SARMAD JALAL OSMANY, J.---The appellant Badar Alam Bachani in Criminal Accountability Appeal No,41 of 2001 was charged under section 9(a) of the NAB Ordinance for accumulating movable and immovable assets which were incompatible with his known and legitimate sources of income vide Reference No,6 of 2001 which was sent to the learned Accountability Court No,2 at Karachi for disposal according to law. A formal charge was framed to which the appellant pleaded not guilty and claimed to be tried. The prosecution in support of its case examined a number of witnesses including P.W. Muhammad Murad, P.W. Tufail, P.W. Surriya Begum, P.W. Abdul Ghaffar, P.W.
Muhammad Ilyas, Manager. National Bank of Pakistan, COD Branch, Karachi, P.W. Syed Shahid Raza, Manager Askari Commercial Bank Kehkashan, Clifton, Karachi. P.W. Amjad Zia, Assistant HBL Shoe Market Branch, Karachi. P.W. GM Riaz Manager, ABL Hussain Branch Hyderabad, P.W. Fawwad Ihsan from NBP, Cantonment Board Branch Karachi, P.W. Nazir Ahmad Qureshi, Mukhtiarkar Matli, P.W. A Khalid Abro, Mukhtiarkar, Tando Allah Yar. P.W. Mst. Shamsunnisa wife of the appellant and finally Investigating Officer Nazir Ahmad Khan, Inspector, Anti-Corruption Establishment.
2. Thereafter the prosecution closed its side and the statement of the accused was recorded under section 342, Cr.P.C. In which he gave a list of 13 witnesses proposed to be examined in his defence.
He examined himself under oath as well D.W. Sikandar Ali Qureshi, Sub-Registrar, Hyderabad, D.W.
Pir Bux and D.W. Muhammad Ilyas.
3. Upon reading the evidence on the record as well as hearing the learned counsel for the appellant and the learned Special Public Prosecutor, the learned Accountability Court came to the conclusion that the appellant stood guilty as charged and consequently convicted him for an offence under section 9(a) of the NAB Ordinance. He was accordingly sentenced to suffer eight years' R.I. And pay a fine of Rs,Twenty Millions in default of which he was to undergo an additional three years' simple imprisonment. His agricultural land which stood in his own name as well as the land in the name of his sons (Fahad and Bilawal) was confiscated and forfeited to the State. A similar treatment was given to the house in Karachi, which also stood in the name of his sons. So also he was disqualified for a period of 10 years to hold any public office which period would be counted from the date of his release. The benefit of section 382-B, Cr.P.C. Was granted to him. Vide this appeal, the appellant has challenged his conviction and the confiscation of his agricultural property.
4. Applicants master Fahad Badar and Bilawal Badar have in Criminal Revision 176 of 2001 challenged the confiscation of their agricultural land and urban property on a number of grounds inter alia, that they were neither accused nor witnesses before the learned Accountability Court, hence the confiscation was not proper, that the properties were purchased out of the legitimate income of their mother Mst.Shamsunnisa and hence had nothing to do with their father Badar Alam; consequently the same could not be said to have been purchased out of the alleged ill- gotten income of the latter etc,. Hence it is prayed that the impugned judgment to the extent of forfeiture of the minors' property be set aside.
5. In support of the appeal, Mr.Mohammad Ashraf Kazi has firstly submitted that the charges as levelled against he appellant are firstly causing huge monetary losses to the Government during the construction of certain buildings in Hyderabad while in his capacity as Chief Executive Officer, Cantonment Board, Hyderabad. Secondly accumulation of assets viz. Agricultural property in Taluka. Hyderabad and Tando Allah Yar as well as a bungalow in Karachi, plus huge bank deposits alongwith two cars etc. Per learned counsel all the foregoing assets have been sufficiently explained by P.W. Mst. Shamsunnisa who is the wife of the appellant and strangely to say was examined as prosecution witness. Learned counsel has further submitted that P.W.
