of whom there are reasonable grounds to believe that he is or has been involved in the commission of any offence triable under the Ordinance. Here again the term "accused" is not confined to the holder of public office only. In clause (c) of section 5, the expression "assets" has been defined to mean any property owned, controlled by or belonging to any accused whether directly or indirectly or held benami in the name of his spouse or relatives or associates, whether within or outside Pakistan, for which they cannot reasonably account for, or for which they account prove payment of full and lawful consideration". In this definition also the properties owned, controlled by or belonging to any accused, his spouse or relatives or the associates are required to be reasonably accounted for . and the burden of giving reasonable account and to prove the payment of full and lawful consideration is on all those persons and the accountability is not restricted to the holder of public office only Here it is pertinent to note that the terms "assets" has been defined with the expression "means" while the expression "accused" has been defend with the word "include". Thus, the definition of the term "assets" is conclusive while the definition of term "accused" is inclusive and thus, the definition of term "accused" is wider in its import. In clause (d) of section 5, the expression "associates" has been defined. In this definition any individual who is or has been managing the affairs or keeping accounts of the accused has been included. An association of persons, body of individuals, partnership firms and private limited companies are also included in which such a person is or has been a member, partner or director or which have been promoted, floated, established or run by the same group of persons. It also includes any Trustee. Coif a private Trust or any person who ostensibly holds or is in possession of any property of an accused on his behalf for the benefit and enjoyment of the accused. Clause (m) of section 5, contains the definition of holder of public office.
88. Mr. Khalid Anwar learned counsel for the appellants, has conceded that the appellant Abdul Aziz Memon was holder of public office as an MNA in between the years 1993 and 1996, therefore, no discussion is required in respect of this definition. Clause (r) of section 5 contains the definition of wilful default and a bare reading of this provision shows that this particular provision is applicable to the persons other than holders of public offices as well. Clause (n) of section 5 contains the definition of offence." According to this definition the offence for the purpose of NAB Ordinance means offence of corruption and corrupt practices as defined in the NAB Ordinance and includes the offences as specified in the Schedule to the NAB Ordinance. This provision is to be read with section 9 of the NAB Ordinance, which defines the expression "corruption and corrupt practices".
89. Various acts and omissions have been enumerated in paras. (i) to (ix). It provides that, a holder of public office, or any other person (emphasis provided by us), is said to commit or to have committed the offence of corruption and corrupt practices, if the acts and omissions specified in paras. (i), to (ix) of clause (a) of section 9 are committed. It includes para. 5, which is relevant in this case. If the opening sentence of section 9(a) of the NAB Ordinance is read with para. (v) it reads as follows:-- "A holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices, if he or any of his dependents or Benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for."
90. The word 'he' used in para. 5 above, is a reference to holder of public office as well as any other person. Thus, the act specified in section 9(a)(v) is not confined to holder of public office only but is extended to any other person as well. Section 20 of the N.A.B. Ordinance, is also pertinent in this behalf. For the sake of convenience, the section 20 of NAB Ordinance is reproduced below:-- "20. Reporting of suspicious financial transactions.---(a) Notwithstanding anything contained in any law for the time being in force, it shall be the duty of all banks and financial institutions to take prompt and immediate notice of all unusual or large transactions in an account, which have no apparently genuine, economic or lawful purpose and upon bona fide professional judgment of the Bank or financial institution, that such transactions could constitute or be related to illegal or illicit activities, corruption or corrupt practices, the manager or director of such Bank or financial institution shall report all such transactions to the Chairman, NAB forthwith by the quickest possible mode of communication to be confirmed in writing.
(b) Whoever fails to supply the information in accordance with subsection (a) shall be punishable with rigorous imprisonment, which may extend to 5 years, or with fine, or with both.
(c) Where there are reasonable grounds to believe that the assets of a person or any part thereof were acquired through corruption or corrupt practices, and there was no other likely source of acquiring such assets or part thereof, it shall be presumed, unless proved to the contrary by the accused person, that such assets or part thereof were acquired, generated or obtained through corruption and corrupt practices."
91. A perusal of the above section shows that it starts with the non obstante clause and is comprehensive so as to include every bank account without any exception. It is not confined to the bank accounts of the holders of public offices only. It enjoins upon the Manager of Bank or Director of a financial institution about all the transactions by any account holder constituting or relating to illegal or illicit activities, corruption or corrupt practices. Clause (c) of section 20 also speaks of an assets of 'a person' acquired through corruption or corrupt practices and provides that if no other likely source of acquiring such assets or part thereof is furnished there shall be a presumption unless proved to the contrary by the accused persons that such assets or part thereof are acquired/generated through corruption and corrupt practices. Thus, the provisions contained in section 20 of the NAB Ordinance are also leading to the conclusion that the scope and applicability of the NAB Ordinance is not confined to the holders of public offices only.
92. Consequent to the above discussion, we are persuaded to agree with the contention of Mr. S.M.
93. Zafar, that the scope of NAB Ordinance is wider in terms and is applicable to all citizens of Pakistan and all persons including the holders of public offices. The result is that, the appellants are accountable for acquiring the assets from the year 1985 till the year 1996, the period for which they were tried.", Now we proceed, to examine the contention of Mr. Khalid Anwar, that in the charge framed by the trial Court, the appellant Abdul Aziz Memon is described as a holder of public office and therefore, he is accountable for the period in between the years 1993 and 1996 when he was holder of a public office by virtue of being an MNA.
94. Mr. S.M. Zafar, learned counsel for the respondent has submitted that merely because appellant Abdul Aziz Memon was described as holder of public office in the charge framed by the trial Court it will not have the effect of absolving the appellant from the accountability for the earlier period. In this behalf, he has referred to sections 225 and 537, Cr.P.C.
95. By virtue of the provisions contained in section 17 of the NAB Ordinance, the provisions pertaining to the framing of charge and trials before High Court and Courts of Sessions contained in Cr.P.C. shall be applicable. It is provided in section 221, Cr.P.C. that every charge under Cr.P.C. shall skate the offence with which the accused is charged and if the law which creates the offence gives it any specific name, the offence may be described in the charge by that name only and if the law does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged. Section 222, Cr.P.C. deals with the particulars which shall be contained in the charge. According to this section, the time, place of the alleged offence, and the person against whom; the offence was committed, if any, or the thing (if any) in respect of which, the offence was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged should be contained in the charge. Section 223, Cr.P.C. further takes care of the sufficient notice to accused of the matter with which he is charged and provides that if the particulars mentioned in sections 221 and 222, Cr.P.C. do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the manner in which alleged offence was committed as will be sufficient for that purpose. The crux of these sections is that, an accused person should be fully made conversant of the particulars constituting offence for which he is tried, so that no prejudice is caused to an accused in defending himself of the charge. Section 225, Cr.P.C. provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. The intention of Legislature is very clear to the effect that any error or omission in the charge which does not occasion any failure of justice shall be considered as material. The effect of material error has been dealt with in section 232, Cr.P.C. Sections 535 and 537, Cr.P.C. are also directed in this behalf and have been enacted with the same purpose as discussed above. These sections read as under;-- "535. <u>Effect of omission to prepare charge.</u>---(1) No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed unless in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks that failure of justice has been occasioned by an omission to frame a charge, it shall order that a charge be framed, and that the trial be recommenced from the point immediately after the framing of the charge.
537. Finding or sentence when reversible by reason of error or omission in charge or other proceedings.---Subject to provisions here in before contained, no finding, sentence, order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or an appeal or revision on account---
(a) of any error, omission or irregularity in the complaint, report by police officer under section 173, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding.; under this Code, or
(b) of any error, Commission or irregularity in the mode of trial, including any misjoinder of charge, unless such error, omission or irregularity has in fact occasioned a failure of justice."
96. A reading of all the above sections shows that the moot point for consideration is whether any error, omission or irregularity has occasioned a failure of justice and in this direction the pertinent point is whether an accused person was misled or any prejudice was caused to him in defending the charge for which he is convicted.
97. Keeping the above principles in, view, we proceed to examine the repo under section 173, Cr.P.C.
98. Reference under section 18(a) of NAB Ordinance, the copies whereof were supplied to the accused/ appellants and the contents of charge. The report under section 173, Cr.P.C. contains a detailed prosecution version in respect of the known sources of income of the two appellants from the year 1970 to the year 1996 and the assets held by them during this entire period. Mr. Khalid Anwar, contended during his arguments that paras. 4, 5 and 6 of the reference should be read together.
