' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---The aboveappeals are directed against the judgment dated 31-5-2002 passed by the learned Administrative Judge Accountability Courts, Sindh Karachi, in Reference No.39 of 2001, filed by the Chairman National Accountability Bureau.
' The appellants have been convicted and sentenced as follows:--
1. Appellant Iqbal Ahmed Turabi has been convicted under section 10 of the NAB Ordinance read with serial No.2 of the schedule of offences appended with the NAB Ordinance, 1999. He has been sentenced to suffer R.I. For (Ten) years and to pay fine of Rs.95 Millions. In default of ,the payment of fine he has to undergo further R.I. For (Three) years. It has been further directed that he shall forthwith cease to hold public office held by him. He stands disqualified for a period of 10 years, to be reckoned from the date he is released after serving the sentence for seeking or from being elected, thosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province. The benefit of section 382-B, Cr.P.C. Has been extended to him.
2. Appellant Mrs. Najma Iqbal, wife of appellant No.1, has been convicted under section 10 of the NAB Ordinance read with serial No.2 of schedule of offences appended with the NAB Ordinance, 1999.
She has been sentenced to suffer R.I. For (Five) years and to pay fine of Rs.95 millions. In default of payment of fine she has been further sentenced to suffer R.I. For (Three) years. She stands disqualified for a. Period of 10 years, to be reckoned from the date she is released after serving the sentence for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province.
3. Appellant Hassan Raza has been convicted under section 10 read with serial No.2 of the schedule of offences appended with the NAB Ordinance and has been sentenced to suffer R.I. For 5 years and to pay fine of Rs.3 millions. In case of default, he has been further sentenced to undergo R.I. For 2 and half years. He has been further convicted for the offence punishable under section 31-A of the NAB Ordinance, 1999 and has been sentenced to suffer R.I. For three months.
4. Appellant, Asif Hussain has been convicted for the offence punishable under section 31-A of the NAB Ordinance, 1999 and has been sentenced to suffer R.I. For three months.
' The immovable properties bearing Flat No.M-4 Chapel Resort, Shop No.10 Chapel Resort. House No.34/II Phase-IV DHA, Offices Nos.2 and 3 on Plot No.10-C Commercial Lane Zamzama DHA, and Office No.M-4 Falaknaz Center, Karachi have been confiscated to the Government of Pakistan.
' All the movable properties details whereof are given at page 31 of the impugned judgment have also been confiscated to the Government of Pakistan.
Briefly stated the relevant facts are that the Chairman NAB submitted a reference before the National Accountability Court (hereinafter referred to as the trial Court) stating therein that appellant No.1, Iqbal Ahmed Turabi, an employee of Pakistan State Oil adopted a lavish style of life and owned/possessed/held assets, right, title and interest in the movable and immovable properties in his own name as well as in the name of his wife appellant Mrs. Najma Iqbal, appellant Asif Hussain, Appellant Hassan Raza and accused Ziauddin Jaimuri. Thus, appellant/accused Iqbal Ahmed Turabi acquired/amassed illegal wealth disproportionate to his known sources of income and the other accused persons facilitated/abetted the appellant Iqbal Ahmed Turabi in acquiring such assets and holding the same. According to prosecution the accused persons were not able to justify the acquiring/holding/possessing of the assets. The appellant Iqbal Ahmed Turabi has not shown any other source of income except salary income derived as an employee of the Pakistan State Oil. It was further alleged by the prosecution that appellant No.
1. Iqbal Ahmed Turabi, opened several bank accounts in foreign currency and Pakistan currency and was engaged in Stock Exchange Business, making huge investment in purchase and sale of shares running into millions and all these transactions were not disclosed in the annual declaration of assets with PSO or before the taxation authorities. He purchased bonds and securities as well with huge investments and the said transactions were not declared with PSO or any taxation authority. The entire amount paid by the PSO to Iqbal Ahmed Turabi, towards his salary, allowance, bonuses, benefits and perquisites from Mach, 1987 to June, 1998 comes to Rs.19,64,464 and his monthly household expenses ranged between Rs.25,000 to 30,000. Thus, the assets acquired by appellant Iqbal Ahmed Turabi, in collaboration and complicity of other accused persons was disproportionate to his/their known sources of income which amounts to offence under section 9 of the NAB Ordinance, 1999 punishable under section 10 of the said Ordinance.
' At the time of submission of reference before the trial Court, appellant/accused Iqbal Ahmed Turabi was in custody while remaining accused persons were not available. Subsequently accused ZiauddinTaimuri was arrested and appellant/accused Mrs. Najma Iqbal was granted bail by the High Court. Appellant/accused Asif Hussain and Hassan .Raza could not be arrested and remained fugitive at law. They were declared absconders and proclamations were issued against them under sections 87 and 88, Cr.P.C. The proceedings were held against them under section 512, Cr.P.C.
Learned advocate for the accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal Turabi, sought adjournments stating that they have approached the NAB Authorities for plea bargain. However, on 12-12-2001, the learned trial Court framed the charge against accused Iqbal Ahmed Turabi. Mrs. Najma Iqbal and Ziauddin Taimuri. All the three accused persons pleaded not guilty to the charge.
The necessary particulars' and details of the assets held by the accused and summary of the prosecution case are contained in the charge framed by the trial Court, therefore, the charge framed against accused Iqbal Ahmed Turabi. Mrs. Najma Iqbal Turabi and Ziauddin Taimuri, is reproduced below for the sake of convenience:-- CHARGE ' I, Rahmat Hussain Jafferi, Administrative Judge. Accountability Courts, Sindh, Karachi, do hereby charge you:
1. Iqbal Ahmed Turabi son of Ali Kousar.
2. Mrs. Najma lqbal wife of Iqbal Ahmed Turabi.
3. Ziauddin Taimuri son of Moinuddin. As under:-- ' That you accused Iqbal Ahmed Turabi being a holder of public office and employed as Accounts Officer and promoted in Group-III, in Pakistan State Oil frOm 18-4-1998 to this date and in furtherance of common intention, criminal conspiracy and abetment of co-accused Mrs. Najma, Ziauddin and absconding accused Asif Hussain and Hassan Raza, acquired immovable/movable properties and pecuniary resources in your name and in the names of above named co-accused and absconding accused as per details given in schedule, A, B & C, which are disproportionate to your known source of income for which you could not reasonably account and thereby committed an offence of corruption and corrupt practices as defined under section 9(a)(iv)(v) of the NAB Ordinance, 1999, and punishable under section 10 of the NAB Ordinance read with Serial No.2 of the Schedule appended with the said Ordinance and within the cognizance of this Court.
' And I hereby direct that you be tried by me on the abovesaid charge.
' Administrative Judge ' Accountability Courts. Sindh, Karachi ' In support of above charge the prosecution examined 31 prosecution witnesses: After examination of 29 prosecution witnesses accused Ziauddin Taimuri submitted an application under section 25 of the NAB Ordinance, for plea bargain on 27-12-2001. On 31-12-2001 le'arned counsel for accused Ziauddin Taimuri informed that plea bargain of accused Ziauddin Taimuri has been accepted and the proceedings were at the final stage. On 8-1-2002 an application was filed under section 25 of the NAB Ordinance, on behalf of accused Iqbal Ahmed Turabi and Mrs. Najma Turabi for plea bargain.
' Accused Ziauddin Taimuri, stated in his application that initially he was made a mashir in the case, and he has stated that Shop bearing No.25 Plot No.20 sub-plot N.L. Block-B, Survey Sheet No.FT-II, Prince Complex, Frere Town, Karachi was purchased by accused Iqbal Ahmed Turabi in his name and the shop was rented out by accused Iqbal Ahmed Turabi to Habib Bank A.G. Zurich and had received Rs.4,44,000 as rent. He submitted in the application that he was made accused without any justifiction. He asserted than he has nothing to do with the said shop and that he surrenders all necessary documents pertaining to the said shop and voluntarily returns the said shop to Government of Pakistan/NAB Authorities as envisaged under section 25 of the NAB Ordinance. He undertook not to claim the said shop in any manner and prayed for acceptance of plea bargain.
' Accused Nos.1 and 2 in their application under section 25 of the NAB Ordinance for plea bargain took plea that accused No. 1 . Had various sources available to acquire the properties owned by him. Some of the properties alleged to have been acquired in the name of other accused persons were disowned. It was further stated that accused No.
1. Could not afford to bring a had name to his entire family and therefore, he has resorted to plea bargain. He offered a cash settlement of Rs.15 millions as plea bargain. He appended various charts with the applicationof plea bargain containing the list of assets attached to the application under section 25 of the NAB Ordinance. The accused admitted to have acquired Flat No.B/8 lInd Floor Super Palace Plot. No.8, Civil Lines Quarters, Karachi in the year 1991 and stated that it was sold in the year 1995. Acquiring of Shop No.25 Prince Complex Frere Town, Karachi was totally denied.
The following properties with their acquisition price were admitted to be owned by accused Nos.1 and 2:-- SCHEDULE ---A--- IMMOVABLE PROPERTIES S. No.Name of Person in whose name property acquiredDescription of Property AcquiredValue Years of AcquisitionRemarks
1. Mrs. Najma wife of accused Iqbal Ahmed TurabiShop No.10, measuring 325 Sq.Ft Chapel Resort , Block-1, Clifton, Karachi7,15,000 27-6-1996
2. Iqbal Ahmed TurabiFlat No.M-04, measuring 1920 Sq.Ft.
Mezzanine Floor, Chapel Resort, Block-1 Clifton, Karachi10,46,000 4-10-1995
3. Mrs. Najma, wife of accused Iqbal Ahmed TurabiFlat No.206, Plot No.12, Sheet No.FT-1, Mehmoodabad House, Frere Town, Karachi25,00,000 27-6-1996
4. ------do------ Plot No.126/II, measuring 1000 Sq. Yards.
15th Street, Phase VI, DHA Karachi45,00,000 24-10- 19947-
5. ------do------ House No.34/II, measuring 492 Sq.Yds, N.
Street, Phase- V, DH A Karachi59,27,000 3-9-1996
6. ------do------ Flat No. B-8, measuring 1610 Sq.Ft, 2nd floor, Super Palace Plot No.8, Sheet No.CL-9, Civil Line Quarters.
Karachi12,00,000 7-7-1991
7. Ziauddin Taimuri son of MoinuddinShop No.S-25. measuring 31235,00,000 27-6-1996 S. No.Name of Person in whose name property acquiredDescription of Property AcquiredValue Years of AcquisitionRemarks
1. Mrs. Najma wife of accused Iqbal Ahmed TurabiPurchase Bills2,14,04,243/50 Conducted business with M/s Kousar Abbas Bhayani from March
2. ------do------ Purchase Bills2323.150 Conducted business with M/s Ali Hussain Rajah Ali Ltd. from April
3. Iqbal Ahmed TurabiShares lying with MCB Broad Branch9,20,948/75 Sq.Ft Ground Floor, Prince Complex, Frere Town, Karachi
8. Hassan Raza son of M. Musharraf HussainFlat/Office No. M-4, measuring 279.68 Sq.Yds.
Mezzanine Floor, Falaknaz Center, Shahrah-e--- Faisal Karachi20,00,000 August, 1997
9. Asif Hussain son of Taseer HussainOffices Nos.2 and 3 alongwith the roof top on Plot No.10-C, 8th Commercial Lane, Zamzama DHA.