Mst.Shamsunnisa's testimony has been corroborated by the other proseuction witnesses themselves viz. P.W. Mittho Khan who is the Tapedar and who has verified that 80 acres of agricultural land in Taluka Hyderabad was gifted to the appellant by P.W. Abdul Ghaffar who has also affirmed this fact in his deposition as this gift was made for love and affection. P.W. Tufail Ahmed who is the Sub-Registrar has also affirmed the gift of 80 acres of land from P.W. Abdul Ghaffar who is uncle of the appellant. Hence per learned counsel no exception can be taken to the said gift of land to the appellant by his real uncle which was out of love and affection.
6. As regards the purchase of 116 acres land in Taluka Tando Muhammad Khan, P.W.1 Muhammad Murad Tapedar has deposed that it was purchased by the minor sons of the appellant from Mst.
Nita Shah for an amount of Rs,7,500,000 whereas the market value was Rs,1,000 per acre. However, under cross-examination the witness admits that this price was given by him at the behest of the Investigating Officer. Hence learned counsel has submitted that again nothing has been brought on the record as regards the probity of this transaction.
7. With reference to the house in D.H.A., Karachi P.W.4 Surriya Begum who is the seller has deposed that the price was Rs,70,00,000 out of which the official sale price was only Rs,17,00,000 whereas the balance was given to him by the appellant's wife unofficially. In this respect learned counsel has submitted that the sale agreement and conveyance deed both fixed the sale consideration at Rs,17,00,000 and the mere oral testimony of a solitary witness cannot be considered to hold otherwise. Learned counsel has also referred to the registered conveyance deeds brought on the record to establish that the value of houses in the adjoining area was within the vicinity of Rs,17,000,000 to Rs .20 , 000 , 000 .
8. Finally learned counsel has submitted that P.W. Shamsunnisa who is the wife of the appellant has explained the purchase of the house and land which was from the proceeds of the prize bonds on which she had won Rs,92,50,000 and the same was deposited with Habib Bank Ltd., Shoe Market Branch, Karachi. Out of this amount agricultural land in Taluka Tando Muhammad Khan was purchased for. Rs,75,00,000 and the house in Defence Housing Authority for Rs,17,00,000. As regards the transactions in Habib Bank Ltd., Hyderabad of Rs,24,000,000, per learned counsel this was from the agricultural income for two years viz. 1998-2000 from such land. Similarly the transaction in National Bank of Pakistan for Rs,13,00,000 was on the basis of agricultural income. Finally as regards the Askari Commerical Bank, the deposit of Rs,9,75,000 was from the Prize Bond money. Learned counsel has also referred to the Wealth Tax Return of Mst. Shamsunnisa which includes both the agricultural property and house in Defence Housing Authority.
9. Next learned counsel has referred to the statement of the appellant/accused under section 342, Cr.P.C. Wherein he has denied all the charges levelled against him and claimed his trial. He also examined himself under oath wherein he has explained all the properties and the bank accounts.
In this respect learned counsel has drawn our attention to the deposition of D.W.3 Muhammad Ilayas Khan from the State Bank of Pakistan who has produced the details of winningyrize bond numbers a copy of which is available on the record.
10. For all the foregoing facts and reasons, learned counsel has submitted that the charges against the appellant have not been proved by the prosecution at all in which event he deserved to be acquitted and impugned judgment set aside.