99. He has pointed out that in para. 6 of the reference, the appellant Abdul Aziz Memon has been described as holder of public office. We are, persuaded to agree with his submission that no only paras. 4, 5 and 6. but the entire reference is to be read as a whole. However, we do not agree with the proposition that reading of the reference leads to the conclusion that appellant Abdul Aziz Memon was referred for trial by the Accountability Court for the period between the years 1993 and 1996 only when he was holding a public office. No doubt in para. 6 of the reference appellant Abdul Aziz Memon, is described as holder of public office but in para. 4 of the reference it is specifically stated that the investigation was held for the period since 1985 onwards. It was sufficient to put the appellants to notice that they were sent up to face trial to explain the acquiring/owning of properties/assets for the entire period from 1985 onwards. Likewise although in the charge accused Abdul Aziz Memon has been described as holder of public office but it is to be read with reference to the context. The first para. of the charge contains that accused Abdul Aziz Memon was employed with UBL during the 'period 1972 to 1993 and then proceeded on to state that he was member of National Assembly from 1993 to 1996 and being holder of public office he abused his official position and authority and using corruption and corrupt practices accumulated movable/immovable properties in his name. F Details of all the properties held by the two appellants are contained in the charge and the trial Court has not considered any property other than mentioned in the charge for the purpose of recording conviction and therefore, the trial Court made substantial compliance with the requirement of law pertaining to the framing of charge. Mr. Khalid Anwar, learned counsel for the appellants was not able to demonstrate that any failure of justice was occasioned or the appellants/accused were misled in leading their defence. We are, therefore, of the considered opinion that, the contention of Mr. Khalid Anwar that there is no nexus between the charge and conviction or there is any material error or omission whereby the accountability of the appellants may be restricted to the years between 1993 and 1996 only, is not tenable.
100. This brings us to the contention of Mr. Khalid Anwar that in section 9(v) which contains the definition of offence for which appellants were tried and in section 10(a) under which the appellants have been convicted and section 14(c) which contains the provisions pertaining to presumption against the accused, the Legislature has used expression, "known sources of income" while the learned trial Court, has added the word "legal" to the expression used by the Legislature, in the charge and the findings and has added the word 'legitimate' in the Point No.3, for consideration with the result that the trial Court has travelled beyond the mandate of law. He has contended that, the sole requirement of law is that an accused person under the NAB Ordinance facing trial for the offence defined in section 9(a)(v) and punishable under section 10(a), should give reasonable account for holding the property and should furnish known sources of income, showing thereby that the assets or pecuniary resources are not disproportionate to such known sources of income. Elaborating his contention, Mr. Khalid Anwar, submitted that, if an accused person discloses the source of income for acquiring/owning/possessing an asset, it would be sufficient discharge of the burden and the Accountability Court is not empowered under the law to probe if the source was legal or illegal or it was legitimate or illegitimate. He has canvassed the view that, it would be sufficient compliance with the requirement of law if an accused person under the NAB Ordinance discloses the sources of funds from which art assets was acquired/received, the onus shall be satisfactorily discharged on the part of an accused.
101. After a careful consideration of the contention raised by Mr. Khalid Anwar, we are of the view that there are two aspects which require consideration. The first, whether mere use of the words "legal" and "legitimate", by the trial Court in the charge or in findings amount to any illegality or material irregularity which is sufficient per se to set aside the impugned conviction and sentence. Without any elaborate discussion, we can say without any hesitation that mere use of the words 'legal' or 'legitimate' has not occasioned any failure of justice and does not amount to any illegality or even irregularity warranting setting aside of the impugned conviction and sentence or even drawing any adverse inference in respect of the impugned conviction and sentence. The second aspect is, whether explanation furnished by the appellants/accused persons in respect of acquiring/possessing the assets has the effect of discharging the onus laid on the accused persons and obliging the Accountability Court to accept the assertion as gospel's truth. For this purpose, we will revert to the expressions used by the Legislature in the NAB Ordinance. In section 5
(c) while defining the term 'assets' the Legislature has used expression, "for which they cannot reasonably account".
102. In section 9(a)(v) one of the acts constituting the offence of corruption and corrupt practices is if holder of a public office or any other person or his dependents or Benamidars own, possess, or have acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he. cannot reasonably account for. In section 10(a) the expression used is, "such of the assets and property of such person which is found to be disproportionate to the known sources of his income". In section 14(c) the expression used is, "the accused person or any other on his behalf, is in possession for which the accused person cannot satisfactorily account,, of property or pecuniary resources disproportionate to this known sources of income".
103. A bare reading of the above expressions shows that, the requirement of law is that an accused person holding/ possessing an asset shall give satisfactory account of holding/possessing the same and that the property/pecuniary resources are not disproportionate to his known sources of income. It is the established principle of the interpretation of statutes, no word is to be read in isolation and that the words used is a statute take colour and complexion from the context in which they are used and that, every word used in the statutes has to be given a meaning and the effect of a provision of law is to be considered in its totality and in the context of the entire scheme in a particular statute. Keeping these principles in view, we are, of the opinion that, the contention of Mr. Khalid Anwar, that mere disclosure of source by an accused person under the NAB Ordinance is sufficient and no further probe about the legality, legitimacy or genuineness of the source should be probed into by the Accountability Court, is to be examined with reference to the expressions used in the statutes in its totality. We are further of the opinion that, the words "reasonably", "satisfactorily", "account for" and "his known" preceding the words "sources of income" require consideration for determining as to when an accused person would be held to have discharged his burden in law and what are the conditions precedent obliging the Court to accept explanation furnished by an accused person.
104. The above expressions have not been defined in the NAB Ordinance and consequently, we have to fall back on the dictionary meanings of the above expressions and their general connotation in the common parlance. The first expression is 'reasonably' and we are of the opinion that, in common parlance the word 'reasonable' connotes an act, word, deed, or explanation which appeals to. reason. Here the question arises, as to what is meant by the word "reason". It has been defined in the Chamber's 20th Century Dictionary (1983 Edition), as justification of an act or belief. It also carries the meaning of an act being logical. The adjective "reasonable" has the meaning of being endowed with reason; rational and just. The expression "satisfactory", means convincing and free from doubt. The word "account for" stands for giving reason or explanation. The meaning of "known" is so obvious that, it is not necessary to define the same. Thus, accumulative effect of the use of all above expressions is, that, if an accused person facing trial for tin. offence of corruption and corrupt practices for holding/possessing right or title in any movable or immovable property or for having pecuniary resources disproportionate to his known sources of income or in respect of any properties held by his dependents or Benamidars, the presumption under section 14(c) shall be available to the prosecution if the accused is not able to give any explanation winch is reasonable, logical and convincing. If he is not able to show that, the properties held by him or his dependents/Benamidars are not disproportionate to his known sources of income, the Court shall be legitimately entitled to presume that the accused person is guilty of the offence of corruption or corrupt practices and his conviction, therefor, shall not be invalid by reason only that, it is based solely on such a presumption.
105. We are, therefore, not persuaded to agree with the contention of Mr. Khalid Anwar, that an accused person facing trial for the charge of corruption and corrupt practices under the NAB Ordinance shall be deemed to have discharged the burden laid on accused person and the presumption under section 14(c) shall not be available to the Court with the mere disclosure of source of acquiring a property/asset or pecuniary resources. This burden shall be discharged by disclosing the known sources of his income and not by the disclosure of sources which have no nexus with his income or which are not logical, convincing and free from doubt. If the sources disclosed do not provide justification of an act, such as the disclosure of source which leads to a name lender only shall never be treated as reasonable, satisfactory- accounting of holding/possessing the assets and pecuniary resources. Mr. Khalid Anwar, has submitted that, the prosecution has mainly placed reliance on the wealth statements and the wealth tax returns filed by the accused persons before the tax officials and according to him this material cannot be used against the accused persons.
106. His contention is that, first the accused persons were bold enough to declare the assets held by them to the tax officials and therefore, the inference would be that the declarations made were true and correct and secondly; the tax officials have not doubted the genuineness of the declarations made. However, Mr. Khalid Anwar, has very candidly stated that, he is not saying that the assessm ent orders passed by the tax officials are binding on the criminal Courts. His contention is to the extent that, an accused person is merely required to create doubts in the prosecution case and once an accused person succeeds in creating doubts, in the prosecution case, then he is entitled to the benefit of doubt and no conviction is warranted in such eventuality.