Karachi25,00,000 30-4-1997 SCHEDULE 'B'
IMMOVABLE PROPERTIES
4. ------do------ Defense Saving Certificates lying with MCB12,56,000
5. ------do------ Nissan Sunny Car2,40,000
6. ------do------ Jewellry 4,50,000
7. ------do------ 11th ICP Mutual Funds holding 25,000 at the rate of Rs.102,50,000
8. ------do------ Value of shares, which were sold by the accused during the period after the out cut date27,26,188/24 SCHEDULE 'C'
PECUNIARY ASSETS U.S. DOLLARS S. No.Name of account HolderName of BankAccount No.Account Opened onAccount closed onAmount Deposited
1. Mrs. Najma W/O Iqbal Ahmed TurabiDeutsche Bank, I. I.
Chundrigar Road, Karachi052233-30- 522-12- 19943-5- 199923,378 US Dollars
2. Mrs. Najma and Iqbal Ahmed TurabiHabib Bank AG ZurichTime Deposit02-01- 199512-9- 1998722,621.80US Dollars
3. Iqbal Ahmed TurabiAmerican Express Bank Shaheen Complex Karachi111062020 16-4- 199630-9- 1999379.00 US Dollars from 26- 4-1999 to 30-9- 1999 Total 992,750.55 Profit 4,384.14 Net Amount988,366.414.Mrs. Najma Iqbal and Iqbal Ahmed TurabiHabib Bank AG ZurichSaving A/C No.174242- 116-019-4- 19967/8-6- 200165,754.55US Dollars 5.Mrs. Najma W/o Iqbal Ahmed TurabiABN Amro Bank, Avari Towers KarachiSaving A/C No.2102800115-12- 199710-7- 199925,185.74 US Dollar from 15- 12-1997 to 10-7-1998 6.Mrs. Najma W/o Iqbai Ahmed TurabiABN Amro Bank Avari Towers KarachiSaving A/C No.2102804418-12- 19971-10- 19999,970.96 US Dollar from 18- 12-1998 to 1-10-1999
7. Ali HassanMashreq Bank, PSC, Bahria Complex KarachiNo.02- 280007-6 (Term Deposit)23-4- 199718-7- 199855,100,00 (+) Profit 4384. 14 US$ SCHEDULE 'C'
PECUNIARY ASSETS PAK RUPEES S. No.Name of account HolderName of BankAccount No.Account Opened onAccount closed onAmount depositedDeposited 8.Mrs. Najma W/o Iqbal Ahmed TurabiABL, PIDC House Branch KarachiPLS, A/C No. 01-100- 1932-28-6- 1986 4,821,757.56 Rupees.
9.Mrs. Najma & IqbalHabib Bank AG Zurich, I.I.
Chundriear6-1-1-20311- 714-- -1742429-4- 19968-6- 200032,933,055.94Rupees S. No Description of PropertiesAcquisition price
1. Shop No. 10 Chapel Resort, Block-1; Clifton Karachi.210,000.00
2. Flat No. M-4 Mezzanine Floor, Chapel Resort,670,000.00Ahmed TurabiRoad Karachi 10.Iqbal Ahmed TurabiMCB, Premier Branch Shaheen Complex KarachiCurrent A/C No.01158-320-10- 1996199 101,000.00 Since 4- 12-1996 11.Mrs. Najma Iqbal and Iqbal Ahmed TurabiMCB Clifton Broadway Branch KarachiCurrent A/C No.4-54-6- 19979-6- 20009,023,590.00 Rupees 12.Iqbal Ahmed TurabiABL, PIDC, House Branch Karachi2521-8 17-12- 1997 1,931,141.00 From 17- 12-1997 to 31-12- 1998 13.Mrs. Najma W/o Iqbal Ahmed TurabiMetropolitan Bank Paper Market Branch Karachi6-1-13- 20610-714--15-2- 200014-6- 20002,639.533.14 Rupees 14.Mrs. Najma Iqbal & lqbai Ahmed TurabiMetropolitan Bank Paper Market Branch Karachi115914 (Deposit Book)8-7- 2001 1,77,430.22 From 8- 7-20011 to 21-7-2001 15.Mrs. Najma IqbalABN Amro Bank Avari Towers Karachi6-1-13- 20610-714-- -118618 13-6- 200080,94,035.39 16.Mrs. Najma IqbalABN Amro Bank Avari Towers KarachiSavingA/C No.21028052 13-6- 20001,08,69,161.80 Block-I, Clifton Karachi
3. House No.34/II, Phase- IV, D.H.A. Karachi.3,100,000.00 ' Plot No.126/2.15th Street Phase 3 DHA, Karachi, was admitted to have been purchased in the year 1994 and was sold in the year 1999 for Rs.1,850,000. Plot No.R-58, K.A.E.C.H.S. Karachi was alleged to have been acquired in the year 1974 for Rs.600 and sold in the year 1991 for Rs.650,000.00. Plot No.1-18, Sector 5-C/2., North Karachi, was allegedly purchased for Rs.30,000.00 and sold for Rs.170,000.00. Apartment No.206, 2nd Floor, Mehmoodabad was allegedly purchased for Rs.835,000.00 and sold for Rs.2,625,000.00.
' In the schedule under the heading "Additional Sources of Income" and amount of Rs.1,000,000.00 was alleged to have been saved while working in Dubai from 1982 to 1986. Defence Saving Certificates worth Rs.1,350,700.00 were shown available but the source was not explained. An amount of Rs.3,55,000.00 was shown to have been acquired from Prize Bonds winnings. Salary of Rs.1,900,000.00 was alleged to have been received from P.S.O.
' The above applications remained pending. The remaining prosecution witnesses were examined.
After examination of 31 witnesses prosecution closed its side and the statements of accused lqbal Ahmed Turabi. Mrs. Najma Iqbal Turabi and Ziauddin Taimuri were recorded under section 342, Cr.P.C. None of them was examined on oath in defence under section 340(2),Cr.P.C. Thereafter, accused persons examined 11 defence witnesses. The case was posted for final arguments on 14-2- 2002 when absconding accused Asif Hussain appeared before the trial Court. He was granted bail by the High Court on 13-2-2002. The Special Public Prosecuter submitted an application for separate trial of accused Asif Hussain. The learned defence counsel conceded that the trial Court has the discretion for joint trial or separate trial, but contended that the case of accused Iqbal Ahmed Turabi would be prejudiced if accused Asif Hussain was tried separately. The learned trial Court considered the contention and held that accused Asif Hussain shall be provided fair opportunities to defend himself. So far, The remaining three accused were concerned, the entire evidence was recorded in their presence and they were given full opportunity, to cross-examine all thewitnesses which they have duly availed. The learned trial Court further observed that if few witnesses from the prosecution witnesses already examined are again examined against accused Asif Hussain then it will not prejudice the case of other accused as their case, could be decided on the evidence led against them. The application was allowed. Charge was framed against Asif Hussain on 28-2-2002 for abetment and criminal conspiracy with accused Iqbal Ahmed Turabi in acquiring offices No.2 and 3 on Plot No.10/C, 8th Commercial Lane Zamzama, Clifton Karachi in the name of accused Asif Hussain, which was disproportionate to the known sources of income of accused Asif Hussain and co-accused Iqbal Ahmed Turabi. Accused Asif Hussain was charged for the commission of offence under section 'i(a)(iv), (v) of NAB Ordinance, punishable under section 10 thereof read with serial No.2 of schedule of offences appended to the said Ordinance. Accused Asif Hussain pleaded not guilty to the charge. Thereafter one prosecution witness namely Muzaffar Hussain, Sub-Registrar, T-Division Karachi was examined who produced the certified true copies of sale-deeds in favour of accused Asif Hussain as Exhs.249 and 250, in respect of Offices Nos.2 and 3 on plot No.10-C/8 Commercial Lane Phase-V DHA Karachi. This witness was earlier examined in the trial against accused Iqbal Ahmed Turabi, Mrs. Najma Iqbal Turabi and Ziauddin Taimuri, as P..W.11 and had produced documents pertaining to other properties. The copies of the document Exhs.249 and 250 were earlier produced as Exhs.80 and 81 through P.W.22 Muhammad Shafi, the Estate Agent. After examination of one witness, in the trial against accused Asif Hussain, another absconding accused Hassan Raza surrendered himself before the trial Court on 12-3-2002. He was also granted bail by the High 'Court. The learned Special Public Prosecutor, then submitted an application for joint trial of accused Asif Hussain and accused Hassan Raza. With the consent of all Flat No. 206 Mehmoodabad House Purchased Sold27-6-1996 1997Rs.835,000 Rs.26,25,000 Rs.17,90,000 Flat No:B-8 Purchased7-7-1991 Rs.410,000the defence counsel, the application was allowed and amended charge was framed against accused Asif Hussain and Hassan Raza on 20-3-2002. Accused Hassan Raza was charged with the commission of offence of criminal conspiracy and abetment with co-accused Iqbal Ahmed Turabi for acquiring Flat/Office No.M-04 Mezzanine Floor Falak Naz Centre, Shahrah-e-Faisal Karachi as defined under section 9 of the NAB Ordinance, punishable under section 10 thereof. Accused Asif Hussain and Hassan Raza were further charged for absconding in order to avoid the service of NBWs: on them and thereby committing an offence under section 31-A of the NAB Ordinance. Both the accused persons pleaded not guilty to the charge. The prosecution, thereafter examined P.W.
No.33 Haroon Khanani (already examined in the trial against accused Iqbal Ahmed Turabi and two others, as P.W.23) P.W.34, M. Shafi (already examined as P.W.22). P.W.35, Muhammad Yar (already examined as P.W.15), P.W.36 Abdul Basit Khan (already examined as P.W.7).P.W.37, M. Ashraf P.W.38, A.S.-I.Hadi Bux,P.W.39, .A.S.-1. Rahim Khan, P.W.40, Munawar Ahmed (already examined as P.W.3), P.W.41, Ch: Mehboob Ali (already examined as P.W.14) and P.W.42, Aqeel Ahmed Qureshi Investigating Officer (already examined as P.W.31).
' The prosecution then closed its side. Accused Asif Hussain was examined under section 342, Cr.P.C. And he denied his absConsion. He further denied the purchase of offices bearing Nos.2 and 3 on Plot 10/C 8th Commercial Lane DHA for Rs.25,000.00 and stated that he was not aware as to when the property was purchased. He further stated that his Identity Card number written in the sale-deeds was not correct.
' The application submitted by accused Iqbal Ahmed Turabi and Ziauddin Taimuri, remained pending. All the five accused persons submitted second application under section 25 of the NAB Ordinance on 10-5-2002 in furtherance of pending application for plea bargain. This time the offer for cash settlement was raised to Rs.24 millions. After 19 days another application under section 25 of the NAB Ordinance was submitted by accused Iqbal Ahmed Turabi on behalf of all the accused persons, in furtherance of earlier application and" theoffer for cash settlement was further raised to Rs.25 million. The list of the properties disowned, acquired and sold and still held by accused Iqbal Ahmed Turabi as appended with the first application for plea bargain, was repeated and the additional sources as contained in the first application for plea bargain were also repeated.
Alongwith this application for plea bargain a detailed reconciliation of final wealth sources were also filed. According to reconciliation of final wealth sources, the actual final wealth of accused Iqbal Ahmed Turabi was shown worth Rs.11,515,894. The cash amount, of Rs.16,575,915 was alleged to have been generated from the salary paid by PSO, share trading and property business. The cash generated from the assets/investments before joining PSO and from salary received from U.B.L. And Overseas Services were shown at Rs.3,683,900. Thus, the total resources available were alleged at Rs.20,259,815.
' The details of cash generated at Rs.6,575,915 were given as' follows:-- CASH GENERATED FROM PROPERTIES DURING THE JOB IN PSO
1. Properties taken by Investigating Officer in report which were sold and Net Profit/Cash generated: - CASH GENERATED FROM PROPERTIES DURING THE JOB IN PSO
1. Properties taken by Investigating Officer in report which were sold and Net Profit/Cash generated:.
Super palace (Exh.No.227, 229 & 7 230Sold 1995 Rs.975,000 ProfitProfit Rs.565,000 Rs.23,55,000 1.Vehicle-Toyota Corolla from Dubai sold in 1986 (Passport copy Attached)Rs.3,20,000 2.Sale/proceed of Flat-Saghir Centre Purchased in 1974 Sold in 1989Rs. 2,75,000 3.Sale proceed of Plot-Karachi Administration Society purchased inRs. 6,50,000 This Property was not taken by Investigating Officer but shown/Declared during statement in Court.