11. Mr. A.Q. Halepota also appearing for the appellant has submitted that according to the impugned judgment only a sum of Rs,3,34,131 has not been accounted for, as far as the appellant is concerned. This, per learned counsel is incorrect since if the lease money is taken into account which is payable irrespective of crop cultivation, this amount can be explained. Learned counsel has also submitted that Mst. Sharnsunnisa and Abdul Ghaffar are both prosecution witnesses and they have explained and accounted for all the properties both movable and immovable and hence if their testimony is accepted nothing remains to be explained. As far as the testimony of Mst. Surraya who is the seller of the Defence bungalow, learned counsel has submitted that this is without any basis as regards the alleged sale price of Rs,70,00,000. This is further corroborated by the fact that the Registrar has stated in his evidence that Mst. Shamsunnisa never gave any money to Mst. Surriaya in his presence. Next learned counsel has submitted that as regards from the agricultural property, D.W. Pir Bux has explained the amount of the lease money etc. Which he had given to Mst. Shamsunnisa viz. Rs,16,00,000 for the years 1999 and 2000 respectively, in support of which he has produced the lease deed and receipts executed by P.W. Shamsunnisa. Finally, per learned counsel the fine of Rs,2 crore vis-a-.Vis unexplained income of Rs,3,34,131 as imposed upon the appellant vide the impugned judgment is far too excessive. Hence if at all the appellant is to be convicted the amount of fine should be reduced to a reasonable figure and so also his Jail term.
12. On the other hand Mr. Abdul Ghafoor Khan for the State has submitted firstly that the appellant/accused joined the Military Lands and Cantonment service on' 2-10-1983 in B.P.S.-17 and up to January, 2001 the total salary drawn by him came to Rs,8,69,072 per Exh.131. Learned counsel has submitted in this respect that up to 1997 viz. Before the wind-fall prize bond money, the appellant had no other source of income except his salary, however, during this period he was maintaining a car, he went on Umrah alongwith his family and also met the household expenses as well as the educational expenses of his five children. This per learned counsel is certainly in excess of the salary drawn by the appellant during such period viz. 1985 to 1995 which is only in the amount of 3,08,375.
13. Next learned counsel has adverted to the appellant's income and expenditure during the year 1996 in which year the appellant has in his declaration of asset Form Exh.25 declared the value of his assets excluding agricultural land gifted to him by P.W. A. Ghaffar at Rs,6,60,000. During this period the appellant according to his own statement spent an amount of Rs,60,000 on Umra. Also during 1996 the appellant alongwith his wife and 5 children visited Singapore and purchased travellers Cheques for US $4200 equivalent to Rs,1,48,320. The appellant in this period also spent an amount of Rs,8,400 and 1,900 towards the costs of stamps and registration charges respectively on the Gift Deed Exh.23. So also there was an increase of Rs,2,60,000 in the value of his assets during the year 1996. Hence per learned counsel the total amount spent by the appellant viz. Increase in the value of assets, expenses on registration of gift deed, Umrah expenses and value of Travellers Cheques comes to Rs,5,78,620 which is deducted from the income of the appellant would only show a balance Rs,21,380. Per learned counsel this amount was not sufficient to cover the costs of seven Air Line Tickets from Karachi to Singapore and back, personal household expenses and expenses incurred on the education of his children. Hence the only source could be unlawful acquisition of funds through corruption.
14. As regards the gift of 80 acres of agricultural land from .His maternal uncle to the appellant, learned counsel has submitted that the same is not free from doubt firstly for the reasons that this was gifted after the death of the appellant's mother in 1995. Hence it was quite strange as to why such gift was not executed during his mother's lifetime. Secondly per learned counsel the source of acquisition of the said land by P.W. Abdul Ghaffar has not been sufficiently explained. Moreso for the reasons that the appellant has not mentioned anything as to any property which may have been inherited by him from his late mother.
15. As regards the wind fall prize of Rs,10 Millions, learned counsel has submitted that after deduction of income-tax of Rs,7,50,000 an amount of Rs,92,50,000 was paid by the State Bank of Pakistan to Mst. Shamsunnisa which he deposited in her bank account with H.B.L.Shoe Market Brnach, Karachi. This amount was withdrawn by her in cash on 19-6-1998 and was allegedly utilized towards the purchase of agricultural land as well as the house in Defence Housing Authority at Karachi for Rs,82,86,000 and Rs,18,78,515 (inclusive of stamp duty and registration charges) respectively. Per learned counsel, to these amounts must be added an amount of Rs,9,75,000 which admittedly Mst. Shamsunnisa gave to the appellant out of the proceeds of the Prize Bond money which the latter deposited in his Bank Account, Rs,1,10,000 which she gave to the appellant for the purchase of Prize Bonds, Rs,2,35,697 which she gave to the appellant for leasing a car from Citibank, Rs,6,25,000 towards purchase of car by her, Rs,1,87,500 paid by her by way of income-tax.