107. In support of his contention Mr. Khalid Anwar, has placed reliance on several judgments in criminal cases involving the offences punishable under the Pakistan Penal Code. In this regard, we are persuaded to agree with the contention of Mr. S.M. Zafar, learned counsel for the respondent that, the precedent law dealing with the concept of benefit of doubt in a criminal trial involving the ordinary offences are not applicable to the trial for the offences of corruption and corrupt practices. The reason being that, in ordinary criminal trial the prosecution is always required to establish its case beyond reasonable doubt and the burden is always on the prosecution to establish its case. As it is for the prosecution to establish its own case beyond reasonable doubt, therefore, if any accused person succeeds in creating a doubt in the prosecution case, he becomes entitled to acquittal by extension of the benefit of doubt. However, in corruption cases and particularly under the NAB Ordinance, such principles of ordinary criminal trial are not attracted. In the ordinary criminal trial there is no concept of presumption against an accused, while in the cases tried under the NAB Ordinance, the prosecution is initially required to establish that certain properties or pecuniary resources are held/possessed by an accused person and once this fact is established then the burden is on accused person to satisfactory account for the holding of property or pecuniary resources and to further show that they are not disproportionate to his known sources of income or if there is any accretion to the pecuniary resources or property he must satisfactorily account for it, failing which the Court shall presume that the accused person is guilty of the offence of corruption and/or corrupt practices. Reading of the provisions contained in section 5(c), section 9(a) and section 14(c) of the NAB Ordinance, leads to the above conclusion.
108. The expression "The Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices", are further indicative of the fact that in the cases of corruption or corrupt practices tried under the NAB Ordinance, the prosecution has to discharge the initial burden that the accused person is holding/possessing the properties or pecuniary resources disproportionate to his known sources of income and once it is established, the contrary is to be proved by the accused, The expression "unless the contrary is proved" indicates that like other ordinary criminal cases, the accused shall not be entitled for acquittal by merely creating some doubts in prosecution case but shall be required to prove that the properties/pecuniary resources held by him were not disproportionate to his known sources of income and has to account for the same in a reasonable and satisfactory manner.
109. We are of the considered opinion that the principles relating to the burden of proof and benefit of doubt as applicable to an ordinary criminal trial are not applicable to the white collar crimes and the cases dealing with the corruption and corrupt practices. The ordinary crimes and white-collar crimes are to be placed within two separate and distinct categories. Mr. Khalid Anwar, in support of his contention that the principle of benefit of doubt is applicable in this case has placed reliance on a D.B. Judgment of Lahore High Court in the cases of Hakim Ali Zardari v. The State PLD 2002 Lahore 369. In this judgment their Lordships of the Lahore High Court referred to the dicta laid down by the Hon'ble Supreme Court in the case of Khan Asfandyar Wali and others v. The Federation of Pakistan PLD 2001 SC 607 as follows:-- "(1) The prosecution shall first make out a reasonable case against the accused charged under section 9(a) (vi) and (vii) of the NAB Ordinance.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have dis-harged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
110. It was with reference to section 14(d) of the NAB Ordinance, 1999.
111. Thereafter the learned Judges of the Lahore High Court cited a passage from Crawford's Interpretation of Laws as follows:--- "Criminal and Penal Statutes must be strictly coh.Lrued, that is, they cannot be enlarged or extended by intendment, implication, or by any equitable considerations. In other words, the language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purpose for which the statute was enacted."
112. The learned Judges of the Lahore High Court, thereafter resorted to dictionary meaning of several words used in section 3(1) (d) of the Ehtesab Ordinance, 1997 and ultimately held as follows:-- "It is by now a settled principle of criminal law that in cases of circumstantial evidence if the evidence led is capable of a reasonable alternative theory, the Court shall lean in favour of the said alternative theory and grant benefit of doubt to the accused."
113. In support of the above view, reliance was placed on the following case-law:--
(1) Siraj v. The Crown (PLD 1956 Federal Court 123); (2) Hurjee Mull v. Imam Ali Sircar (8 Calcutta Weekly Notes 278), and (3) Mujibur Rehman v. The State (PLD 1964 Dacca 330).
114. We are of the view that, the ratio of the above judgments is of no help to the appellants in this case.
115. First, for the reason that in the cited case the provisions contained in section 14(d) of the NAB Ordinance, were under consideration and in the present case the relevant provision is contained in section 14(c) of the NAB Ordinance. Secondly, the facts of the present case are distinguishable from the facts of the cited case and it has been held by the Hon'ble Supreme Court in the case of Irshad Ahmed Shaikh v. The State 2000 SCMR 814 as follows:-- "Every case is an authority to the extent the same decides legal controversy encompassed in it. In other words, the declaration of law has to be confined to the four corners of the dispute agitated before the Court. The rest, if any, is obiter and obiter except of this Court or, before it of the Privy Council is not/has not been binding . "
116. Thirdly, the principles governing the white-collar crime have been laid down by the Hon'ble Supreme Court in the case of Imtiaz Ahmed v. The State PLD 1997 SC 545. Although in this case, the Hon'ble Supreme Court was considering a bail application but the principles laid down are in general terms and shall apply to the final determination of the guilt or innocence of an accused charged with corruption or corrupt practices. The Hon'ble Supreme Court has observed as "I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and an offence which is directed against the society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail."
117. The Hon'ble Supreme Court has further observed as under:--- "The Court should not be oblivious of the fact that at present Pakistan is confronted with many serious problems/difficulties of national and international magnitude, which cannot be resolved unless the whole Pakistani nation as a united entity makes efforts. The desire to amass wealth by illegal means has penetrated in all walks of life. The people commit offences detrimental to the society and the country for money. Some of the holders of the public office commit or facilitate commission of offences for monetary consideration. In the above scenario the Court's approach should be reformation-oriented with the desire to suppress the above mischieves. To achieve the aboYe objective, it is imperative that the Courts should apply strictly the laws which are designed and intended to eradicate the above national evils but at the same time, they are duty bound to ensure that the above approach should not result in miscarriage of justice. It should not be overlooked that Article 9 of our Constitution, which relates to a fundamental right guarantees life and liberty of every person. Life, inter alia, includes the right to have access to a fair and independent judicial forum for redress. A balance is to be struck between national and individual interest/right."
118. Respectfully following the dicta laid down by the Hon'ble Supreme Court reproduced above, it is held that, the ratio of the judgments in ordinary criminal cases pertaining to the benefit of doubt are not attracted to the case coming within the purview of white collar crime and particularly pertaining to the corruption and corrupt practices. The laws as well as the principles governing their interpretation and application are not static. The law is a living organism L and the Courts should always have the dynamic approach, which is not possible by remaining oblivious to the objective conditions prevailing in a society at a given time. Thus, in respect of the offence of corruption and corrupt practices defined in section 9(a)(v) and the presumption in law as contained in section 14 (c) of NAB Ordinance, the prosecution is initially required to establish the possession of properties or pecuniary resources disproportionate to known sources of income.
119. Once this fact is established by production of evidence or with the admission of accused persons, the onus shifts to the accused person to prove the contrary and give satisfactory account of holding/possessing the properties or pecuniary resources failing which the Court shall be legitimately justified in presuming the accused persons to be guilty of offence of corruption and or corrupt practices and award the conviction provided in law. Mere disclosure of a source for acquiring an asset would not be deemed sufficient to discharge the onus laid on an accused person under NAB Ordinance. The source disclosed by an accused person should be reasonable, logical, satisfactory and known, meaning thereby that not merely the immediate source should be disclosed bite the ultimate source from where the funds emanated shall also be disclosed. For instance if a person discloses that he received a gift from a particular person, it would not be sufficient accounting for the properties and would not be treated as reasonable and satisfactory source of income. If the donor is merely a name lender and has no known and visible sources of income/funds the plea shall not be acceptable as it would neither be reasonable nor logical.
120. Likewise if a person claims to have purchased a property by selling the Saving Certificates or Foreign Exchange Bearer Certificates, it may be treated as immediate source but it would not be sufficient per se to hold the same as a reasonable and satisfactory known source of income. An accused person taking such plea, is further required to prove the source of acquiring the Saving Certificates/F.E.B.Cs. and if there is a chain of sources it, should be traced up to original source. A mere creation of smoke screen would not be sufficient discharge of burden to ward of the assumption under section 14(c) of the NAB Ordinance.
121. Mr. Khalid Anwar next contended that, several assets were acquired by encashment of F.E.B.Cs. and no probe is permitted to ascertain the source of acquiring the F.E.B.Cs. by virtue of the provisions contained in the Protection of Economic Reforms Act, 1992. This contention is not tenable, as it already stands repelled by this very Bench in the case of Hakim Ali Zardari v. The State, PLD 2002 Karachi 369. In the cited case it has been held that, the protection/immunity under the Protection of Economic Reforms Act, 1992, is not attracted to the criminal prosecution under the NAB Ordinance. This issue has been considered by the Honourable Supreme Court also in the case of Irshad Ahmed Shaikh v. The State (2000 SCMR 814). The Honourable Supreme Court has held, that, "the Protection under the Economic Reforms Act, 1992 does not provide a blanket protection vis-a- vis criminal acts and liabilities". We reiterate our views held in the case of Hakim Ali Zardari (supra) and respectfully following the law as laid down by the Honorable Supreme Court in the case of Irshad Ahmad Shaikh (supra) it is held that the protection/immunity under the Protection of Economic Reforms Act, 1992 and F.E.B.Cs. Rules are not extended to a criminal trial under the NAB Ordinance. The provisions contained in the NAB Ordinance have overriding effect.