(Exhs.Nos.216 and 219) Purchased 1997 Sold 1998 ProfitRs.54,00,000 Rs.58,00,000 Rs.400.000 Total Cash/Profit From Properties Rs.27,55,000
2. Profit on Shares Trading as Taken by Investigating Officer in his report (P.W.16) (Exh. No. 61)Rs.54,30,105
3. Salary received from PSO (P.W.01)
(Exh.No.12)Rs.23,06,322
4. Prize Bond Winnings (Exhs.Nos.215 and 216)Rs.265,000
5. House Loan from PSO (as per Investigating Officer Report) (Sr. No.19 under Financial worth of Reference)Rs.824,420
6. Loan From Banks (as per, Investigating Officer Report) 1994 ABN Amro (Sr.No.04, under, F.W. of Reference)Rs.18,30,068 Habib Bank Ag-Zurich (Sr. No.09, under F.W. of Reference)Rs.17,20,317 MCB Broadway Branch Rs.14,44,683 (Sr.No.05, under F.W. of Reference)
Total Cash GeneratedRs.4,995,068 Rs.16,575,915 The details of the cash generated at Rs.3,683,900 were given as under:-- Details of Assets anal their sale Proceeds/Encashment These Assets were purchased/investments made before joining PSO and solden-cashed thereafter: 1974 Sold in 1991 (Transfer Application attached)
4.Sale proceed of house-north Karachi purchased in 1979 sold in (General power-of-attorney, D.W.04, Exh.No.214).Rs. 1,75,000 5.Sale proceed of Flat-Maymar Avenue purchased in 1981 sold in 1994(General Power-of-attorney, D.W.04; Exh. No.214).Rs. 700,000 6.Rent of Flat-Maymar Avenue @ Rs.3200 per month from 1982-1994 (Tenancy Agreement attached),Rs. 4,99,200 7.Proceeds of DSC'S on encashment investment made during 1983-1986 face value Encashed during 1981-1996 (D.W.03, Exh.No.213)Rs. 2,28,000 Rs.9,24,700 8.Proceeds of DSC on Encashment investment in 1986 Encashed on 5-6-1989 (D.W.03.
Exh.No.213)
Cash generated from process of sales and encashment of investmentsRs.100,000 Rs.140,000 Rs.3,683,900 ' It was further asserted in the annexure attached to the application for plea bargain that the Investigating Officer as well as the NAB Court have wrongly taken the final wealth of accused lqbal Ahmed Turabi at Rs12,88,44243 as on June 30th, 1998. It was contended that the cut off date ought to have been taken as 30- 6-1999 instead of 30-6-1998. It was stated, that accused Iqbal Ahmed Turabi has declared his assets to tax authorities up to the assessment year 1999-2000 (for the period ending 30-6-1999). It was further contended that out of 9 immovable prdperties three properties are not owned by accused Iqbal Ahmed Turabi and one property was sold in the year 1995, the value whereof was also taken by Investigating Officer as on June 30th, 1998. According to accused lqbal Ahmed Turabi there were four properties held by him/his wife on 30-6-1998 and their cost price ought to have been taken instead of prevailing market value. It was also asserted that the value of shares have not been taken correctly and that the actual financial worth of accused Iqbal Ahmed Turabi comes to Rs.1,15,15894 and not at Rs.2,88,45,243. It was further stated that the declared wealth of accused Iqbal Ahmed Turabi as per wealth tax return for the year 1999-2000 is Rs.11,70,899 and that of Mrs. Najma Iqbal, at Rs.97,37,342. It was contended that all the properties held by accused lqbal Ahmed Turabi and his wife Mrs. Najma lqbal Turabi were declared with the tax authorities and that the cash generated by accused lqbal Ahmed Turabi were converted in US Dollars deposits and were declared in the tax returns filed in the year 1999. The dollars were encashed at the rate of Rs.46 per Dollar. It was alleged that this method was adopted for taking tax advantage as per the provisions of Income Tax Ordinance and State Bank of Pakistan Foreign Exchange Circulars. It was further alleged on page 5 of the conciliation of Financial Wealth and Sources appended with the application under section 25 for plea bargain (page 1273 of the Miscellaneous Part of the R & Ps), that there is no harm in declaration of concealed income in shape of Dollars deposits encashment.
A question was posed whether the amount declared pertained to corrupt practices. In this regard, it was maintained that accused lqbal Ahmed Turabi had declared all the assets in subsequent
1. Properties Rs.52,30,000.00
2. Shares Rs.920,948.75
3. Defence Savings Rs.1,256,000.00
4. ABN-Amro A/C Rs.1,830,068.34
5. MCB Broadway Branch Rs.1,444,683.88
6. MCB Master Card Rs.14,071.00
7. ABL PIDC House Branch Rs.2,509.95
8. ABL PIDC House Branch Rs.30.00
9. Habib Bank AG Zurich (Rs.1,720,317.97)
10. ABN Amro Bank US$, 99,797,37
11. ABN Amro Bank. US$, 185,74
12. Deutsche Bank US$, 1,340.01
13. American Express US$, 422.86
14. Mashreq Bank US$, 59,484.14
15. Value of shares Rs.2,726,188.24
16. Value of Nissan Sunny Car. Rs.240,000.00
17. Jewellry Rs.450,000.00
18. 11th ICP Multan Funds Rs.250,000.00
19. Outstanding balance under loan(Rs.824.420.00) Total Worth in Pak Rs. Rs.11,090,147.94years and the Defence Saving Certificates, investment and some share investments were also declared to tax authorities up to 1998. It was requested that the income tax returnsof accusedIqbal Ahmed Turabi 4nd accused Mrs. Najma Iqbal Turabi up to the period ending 30-62000 may be examined. It was further asserted that P.W. Ali Hussain Rajab Ali has given the figure of net profit earned on share trading at Rs.10,6,000 (Exhs.64 and 65). It was further stated that dividend was received on 11th I.C.P. Mutual Funds at Rs.1,64,250, the breakup whereof is as follows:-- S. No. Year Dividend received
1. 1991 Rs.56,250
2. 1998 Rs.40,500
3. 1999 Rs.33,750
4. 2000 Rs.33,750 ' It was submitted that accused Ziatiddin Taimuri has accepted that Shop No.25 was purchased by him and likewise accused Hassan Raza accepted that the property standing in his name was his own property. So far accused Asif Hussain is concerned, he took plea that he has no concern with the properties standing in his name.
' It was asserted that the transaction in the bank accounts have not been considered properly as every transaction which is a part of roll-over has been taken as independent debit or credit entry. It was alleged that for the purpose of accountability cost value of the properties admittedly held by accused Iqbal Ahmed Turabi and his wife Mrs. Najma Iqbal Turabi, were required to be taken. After adjustment of properties bearing Flat No.206, Plot 12, Sheet No.FT-I. Mehmoodabad Karachi and Flat No.B/8 Super Palace, Plot No.8 Civil Lines Karachi and the value of properties alleged to be benami, the figure of cost value was worked out at Rs.52,30,400. The final net wealth of accused Iqbal Turabi and Mrs. Najma Iqbal Turabi was given as follows:-- ' The new net-worth calculation is as follows:-- Total Worth in US$ @ 46 Rs.7,416.585.52 Less Loan/Advances (Rs.5,819,489.69) Pak Rs. Rs.12,687,243.77 An explanation was submitted pertaining to the Dollar and Pak rupees accounts in bank as follows:-- US DOLLARS AND PAK RUPEES Schedule 'C' of Charge is Investigating Officers Calculation of Dollar deposits. The Investigating Officer has falsely used deposit figures only for Calculation of Assets in a mala fide manner. The error in this Calculation is demonstrated below:-- "A" Habib Bank AG Zurich A/C (Statement Annex) S.No.2.
1. A simple deposit of US$ 51,000 was for 3 months maturity. This deposit was encashed at the end of 3 months and then again on the next day, a new deposit was created for the same amount.
' This led to a debit entry at the end of the three months period and then a new credit entry for the same amount the next day.
' This procedure means that a deposit iS shown in the Account every three months at the beginning of the three months period. During the period Jan 95-Sep 96 this deposit was rolled over 9 times.
This meant that every time the following entries were made.
Day30DR US$51,000(on maturity)
Day31CR US$51,000(due to new deposit)
' This meant that the same amount, which was rolled over, resulted in following total credit in the statement.
' Opending Credit US$51,000 '1' (Exh.27) Credit Entries for Rollover US$ 459,000 (9 x 51,000) US$ 510,000 - --A--- ' This shows that one deposit of US$ 51,000 is counted as 10(Ten) credit entries, amounting to a total deposit of US$510,000 in the Investigating Officer report.
2. In a similar manner US$ 43,902 deposit was rolled over 3 (Three) times. This resulted the following credits in the statement.
Credit On RolloverUS$ 131,706 (8 x 4000) US 175 608 "B"
' In this manner, a deposit of US$ 43,902 was counted wrongly as deposited of US$ 175,608.
3. In a similar manner US$ 4000 deposit was rolled over 8(Eight) times. This resulted in the following credits in the statement. Opending Credit US$ 4,000"III" (Exh.27)
Credit on RolloverUS$32,000 (8 x 4000) US$36,000 "C"
' In this manner, a deposit of US$ 4000 was counted wrongly as deposit of US$ 271,608 (A +B+C)
(1+11+111).
' The amount of US$ 43,902 shown above "2" were purchased from funds drawn on Running Finance
(Loan) Account No.174242 (Pak Rs.) of Habib Bank AG Zurich on 10-4-1996.
' The amount withdrawn on 10-4-1996 was Rs.2,505,009 (and statement of account is annexed)
(Exh.24).
"B" ABN Amro Bank (Statement Annexed Sr.No.6
1. Deposit was made in Account No.21028001 of Dollars in two trenches of US$ mocia (15-12-1997) and US$ 14,100, (13-1-1998). This money was transferred to Account No.21028044 on 18-12-1997 (US$ 10,000) and 15-2-1998) (US$ 15,000). (Exhs.53 and 55).
' This entry implies that two deposits are shown, one in each account US$ 24,100, original deposit is shown in Account No.21028001, the same fund transferred to Account No.21028044 contributes another deposit entry in Schedule "C" of Charge.
' This means that the same funds have been counted twice as two deposits rather than one.
2. Deposit of US$ 99,970.96 shown in Sr.No.6 of Schedule 'C' of Charge was encashed and transferred on 10-7-1998, to A/C No.21028052. This amount transferred was Rs.4,.590,679 and this was used to adjust the Running Finance (Loan) facility availed in this account. The transfer resulted in a deposit entry in the account and this was counted by the Investigating Officer in the Rupee Deposit in the Charge,(Refer Exh.55).
' This means that the same fund US$ 99,970 were Twice, once in Sr.No.6 of Schedule 'C' of Charge and again in the Rupee Deposit of Rs.4,590,679 in the Charge (This amount is against encashment of US$ 99,970) over stating actual deposit by Rs.4,590,679, (refer Exh.56).
3. After the deposit of Rs.4,590,679 in A/C No.21028052 Running Finance (Loan) was adjusted and cash balance of Rs.1,868,058, was withdrawn and deposited in A/C No.21028028. This led to the new deposit entry of Rs.1,868,058, which was counted towards the deposit in rupees in the charge, (refer Exh.56 and Exh.54).
' This means that the same fund moved from one account to another have led to fresh deposit entry of account to another have led to fresh deposit entry of Rs.1,868,058 over stating the real.Deposit by this amount.
4. On 7-2-1998, Rs.2,225,925 were transferred from A/C No.21028028 to A/C No.21028052 and this was shown as fresh deposit by Investigating Officer in this manner Rs.2,225,925were counted twice in the deposit total in the charge, (refer Exhs.54 and 56).
' In this charge, deppsit for the period July, 1998 onwards have also been included in a mala fide manner Investigating Officer in order to enhance the deposit figures. This is inappropriate and incorrect, since wealth Calculation and all record that has been submitted have used a cutout date as 30-6-1998.
' Sr. No.13 and Sr.No.14 of Schedule 'C' of charge refer to Accounts, which have been 'opened in years 2000 and 2001 and cannot be counted, since the cutout date for wealth calculation is 30-6-1998.
The amount of deposit in these two accounts in Rs.3,816,963 and should be excluded, (refer Exh.18 and Exh.20).
' Out of 16 accounts, balance of 14 Accounts were taken by Investigating Officer after the cutout date 30-6-1998. It means that a substantial part of deposits pertain to the period after the cutout date.- ' All the Pak Rupees Accounts shown in the charge were Running Finance (Loan) Account. These accounts are totally different from fixed Loan account the House Building Loan Account. In House Building Loan Accounts, Amount availed for a fixed period against properties and repaid in small fixed instalment (Monthly) over a period of 10 to 15 years. Whereas in Running Finance (Loan)A/C as availed by me, the A/C holder is free to withdraw and redeposit at any time any amount within a Limit of Sanctioned Loan. For e.g. If a person avails a Running Finance Facility of Rs.100,000, he can withdraw Rs.1000,000 daily for any business transaction in 365 days and can redeposit the same amount on the same day after completion of any transaction. This happens in Shares Business, Currency Trading or any Commodity Trading. In this way the withdrawal of that particular Account comes to Rs.36,5000,000 in a year and deposit will also come to Rs.36,5000,000 whereas the balance of this type of Account can never exceed the limit of Rs.1,100,000. The same has happened in my case.