The grand total of these amounts comes to Rs,1,22,98,712 and thus an excess Rs,30,48,712 was spent by the appellant and his family during this period which remains unaccounted for (taking into consideration the Prize Bond money of Rs,92,50,000).
16. Finally learned counsel has submitted that per the reconciliation of her wealth for the period 30- 6-1998 to 30-6-2000 Mst. Shamsunnisa has not included a payment of Rs,28,515 towards registration charges on the purchase of the Defence Housing Authority House, Rs,37,500 towards registration charges on the purchase of agricultural land and an amount of Rs,1,87,500 towards payment of income-tax hence an amount of Rs,2,53,515 has been concealed.
17. For all the foregoing reasons learned counsel has prayed that as the appellant has been unable to explain his wealth/assets as that of his wife and children for which the burden was upon him, the appeal be dismissed.
18. We have heard the learned counsel as well as the learned Special Prosecutor and our conclusions are as under.
19. It would be seen that the appellant/accused has been charged with the offence of corruption and corrupt practices under section 9(a) of the NAB Ordinance punishable under section 10(a) with a term of imprisonment which may extend to fourteen years or with fine of with both alongwith forfeiture of the assets and property acquired through such practices etc. Accordingly the appellant upon conviction has been sentenced to suffer eight years' R.I. And a fine of Rs,Twenty Millions and in default of which he is to undergo further three years' simple imprisonment. Similarly the agricultural properties as well as the house in D.H.A., Karachi has been forfeited to the Government. It would also be seen that per section 14(c) of the NAB Ordinance, wherever a person is charged with possession of property or pecuniary sources which are disproportionate to his known source of income, the Court shall presume unless the contrary is proved that the accused person is guilty of the offence of corruption and or corrupt practices. Hence the burden of proving that he is not guilty of such an offence lies upon the accused. Consequently it would now have to be examined whether this burden has been discharged.
20. The main defence put by the appellant in order to show that he and his immediate family members bonafidely acquired the property/other assets is firstly the gift of 80 acres of land to the appellant from his maternal uncle P.W. Abdul Ghaffar. In his deposition before the learned trial Court this witness has stated that he had purchased the land in question from Haroon and others for a total sale consideration of Rs,8,68,700 and had gifted it to the appellant who is the son of his sister out of natural love and affection. He has produced photocopy of Form 7 as well as Gift Deed and so also his Wealth Tax Return and the sale deeds of the land in question. Under cross- examination he has stated that he had gifted the land to the appellant due to the troubled life of his late sister who was also the appellant's mother. P.W.2 Tapedar Mitho Khan has corroborated the foregoing transaction viz. Purchase of the land from the previous owners by P.W.Abdul Ghaffar as well as gift of the same to the appellant. So also P.W.3 Tufail Ahmad who is Sub-Registrar, Tando Allah Yar has deposed regarding the legitimacy of the foregoing transaction. The appellant in his deposition has also confirmed the factum of the gift which was given to him out of love and affection by his maternal uncle P.W. A. Ghaffar and also for the reason that this was his mother's share from his maternal grand-father's property. In view of the foregoing circumstances we are of the opinion that the gift in question is a bona fide transaction which has been supported by the documentation on the record. It may be that the land in question was purchased by P.W. Abdul Ghaffar in 1992 after the appellant had joined his service and the gift was executed in the year 1996, however, this fact alone cannot prove that the appellant had manoeuvred the purchase of the property from the open market in his uncle's name from ill-gotten funds and thereafter had the same gifted to himself. This may not be a mere coincidence but then again, the accused cannot be convicted on conjectures and surmises alone. We are thus of the opinion that the appellant/accused has adequately discharged the burden cast upon him of establishing that the agricultural property held by him in his own name comprising of 88 acres of land was legitimate.