122. Mr. Khalid Anwar, learned counsel the appellants has contended that, the appellants have declared their entire assets to the Tax Authorities, Election Commission of Pakistan and in the chart produced by them with their statement under section 342 of Criminal Procedure Code. He has contended that, although the assessment orders passed by the Assessing Officers are not binding on the criminal Court but the bold declarations made by the appellants, acceptance of the declarations and non-initiation of prosecution which they were empowered under the tax laws, is indicative of the fact that the acquiring of assets were reasonably explained and satisfactory justification was given. He has contended that, the total salary and allowances received by the appellant Abdul Aziz Memon in between 1993 and 1996 as Member National Assembly was Rs.12,82,615 and the total assets in the name of the appellant Abdul Aziz are worth, about Rs.15,00,000. He has submitted that, the appellant Aziz Memon being a M.N.A. and prior to that being an employee of U.B.L. could easily acquire the assets found in his name. He has maintained that, the appellants have reconciled the assets held/possessed by them which have been mainly acquired out of the gifts received by them and encashment of F.E.B.Cs. On the other hand, Mr. S.M.
123. Zafar, learned counsel for the respondent has submitted that, the holder of a public office is an "Amin". Such a person is required to be holding a character which is not tainted with dishonesty and acquiring of assets beyond the known source of income. He has contended that, appellant Abdul Aziz Memon is not able to explain the assets worth about Rs.10,00,000 and his wife Mst. Farida is not able to explain the properties worth about Rs.39,00,000. He has argued that, these figures are on the basis of valuation given by the appellants themselves, otherwise on the basis of market value of the properties, the unexplained amount is much higher. He has submitted that, for a period of few years Mst. Farida wife of Abdul Aziz Memon is-shown to have earned income from the investment in a firm engaged in the construction business.
124. Except this income she is admittedly, a household lady and has no independent source of income of her own and all the assets acquired by her are out of the wealth accumulated by appellants Abdul Aziz Memon. He has contended that, at least two properties were acquired by the appellant during the period when the appellant Abdul Aziz Menton was admittedly holder of a public office and both the appellants are not able to satisfactorily account for the said properties and to disclose the reasonable known source of income. In order to ascertain as to how far the declarations made by the appellants to the Tax Authorities, Election Commission of Pakistan under Representation of the People Act, 1976 and the reconciliation of the income and properties held by the appellants given in the chart produced along with their statement under section 342 of Criminal Procedure Code are reliable, we will compare the declarations and the statements.
125. We have examined the wealth statement of appellant Abdul Aziz Memon, which is available on record. We find that in the assessment year 1993-1994, the net wealth has been shown at Rs.7,00,000. In the break-up the value of the properties held by Abdul Aziz, has been shown at Rs.2,29,364. The amount in bank, cash and prize bonds have been shown at Rs.13,31,230. The expenses and taxes have been shown at Rs.2,37,405. The advances for properties have been shown at Rs.2,80,000. The gross wealth has been shown at Rs.18,40,594. The loan has been shown at Rs.11,40,594. In this manner, the net Notice al the has been shown at Rs.7,00,000. The source of loan , at Rs.11,40,594 has not been disclosed. In the statement of income, investment and expenses filed by the appellants alongwith their statements under section 342 of Criminal Procedure Code, it is shown that appellant Abdul Aziz received salary and allowances from United Bank Limited at Rs.40,654 and received an amount of Rs.1,99,747 from United Bank Limited as Provident Fund and Gratuity on his resignation after adjustment of the loan and final settlements of all the dues. It is further shown in the statement that on acceptance of resignation in the year 1993, appellant Abdul Aziz paid back the sum of Rs.2,23,7351 representing salary and allowance) for the years 1989-1993, and the balance of Rs.5,40,594 as full and final payment of loans taken from the bank from time to time. If the statement under section .342 of Criminal Procedure CgOe is accepted the total amount of loan received'by appellant Abdul Aziz Memon up to the year 1993 from United Bank Limited was Rs.5,40,594. If this amount of loan is deducted from the figure of loan shown in the wealth statement for the assessm ent year 1993-94 (as on 30-6-1993), the difference of Rs.6,00,000 is not explained.
126. In the wealth statement for the assessment year 1994-95 (as on 30-6-1994), the properties held are shown at Rs.2,29,364 (the same figure as shown in the earlier year). The amount in bank, cash and prize bonds have been shown at Rs.4,90,636. The advance paid for the properties is shown. at Rs.2,80,000. The gross Wealth has been shown at Rs.10,00,000, loan has been shown at Rs.3,00,000 and the net wealth has been shown at Rs.7,00,000. It is not shown as to whom the amount of Rs.8,40,594 was paid. If the amount of loan paid to the bank at Rs.5,40,594 is taken into consideration. the amount of Rs.3,00,000 has not been explained and it is not shown as to from whom this loan of Rs.3,00,000 was taken.
127. In the wealth statement for the assessment year 1995-96, the value of the property held has been shown at Rs.2,29,364.
128. The amount in bank, cash in hand and prize bonds has been shown at Rs.3,93,746. The amount paid in advance for properties has been shown at Rs.2,80,000. The loan has been shown at Rs.3,00,000 and the net wealth has been shown at Rs.6,03,110. In the chart furnished with the statement under section 342 of Criminal Procedure Code, appellant Abdul Aziz Memon is shown to have received total amount of Rs.4,16,822 from the National Assembly. During this period the amount paid on account of utility bills and taxes is shown at Rs.3,60,000 against the amount of Rs.2,13,712 shown in the wealth statement. In the chart furnished with the 342 Cr.P.C. statement, appellant Abdul Aziz has shown to have gifted Rs.3,00,000 to his nephew Muhammad Rizwan and again to have received a gift from same Muhammad Rizwan at Rs.3,00,000. Thus, this amount has been squired of. In the year 1995. he has shown the debit as follows: Expenses on 'account of utility bills and taxes Rs.3,60,000 Paid to Muhammad Rizwan as gift Rs.3,00,000 Paid to Memon Construction Company against booking of Rabia Bungalow, G.T.
129. Road Rs.3,50,000 Paid Membership Fee for Parlia - mentarian Housing Society, Islamabad Rs.2,00,000 Purchased F.E.B.CsRs.5,00,000 Total Rs.17,00,000 On credit side, he has shown the following:
(1) Received from National AssemblyRs.4,16,822
(2) Received from sale of Rabia BungalowRs.6,00,000
(3) Received gift from Muhanunad Rizwan Rs.3,00,000 Total RS.13,16,822 It is not explained as to how appellant Abdul Aziz Memon spent more amount than the total amount received by him.
130. In the wealth statement for assessm ent year 1996-97 (as on 30-6-1996) properties held have been shown at Rs.2,29,364. Bank, cash and prize bonds have been shown at Rs.37,746. Advance for properties have been shown at Rs.8,30,000. The loan has been shown at Rs.1,05,000. Salary and allowances have been shown at Rs.4,24,570. F.E.B.Cs. have been shown to have been purchased at Rs.5,00,000 and gift from Muhammad Rizwan has been shown at Rs.3,00,000. The expenses and taxes have been shown at Rs.3,85,570. Gift to wife. Farida has been shown at Rs.8,35,000.
131. Here it would be pertinent to note that the gift is alleged to have been given to Muhammad Rizwan (nephew of accused Abdul Aziz) at Rs.3,00,000 in June, 1995 and the same amount is received back as gift from Muhammad Rizwan on 3-7-1995. In the year ending 30th of June 1996, a comparison of the wealth statement for the assessment year 1995-96 and the assessment year 1996-97, shows that in the assessm ent year 1995-96 the amount in cash, bank and the prize bonds was Rs.3,93,746.
132. In the assessm ent year 1996-97 it has been shown at Rs.37,746. It means an amount of Rs.3,66,000 was withdrawn from the bank. The total amount of salary and allowances as M.N.A. is shown at Rs.4,24,570. The total of these two figures comes to Rs.7,90,570. If the amount of Rs.3,00,000 alleged to have been received from Muhammad Rizwan, which is very dubious transaction, is also taken into consideration the total amount comes to Rs.10,90,570. As against this, we find that in the assessm ent year 1995-96 the advance for properties was shown at Rs.2,80,000 while in the assessm ent year 1996-97 the advance for the properties is shown at Rs.8,30,000. It means an amount of Rs.5,50,000 has been spent as investment towards the acquiring of properties. In the assessm ent year 1995-96 loan was shown at Rs.3,00,000, which has been reduced to Rs.1,05,000 in the assessm ent year 1996-97. It means the loan has been paid to the extent of Rs.1,95,000. F.E.B.Cs. is shown at Rs.5,00,000, which was not possessed in the assessment year 1995-96 (ending 30th June 1995). The expenses and taxes are shown at Rs.3,85,570. A gift of Rs.4,50,000 is shown to have been given to wife. The total of these figures comes to Rs.20,80,570. The contention of prosecution is that the total figures of Rs.4,24,570 shown as salary and allowances is not correct for the reason that the allowances must have been spent which have not been deducted. The receiving of gift of Rs.3,00,000 from Muhammad Rizwan to whom the same amount was allegedly gifted a few days earlier is also an attempt to justify the source of income. However, if all these contentions of the prosecution are accepted the question remains as to how during the year in between 1-7-1995 and 30-6-1996 accused/appellant Abdul Aziz Memon spent Rs.20,80,570 against the total known resources of Rs.10,90,570.