' The learned trial Court ultimately accepted the request of plea bargain on the part of accused Ziauddin Taimuri. He was released from custody. .However, he was convicted under section 10 of Jhe NAB Ordinance, 1999 as required under section 15 thereof and was sentenced to cease to hold any public office if held by him and was disqualified for the period of 10 years, to be reckoned from the date he has discharged his liabilities relating to the matter or transaction in issue, for seeking orfrom being elected, chosen, appointed or nominated as a member or representative of any public body or any statutory or local authority or in service of Pakistan or of any Province. The request for plea .Bargain on behalf of the remaining four accused persons was not accepted.
' The four accused persons/appellants were convicted and sentenced through the impugned judgment as narrated above. All of them have assailed their convictions and sentences.
' We have heard Mr. Azizullah K. Shaikh, learned counsel for all the accused/appellants and Mr. Anwar Tariq, learned DPGA, for the State.
' Mr. Azizullah Shaikh, contended that in the reference submitted by the Chairman NAB, the cutoff date was shown as end of June, 1998 but the learned trial Court framed charge for acquiring immovable/movable properties and pecuniary resources, disproportionate to the known sources of income for the period from April, 1987 to the date of framing the charge i.e. 12-12-2001. Mr. Shaikh contended that the learned trial Court included the period between July, 1998 and December, 2001 in the charge which is beyond the mandate of reference. He next contended that after surrender of accused Asif Hussain, the learned trial Court passed an order for separate trial of accused Asif Hussain and subsequently on surrender of accused Hassan Raza passed an order with the consent of advocates for the parties for separate trial of the two accused persons. Mr. Shaikh very candidly stated that while passing order dated 19-2-2002 for separate trial, the learned trial Court very rightly observed that it was the discretion of the trial Court to hold joint trial or separate trial of the absconding accused persons but in doing so, the trial Court must ensure fair, impartial and just trial. The learned trial Court was fully cognizant of the principles of law in this regard and had observed that the case against three accused persons whose trial was already concluded could be decided on the basis of evidence led against them. Mr. Shaikh, has, however; vehemently argued that while recording the judgment and deciding the issues against accused Iqbal Ahmed Turabi and his wife, the learned trial Court ignored its own observation and considered the evidence against accused Iqbal Ahmed Turabi, recorded during the separate trial of accused Asif Hussain and Hassan Raza. Mr. Shaikh, urged that the evidence recorded in subsequent trial has been used by the learned trial Court against principal accused Iqbal Ahmed Turabi, which could not be used against him, as he did not participate in the subsequent trial, was not given any opportunity to further cross-examine the witnesses and the material/evidence so brought on record was not put to accused Iqbal Ahmed Turabi for the purposes of furnishing explanation as required under section 342,Cr.P.C. No further statement of accused Iqbal Ahmed Turabi was recorded under section 342, Cr.P.C. He has vehemently argued that this has caused serious prejudice to accused Iqbal Ahmed Turabi.
' He has further argued that in spite of holding separate trial against accused Asif Hussain and Hassan Raza, the learned trial Court assigned continuous numbers to the prosecution witnesses and continuous exhibit numbers instead of assigning fresh serial numbers to the prosecution witnesses and fresh exhibit numbers.
' Mr. Shaikh, lastly contended that the learned trial Court ought to have disposed of the two separate trials by two separate judgments instead of disposing of both the trials by a single consolidated judgment. In support of his contention he has placed reliance on the following judgments:--
(1) Ghulam Hussain v. The State (1996 PCr.LJ 514).
(2) Noor Ellahi v. The State (PLD 1966 SC 708).
' He has contended that the serious prejudice has been caused to accused Iqbal Ahmed Turabi, vitiating the judgment and, therefore, the impugned judgment be set aside and remanded to the trial Court for fresh proceedings in according with the law.
' Mr. Azizullah Shaikh, has assailed the impugned judgment, conviction and sentences on merits as well. He has submitted that it has been held in the case of Misbahuddin Farid v. The State 2002 MLD 480 and The State v. Misbahuddin Farid, 2003 SCMR 150, with reference to the judgments in the case of Khan Asfandyar Wali v. Federation of Pakistan, PLD 2001 SC 607 and Mr. Ahmed v. The State PLD 1962 SC 849, that if on examination of evidence, the Court is of the opinion that there is reasonable possibility that the defence forwarded by the accused might be true; this opinion reacts upon the whole case and accused is entitled to the benefit of such doubt on the ground that the prosecution has not proved its case beyond reasonable doubt. He has contended that learned trial Court has ignored this approach propounded by the Hon'ble Supreme Court.
' He has next argued that the trial Court has heavily placed reliance on the provisions contained under section 14(c) of the NAB Ordinance, 1999 and has thereby fallen in error. Mr. Shaikh, while placing reliance on the judgment of Peshawar High Court in the case of Muhammad Hayat v. The State PLD 2002 Peshawar 118, contended that in the first instance prosecution is required to prove corruption and then presumption can be raised under section 14 of the NAB Ordinance. Mr. Shaikh has proceeded on to argue that the learned trial Court hasjumped to the presumption provided under section 14(c) of the NAB Ordinance without fulfillment of the conditions precedent therefor.
' Coming to the merits of the case on facts, Mr. Shaikh, has read each and every word stated by all the witnesses at trial and has taken us through various documents available on record. He has contended that the learned trial Court has not properly appreciated the explanation furnished by accused Iqbal Ahmed Turabi pertaining to the source of acquiring the assets and has misdirected in construing the real nature of the .Bank transactions. He has submitted that the learned trial Court has not fully appreciated the nature of transaction in several bank accounts. The same amount was withdrawn and re-deposited by him time and again. The same money was rolled- over and the learned trial Court instead of taking the actual amount deposited by accused lqbal Ahmed Turabi in Bank accounts has taken the entire credit entries as deposit with the result that very huge deposits have been taken by the trial Court. Due to incorrect appreciation of facts the real picture of the financial worth of accused Iqbal Ahmed Turabi and his liquidity position has been blurred. Mr. Shaikh lias forcefully argued that the nature of Bank transactions, roll-over of the same money, transfer of same amount from one bank account to the other bank account and the utilization of running finance facility has not been properly appreciated either by the prosecution or by the trial Court with the result that meager deposits have been taken as huge credits/deposits made by accused Iqbal Ahmed Turabi and his wife accused Mrs. Najma Iqbal.
' Mr. Shaikh has further argued that likewise the nature of transaction in share trading has not been ' properly understood and appreciated by the prosecution and the learned trial Court. He has submitted that very petty amount was invested in share trading. The shares were purchased and sold with very small investment. The purchase and sale transactions of the shares were made at short intervals either on profit or loss without involvement of any huge investment. The nature of transactions was not properly comprehended by the prosecution as well as the trial Court and the entire amount of purchase and sale of the shares. Were taken as investment made by the accused Iqbal Ahmed Turabi and his wife accused Mrs. Najma. Iqbal and consequently the findings of the learned trial Court have been misdirected.
' Coming to the benami transaction. Mr. Azizullah Shaikh submitted that so far, the property allegedly purchased by accused Iqbal Ahmed Turabi by way of benami transaction in the name of accused Ziauddin Taimuri is concerned, it stands settled with the acceptance of plea bargain. The plea of accused Ziauddin Taimuri, that he surrenders the "property has been accepted and after acceptance of plea bargain accused Ziauddin Taimuri his been convicted and sentenced as requiredunder. The law with the result that accused Iqbal Ahmed Turabi stands absolved in this regard.
' So far, the property in the name of co-accused Hassan Raza, is concerned, he has taken plea that the property has been purchased by him with his own source. He has submitted that P.W.35 Muhammad Yar, has clearly stated that in the tenancy agreement of M-04 Mezzanine Floor, Falai( Naz Center, Shahrah-e-Faisal, accused Hassan Raza was shown as the landlord and cross-cheque for the rent was also issued in the name of Hassan Raza. He has pointed out that in his statement under section 342, Cr.P.C. Accused Hassan Raza furnished explanation of the source for payment of sale consideration for acquiring premises M-04 Mezzanine Floor, Falak Naz Center. Shahrah-e- Faisal and therefore, the learned trial Court was not justified in observing that accused Hassan Raza had no source of income to purchase the property which stands in his name but he has facilitated accused Iqbal Ahmed Turabi in acquiring this property and that accused Hassan Raza had tried to take advantage of the circumstances when he came to know that accused Iqbal Ahmed Turabi is not claiming the property, therefore, he has taken the plea that the property was purchased by him from his own sources but unfortunately he has failed to show his source of income, therefore, his efforts to Usurp the property has failed. Mr. Shaikh, submitted that the observations are uncalled for and are not supported with the material available on record.
' So far, the properties owned by accused Asif Hussain are concerned. Mr. Shaikh has submitted that the learned trial Court has accepted the plea of accused Asif Hussain that he was not a party to the transaction of acquiring the properties in his name as he has not signed any &aliment in this behalf and his National Identity Card number written in the sale document is not correct. Mr. Shaikh, contended that the prosecution has failed to establish that the properties in the name of accused Asif Hussain were purchased by accused Iqbal Ahmed Turabi.
' After concluding the arguments, Mr. Azizullah Shaikh, requested that accused Iqbal Ahmed Turabi may be provided an opportunity to explain himself the sources of acquiring the assets admittedly acquired by accused Iqbal Ahmed Turabi or his wife and nature of transactions pertaining to the bank accounts as well as, trading in shares. The request was allowed and accused Iqbal Ahmed Turabi was provided opportunity to explain the sources available with him for acquiring the assets (immovable and movable properties). Accused Iqbal Ahmed Turabi, thereafter, attempted to explain the resources and the sources from which the assets admittedly held by him and his wife were acquired. He mainly placed reliance on the material contained in the charts appended with the application for plea bargain dated 29-5-2002,the contents whereof have already been reproduced in the earlier part of this judgment.
' On the other hand, Mr. Anwar Tariq, learned. DPGA, has submitted that the learned trial Court has not committed any illegality in conducting separate trial against accused Asif Hussain and Hassan Raza. According to him accused Asif Hussain surrendered before the Court after the entire proceedings against accused lqbal Ahmed Turabi, Mrs. Najma lqbal and Ziauddin Taimuri were concluded. In these circumstances, it was appropriate to conduct separate trial against the two absconding accused persons. He has maintained that the learned counsel for the appellants has conceded that while passing order for separate trial, ca the application of Special Public Prosecutor, the learned trial Judge was fully cognizant of the principles to be adopted in such circumstances. The learned trial Court had specifically observed that the evidence recorded in subsequent trial shall be considered against accused Asif Hussain and Hassan Raza only and the case against accused Iqbal Ahmed Turabi, Mrs. Najma Iqbal and Ziauddin Taimuri shall be decided on the basis of evidence recorded in the earlier trial and any evidence recorded in subsequent trial 'shall not be considered against them. Mr. Anwar Tariq, has maintained that assigning of consecutive and continuous numbers to the prosecution witnesses and exhibits can be termed at the most, an irregularity which has not caused any prejudice to accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal Turabi and no miscarriage of justice has occasioned. Such trivial irregularities shall not result in the vitiating entire proceedings. He has categorically stated that if any part of evidence recorded in subsequent trial has been inadvertently referred to by the trial Court while considering the case against accused lqbal Ahmed Turabi and Mrs. Najma lqbal Turabi, the same may be excluded from consideration and while considering the case against these two accused persons, the evidence/material brought on record during first trial may be taken into consideration.
He has submitted that he will not place reliance on any part of evidence recorded in second trial in support of the charge against Iqbal Ahmed Turabi and Mrs. Najma Iqbal. He has further prayed that the evidence recorded in first trial and second trial may be considered separately. The evidence recorded in second trial may be considered against accused Asif Hussain and Hassan Raza only.
' So far, the disposal of both the trial by single consolidated judgment is concerned, Mr. Anwar Tariq, has submitted that it does not amount to any illegality. Once the evidence recorded in each trial is considered against respective accused persons, the possibility of any prejudice to any of the accused persons is ruled out. He has submitted that the trial Court has not decided two separate cases connected with each other but has decided one case only with a difference that becauseof the abscondence of accused Asif Hussain and Hassan Raza, till the conclusion of trial against accused Iqbal Ahmed Turabi, Mrs. Najma Iqbal and Ziauddin Taimuri, a separate trial was deemed appropriate by the trial Court. The learned DPGA, has contended that the course adopted by the trial Court was the most appropriate and the disposal of entire case by one judgment does not amount to anyillegality. No prejudice has been caused to any accused and consequently, the course adopted by the learned trial Court is not open to any exception.
