ABDUL HAMEED DOGAR, J.:-Reference No,3 was filed against the petitioners, namely, Iqbal Ahmed Turabi, Najma Iqbal, Hassan Raza and Asif Hussain in the Court of Administrative Judge, Accountability Courts, Sindh Karachi under sections 9(a)(iv)(v) and 10 of the National Accountability Ordinance: 1999 (hereinafter referred toas 'the Ordinance) whereunder they were tried and were found guilty of the offence and were convicted and sentenced as under:--
(1) Petitioner Iqbal Ahmed Turabi was sentenced to suffer R.I. For 10 years and to pay a fine of Rs,95 millions. In default whereof he has to further undergo R.I. For three years.
(2) Petitioner Najma Iqbal was sentenced to suffer R.I. For 5 years and to pay a fine of Rs,95 millions.
In default whereof she has to further undergo R.I. For three years.
(3) Petitioner Hassan Raza was sentenced to suffer R.I. For 5 years and to pay a fine of Rs,3 millions.
In default whereof he has to further undergo R.I. For two and a half years. He was further convicted under section 31-A of the Ordinance and sentenced to suffer R.I. For three months.
(4) Petitioner Asif Hussain was only convicted under section 31-A of the Ordinance and sentenced to suffer R.I. For three months.
2. On appeal, the learned High Court vide impugned judgment maintained their substantive sentence whereas reduced the sentence of fine of petitioners lqbal Ahmad and Najma Iqbal from 95 millions to 25 millions each. Sentence of petitioner Hassan Raza was reduced to Rs,2 millions. As regards sentence of three months awarded by the trial Court under section 31-A of the Ordinance to petitioner Asif Hussain, the same was maintained.
3. The petitioners have assailed the impugned judgment in Criminal Petitions No,379 and 380 of 2003 in this Court and have sought leave to appeal.
4. Relevant facts for the disposal of the instant petitions are that Chairman, National. Accountability Bureau, filed Accountability Reference No,39 of 2001 against petitioner No,1 in the Accountability Court, Karachi, whereas the other petitioners alongwith Ziauddin Taimuri were arrayed as accused in the reference in their capacity as abettors under section 18(g) read with section 24 of National Accountability Ordinance, 1999 on the allegation that petitioner No,1 being holder of public office and employed as Accounts Officer and promoted in Group-III in Pakistan State Oil (hereinafter referred to as `PS0'), in furtherance of common intention, criminal conspiracy and abetment of petitioners, namely, Najma, Asif Hussain, Hassan Raza and acquitted accused Ziauddin Taimuri.
Had acquired the movable/immovable properties and pecuniary resources in his name and in the names of the petitioners as per details given in schedule A, B & C thus they committed an offence of corruption and corrupt practices as defined under section 9(a)(iv)(v) of the NAB Ordinance, 1999 andpunishable under section 10 of the NAB Ordinance read with Sr. No,2 of the Schedule appended with the said Ordinance.
5. The details, given in schedule A, B & C are as under:-- SCHEDULE 'A'
IMMOVABLE PROPERTIES S.No.Name of the person in whose name property acquiredDescription of Property AcquiredValue Year of AcquisitionRemarks
1. Mrs. Najma Iqbal w/o Iqbal Ahmed TurabiShop No.10, measuring Ft.
Chapel Resort. Block-2.
Clifton, Karachi7,15.000 27-6-1996
2. Iqbal Ahmed Turabi Flat No. M-04, measuring 1920 Sq. Ft. Mezzanine Floor, Chapel Resort, Block-1, Clift10,46.000 4-10-1995