133. Moreover, when the wealth statement filed with the Income Tax Department for the period ending 30th June, 1996 is compared with the statement filed with the Election Commission of Pakistan Exh.32/2, it transpires that the amount in bank cash and prize bond in the wealth statement on 30- 6-1996 is shown at Rs.37,746 and in the statement with the Election Commission of Pakistan, it is shown at Rs.3,93,746. It is further interesting to note that in the wealth statement for the assessment year 1995-96 (30-6-1995) the cash in hand amount in bank and prize bond is shown at Rs.3,93,746 and the same amount has been declared before the Election Commission as well. However, for the period ending 30-6-1996 the same amount has been declared before the. Election Commission of Pakistan alongwith the investment of Rs.5,50,000 but it has been reduced in the wealth statement for the assessm ent year 1996-97 to Rs.37,746. Likewise in the statement with the Election Commission of Pakistan for the period ending 30-6-1995, the loan from Rabia Associates has been shown at Rs.3,00,000 and the same amount of loan has been shown for the period 30-6-1996, but in the wealth statement for the period ending 30-6-1996 the reduced amount of loan has been shown at Rs.1,05,000.
134. Now we come to the declarations made by appellant/accused Farida Aziz wife of Abdul Aziz Memon. In the assessm ent year 1988-89 (ending 31-12-1987) business income has been declared at Rs.47,668 while in the chart (hereinafter referred to as the chart) produced with the statement under section 342, Criminal Procedure Code, it has been shown at Rs.64,560. In the assessment year 1989-90 (ending 31-12-1988) business income has been shown at Rs.1,22,935 while in the chart, it has been shown at Rs.1,86,834.
135. In the assessm ent year 1990-91 (ending 31-12-1989) business income has been shown at Rs.1,70,368. Loss from Rabia Associates has been shown at Rs.1,42,777. This loss has been shown in the chart in the year 1991. In the chart the income from Memon Associates has been shown at Rs.26,40,72. Investment in Rabia Associates has been shown at Rs.3,50,000 and the refund with profit has been shown at Rs.4,57,250. Profit has been shown at Rs.1,07,250. This profit has not shown in the return for the assessm ent year 1990-91. In the wealth statement for the assessment year 1990-91 Exh. 15/36 the investment in the books of Memon Builders hai been shown at Rs.9,84,629 and with Rabia Associates at Rs.1,07,250. A flat in Safari View opposite Block-7, Gulshan-e-Iqbal has been shown to have been booked with the investment of Rs.80,000. Another investment has been made in flat on Survey No.41, Rampart Road at Rs.80,850 and prize bond as well as deposit in banks has been shown at Rs.60,000. A loan from Fatima Bai has been shown at Rs.2,00,000. Total net wealth has been shown at Rs.11,32,729. In the chart loan from Fatima Bai has not been shown. First investment by Mst. Farida Aziz has been shown in the year 1983 in respect of Flat No.44, Safari View Apartment at Rs.23,000. This transaction has not been shown in the chart A comparison of the wealth statement and the chart shows that in the wealth statement cash, prize bond and bank deposit has been shown at Rs.60,000. In the chart investment of Rs.3,50,000 has been shown with Rabia Associates. The source in excess of Rs.60,000 has not been shown. In the wealth statement expenses have been shown at Rs.30,000 while in the chart expenses have been shown at Rs.48,000. In the wealth statement amount in the books of Rabia Associates has been shown at Rs.1,07,250. In the chart short term investment has been shown with Rabia Associates at Rs.4,57,250 which is inclusive of Rs.1,07,250. The entire amount has been shown to have been refunded and it has not been explained as to how the amount of Rs.1,07,250 was available in the books of Rabia Associates when in the chart the entire amount has been shown to have been refunded. In the wealth statement availability of Rs.4,57,250 has not been shown. In the chart purchase of National Saving Certificates at Rs.5,00,000 has been shown while it has not been shown in the wealth statement. In the chart investment shown to have been made with Memon Builders in the year 1987 is Rs.7,00,000 and during the period ending 31-12-1989 investment with Memon Builders is shown at Rs.7,64,560, which is inclusive of profit at Rs.64,560. In the chart purchase of Flat No.31/1, 3rd Floor, Jilani Palace for Rs.90,000, the purchase of open residential Plot No.59/A, Block-16-C, Hawksbay and payment of first instalment of Rs.80,000 and purchase of office No.4/1 Arkay Square for Rs.80,000 has been shown but in the wealth statement these investments have not been shown.
136. In the assessm ent year 1991-92 (ending 31-12-1990) the income from Memon Builders shown in the Income Tax Return is Rs.1,52,644. In the chart it has been shown at Rs.2,35,252. In the wealth statement for this period Exh.15/37, the value of gross assets has been shown at Rs.13,76,130, and the loan has been shown at Rs.3,30,000. In the wealth statement for the assessment year 1990-91 (as on 31-12-1989) the net wealth was shown at Rs.11,32,729 while in the wealth statement for the assessm ent year 1991-92 the wealth as on 31-12-1989 has been shown at Rs.8,82,701. It has not been explained as to how it was from Rs.11,32,729 to Rs.8,82, 701. A gift of Rs.1-,00,000 has been 'shown but the source has not been disclosed. The share of profit from Memon Builders has been shown at Rs.2,35, 252 as against Rs.1,52,644 in the return of income.. In Exhs.15/25 income-tax actually paid is shown at Rs.30,278 while in Exhs.15/37, the income-tax paid is shown at Rs.159,063. In the chart expenses have been shown at Rs.20,763, which does not tally with the figure given in the wealth statement. In the chart an amount of Rs.50,000 is shown to have been paid to Ayesha Ghani Trust on being appointed as. Trustee. This amount has not been shown in the wealth statement. In the return for the assessm ent year 1992-93 (for the period from 1-1-1991 to 30-6-1992) the income from Memon Builders has been shown at Rs.44,594 while in the wealth statement it has been shown at Rs.52,405. In this year drawing from Memon Builders has been shown at Rs.9,05,527 and sale proceeds of Flat No.A-4, Safari Heights has been shown at Rs.4,00,000. After deducting the expenses on payment of taxes and personal expenses the total wealth has been shown at Rs.14,21,545. In this year repayment of loan' has been shown at Rs.3,30,000 but it has not been disclosed as to whom the loan was paid. Purchase of Defence Saving Certificate has been shown at Rs.5,00,000 and the cash in hand has been shown at Rs.3,05,496. In the books of Memon Builders an amount of Rs.1,00,696 has been shown. In the chart- it has been shown that the partnership (Memon Builders) .stood dissolved and Flat No.A-4, Safari Heights came to her share, which was said for Rs.4,00,000. In this year loss paid to Rabia Associates has been shown at Rs.1,42,777. This amount was already shown to have been paid during the period ending 31-12-1990. Thus, the same amount is shown to have paid twice. An amount of Rs.1,05,208 is alleged to have been paid towards the purchase of plot in Lasbella Industrial Estate, but this amount was not shown in the wealth statement.