' The learned DPGA, has lastly submitted that although the Investigating Officer had referred to a cutoff date in his report which is dated 30-6-1998 but the framing of charge by the trial Court against accused persons calling upon them to explain the sources'of acquiring the assets till the commencement of trial is not open to any exception. According to him, the' charge is to be framed by the trial Court on the basis of entire material available on record and nut on the basis of report of the Investigating Officer alone. He has maintained that under the NAB Ordipance, an accused person is accountable in respect of all the assets acquired/possessed/owned/held by him. Under the NAB Ordinance, the accountability starts from the year 1985 but no cutoff date is provided in the law. As and when an accused person is found to be in possession of any assets, sources whereof are not known or if such assets are disproportionate to known sources of accused persons, it is covered under the accountability net. He has submitted that in the present case, the accused himself disclosed acquiring of a property for Rs.54,000.00 and stated that it was disposed of for Rs.58,000.00. The prosecution was not able to discover this property during the investigation and the evidence in this regard was brought on record through the defence witnesses, nonetheless, the accused is accountable for holding this property also and if he fails to give reasonable account thereof, the accused shall be liable for the commission of offence under section 9 of the NAB Ordinance punishable under section 10 thereof.
' Coming to the merits of the case, Mr. Anwar Tariq, has submitted that the admitted position is that Mrs. Najma Iqbal is housewife having no source of income of her own. She has admitted that having confidence in her husband accused Iqbal Ahmed Turabi, she signed all the documents asked for by her husband. Thus, the abetment on her part is admitted and accused Iqbal Ahmed Turabi, has not been able to reasonably explain sources of acquiring the assets held by him in his own name and in the name of his wife Mrs. Najma Iqbal. He has submitted that the amount of salary received by accused Iqbal Ahmed Turabi before joining PSO and after joining PSO is admitted and admittedly the assets acquired by accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal could not be purchased from the said amount. Insupport of his contention he has referred to the declaration filed by accused Iqbal Ahmed Turabi with the PSO and with the tax authorities from time to time. So far, the running finance facility availed from the banks and share trading is concerned, Mr. Anwar Tariq, has submitted that accused lqbal Ahmed Turabi has not accounted for even the amount of interest paid by him in bank for availing the running finance facilities. He has further submitted that the deposits made by Foreign Currency Accounts have also remained unexplained and that cash credits have introduced from time to time in various bank accounts.
Likewise the amount of commission paid to the Stock Exchange Broker is much in excess than the amount of profit earned in the share trading, Mr:. Anwar Tariq, has vehemently argued that the contention of accused Itibal Ahmed Turabi that the entire share trading running into the millions was conducted by investment of Rs.3,22,000 and that no money is involved in such business is belied by the record produced by the proseCution and such version has gone unchallenged. He has further submitted that for the purpose of availing running finance facility the accused Iqbal Ahmed Turabi, had furnished bonds and securities with the bank as guarantee and the source of acquiring the bonds and securities have not been explained. Mr. Anwar Tariq, has contended that accused Iqbal Ahmed Turabi, has accumulated such huge wealth by illegal and corrupt means, that he is himself unable to give any explanation worth the name. By opening various bank accounts and entering into innumerable transactions and adopting same tactics by resorting to share trading, the accused Iqbal Ahmed Turabi has merely tried to create cobweb for the purpose of camouflaging his act of accumulating wealth by corruption and corrupt practices.
' Mr. Anwar Tariq, has submitted that the learned trial Court has accepted plea bargain in respect of the property in the name of accused Ziauddin Taimuri, therefore he would not like to address any argument in respect of this property. So far, the property standing in the name of accused Hassan Raza is concerned, there is sufficient material on record to show that it was acquired and controlled by accused Iqbal Ahmed Turabi, accused Hassan Raza has tried to establish that the property in his name was acquired by his own sources but he has utterly failed to do so and 'therefore, the learned trial Court has rightly disbelieved the version of accused Hassan Raza in this respect. So far, the properties in the name of accused Asif Hussain are concerned, there is material on record to substantiate the prosecution version that it was acquired by accused Iqbal Ahmed Turabi in the name of his wife's brother Asif Hussain. As regards the absconsion of accused Asif Hussain and Hassan Raza, the prosecution version has gone unchallenged and even Mrs. Azizullah Shaikh, learned counsel for the accused has not addressed any argument on this aspect of the case, meaning thereby, thatthe conviction and sentence awarded to accused Asif Hussain and Hassan Raza under section 31-A, of the NAB Ordinance, has not been assailed, Mr. Anwar Tariq, learned DPGA, has fully supported all the findings, convictions and sentences awarded by the learned trial Court. .
' Replying to the contention of Mr. Azizullah Shaikh, pertaining to the placing of reliance by the trial Court on provisions contained in section 14(c) of the NAB Ordinance, Mr. Anwar Tariq, has submitted that the provisions contained in section 14(c) of the NAB Ordinance, has been considered in depth and detail by this Court in the case of Abdul. Aziz Memon v.The State 2003 YLR
617. He has referred the following passage from the above judgment:-- "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 an assets was acquired/received, the onus shall be satisfactorily discharged on the part of an accvsed."
' 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 toany 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'.
' In section 9(a)(v) one of acts constituting the offence of corruption and corrupt practices is if holder of a public office or any other persons or his dependents or Benamidars own, possess, or have acquired right or title in any movable or immovable property or pecuniary resource disproportionate to his known sources of income, which he cannot reasonable account for. In section 10(a) the expression used is, 'the accused person or any other on his behalf, is in possession for which the accused persons cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income".
' 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 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 provisions 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 sources 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 beheld to have discharged his burden in law and what are the conditions precedent obliging the Court to accept explanation furnished by an accused person.
' 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 reasons 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 persons facing trial for the 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 which 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, therefore, shall not be invalid by reason only that, it is based solely on such a presumption.
' 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. Thus 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/possession the assets and pecuniary resources. Mr. Khalid Anwar, has submitted that, the prosecution has mainly placed reliance on the wealth statementsand 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. 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 declaration 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. In support of his contention Mr. Khalid Anwar, has placed reliance on several judgments in criminal case 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 reasons 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 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/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. The expression "The Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/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 thatthe 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 riot disproportionate to his known sources of income and has to account for the same in a reasonable and satisfactory manner.
' 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 case 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 outa 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 discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
' It was with reference to section 14(d) of the NAB Ordinance,1999.
' 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 construed, 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 IA statute was enacted."
' 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 air settled principles 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."
' 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).
' We are of the view that, the ratio of the above judgments is of no help to the appellants in this case. 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 provisions 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."
' 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 follows:- - "I may observe that a distinction is to be made between an offence which is committed against an individual like atheft 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."
' The Hon'ble Supreme Court has further observed asunder:-- "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 ,above 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."
' 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 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.
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 but 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.
Likewise if a person claims to have purchased a property by selling the 'Saving Certificates or Foreign Exchange Bearer Certificate, 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 acquiringthe Saving Certificates/F.E.B.Cs. And if there is a chain of sources it should be traced up to original source. A merecreation of smoke screen would not be sufficient discharge of burden to ward of the assumption under section 14(c) of the NAB Ordinance.
' We have carefully considered the contentions raised by the learned Advocates for the parties and have very carefully perused the entire material available on record. Looking to the nature of case, we have given very anxious consideration to each and every contention raised before us and the material available on record.
' First, we would like to dispose of the legal objections raised by Mr. Azizullah Shaikh and his plea for remand of the case to the trial Court. So far, the conduct of separate trial against accused Asif Hussain and Hassan Raza, who were initially absconding and surrendered before the trial Court after the conclusion of trial against accused Iqbal Ahmed Turabi, his wife Mrs. Najma Iqbal and Ziauddin Taimuri, is concerned, Mr. Azizullah Shaikh has candidly conceded that it was within the discretion of the trial Court. The assigning of continuous andconsecutive numbers to the prosecution witnesses and the exhibits, is in the nature of irregularity only which shall have no impact per se on the legality of the proceedings or the judgment. We are persuaded to agree with the contention of Mr. Anwar Tariq, on the point of framing of charge wherein the period of accountability is taken from April, 1987 till the date of framing of charge. The reason being that in such cases there is continuous commission of offences. Every act of acquiring and disposing of the assets, accumulating of wealth, holding or possessing the assets created by corruption or corrupt practices and any act in this behalf amounts to the commission of offences and an accused person is to be tried for all and every such acts and their accumulative effect. An accused person holding/owning/possessing directly or indirectly all the assets by corruption and corrupt practices continues to commit the offence and, therefore, is liable to be tried from the time of commencement of the offence till the commencement of the trial. The objection raised by Mr. Azizullah Shaikh in this behalf is hereby repelled.
' We do not find any substance in the contention of Mr. Azizullah Shaikh, that because of disposal of case against all the accused persons by one judgment, an illegality has been committed. First, Mr. Azizullah Shaikh has not been able to show that any prejudice has been caused to' accused Asif Hussain and Hassan Raza and secondly it is not the case of disposal of two separate cases by one judgment. The expression "case" is wider. In term. It is admitted position that a single reference was submitted by the Chairman NAB, before the trial Court and the learned trial Court took cognizance of one case against all the five accused persons. Accused Asif Hussain and Hassan Raza became fugitive at law. After issuance of non-bailable warrants against them, statements of the process servers were recorded and processes were duly issued against them under sections 87 and 88, Cr.P.C. After due process of law, accused Asif Hussain and Hassan Raza were declared absconders and the case against them proceeded in their absence under section 512, Cr.P.C. However, both of them surrendered before the Court after obtaining bail from the High Court, when the entire trial against accused Iqbal Ahmed Turabi. Mrs. Najma Iqbal and Ziauddin Taimuri was concluded. The defence witnesses were also examined and the case was fixed for final arguments. The prosecution has already examined as many as 31 witnesses, and the evidence comprised the bulky record spreading over 1000 pages. In these circumstances, the learned trial Court very rightly decided to conduct separate trial against accused Asif Hussain and Hassan Raza as few witnesses were required to be examined against them and denovo trial against all the accused persons would have been an exercise in futility. If the accused Asif Hussain and Hassan Raza would not have absconded, all of them would have been tried together since thevery beginning and in such eventuality no body could say that there were more than one cases against the accused persons.
If the trial Court would have decided for denovo trial even then there would have been one case only against all the accused persons. As explained earlier the two trials were necessitated because of acts and omissions on the part of accused Asif Hussain and Hassan Raza. Thus, we are of the considered opinion, that notwithstanding, two trials because of the peculiar circumstances of the case, there was one case only against all the five accused persons. No illegality or even irregularity has been committed by the trial Court in disposing of the entire case by single judgment. The learned trial Court has neither violated any mandatory provision of law nor any prejudice has been caused to any of the accused persons by the disposal of case with one judgment. On the contrary the learned trial Court has acted in the most appropriate manner. Rendering of two separate judgments was likely to cause confusion, which has been very rightly avoided by the learned trial Court. It is held that the course adopted by the learned trial Court is not open to any exception.
' This brings us to the last legal objection raised by Mr. Shaikh, it pertains to the reference to a part of evidence recorded in the trial, against accused Asif Hussain and Hassan Raza while considering the allegations against accused Iqbal Ahmed Turabi. We find that due to inadvertence, the learned trial Court has referred to the statements of witnesses whose statements were recorded for second time in the second trial. This inadvertent mistake has been made because the detailed statements of the witnesses were recorded in the first trial against accused Iqbal Ahmed Turabi and in the second trial against absconding accused persons which commenced after their surrender, certain witnesses were recalled to testify the part of evidence against accused Asif Hussain and Hassan Raza. However, Mr. Anwar Tariq, ha's frankly stated that no part of statement recorded in second trial can be considered against accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal and all such statements be confined to the findings against accused Asif Hussain and Hassan Raza only and be excluded while considering the prosecution case against accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal. On the concession made by Mr. Anwar Tariq, with which we agree, the objection of Mr. Azizullah is partly upheld. While considering whether the case against accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal has been established or not, we shall not consider any evidence \recorded in the second trial. While considering the merits of the case on facts, we will keep the evidence recorded in first trial and in second trial totally separate and in watertight compartments. The evidence recorded in the first trial shall not be considered against accused Asif Hussain and Hassan Raza and likewise not a single word out of evidence recorded insecond trial shall be considered against accused Iqbal Ahmed Turabi and his wife Mrs. Najma Iqbal.