However, we are not A satisfied that the appellant has been able to prove that he obtained income from this property as maintained by him as he has not relied upon any document in support thereof.
21. As regards the agricultural land admeasuring 116.1 acres and the bungalow in D.H.A., Karachi which are in the names of his sons, it is the appellant's case that' the same were purchased out of the prize bond money amounting to Rs,92,50,000 won by his wife in the name of her sons. In this regard P.W. Mst. Shamsunnisa has stated under cross-examination that her elder brother Muhammad Salim purchased ten Prize Bonds in the amount of Rs,1,000 each and gifted the same to her children on the eve of Eid. When prizes were declared Jn these bonds viz. Of Rs,1 million each she encashed them through the State Bank of Pakistan and received Rs,92,50,000 after deduction of income-tax which amount she deposited in Habib Bank Ltd., Shoe Market Branch, Karachi. She has further stated that out of this amount she 'purchased the 116.1 acres of agricultural land in question for a sum of Rs,75,00,000 and the house in Defence Housing Authority, Karachi for Rs,17,00,000. She also purchased a Suzuki Baleno Car for an amount of Rs,6,25,000 as well as gave an amount of Rs,2,35,000 to her husband for purchase of another car but this money was returned to her. So also she had given an amount of Rs,9,75,000 to her husband for purchase of Prize Bonds but the same was returned to her. She had also given an amount of Rs,1,80,000 to her husband for travelling expenses. She has produced her Income Tax Return as well as Wealth Tax Statement in support of the foregoing. The factum of the families good fortune in winning the prize money from the bonds in question is readily apparent from the documents brought on record viz. Copies of the ten prize bonds, corresponding pay-orders issued by the State Bank of Pakistan in the name of Mst.
Shamsunnisa for the amount of Rs,92,50,000 (less income-tax). In view of the foregoing facts and circumstances in our opinion although it may be more than a coincidence that in the year 1995 all of a sudden the prize bonds allegedly gifted to the children of the appellant by their maternal uncle should reap a wind fall in the shape of prize money, but then again as observed above a, person cannot be convicted on the basis of conjectures and surmises alone. We are also aware that Prize Bonds can be sold and purchased openly in the market and hence it is not impossible to comprehend that the appellant may have purchased the prize-winning bonds in the open market from his allegedly ill-gotten gains. However, there is nothing on the record to substantiate this allegation and hence we are unable to assume as much. For all the foregoing reasons, we are of the opinion that giving the appellant the benefit of doubt, he has been able to show that the prize bonds won by his wife were legitimate and that she applied the same towards the purchase of the agricultural land in Tando Allayar. As regars the income from said property D.W. Muhammad Murad has deposed that he took it on lease from the previous owner Zulfiqar Yousufani in 1887 for a period of four years at Rs,16,00,000 per year. He paid the lease money to the previous owner for two years viz. 1997 and 1998 and to Mst. Shamsunnisa for two years thereafter. He has produced copies of the lease agreement plus receipts issued by Mst. Shamsunnisa for the amounts in question.
However, no other witness has been examined to corroborate the deposition of this witness, although in the receipts itself there are two witnesses to the transaction. So also under cross- examination, he has admitted that he has no proof of receiving advance money from commission agents which he gave to the landlords. Similarly, no other evidence has been led to establish that the income from these lands was indeed Rs,16,00,000 per acre as the burden of proof was upon the appellant to do so in terms of section 14(c) of the Accountability Ordinance. In these circumstances we are constrained to hold that the appellant has not been able to establish the income of Rs,16,00,000 per year from the lands in question.