3. Mrs. Najma Iqbal w/o Iqbal Ahmed TurabiFlat No. 206, Plot No. 12.
Street No. FT-1, Mahmoodabad House; Frere Town, Karachi25,00.000 27-6-1996
4. -do- Plot No.126/II, treasuring 1000 Sq. Yd. 15th Street, Phase VI. DHA, Karachi45,00.000 24-10-1996
5. -do- H. No. 34/II, measuring 492 Sq Yds. N. Street, Phase-IV, DHA, Karachi59,27.000 3-9-1996
6. -do- Flat No. B-8, measuring 1610 Sq. Ft, 2nd floor, Super Palace Plot No.8, Street No. Cl.-9, Civil Lines Quarters, Karachi12,00.000 7-7-1991
7. Ziauddin Taimuri s/o MoinuddinShop No.S-25, measuring 312 Sq.Ft Ground Floor, Prince Complex, Frere Town. Karachi25,00.000 27-6-1996
8. Hassan Raza s/o M. Musraff HussainFlat/Office No. M-4 measuring279.68 Sq. Yds Mezzanine floor, Falaknaz20,00.000 August 1997 Center, Shahrah-e---Faisal, Karachi
9. Asif Hussain s/o Taseer HussainOffice No.2 & 3 alongwith the roof top on plot No. 10- C, 8Commercial Lane, Zamzama25,00.000 30-4-1997 SCHEDULE 'B'
MOVABLE PROPERTIES S.No.Name of the person in whose name property acquiredDescription of Property AcquiredValue Year of AcquisitionRemarks
1. Mrs. Najma Iqbal w/o Iqbal Ahmed TurabiPurchase Bills 2,14,14,243/50 Conducted business with M/s Kausar Abbas Bhayani from March, 1997 to July 2001.
2. -do- Purchase Bills 23,23,150 Conducted business with M/s Ali Hussain Rajab Ali Ltd. from April, 2000 to July, 2000
3. Iqbal Ahmed Turabi Shares lying with MCB Board Branch9,20,948175
4. -do- Defence Savings Certificates tying with MCB12,56,000
5. -do- Nissan Sunny Car 2,40,000
6. -do- Jewellery 4,50,000
7. -do- 11ICP 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 date.27,26,188/24 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 Iqbal w/o Iqbal Ahmad TurabiDeutche Bank, II Chundrigar Road, Karachi0052233-30-522-12-1994 3-5-1999 23,378 US $
2. -do- Habib Bank AG ZurichTime despoit 2-1-1995 12-9-1998 722,621.8 US $
3. Iqbal Ahmed TurabiAmerican Express 11106202016-4-1995 30-9-1999 379 US $ form 26-4- 1999 to 30-9-th th Bank Shaheen Complex Karachi 1999
4. Mrs. Najma Iqbal Turbai & Iqbal Ahmed TurabiHabib Bank AG ZurichSaving A/C174242-- -116-019-4-1996 7/8-6-2001 65,754.55 US $ form 15- 12-1997 to 10- 7-1998
5. Mrs. Najma s/o Iqbal A. TurabiABN Amro Bank, Avari Towers KarachiSaving A/c2102800115-12-1997 10-7-1998 25,185.74 US $ from 18-- -12-1999 to 1- 10---1999
6. Mrs. Najma s/o Iqbal Ahmed TurabiABN Amro Bank. Avari 'towers, KarachiSaving A/c 2108074418-12-1997 1-10-1999 9,970,96 US $
7. Ali Hassan Mashreq Bank, PSC, Bahrai Complex, Karachi02-280007-6 (Term Deposit)23-4-1997 18-7-1998 55,100,00 (+)Profit4384,14 US $
6. Charge was framed by the Accountability Court, Sindh, Karachi, against petitioners, namely, Iqbal Ahmed Turabi, Najma Iqbal and acquitted accused Ziauddin Taimuri under sections 9 and 10 of the Ordinance. Proceedings, under section 31-A of the Ordinance were initiated against petitioners, namely, Asif Hussain and Hassan Raza.