' This brings us to the consideration of factual aspects in respect of the properties/assets held by accused Iqbal Ahmed Turabi/Mrs. Najma Iqbal. Excluding the property held in the name of Ziauddin Taimuri in respect whereof the trial Court has accepted the plea bargain we will place the assets in 8 categories as follows:-- CATEGORIES
1. Immovable properties admittedly acquired/possessed by accused Iqbal Ahmed Turabi/Mrs. Najma Iqbal and sold before the commencement of trial.
2. The immovable assets/properties admittedly owned/held by the accused Iqbal Ahmed Turabi/Mrs. Najma Iqbal.
3. The immovable properties alleged to have been acquired by accused Iqbal Ahmed Turabi by way of benami in the name of accused Asif Hussain and accused Hassan Raza.
4. The amount utilized in share trading.
5. The deposits/credits in various bank accounts.
6. The amount invested in Prize Bonds. Securities and Saving Scheme.
7. Foreign remittances declared/encashed by accused Iqbal Ahmed Turabi/Mrs. Najma Iqbal.
8. The amount of interest paid for availing running finance facility and commission paid to the Stock Exchange Broker for share trading.
' After considering the material available on record on the above points, we will consider the explanation furnished by the accused persons pertaining to the sources of acquiring the above investments/assets/properties.
CATEGORY NO. 1.
Description of propertyYear of purchaseYear of alleged sale
1. Flat B/8 Super Palace Civil Lines Karachi1991 1995
3. Flat 26 Mehmoodabad House Frerer Town KarachiFrerer Town Karachi1994 Final instalment paid in the years in the years 19971997
4. Bungalow No.C/3. Block- IV, KDA, Clifton Karachi19-12-1997 16-2-1998 CATEGORIES NO.2 Description of Property Year of Purchase
1. Shop No. 10 Chapel Resort Block-1, Karachi1996
2. Flat No.M-04 Chapel Resort Clifton Karachi1995
3. Plot B-34/2 Phase-V, (b) DHA Karachi Purchase of plot 1996 Construction 1999 CATEGORY NO.3 Description of Property Year of Purchase
1. Shop No. 10 Chapel Resort Block-1, Karachi1996
2. Flat No.M-04 Chapel Resort Clifton Karachi1995
3. Plot B-34/2 Phase-V, (b)
DHA KarachiPurchase of plot 1996 Construction 1999 CATEGORY NO.4 ' Replying the question No.38, in his statement under section 342, Cr.P.C. Accused Iqbal Ahmed Turabi, has admitted share trading in the sum of Rs.2.14,04515. He stated that no money is involved in transaction. According to him, there is a clearing period and during the said period only difference is to be paid or profit is received in purchase and sale of shares. In his statement at page No.1611 of the Paper Book he took plea that the shares were never bought by him and no consideration was ever paid for the same. According to him, only a difference was paid to the sale/purchase price of the shares depending upon whether a loss or profit was made. In the statements filed by the accused before us while giving explanation to the resources available for acquiring of property. It is stated as follows:-- "SHARES"
' Initial investment was made at Rs.3,22,325.
' Subsequent payment till 31-12-11998 was made to Rs.20,68,370 (as per Paper Book page 775 and 777).
' A perusal of record further shows that accused Mrs. Najma lqbal, attempted to receive the cash amount of R.6,15,190 and shares worth Rs.6,000.00 from Messrs Kausar Abbas Bhayani, Stock Exchange Broker but the Court restrained the accused from receiving the cash and shares from the Stock Exchange Broker. A perusal of evidence on record shows that Rs.6,52,690 were paid to Messrs Kausar Abbas Bhayani by Mrs. Najma lqbal from 1-7-1999 to 30-6-2000. Another amounts of Rs.4,79,250 were paid to Messrs Kausar Abbas Bhayani between 1-7-2000 and 30-6-2001 (page 711 of the Paper Book). Thus, total amount invested with Messrs Kausar Abbas Bhayani, on account of share trading comes to Rs.35,22,635.
' CATEGORY NO.5 ' Accused Iqbal Ahmed Turabi in his statement under section 342, Cr.P.C. Has admitted following Bank accounts in his name and in the name of his wife accused Mrs. Najma lqbal:--
1. A/C 1932-2 ABL PIDC House Karachi, which remained operative from 8-6-1998 to 17-2-2000.
2. A/C 2121-8, ABL PIDC House, Karachi.
3. A/C 20610-714-115914 Metropolitan Bank, Karachi.
4. A/C 20610-714-8616 Metropolitan Bank, Karachi.
5. A/C 1714-174242-116-01, Habib Bank AG Zurich 1.1. Chundrigar Road, Karachi.
6. A/C 2102001 ABN Amro Bank, Karachi.
7. A/C 21028028 ABN Amro Bank, Karachi.
8. A/C 21028052 ABN Amro Bank, Karachi.
9. A/C 4-5 MCB Broadway Clifton, Karachi.
10. A/C 1-11583 MCB Shaheen Complex, Karachi.
11. A/C 174242 H.B. AG Zurich I.I. Chundrigar Road, Karachi.
12. Time Deposit AC H.N. AG Zurich, I.I. Chundrigar Road, Karachi.
13. A/C 111062020 American Express Bank, Shaheen Complex.
14. A/C 52233-30-5 Deutsche Bank.
15. A/C 21028044 ABN Amro Bank, Karachi.
16. Transfer of US$ 51,000 through Hawala from abroad to Mashriq Bank in the nam,.Of minor Ali Hassan.
17. Credit Card facility on Master Cards utilized in sum of Rs.9,25,106.
CATEGORY NO.6
1. Accused Iqbal Ahmed Turabi, while replying Question No.25, in his statement under section 342, Cr.P.C. Admitted that he deposited Shares and Defence Savings Certificates of the value of Rs.21,76,948 as security with MCB Broadway Clifton for availing running finance facility. This account was opened on '4-6-1997 and was closed on 1-2-2000. The running finance facility was adjusted by accused lqbal Ahmed Turabi and Mrs. Najma Iqbal, therefore, Defence Savings Certificates were returned to the accused persons and according to Exhibit 35, the running finance account was adjusted out of the sale proceeds of the shares which were purchased through Messrs Kausar Abbas Bhayani, Stock Exchange Broker.
2. According to revised Wealth Tax Return (Page 1257 of Paper Book) filed alongwith covering letter, tax computation of Mrs. Najma Iqbal, Exh.154 shows that in addition to the shares in the sum of Rs.757,750 and Defende Savings Certificates in the sum of Rs.6,92,000, accused Mrs. Najma Iqbal declared cash .In hand and Prize Bonds at Rs.54,22.592 out of which Rs.52,11949 were stated to be foreign remittance. For the same period accused Iqbal Ahmed Turabi declared Defence Savings Certificates in the sum of Rs.6,84,000 vide Exh.163.
' CATEGORY NO.7 ' In the Wealth Tax Return for the Assessment years 1999-2000 Exh.154 foreign remittance utilized in the purchase of plot in Phase-IV, DHA, is shown at Rs.21,15,000. In the same return foreign remittance of Rs.52,11,949 have been shown against cost of acquiring the PrizeBonds and cash at Rs.54,22,592 (this amount has been referred to in the earlier category also). Alongwith return encashment certificates from ABN kmro Bank and Al-Mashriq Bank (Pages 1525 and 1526 of Paper Book) have been produced without any evidence dr receiving remittances through normal banking channel and without disclosing source. This Wealth Tax Return was revised on 25-8-2000 vide Exh.155 and the amount of foreign remittance invested in purchasing of plot in DHA IV and Prize Bonds was re-allocated and in the revised return investment of Rs.21,51,000 was shown in purchase of house in Phase-IV DHA, an amount of Rs.41,61,600 was shown as advances for the offices (this declaration shall be considered while dealing with the offices allegedly acquired in the name of accused Asif Hussain and Hassan Raza) and investment of Rs.10,50,349 was shown in acquiring the Prize Bonds worth Rs.12,60,992. It is pertinent to note that in the revised Wealth Tax Return, the value of Prize Bonds/cash in hand was reduced 54,22,592 to 12,60,992 and advance for acquiring offices was declared at Rs.41,61,600 which was not shown at all in the revised return dated 21-1-2000. It is also important to note that the Wealth Tax Return was revised twice for the Assessment Years 1999-2000 and in the original return Exh.153, Shop No.10 Chapel Resort was declared at the value of Rs.2,85,000 which was not modified in the subsequent two revised returns. The cost of acquiring plot in Phase-IV DHA was shown at Rs.25,00,000 it was not changed in the two subsequent revised Wealth Tax Returns. However, in the original Wealth Tax Return no investment was shown out of foreign remittances. The investment in shares was shown at Rs.7,57,750 it was not changed. The value of D.S.Cs: was shown at Rs.6,92,000 which remained unchanged. The value of Prize. Bonds was shown at Rs.8,31,913. No investment from foreign remittances was shown in acquiring the Prize Bonds. In first revised return, it was enhanced to Rs.54,22,592 and foreign remittances were shown at 52,11,949 and in the second revised return value of Prize Bonds was brought down to Rs.12,60,992 and the investment from foreign remittance was shown at Rs.10,50,349. In the original Wealth Tax Return for the Assessm ent Years 1999-2000, the foreign remittances for the year were declared at 27,36,270 but no investment out of it was declared% ' Various deposits in the foreign currency accounts shall be considered while discussing the said bank accounts.
' CATEGORY No.8 I accused Iqbal, Ahmed Turabi, while explaining source foracquiring the assets has submitted a chart containing summary of mark-up paid on running finance bank accounts which reads as follows:- Summary of Mark-up Paid on Running Finance Bank Accounts Pak Rupees{ Summary of Mark-up Paid on Running Finance Bank Accounts Pak Rupees S. No.Bank Account No.Mark-up Source
1. ABN Amro21028028 110,387.93 [From Jan, 1998 to June, 2000]Sale proceeds of Bungalow. No.C- 3, Clifton Block-4 KDA Scheme No.5.
2. MCB 4-5 153,236.82 [From Jan. 1998 to Dec.
19991Share Trading Profit from sale proceeds of Shares
3. Allied ABL2521-8 2,420.00 [From Dec. 1997 to Feb.
1998]Cash Resources
4. Habib Bank AG Zurich174242 15,04,577.91 [From Jan. 1996 to June.
2000]Sale Proceeds of US. Dollars
2. P. W. No.16, Khurram Raza, Bhayani has produced statement Exh.63(PB 643 to 707) of the Paper Book showing the amount of commission paid to the Stock Exchange Broker on account of transaction pertaining to shares following commission was paid by accused Mrs. Najma Iqbal to Messrs Kausar Abbas Bhayani:-- Period Commission paid
1. From 1-7-1996 to 30- 6-19971,60,259
2. From 1-7-1096 to 30- 6-19973,750
3. From 1-7-1997 to 30- 6-199841,275
4. From 1-7-1997 to 30- 6-199819,500
5. From 1-7-1998 to 30- 6-199913,070
6. From 1-7-1998 to 30- 6-19993,15,120
7. From 1-7-1999 to 30- 6-20003,44,451
8. From 1-7-2000 to 30- 6-20013,7,215
9. From 1-7-2001 to 30- 6-2002.14,100 ' A consolidated commission report of the above transactions is also available (pages 681 to 707 of the Paper Book) which shows that the total amount of commission paid by accused Mrs. Najma Iqbal to Messrs Kausar Abbas Bhayani is Rs.9,48,741.
' Now we will dilate on the assets admittedly held by accused Iqbal Ahmed Turabi and his wife Mrs. Najma Iqbal and the sources furnished by accused Iqbal Ahmed Turabi for acquiring The assets.
According to re-conciliation of financial wealth and sources furnished by accused Iqbal Ahmed Turabi alongwith application under section 25 of the NAB Ordinance dated 29-5-2002 and before us during the course of arguments on these appeals, the actual financial worth of the two accused is at Rs.1,15,15,894. He has contended that cash amount of Rs.1,65,75915 was generated during the job of PSO from salary, share trading and property business. He has further urged that cash amount of Rs.36,83,900 was generated from assets/investments before joining PSO from salary of UBL and Overseas. Thus, according to him the total sources available with accused Iqbal Ahmed Turabi were Rs.20,259,815.