22. As regards the bungalow in D.H.A., Karachi according to the appellant as well as his wife this was purchased from the proceeds of the prize bond money in the sum of Rs,17,00,000. In support of this transaction, P.W. Mst. Shamsunnisa has produced registered conveyance deeds of adjoining properties, which would establish that, the approximate value of a house on 500 sq.Yds in the area was in the region of Rs,15,00,000 to Rs,20,00,000. On the other hand P.W. Mst. Surriya Begum who is the seller of the property has deposed that in fact the sale consideration of the house in question was Rs,60,00,000 out of which an amount of Rs,1,00,000 was paid by the appellant to her as earnest money and the balance Rs,59,00,000 before the Sub-Registrar. Under cross-examination Mst.
Surriya Begum has denied that the sale consideration was Rs,17,00,000 and affirmed that she received Rs,59,00,000 from the accused through Mst. Shamsunnisa. In view of the foregoing, we are unable to accept that a double-storeyed bungalow in Phase VI, D.H.A. Constructed on 450 sq. Yds.
Was worth only Rs,17,00,000 in 1998 when the transaction was entered into. It is common knowledge also that properties are undervalued for the purpose of avoiding stamp duties. Consequently we would accept the valuation of Rs,60,00,000 as deposed by P.W. Mst. Surraya Begum as also the fact that this amount was paid to her being the true sale consideration for the property.
23. In view of the foregoing discussion for the period from 1983 till 1997 the income and expenditure of the appellant is as follows;-- INCOME
(a) Salary (approximately) Rs.500,000 EXPENSES
(a) Expenses for performing Umra in 1995 Rs.40,000
(b) Expenses for performing Hajj in 1996 Rs.1,60,000
(c) Visit to Singapore in 1996 with family (travelers cheques Rs.142,320 plus Rs.1,00,000 being approximate cost of air line tickets and accommodation etc.Rs.2,48,320
(d) Household and educational expenses of children during the period approximately.Rs.2,000,000 Total: Rs.2,948,320 Hence it would be seen that for the afore-stated period, the appellant has not been able to explain excess expenditure of Rs.2,448,320 (Rs.2,948,320---Rs.500,000).
24. The income income/expenditure of the appellant and his immediate family for the period 1998- 2000 is as follows: INCOME
(a) Income from Prize Bond money Rs.9,250,000
(d) Approximate salary of the appellant during the period.Rs.300,000 Total: Rs.9,550,000 EXPNDITURE
(a) Purchase of house in DHA inclusive of Stamp Duty and Registration ChargesRs.6,878,515
(b) Purchase of agricultural land in Tando Mohd.
Khan inclusive of Stamp Duty and Registration Charges.Rs.8,287,000
(c) Given to appellant by his wife for travelling/Umra expenses in 1999Rs.1,80,000
(d) Household plus educational expenses of children during the period approximately.Rs.4,00,000 Total: Rs.15,745,515 Hence it would be seen that for the aforestated period, the appellant has not been able to explain excess expenditure of Rs,6,195,515 (Rs,15,745,515---9,550,000) approximately.
25. The upshot of the above discussion is that the prosecution has been able to establish beyond any doubt that the appellant/accused has not explained at least the source of Rs,8,643,835 (Rs,2,448,320 6,195,515) being approximate excessive expenditure for the period 1983 to 2000. Hence in our view per section 10(a) of the NAB Ordinance the appellant has rendered himself liable to be burdened with the payment of this amount to the Government which is disproportionate to his known sources of income. As far as the quantum of sentence is concerned, in the circumstances of the case, as the appellant has remained behind bars continuously since the date of his arrest viz. 9-1-2001 we would consider it sufficient and hence would reduce it to that already undergone. We would also remit the fine as well as the forfeiture of the properties in question. The appellant shall be given his freedom upon payment of the aforementioned amount of Rs,8,643,835 to the Government and he is allowed to sell any of the properties belonging to him or his children for this purpose. The other sentence with regard to disqualification etc. Is maintained. Criminal Accountability Appeal No,41 of 2001 alongwith Criminal Revision No,176 of 2001 stand disposed of in the foregoing terms. Where the appellant is unable to pay the abovestated amount within a period of three months from the date of this order, the matter shall be listed for further orders.