7. In support of the above charge, prosecution examined 31 witnesses. During the trial, acquitted accused Ziauddin Taimuri moved an application under section 25 of the Ordinance for plea bargain, which was pending. On 8-1-2002 petitioners Iqbal Ahmed Turabi and Najma Iqbal Turabi filed an application for plea bargain in which they took plea that petitioner Iqbal Ahmed Turabi had various sources available to acquire properties owned by him. The properties alleged to have been acquired in the name of other accused persons were disowned. The petitioner has resorted to plea bargain to cave the honour of the family. Along-with the application for plea bareain, petitioner annexed various charts containing the list of assets. The petitioner admitted that he acquired Flat No,B/8, land Floor, Super Palace, Piot No,8, Civil Lines, Karachi, in the year 1991, which was subsequently sold in the year 1995. However, acquisition with regard to shop No,25, Prince Complex, Frere Town, Karachi was denied. The petitioner admitted acquisition of Shop No,10, Chapel Resort, Block-i, Clifton, Karachi, flat No,4, Mezzanine Floor, Chapel Resort, Block-I, Clifton, Karachi and House No,34/11, Phase-IV, DHA, Karachi. Plot No, 126/2 15th Street Phase-3, DHA, Karachi was purchased in the year 1994 and sold in the year, 1999 for Rs,18,50,000. Plot No, R-58, K.E.C.H.S., Karachi was acquired in the /ear, 1974 for Rs,600 and sold in the year, 1991 for Rs,6,50,000. Plot No,1-18. Sector 5- C/2, North Karachi, was purchased for Rs,30,000 which was sold for Rs,1.70,000. Apartment No,206, 2nd Floor, Mehmoodabad was purchased for Rs,8,35:000 and said for Rs,26,25,000. An amount of Rs,10,00,000 was saved while working in Dubai from 1982 to 1986, defence savings certificates worth Rs,13,50,700, an amount of Rs,3,55,000 was shown to have been liquored from prize bonds winnings and salary of Rs,19,00,000 has been received from the employer.
8. The applications of the petitioners for plea bargain remainedpending. The prosecution after examining 31 witnesses closed their side.
9. Petitioner lqbal Ahmed Turabi, in his statement under section 342, Cr.P.C., candidly admitted that he was employed as Account Officer in PSO during the year, 1986 and was promoted as Manager and had been working as Manager Banking, PSO. He also admitted that during his entire period of service, he received Rs,23,06,322 as gross salary. In the assessment year, ending on 31-12-1987, he declared his immovable and movable properties valuing Rs,8,30,000. He purchased Flat No, M-04 measuring 1920 sq. Feet situated in Chapel Resort, Clifton, Karachi, valued at Rs,6,70,000 on 4-10- 1995. He also admitted that in the year, 1991, he acquired Flat No,B-8 measuring 1610 sq. Feet situated on the 2nd Floor of Super Palace. Plot No,8, street No,CL-9, Civil Lines, Karachi in the sum of Rs,4,10,000 whereas sold the same in the sum of Rs,9,75,000 in the year, 1995. He also admitted that he had purchased the plot in the name of his wife petitioner Najma lqbal for a sum of Rs,18,50,000, which was sold by him for Rs,44,00,000 in the year, 1999. He had also purchased a shop in the name of his wife petitioner Najma Iqbal in 1996 for a sum of Rs,2,10,000, which is yet in their possession in Chapel Resort, Block-1, Clifton, Karachi. He had also booked Flat No, 206 having covered area of 1500 sq. Feet in Mahmoodabad, Karachi for a sum of Rs,8,35,000, which was sold by him in 1997 for Rs,26,25,000. He also admitted that in the year, 1996, he had purchased plot measuring 492 sq. Yard in Phase V, DHA, Karachi, in the name of his wife for a sum of Rs,10,00,000 over which he constructed a double storey bungalow in which they are residing whose value presently would be Rs,25,00,000.