' The details furnished by accused Iqbal Ahmed Turabi have 411ready, been reproduced in the earlier part of this judgment. A perusal of the details furnished shows that in his desperate attempt to furnish the source of acquiring the properties, he has presented a cock and bull story only. Either no sources of acquiring the properties have been furnished or resources disclosed are unsubstantiated and imaginary.
' The declaration of assets filed by accused Iqbal Ahmed Turabi, with PSO for the period ending 31st December, 1987 produced by P.W.2. Mansoor Khawaja Qureshi (Page 77 of the R & Ps), shows that the following properties were held by him and his family members:-- Self KarachiOpen Plot (120Sq, Yds)20,000 Purchased 1975 Self KarachiToyota Corolla 70000 Purchased 1987 Wife KarachiFlat 140000 Purchased 1979 Wife Jewelry 250000 Dowry/ Purchased Self & Wife Bonds/Securities350000 ' In the year ending 31st December, 1989, same assets weredeclared. In the decfaration for the period ending 31st December, 1990, the bonds/securities were increased to Rs.3,80,000. In the explanation accused Iqbal Ahmed Turabi has taken plea that a flat was purchased in Saghir Centre in the year 1974 and was sold in the year 1989 for Rs.2,75,000. No evidence has been produced in support of this contention. In the declaration of assets no such 'property find; place.
According to the declaration of assets- for the years 1987, 1988, 1989, 1990 and 1991 and onward a flat was declared in the name of wife alleged to have been purchased in the year 1979. The accused Iqbal Ahmed Turabi, has further alleged to have' purchased a plot in Karachi Administration Society in the year 1974 and sold in the year 1991 for Rs.6,50,000. No such property finds place in the declaration of assets. No evidence has been brought on record at trial in support of the contention. The accused Iqbal Ahmed Turabi, has further alleged that he purchased a house in North Karachi in the year 1979 and then sold it for Its..01,75,00. Likewise, a flat is alleged to have' been purchased in the year 1981 situated in Maimar Avenue and sold in the year 1994 for Rs.7,000.00. This, property also does not find place in the declaration of assets filed by accused Iqbal Ahmed Turabi, with his employer. PSO. Accused Iqbal Ahmed Turabi, has tried to substantiate contention of purchase and sale of flat in 'Maimar Avenue, Dhoraji Colony, Karachi, by examining his brother D.W.4, Abbas Ahmed. He has stated that he purchased the flat from accused Iqbal Ahmed, in the year 1994 for an amount of Rs.7,000.00. However, he' has conceded that no sale documents were prepared except a Power of attorney. Even Power of Attorney alleged to have been executed has not been produced in evidence. Thus, the explanation has remained totally unsubstantiated. Accused Iqbal Ahmed Turabi, has further explained that he received Rs.4,99,200 as rent from the tenant for the flat situated in Maimar Avenue. As already observed, no documentary evidence has been produced for the purchase and sale of flat ik_Maimar Avenue and the tenant who allegedly paid Rs.4,99,200 to accused Iqbal Ahmed Turabi, has not been produced in evidence. Accused Iqbal Ahmed Turabi, has further furnished explanation that he received proceeds of D.S.Cs: encashed during the year 1983-1986 at the face value of Rs.2,28,000 and Rs.1,000,00. The encashment proceeds according to him were Rs.9,24,700 and Rs.1,40,000. In support of the contention he has examined D.W.No.3. Rehmat Illahi, Officer Incharge, National Savings Centre, Saving House Karachi. This witness has stated that the D.S.Cs: were encashed in the year 1996 in the sum of Rs.2,13,000 and Rs.4,26,000. The total whereof comes to Rs.6,39,000 and not Rs.10,64,700 as alleged.
' Coming to the other properties accused Iqbal Ahmed Turabi has alleged that he .Purchased Flat B/8 Super Palace in the name of his wife in the year 1991 and sold the same in the year 1995 for the sum of Rs.9,75000. In support of the contention, he has examined D.W.9 Badaruddin and D.W.10 Najamuddirt. In the declaration of assets filed by accused Iqbal Ahmed Turabi for the year ending 31 December, 1991 purchase of this ,flat is not shown. According to sale-deed copy whereof has been produced by D.W. Badaruddin this flat was purchased by Mrs. Najma Iqbal from one Mrs. Dure Shahwar on 7-7-1991 for the sum of Rs.4,10,000. However, in the declaration of assets one flat is shown to have been purchased in the year 1990 for Rs.4,50,000. Even if this flat is taken to be same as declared in the declaration of assets and to have been purchased for Rs.4,50,000 the source of purchasing this flat has not been explained. A comparison of the declaration of assets for the period ending 31st December, 1990 and 31st December, 1991 shows that for the period ending 31st December, 1990 a Toyota Corolla Car valued at Rs.70,000 a Flat valued at Rs.1,40,000 and one plot of 120 Sq.Yds: valued at Rs.20,000 was declared. For the period ending 31st December, 1991 Toyota Corolla Car and Flat worth Rs.1,40,000 were shown while instead of plot valued Rs.20,000 flat allegedly purchased in the year 1990 valued at Rs.4,50,000 was shown. During this period the value of jewellry was also increased from Rs.2,50,000 to Rs.3,50,000 and the value of bonds/securities was also increased from 3,80,000 to Rs.4,50,000. The salary certificate Exh.12 produced by P.W.1. Wajid, shows that for the years 1991 and 1992 the total salary inclusive of all the allowances and transport charges paid to accused Iqbal Ahmed Turabi was Rs.106,734. Thus, there is no explanation for increase of Rs.100,00 in jewellry for the year ending 3141 December, 1992 from the year ending 31st December, 1991 and increase of Rs.70,000 in the value of bonds/securities in the same period as well as purchase of flat for Rs.4,50,000 in the name of Mrs. Najma Iqbal. Thus, even if it is accepted that accused Iqbal Ahnaed Turabi purchased Flat No.B-8, Super Palace, Civil Lines Karachi in the name of his wife in the year of 1991 for,Rs.4,10,000 and sold the same for Rs.9,75.000 in the year 1996 and has thereby earned a profit of Rs.5,65,000 it is of no help to him. The reason being that the source of purchasing this property in the year 1991 has not been explained.' As already discussed above, the increase in the wealth as declared by accused Iqbal Ahmed Turabi himself for the period ending 31st December, 1991 has not been explained. The presumption in law would be that it was purchased from unexp:ained source which was ill-gotten money. Thus, profit on ill-gotten money earned by corruption is also an intergral part of corruption cannot be treated as legal and valid source on income. The-branches, leaves and fruits follow the trunk and root of a tree and are to be treated as part of the same species. This explanation is, therefore, not reasonable and -as already held by this Court in the case of Abdul Aziz Memon v. The State, on which Mr. Anwar Tariq has placed reliance, the source explained should bereasonable and valid. Every source furnished by an accused person is not to be accepted until and unless it is legal, valid and reasonable.
Accused Iqbal Ahmed Turabi has further furnished explanation about the source to the extent of Rs.17,90,000. According to him Flat No.26, Mehmoodabad House, was purchased on 27-6-1996 for Rs.8,35,000 and it was sold on 23-9-1997 for Rs.26,25,000 and thus a profit of Rs.17,19,000 was earned. Again the source of purchasing this property has not been explained from legal, valid sources. In support of this contention accused Iqbal Ahmed Turabi, has examined D.W.1.
Muhammad Mostoi, who has stated that the property was purchased for Rs.26,25,000 but the sale- deed was executed in the sum of Rs.4.35,000 only. He has produced sale agreement dated 11-12- 1997 showing the consideration of Rs.26,25,000 and the sale-deed showing value of Rs.4,35,000. The declaration of assets filed by accused Iqbal Ahmed Turabi, with his employer PSO shows that no such property in the name of his wife Mrs. Najma Iqbal has been declared. For the period ending 31st December, 1996 a flat has been declared in the name of accused Iqbal Ahmed Turabi and not in the name of his wife Mrs. Najma Iqbal Turabi. The particulars of the flat have been given and the purchase value has been shown at Rs.6,70,000. The said property was declared by accused Iqbal Ahmed Turabi in his name in the declaration for the period ending 31st December, 1998 which means that the property declared in the declaration of assets is .Different from the property bearing No.206 Mehmoodabad, acquired in the name of Mrs. Najma Iqbal and sold as alleged by accused Iqbal Ahmed Turabi. A perusal of Wealth Tax Return filed by accused Iqbal Ahmed Turabi for the Assessm ent Years 1996-1997 onward shows that the flat declared by accused Iqbal Ahmed Turabi, in his declaration of assets with PSO was M-4 Chapal Resort, Clifton, the value whereof has been shown at Rs.6,70,000. As this property was concealed therefore, a genuine presumption can be raised that it was acquired from undisclosed and un-explained sources. In addition to this fact, the accused persons cannot be allowed to take premium on their own.Wrong. The sale-deed for this property has been executed in the sum of Rs.4,35,000 and therefore, for the time being the accused cannot be extended the benefit of earning profit of Rs.17,90,000 for the reasons that the amount shown in the sale-deed is to be taken into consideration.
' Accused Iqbal Ahmed Turabi, has also stated that another property which the prosecution was not able to discover was pufchased for Rs.54,000.00 and sold for Rs.58,750,00. The accused persons examined D.W.7. Muhammad Shoaib Khan in this behalf. However, no purchase and sale documents have been produced. Since accused persons have admitted that they purchased the property on 19-12-1997 forRs.54,000.00 and earned profit of Rs.4,000.00 by sale thereof, therefore, they were required to explain the sources of purchasing the property for Rs.54,000.00 which they have utterly failed to prove and consequently, this amount of Rs.54,000.00 has also remained unexplained.The accused persons admittedly furnished security with MCB, Branch Broadway Clifton in the sum of Rs.9,20,948 and 7,2,56.00 for which they have not been able to furnish the source. Likewise, we specifically asked accused Iqbal Ahmed Turabi to explain the sources of foreign remittances, which he was not able to explain. From the perusal of record, it appears that after amassing the massive wealth accused Iqbal Ahmed Turabi, realized that he shall be called upon some day to explain the source and consequently he started declaring huge investments in D.S.Cs:, foreign currency accounts and foreign remittances. Apparently, it appears that it was done under the advice of some Tax Consultant with the purpose to seek protection under various exemptions allowed under the tax law. However, the accused could not realize that the exemptions available for the purpose of wealth tax and income tax shall not come to his rescue for the purpose of accountability. The proceedings under the NAB Ordinance are in the nature of criminal proceedings and notwitistanding, any exemption available for the purpose of levy of wealth tax or income tax, a person possessing the assets is required to explain the source and if he fails to do so and the properties held directly or indirectly by an accused person are disproportionate to his known sources of income it would amount to the commission of corruption and corrupt practices as defined in section 9 of the NAB Ordinance and punishable under section 10 thereof. Once the prosecution is able to establish the owning/holding of properties by a person, in his name or in the name of any other dependent or Benamidar, the burden of explaining the sources is shifted to accused. This point has been dealt with in the case of Abdul Aziz Memon. The relevant findings from the above judgment have been reproduced in the earlier part of this judgment. Since the accused Iqbal Ahmed Turabi has totally failed to fufnish explanation about the foreign currency accounts and foreign remittances, therefore, we will consider the local currency accounts only in some detail. A perusal of the various bank accounts shows that accused Iqbal Ahmed Turabi and his wife accused Najma Iqbal have introduced cash credits from time to time, P.W.3, Munawar Ahmed Chief Manager Metropolitan Bank, has stated that there was account in the name of Mrs. Najma Iqbal being A/C No.20610-714-115914. Accused Iqbal Ahmed Turabi, has admitted before us that the peak credit in this account was Rs.11,32,799, on 8-4-2000. He has stated that this amount was deposited out of the sale proceeds of shares received from Messrs Kausar Abbas Bhayani. This contention belies his own plea thatno money is involved in share trading and he had invested Rs.3,22,000 only.
The accused had taken plea that without actual payment the Stock Exchange Broker used to purchase the shares and within the permissible period the shares were sold and the difference was settled. If any loss occurred on transaction the amount of loss was paid to the broker and if any profit accrued it was taken from him. A perusal of the ledger of Mrs. Najma Iqbal produced by P.W:16, Khuram Raza Bhayani shows that on 4-4-2000 an amount of Rs.11,32,799.14 was paid to the Stock Exchange Broker, whereby an amount outstanding against Mrs. Najma Iqbal was squired off.