137. In the Income Tax Return for the assessment year 1993-94 (ending 30-6-1993) the business income has been shown at nil, as the firm Memon Builders was dissolved during the period relevant to the assessm ent year 1992-93. In the wealth statement for this year the sale proceeds of flat No.A-4, Safari Heights was shown at Rs.4,00,000 while this transaction was already shown in the assessm ent year 1992-93 and so also it was shown in the chart. In this year the amount paid on account of Income Tax/Super Tax is shown'at Rs.2,06,063. This year there was no income and the firm was already dissolved. It has not been explained as to how and on which income the Income Tax and Super Tax was paid. In the wealth statement .the contribution of household expenses is shown while it has not been shown in the chart. The position of the availability of cash is thit on 31- 12-1989 it was shown at Rs.60,000, in the year 1991-92 it was shown at Rs.60,000 and in the year 1992-93 drawings from Memon Builders were shown at Rs.9,05,527. Cash in hand was shown at Rs.3,19,497. Purchase of Defence Saving Certificate was shown at Rs.5,00,000. It may be mentioned that purchase of Defence Saving Certificate in the sum of Rs.5,00,000 was shown during the period relevant to the assessm ent year 1992-93 as well. A comparison of chart and wealth statement shows that in the chart an amount of Rs.1,66,666 is shown to have been paid to Lieda against Plot No.652 but it has not been declared in the wealth statement. In the chart pay order has been shown to have been received in the sum of Rs.5,00,000 on 1-3-1993 but it has not been shown in the Wealth statement. In the chart 3rd and 4th instalments of Rs.18,000 each is shown to have been paid for Plot No.59/A, Block 16-C, while in the wealth statement the total investment is shown at Rs.18,000 only. In the chart an amount of. Rs.94,640 is shown to have been received through Bank Draft from abroad but this amount has not been shown in -,the wealth statement. In the chart an amount of Rs.7,51,000 is shown to have been received from sale of Defence Saving Certificate worth Rs.5,00,000 but it has not been shown in the wealth statement. Rather purchase of Defence Saving Certificate worth Rs.5,00,000 has been shown. In the wealth statement cash as 30-6-1993 has been shown at Rs.3,19,497 while in the statement of assets filed with the Election Commission the balance in U.B.L. Kharadar Branch has been shown at Rs.3,539 and cash has been shown at Rs.3,95,303. In the chart total investment in the industrial plot at Hub Industrial Estate has been shown at Rs.1,66,666 while in the statement with Election Commission the value has been shown at Rs.8,15,625 while this property has not been shown in the wealth statement.
138. Now coming to the statements filed by the appellants before the Election Commission, we find that appellant Abdul Aziz has shown eight (8) properties in which investments were made and the cash/bank plus prize bonds have been shown at Rs.3,93,746 while the statement of assets as on 30-6-1996 shows nine (9) properties in which investments have been made. A comparison of the two statements shows that investment in Rabia Bungalow, G.T. Road, Rawalpindi as on 30-6-1995 was Rs.1,50,000 and as on 30-6-1996 it was Rs.5,50,000. It means an investment of Rs.4,00,000 was made in this property. New investment of Rs.2,00,000 was made against residential plot in Parliamentarian Housing Society. The total investment comes to Rs.6,00,000. The cash in hand .bank and prize bonds in both the years is same i.e. Rs.3,93,746. The liabilities in both the years have been shown at Rs.3,00,000 stated to be cash loan from Rabia Associates. In the chart the investment against Rabia Bungalow in the year 1995 has been shown at Rs.3,50,000 and in the same yeas it has been shown to have been sold for Rs.6,00,000. The two statements cannot be reconciled. If it was sold in the year 1995 for Rs.6,00,000, it could not have been shown in the assets as on 30-6-1996 filed with the Election Commission showing total investment of Rs.5,50,000. In the wealth statement for the assessm ent year 1996-97, (as on 30-6-1996) the properties held have been shown at Rs.2,29,364 and cash in hand, bank and prize bonds have been shown at Rs.37,746 and the loan has been shown at Rs.1,05,000. The F.E.B.Cs have been claimed to have been purchased at Rs.5,00,000. These figures do not tally at all with the statement of assets filed with the Election Commission of Pakistan.
139. The gist of material available on record is that except for the business income from Memon Builders, for few year, appellant Farida Aziz, a household lady has been totally dependent on her husband appellant Abdul Aziz. Appellant Abdul Aziz worked as Typist in U.B.L. from 1972 to 1993 when he tendered resignation with effect from the year 1989. The total amount which he received as salary and allowances from U.B.L. for the period from 1970-1993 is Rs.7,87,657. Out of this amount he refunded a sum of Rs.2,16,935 representing salaries received during the period 1989 to 1993. He had taken several loans from U.B.L. and at the time of resignation the total liability was Rs.5,40,594, which was adjusted against his Provident Fund and Gratuity. The total amount which he received on his resignation is Rs.1,99,747. This is the income of the appellants from known. sources. P.W.-2 Abdul Ghafoor Exh.10, P.W.-6 Abid Raza Exh.15, P.W.-14 Ghulam Farooq, Assistant Director, F.I.A. and Investigating Officer Exh.23 and P.W.-15, Muhammad Jamil Khan, Section Officer, Election Commission Office, Islamabad, Exh.25, have produced documents containing the necessary particulars of income and the assets held by the appellants. the appellants have furnished their explanation in their statements under section 342, Criminal Procedure Code and have furnished the chart showing the income from known sources, the properties held, by them and the explanation for acquiring assets disproportionate to their known sources of income. Form the testimony of witnesses and the documents on record position, which emerges is that appellant Abdul Aziz Memon, and his wife Farida Abdul Aziz who had very humble beginning, declared wealth worth millions on 30-6-1996. In the wealth statement under section 58 of the Income Tax Ordinance, 1979, Mst. Farida Abdul Aziz declared total net wealth at Rs.44,78,542. Appellant Abdul Aziz in his wealth tax returns for the assessment year 1996-97 as on 30-6-1996 declared total assets at Rs.13,21,771. In the statement filed with the Election Commission the total assets as on 30- 6-1996, held by Mst. Farida Abdul Aziz was declared at Rs.44,35,000 and appellant Abdul Aziz declared at Rs.14,58,110. We have discussed the discrepancies in various statements given by the appellants. We would again like to point out that appellant Abdul Aziz Memon in his wealth tax return for the year ending 30-6-1996 has shown 5 properties held by him while in the statement of assets declared to the Election Commission, 6 properties have been shown. Another discrepancy is that the payment towards plot in the Parliamentary Housing Society, in the wealth tax returns has been shown at Rs.2,30,000 and the figure filed with the Election Commission stands at Rs.2,00,000.
140. In the wealth tax returns the worth of other movable properties cash and bank is Rs.37,746 while in the statement filed with the Election Commission the declared figure is Rs.3,93,746. In the statement filed with the Election Commission the liability has been shown at Rs.3,00,000 which is alleged to be cash loan from Rabia Associates, Karachi. The Assessing Officer has not accepted this liability with the observation that no evidence of cash, loan was produced before the Assessing Officer. So far, appellant Mst. Farida is concerned, she has declared her total net wealth in the statement under section 58, Exhs.15/42 at Rs.44,78,542 and with the Election Commission at Rs.44,35,000. In the statement filed with the Election Commission by Mst. Farida Abdul Aziz, Seven properties have been shown while in the wealth statement under section 58 of the Income Tax Ordinance, 1979, Five properties only have been shown. In the wealth statement, bank, cash and prize bonds have been shown at Rs.2,23,907 and in the statement filed with the Election Commission this figure has been declared at Rs.1,54,362. A comparison of all these figures shows that none of the statements filed by the appellant are reliable and the appellants in their anxiety to reconcile their wealth with the known sources of income have fabricated a cock and bull story. The appellants have given the purchase value of their residential property bearing No.15/1 Street 30th Phase-V Extension, Khayaban-e-Shamsher Defence Housing Authority at Rs.23,53,000. This amount represents the value of semi-constructed building and the stamp duty. The seller of this plot P.W.-8, Muhammad Yamin Exh.17, has stated that, he sold it to appellant Mst. Farida Abdul Aziz with semi-constructed structure. After purchasing the said semi-constructed house she gave contract to him for Rs.4,00,000 and the material was provided by her. On completion of construction he handed over the same to appellant Mst. Farida Abdul Aziz. This testimony has gone almost un-challenged. It shows that, the investment on the purchase of House No.15/1, 30th Street, Phase-V, Ext. D.H.A., Karachi, on a plot measuring 600 sq. yds. is much more than declared by the appellants. They have suppressed the amount of Rs.4,00,000 paid to P.W.-8, Muhammad Yamin and have further suppressed the cost of material which was provided by the appellants to the contractor. There is nothing on record from which the value of material can be determined but it is common knowledge that the finishing and completion of the bungalows require substantial amount. Thus, whatever he worth of the material supplied by the appellants and the amount of Rs.4,00,000 paid to P.W.-8, Muhammad Yamin, on account of labour contract has been suppressed.
141. The appellant in his further statement under 342, Cr.P.C. has stated that the grant of loan is the major legal source. The amount of loan received by the appellant Abdul Aziz from U.B.L. is Rs.5,40,494 only. The meagre amount of salary received by appellant Abdul Aziz from UBL has already been discussed above and by no stretch of imagination any saving can be made from the said amount. It has already been referred that the loan of Rs.3,00,000 from Rabia Associates as on 30-6-1996 was not accepted by the Income Tax Officer for the reason that no evidence was produced in support of the alleged loan. The appellant Mst. Farida Abdul Aziz, has stated in her further statement under 342, Cr.P.C. Exh.28/2 that she purchased house in D.H.A., Karachi from her personal funds acquired by her from her father, brother-in-law Mr. Abdul Habib Memon and husband Abdul Aziz Memon. She has further stated that at her husband's asking she made investment in bonds, certificates and F.E.B.Cs. The main source for making investments with Memon Builders by appellant Mst. Farida Abdul Aziz, is the alleged bridal gift of 300 tolas of gold by the parents of Mst. Farida Abdul Aziz. D.W.-1, Mst. Khatija Bai, aunt of appellant Abdul Aziz Memon, has stated that, she brought up appellant Abdul Aziz Memon, his two brothers Habib Memon and Jamil Memon and one sister Mst. Hameeda. She has stated that Abdul Aziz Memon was educated from Hussani Yateem Khana, as he had no parents to look after them. She has deposed that appellant Abdul Aziz and his brother Habib Memon were married to daughters of his sister. She has further stated that her sister was rich. She initially stated that 10 to 12 tolas of gold were given by her sister to Mst. Farida Abdul Aziz and her sister Arnina at the time of marriage. She subsequently, stated that both the sisters were given 300 tolas gold each by their mother. In cross-examination, she has conceded that appellant Abdul Aziz Memon and his brothers did not inherit any property as their father had nothing. The plea of accused Abdul Aziz Memon was that he was sent to Hussaini Yateem Khana, because the standard of education there was very good and that the expenses were borne by his guardian. D.W.-1, Mst. Khatija Bai, has stated that except appellant Abdul Aziz Memon and his two brothers no other boy from their relatives received education from Hussain Yateem Khana. He is contradicted by C.W.-7, Yousaf son of Haji, Secretary, Hussani Yateem Khana, Exh.
52. He has stated that appellant Abdul Aziz Memon never paid any amount towards his stay in Hussaini Yateem Khana.
142. The appellants in the chart submitted by them with the statement under section 342, Criminal Procedure Code have shown certain gifts from Noor Muhammad husband of D.W.-1; Khatija Bai.
143. First gift of Rs.1,00,000 is shown to have been given in the year 1979 and the second gift of Rs.1,00,000 is shown to have been given in the year 1990. This witness has stated that at so many occasions her husband gave cash amount to Habib and appellant Aziz Memon. She has specifically stated that at the time of marriage of brother-in-law of Aziz Memon her husband gave Rs.1,00,000 to appellant Aziz Memon. However, she has stated that she does not remember for how many times her husband gave money to the appellant Abdul Aziz. She has admitted that she was living in the same house alongwith appellant Abdul. Aziz and his brothers. Her husband Noor Muhammad was also living there. She has stated that her husband was dealing in the milk business and buffaloes. She has produced extract from the property register, Exh.29/1 in respect of the house where she was living with appellant Abdul Aziz Memon and his brothers. The total area of this house is 48 sq. yds. Mr. S.M. Zaffar, has rightly argued that in such a small house in which two families were living, it was not possible to rear buffaloes also. In cross-examination she has stated that her husband used to keep money in bank and lockers but has conceded that the does not possess any record of the business. She has further stated that 25 buffaloes were owned by her husband. It all appears to be figment of imagination. The testimony of this witness is not confidence-inspiring on the point of giving of Rs.1,00,000 on two occasions to appellant Abdul Aziz Memon. The factum of these gifts has been invented jut to create a source of acquiring money, which is not believable at all. D.W.-2 Hashim son of Yousuf, father of appellant Mst. Farida Aziz has stated that he had business of Mini Buses plying on route P-1 and had 18 Mini Buses. He has stated that he left Pakistan for Dubai in the year 1957 where he was doing business of gold and watches.
144. He has further stated that at the time of marriage of his daughters Mst. Amina and Mst. Farida, he had given 300 tolas of gold to each of them alongwith other dowry articles. However, this witness has not produced any material to substantiate his contention. In cross-examination he has stated that after coming back from Dubai to Pakistan he had started living in Kagzi Bazar in the house of his sister-in-law. In cross-examination he has stated that no Mini Bus had never been registered in his name or in the name of his son. He has further stated that neither he was maintaining any bank account in Pakistan prior to his proceeding to Dubai, nor he maintained any account in Pakistan while he was in Dubai. He has conceded that he never sent any money in Pakistan through banking channel and never became an income-tax payer. He did not file any wealth statement in Pakistan.
145. He stated that he had the documents, showing his business in Dubai, but has misplaced them. He has further stated that he had no receipts of purchasing of gold which he gave 1,o his daughters at the time of marriage. fie has stated that he brought the gold from Dubai but he had no documentary proof in this regard. He had conceded that he has no property in Pakistan. A bare perusal of his statement shows that he is not able to show that he has ever remained a man of means. A person who is alleged to have given 600 tolas of gold to his two daughters had neither maintained any bank account nor was ever a taxpayer. He has never filed any wealth tax return.
146. His testimony is not worth reliance at all.
147. D.W.-3 Ghulam Muhammad, has stated that he is a goldsmith and had purchased 3243 grams of gold from appellant Mst. Farida Aziz in the year 1985. In cross-examination he has stated that he has never maintained book of accounts and has never maintained record of the receipts issued by him. He has not maintained any register regarding purchase of gold ornaments and has not maintained any book containing payments to the customers. He has stated that the jewellery sold by appellant Mst. Farida Aziz was sold by him to another customer who paid the amount to Mst.
148. Farida Aziz but he did not obtain the receipt from the customer to whom he sold the golden ornaments. This witness does not know English and the receipt which he has produced as Exh.31/1, shows that the name of appellant Mst. Farida Aziz and her address is written in English, while it is signed by him in Gujrati. It is not explained as to how he has written the name of appellant in English when he does not know English at all.
149. P.W.-6, Muhammad Farooq Memon Faria, Nazim Saddar Town, was examined by the appellant to testify the financial position of Noor Muhammad husband of D.W-1, Mst Khatija Bai. He has stated that, Noor Muhammad was owning a buffalo cattle farm and that he got appellant Abdul Aziz Memon admitted in boarding house of Memon Community for higher education. This is .nothing but a simple lie, as appellant Abdul Aziz Memon was not admitted in boarding house but in a Yateem Khana, where he received education up to matriculation only. In cross-examination he has stated that house of. Noor Muhammad was big one having 3-4 'rooms and a courtyard. He has further stated in cross-examination that on several occasions he went to Bara of Noor Muhammad which was situated in Kagzi Bazar and it was in the same house where Noor Muhammad was residing. The statement of this witness is bundle of lies as D.W.-1, Mst. Khatija Bai, has produced Extract from Property Register, which shows that the house in which she was living with her husband and entire family of the appellant Abdul Aziz Memon was measuring 48 sq. yds. only. On such a small plot it is not possible to construct a big house having 3-4 rooms and courtyard and to maintain a cattle farm as well.
150. C.W.-3, Abdul Majeed, Exh. 41, has produced the statement of account in the name of appellant Mst.
151. Farida Bano, Exh.41/1 and the Ledger of Account in the name of appellant Abdul Aziz Memon, Exh.41/2. A perusal of the statement of account and ledger shows that the amount of Rs.5,83,825 alleged to have been received was never deposited in the account and likewise the gifts allegedly received by 'appellant Abdul Aziz were also not deposited in the bank accounts.
152. D.W.-9, Habib Memon, Exh.42, the elder brother of appellant Abdul Aziz Memon, is the person from whom most of the money is alleged to have been received by the two appellants. He has stated that he was appointed Junior Clerk in the National Bank of Pakistan in the year 1965 and appellant Abdul Aziz Memon was appointed in U.B.L. in 1970. He worked in the National Bank up to 1981 and thereafter, resigned and proceeded to Saudi Arabia. He has stated that for the first six months he worked in Macca Municipality and thereafter started his business. He has stated that he used to remit his earnings from Saudi Arabia to appellant Abdul Aziz Memon, Mst. Farida Aziz and his wife, in the sum of Rs.3,00,000 or 3,50,000 per year. He has produced photocopies of bank drafts, but the original was not produced in spite of objection raised by the Special Prosecutor. He further stated that he brought Saudi Rial 1,98,900 and U.S. dollars 15000 in the year 1989. He has further stated that he sent other remittances also from Saudi Arabia but the record was not available with him. He has further stated that he came back to Pakistan in the year 1990 and started his business. This witness has stated in cross-examination that his wife Mst. Arnim and appellant Mst. Farida Aziz were given 300 tolas of golden ornaments each and the other daughters of Hashim were also given 300 tolas of golden ornaments each. However, there is no evidence in this regard. He has produced a photocopy of bank draft in the sum of U.S. dollars 3,500 in favour of Mst. Farida Aziz, Exh. 42/3 but the original has not been produced in spite of objection raised by the Special Prosecutor. He has stated that his sons and son of appellant Abdul Aziz Memon sent money from time to time from the America through the visitors or by other means, however, no evidence was produced to show the remittances from America. He has stated that he was witness to the gifts executed between Aziz Memon and Rizwan in the month of June, 1995 and July, 1995. He has stated that the foreign currency which he had brought in the year 1989 were encashed, piecemeal in the years 1989, 1993 and 1995. He has further stated that gift Rs.11,28,200 to Mst. Farida was given by him after encashment of foreign currency and has produced declaration of gift Exh.42/15. He has further stated that he gifted an amount of Rs.8,50,000 to Mst. Farida after getting his F.E.B.Cs. encashed. He has further stated that he alongwith Mst. Farida purchased a plot in Lasbella Industrial Estate, in the year 1992-93 for Rs.8,15,325. He has further stated that this plot was sold for Rs.13.15,325 and Mst.