In account No.118618, the peak credit on 21-7-2001 was Rs.508950.00. The accused has explained that it was sale proceed of shares received from Messrs Kausar Abbas Bhayani. The details of payments furnished by P.W.16, Khurram Raza Bhayani, shows that this amount was paid to Mrs. Najma Iqbal and again it belies the contention of accused persons that they were receiving difference bills only.
' Accused Iqbal Ahmed Turabi and his wife accused Mrs. Najma Iqbal Turabi, opened A/C No.174242-116-01. With Habib Bank A.G. Zurich, in April, 1996. The statement of account has been produced by P.W.4, Ghulam-u-Sayeden Jafferi, Exh.22. He has stated that O.D. Facility was allowed in the sum of Rs.3.6 millions. A perusal of the statement of accounts shows that there is no credit entry in this account which was closed on 8-6-2000. All the transactions have been made within running finance facility limit and thus, the accused persons have not deposited any unexplained amount in this account. The only point which the accused persons have failed to explain in respect of this account is, the source of making payment of mark-up for availing the over-draft facility. A perusal of statement.Of account shows that on 4-7-1976 mark-up was charged at Rs.82,052. On 7- 10-1996 mark-up was charged at Rs.89,532. Excise duty was deducted on 3-12-1996 at Rs.2,325.51.
Cost of stamp documents, and service charges were deducted on 17-12-1996. Mark-up was charged at Rs.99,432.73, on 8-1-1997. There are large number of suck entries. On 7-4-1997 mark-up was charged at Rs.100,294.74. On 14-7-1997 mark-up was charged at Rs.109,385,54. On 7-10-1997 mark-up was charged at Rs.116,641.90. On 8-1-1998 mark-up was charged at Rs.123,251.39. On 15-4- 1998 mark-up was charged at Rs.121,509.15. On 3-7-1998 mark-up was charged at Rs.95,648.54. On 5-10-1998 mark-up was charged at Rs.61,275.60. On 2-1-1999 mark-up was charged at Rs.114,880.09, on 2-4-1999 mark=up was charged at Rs.109,579.73. On 6-7-1999 mark-up was charge at Rs.93,700.00, on 11-10-1999 mark-up was charge at Rs.19,612.81, on 6-1-2000 mark-up was charged at Rs.97,947.16, on 4-4-2000 mark-up was charged at Rs.117,486.22. The account was closed on 8-6-2000, which means that the entire loan facility availed waspaid. The source of paying huge amount of interest has remained totally unexplained.
' Accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal Turabi had a joint Saving Account in US$ also with Habib Bank AG Zurich. This account was opened with US$ 15.68 on 7-12-1992. The account number is 474242.The number of earlier account, in Pak currency was also the same. There was no withdrawal from this account up to 7-12-1994 when the credit balance including the interest paid was US$ 15,721, on 2-1-1995 US$ 51,000 were transferred to F.D.R. Account. On 5-4-1'995 another amount of US$ 1900 were transferred to F.D.R. Account. Further cash deposits were made in this account and the credit balance on 12-9-1996 was US$ 8,375. The total deposits in this account were US$ 61,275 inclusive of the interest paid on deposits. The amounts of US$ 51,899 and US$ 1900 in F.D.R. Account matured on 4-7-1995 and were renewed. The time Deposit in this account were renewed from time to time and some other deposits were also made and ultimately on 12-9-1996, the total credit balance was US$ 1,8226.95. On this date this account was closed: the saving US$ account and Time Deposit Account bearing No.174242 were closed on 12-9-1996. In saving account, the balance US$ 8,375.93 and in Time Deposit Rs.1,8,226. The Total amount of US$ in these two accounts with Habib Bank AG Zurich was US$ 16.601. There is no explanation and source of acquiring these US Dollar, P.W.9 S.M. Arif. Senior Vice-President, Operation and Technology Credit.
Division, MCB, Karachi, Exh.37, has produced statement of accounts showing availing of Credit Card Facility by accused Iqbal Ahmed Turabi and his wife Mrs. Najma Iqbal in the sum of Rs.9,25,106. No explanation has been furnished about the source of this expenditure. The statement of P.W.9, S.M.
Arif, has gone unchallenged. No question was asked from him in cross-examination. Accused Mrs. Najma Iqbal had A/C No.21028028 with ABN Amro Bank, Abdullah Haroon Roard Karachi. In this account loan of Rs.30,000.000 was granted by the bank which was withdrawn on 16-12-1997. On 17- 2-1998 several deposits were made with the result that accused Mrs: Najma Iqbal had credit balance of Rs.22,25,925 which was transferred on 18-2-1998 to A/C No.21028052. In his explanation furnished to us by accused Iqbal Ahmed Turabi, a peak credit in this account has been shown at Rs.18,68,058.75 which is not correct. It is further stated in the explanation furnished to us that the credit balance in A/C No.21028028 ABN Amro Bank was transferred from A/C 21028052 of ABN Amro Bank for adjustment of O.D. And part amount was out of sale proceeds of US$ 99,797.37. The first part of the explanation is unsubstantiated as no such bank statement has been produced to support the version. In A/C No.2108052 ABN Amro Bank, the'peak credits have been shown at Rs.45,90,679 and this has been attributed to the saleproceeds of US$ 99,797.37. Thus, the source of credits in two accountant ABN Amro Bank have been taken to the encashment of Dollars, the source whereof Is not explained.
' A perusal of the entire record and the explanation furnished by accused Iqbal Ahmed Turabi leads to the conclusion that the accused has attempted to explain the source from encashment of dollars and the foreign remittances which have remained totally unexplained. The second source has been attributed to the loans/running finance facilities/O.D. Availed from various banks and rolling-over of the loan availed. Mere rolling over of the loan facility availed, does not generate income by itself. The payment of all loans as well as mark-up/interest accrued on the loan availed indicates that the transactions in the bank account which run into thousands have been made just to create a smoke screen and to create confusion. However, with a deeper concentration over the issue, the entire cobweb is removed. With the payment of loans availed, the accused persons stand at square one having no explanation for discharging liability of mark-up/interest paid to the banks. The third source has been attributed to the share trading. The contention of accused Iqbal Ahmed Turabi that an amount of Rs.3,22,000 only was invested and no money is involved in this trading has been belied by the statements produced 'by the Stock Exchange Broker and high- lighted by us in the earlier part of the judgment. A perusal of the difference bills indicating the profit/loss accrued on the share trading shows that a very meager profit has been earned which is not sufficient even to pay the amount of Commission to the Stock Exchange Broker. The source of payment of Commission to the Stock Exchange Broker and the source of investments made in the share trading have remained unexplained. In the ultimate analysis no income has been earned by accused Iqbal Ahmed Turabi and his wife Mrs. Najma Iqbal from share trading.
' Now, we will consider the offices acquired in the name of accused Asif Hussain and accused Hassan Raza, details whereof have been given in the earlier part of this judgment. Accused Asif Hussain has totally denied to have purchased the offices. Accused Iqbal Ahmed Turabi has also denied to have purchased the offices standing in the name of Asif Hussain. However, the evidence on record establishes the acquiring of property by accused Iqbal Ahmed Turabi in the name of accused Asif Hussain. Likewise property in the name of accused Hassan Raza has been denied to have been acquired by accused Iqbal Ahmed Turabi and accused Hassan Raza has stated that he acquired the property from his own source but the sources explained by him, are not sufficient to meet the cost of the property. The learned trial Court has discussed the evidence in detail which is not open to any exception.
' The circumstantial evidence on record leading to the presumption that accused lqbal Ahmed Turabi acquired three offences is available from the revised wealth statement filed for the Assessment Years 1999-2000 to the effect that the amount of Rs.41,61,600 was invested for paying advance for offices. There is nothing on record to show that any offices other than in the name of accused Asif Hussain and Hassan Raza were acquired. It is pertinent to note that the investment of Rs.41,61,600 under the head of Offices have been shown in the second revised Wealth statement filed by Mrs. Najma Iqbal on 25-8-2000.
In addition to the circumstantial evidence as referred to above. P.W.22, Muhammad Shafi has stated that accused Iqbal Ahmed Turabi was interested in purchasing some offices. The witness showed him two offices on IInd and IIIrd floor of building constructed on Plot 10-C, 8th Street Zamzama Commercial Phase-V, DHA, Karachi. The deal was finalized at Rs.21,000,00 for both the offices, however, the sale-deed was executed in the name of Asif Hussain under the instruction of accused Iqbal Ahmed Turabi. P.W.14, Choudhary Mehboob Ali, Exh.57, has stated that he owned an office on Mezzanine floor, Falak Naz Centre Shahrah-e-Faisal Karachi, which was sold to Iqbal Ahmed Turabi for Rs.20,000.00 but the registration documents were prepared in the name of Syed Hassan Raza. The transaction took place in the year 1997. P.W.15. Muhammad Yar has stated that he had taken office situated at M-4, Falak Naz Centre, Shalirah-e-Faisal Karachi on rent. The rent was agreed at Rs.17,000 per month and he had paid Rs.51,000 as fixed deposit to accused Iqbal Ahmed Turabi. However, the rent agreement was made in the name of Hassan Raza. The statement of this witness that fixed deposit of Rs.51,000 was paid to accused Iqbal Ahmed Turabi, has not been disputed in cross-examination meaning thereby that this assertion has been admitted. These witnesses have no axe to grind against the accused persons. We are of the opinion that there is sufficient' evidence on record to hold that the offices held in the names of accused Asif Hussain and Hassan Raza were acquired by accused Iqbal Ahmed Turabi. The cost of acquiring these offices is almost the same which has been shown in the second revised wealth statement filed by accused Mrs. Najma Iqbal showing the investment under the head "Advance for Office". Thus, it is held that the learned trial Court has rightly come to the conclusion that the office in the names of accused Asif Hussain and Hassan Raza have been piirchased by accused Iqbal Ahmed Turabi, by way of benami transaction..
The above discussion leads to the conclusion that accused Iqbal Ahmed Turabi amassed huge wealth disproportionate to his known sources of income and acquired properties movable and immovable in his name and in the names of his wife accused Mrs. Najma Iqbal, accused Asif Hussain and accused Hassan Raza. Accused Najma Iqbal and accused Hassan Raza abetted the commission of offence by facilitating accused Iqbal Ahmed Turabi in acquiring the assets in their names. Thus, accused Iqbal Ahmed Turabi, accused Mrs. Najma Iqbaland accused Hassan Raza, all three committed offence of corruption and corrupt practices defined in section 9 of the NAB Ordinance and E punishable under section 10 thereof.
It is further held that accused Asif Hussain and Hassan Raza absconded to avoid the proceedings initiated against them under the NAB Ordinance. Mr. Azizullah Shaikh, learned counsel for the appellants has not addressed any argument on the point of abscondence of accused Asif Hussain and Hassan Raza with the result that the finding of the learned trial Court, in this behalf and conviction of the two accused under section 31-A of the NAB Ordinance has gone unchallenged.
Even otherwise such findings are based on proper assessment of relevant material and are unexceptionable.
For the foregoing reasons, we are of the considered opinion that the prosecution has established its case up to the hilt against the appellants/accused as held by the learned trial Court and the learned trial Court has rightly convicted all the four accused persons. The convictions awarded are hereby upheld. However, we find that the prosecution and the learned trial Court could not properly comprehend the nature of transactions in the bank accounts and in share trading account with the result that the total deposits in the bink accounts and total investment in the share trading account was taken at much higher amount than the G actual depbsits/investments. Taking the deposits/investments at much higher amounts than actual deposits/investments, the learned trial Court awarded the sentence of fine at Rs.95 millions to accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal Turabi, which appear to be on higher side. The sentence of fine imposed on accused Iqbal Ahmed Turabi and Mrs. Najma Iqbal is therefore, reduced to Rs.25 millions each. The sentence of fine imposed on accused Hassan Raza also appears to be on higher side which is reduced to Rs.20,000,00. With the above modifications in the imposition of fine on accused Iqbal Ahmed Turabi. Mrs. Najma Iqbal and Hassan Raza, the sentences awarded are hereby upheld.
' Consequent to the above findings and with the above modifications in the sentences of fine all the appeals stand dismissed.
' Before parting with this judgment, we would like to give direction to the Registrar to forward the photostat copies of this judgment, the sale agreement and sale-deed in respect of Flat No.206, Mehmoodabad House, to the Registrar of Properties Karachi and Regional Commissioner of Income Tax Karachi for taking appropriate action in accordance with the law as deemed fit by them.
Fine reduced.