153. Farida was given 1/3rd share. In cross-examination he has stated that he does not remember as to how much amount was in balance in bank account when he proceeded to Saudi Arabia. He has further conceded that the had no document to show that he was doing business in Saudi Arabia, because as per Saudi laws business by outsiders was illegal. He has further stated that he does not remember the name of the persons from whom he got the foreign currency encashed. He has further conceded that he did not declare foreign currency in any of the Income Tax or Wealth Tax Returns. He has further stated that he has started filing income-tax return from the year 1996. He has denied the suggestion that the gift-deeds have been prepared to save the accused persons.
154. Farida was given by him after encashment of foreign currency and has produced declaration of gift Exh. 42/15. He has further stated that he gifted an amount of Rs.8,50,000 to Mst. Farida afer getting his F.E.B.Cs. encahsed. He has further stated that he alongwith Mst.Farida purchased a plot in Lasbella Industrial Estate, in the year 199293 for Rs.8,15,325. He has further stated that this plot was sold for Rs.13,15,325 and Mst. Farida was given 1/3rd share. In cross-examination he has stated that he does not remember as to how much amount was in balance in bank account when he proceeded to Saudi Arabia. He has further conceded that he had no document to show that he was doing business in Saudi Arabia, because as per Saudi laws business by outsiders was illegal.
155. He has further stated that he does not remember the name of the persons from whom he got the foreign currency enchased. He has further conceded that he did not declare foregin currency in any of the Income-tax or Wealth Tax Returns. He has further stated that he has started filing income-tax return from the year 1996. 11. has denied the suggestion that the gift deeds have been prepared to save the accused He has stated that he purchased F.E.B.Cs. in the year 1995 and sold the same after few days. He has denied the suggestion that the F.E.B.Cs. were purchased with the money belonging to appellant Abdul Aziz Memon and it was a device to whiten the money. A perusal of the chart produced by the appellants with their statement under section 342, Cr.P.C. shows that most of the amounts are stated to have been received from Noor Muhammad, father of Mst. Farida Aziz, Muhammad Rizwan nephew of appellant Abdul Aziz Memon and Abdul Habib Memon, brother of appellant Aziz Memon. Noor Muhammad was not alive at the time of trial and the testimony of his wife D.W.-1, Mst. Khatij3 Bai, failed to establish even prima facie that he was in a position to gift amount of Rs.2,00,000 to appellant Abdul Aziz Memon. The jewllery/golden ornaments alleged to have been given by Muhammad Hashim father of appellant Mst. Farida Aziz has also remained unsubstantiated. Muhammad Rizwan was not produced in defence. Appellant Abdul Aziz Memon, is alleged to have gifted an amount of Rs.3,00,000 to Muhammad Rizwan in the month of June, 1995 and Muhammad Rizwan is alleged to have gifted Rs.3,00,000 to appellant Aziz Memon in the month of July, 1995. Thus, it appears to be a crude attempt on the part of appellant Aziz Memon to create a fictitious source of income. Appellant Mst. Farida Aziz has claimed to have invested Rs.7,00,000 in the year 1987 with Memon Builders but the source of this investment is not proved. According to appellants, Mst. Farida Aziz sold her golden ornaments in the year 1985 for Rs.5,83,825 and received remittances from Abdul Habib Memon in the year 1987 in the sum of Rs.2,52,800. However, the appellants/accused have miserably failed to prove the sources of these funds. Appellant Mst. Farida Aziz, is alleged to have invested/Rs.3,50,000 with Rabia Associates in the year 1989. It is stated at page 3 of the chart produced by the appellants themselves that this 'transaction is undocumented. This investment is alleged to have been made in the year 1989 and in the same year refund of this short term investment is shown with profit of Rs.1,07,250. In the chart it is stated that the refund is also undocumented. In the year 1989 the appellant Mat. Farida Aziz is alleged to have purchased National Saving Certificates in the sum of Rs.5,00,000 and it appears that in order to create source for the purchase of these Saving Certificates the undocumented transaction with Rabia Associates have been invented, In the chart an amount of Rs.94.640 is alleged to have been received by appellant Farida Aziz from America but no evidence has been produced in this behalf. This amount is alleged to have been sent by Haji Yousuf Memon son of Haji Hashim, brother of Mst. Farida Aziz. The major investments have been made by the appellants in the year 1995 when appellant Abdul Aziz Memon was an M.N.A. In this year appellant Farida Aziz purchased a plot in K.D.A. Scheme No.1, Karachi for Rs.1,559,225. She purchased F.E.B.Cs. in the sum of Rs.10,00,000 and appellant Abdul Aziz Memon purchased F.E.B.Cs. in the sum of Rs.5,00,000. These F.E.B.Cs. were purchased and sold on the same day. In the same year appellant Farida Aziz Memon, purchased house in the Defence Housing Authority allegedly for Rs.23,50,000. It appears that in order to create source for acquiring these assets the appellants took refuge in the gifts received from Muhammad Rizwan in the sum of Rs.3,00,000 and from D.W. Abdul Habib Memon in the sum of Rs.19,78,202 and the encashment of F. E . B . Cs .
156. A perusal of the chart containing the entire receipts and expenditure by the two appellants shows that in order to create the source of income, figures have been inflated. In the year 1988 appellant Farida Aziz Memon, has shown income from Memon Builders at Rs.1,86,834 while in the income-tax return for the same period she has shown income at Rs.47,659. For the year 1989 income from Memon Builders is shown in the chart at Rs.264,072 while in the income-tax return, the income from same source is shown at Rs.1,22,935. For the year 1990 the income from Memon Builders earned by Mst. Farida Aziz is shown at Rs.235,252 while in the income-tax return it is shown at Rs.155,644. There are several other discrepancies.
157. Although we have shown that, none of the statements i.e. chart alongwith the statement under 342, Cr.P.C., wealth statements and Wealth Tax Returns as well as statements filed with the Election Commission are genuine and correct but even if the statements in the chart produced at trial is accepted the position which emerges is that from the years 1970 to 1985, the total receipts by both the appellants (which are inclusive of the alleged sale of golden ornaments) is at Rs.9,14,085. The expenses shown are at Rs.40,55,16. The balance comes to Rs.50,85,69. From the years 1986 to 1993 when appellant Abdul Aziz Memon was elected M.N.A., the total receipts shown are at Rs.46,74,797.
158. After addition of the balance at the end of year 1985 it comes to Rs.51,833,66. The expenses shown are at Rs.36,46 ,455. The balance comes to Rs.15,36,911. From the years 1994 to 1996 the total receipts are shown at Rs.62,65,110 (these are inclusive of encashment of F.E.B.Cs. and gifts from Abdul Habib Memon as well as total receipts as M.N.A. including T.A., D.A. and other allowances).
159. After addition of balance at the end of year 1993 the total amount comes to Rs.78,02,021. The expenditure is shown at Rs.76,93,855. The balance comes to Rs.10,81,66. This figure does not tally with the cash-bank and prize bond declared by appellant Farida Aziz in the wealth statement for the assessm ent year 1996-97 (30-6-1996) which is at Rs.2,23,907. In the declaration made with the Election Commission the cash/bank and prize bonds with appellant Abdul Aziz Memon as. on 30-6- 1996, is Rs.3,93,746.
160. It is to be noted that expenses shown by the appellants does not include the amount of Rs.4,00,000 paid to P.W.-8, Muhammad Yamin and incurred for the material purchased for the completion of the house.
161. For the foregoing reasons, we are of the considered opinion that the learned trial Court has rightly held that both the accused/appellants accumulated movable and immovable properties up to the period 30-6-1996 which are disproportionate to their known sources of income and have thereby committed offence of corruption and corrupt practices as defined in section 9(a)(v) of the NAB Ordinance, 1999. The findings on the points Nos.2, 3 and 4 for determination are hereby upheld, while the finding on point No.1, is modified to the extent that accused/appellant Abdul Aziz Memon was holder of public office from the years 1993 to 1996. The conviction and sentences awarded ' to appellants are not open to any exception and are hereby upheld.
162. Consequent to the above findings, the appeals stand dismissed.