As regards, Shop No,25 situated in Prince Complex, Frere Town, Karachi, said to have been purchased in the name of acquitted accused Ziauddin Taimuri in the year, 1997 for a consideration of Rs,1,70,000. He denied the same and stated that he did not know acquitted accused Ziauddin Taimuri. He also denied about the said shop having been given on monthly rent of Rs,40,000 to Habib Bank A.G. Zurich under tenancy agreement and an amount of Rs,4,44,000 was received as rent in advance. He also denied the sale of said shop against a sum of Rs,29,00,000 to Riazuddin through sale agreement by acquitted accused Ziauddin Taimuri. He also denied the purchase of Office No M-4, having covered area of 279.68 sq. Feet, Falaknaz Centre, Sharah-eFaisal, Karachi for a consideration of Rs,20,00,000 and got sale-deed executed in the name of petitioner Hassan Raza on 9-9-1997. He also denied about the said premises having been let out by petitioner Hassan Raza. He denied that he purchased office premises No,2 and 3 alongwith rooftop situated on Plot No, 10-C, 8th Commercial Lane, Zamzama, DHA, Karachi for a sum of Rs,25,00,000 and got sale- deeds executed inthe name of petitioner Asif Hussain. He admitted that he and his wife petitioner Najma Iqbal opened a Joint Account No,1932-2 in ABL, PIDC House Branch, Karachi on .8-6-1988 but denied the transaction of Rs,54,02,685 in the account. He admitted that on 18-12-1997 he had opened Account No,2521-8 with ABL,. PIDC Branch, Karachi and deposited on amount of Rs,19,13,14,000 in the account with a balance of Rs,30 as stood on 1-1-1999. He admitted that on 15- 2-2000 he and his wife petitioner Najma Iqbal opened a Joint Account No,20610-714-115914 with Metropolitan Bank, Karachi, and from 15-2-2000 to 10-6-2000 he deposited Rs,26,39,533.14 in the account and then the said account was closed on 14-6-2000 with no balance. He also admitted that on 8-7-2000 he and his wife petitioner Najma Iqbal opened a Joint Account No,20610-714- 118618 with Metropolitan Bank, Karachi and from 8-7-2000 to 21-7-2001 he deposited Rs,11,77,430.22.
He admitted that on 9-4-1996 he and his wife petitioner Najma Iqbal opened a Joint Account No,1714-174242-116-01 iR Habib Bank, A.G. Zurich, I.I. Chundrigar Road, Karachi. And from 9-4-1996 to 8-6-2000 he deposited Rs,3,71,63,055.94 which was closed on 8-6-2000. He also admitted that on 15-12-1997 he got opened an Account No,2102001 in ABN Amro Bank, Karachi. In the name of his wife petitioner Najma lqbal during the period 15-12-1997 to 10-7-1998 U.S. $ 25,185.74 were deposited and on 10-7-1997 the account was closed as the balance amount of US $ 185.74 was transferred in her Pak Rupee Account No,21028052 of the same bank, but explained that the account was opened with the running finance facility by which amounts were being withdrawn and subsequently, the same amounts were being deposited. He admitted that on 17-12-1997 he got opened an Account No,21028052 with ABN Amro Bank, Karachi in the name of his wife petitioner Najma lqbal and the total deposit in this account from 17-12-1997 to 13-6-2000 was Rs,80,94,035.39 but explained that the deposit in this account was the same amount which had been shown in Account No,21028028.
He also admitted that on 4-6-1997 he and his wife 'petitioner Najma Iqbal opened a Joint Account No, 4-5, with MCB Broadway, Clifton, Karachi and during the period from 4-6-1997 to 30-6-2000 a sum of Rs,85,71011 was deposited. He also admitted that MCB Broadway Clifton after opening the Joint Account No,4-5 had given running finance facility for which he had deposited Shares and Defence Savings Certificates of Rs,21,76,948 as security and he had availed such facility up to Rs,16,00,000 and he deposited equal amount of availed facility in the bank and these certificates and shares were returned by the bank. He also admitted that on 20-10-1996, he opened Account No, 1-11583 with MCB, Shaheen Complex, Karachi, and during the period 20-10-1996 to 4-121996 Rs,1,01,000 was deposited. He admitted that on 7-12-1992 he and his wife petitioner Najma Iqbal opened Joint Account No,1742242 with Habib Bank A.G. Zurich, I.I. Chundrigar Road, Karachi but deniedthat during the period 7-12-1992 to 12-9-1996 US $ 61,2175.93 were deposited. He also admitted that on 2-1-1995 he got opened Time Deposit Account with deposit of U.S. $ 51,000 with Habib Bank A.G. Zurich, I.I. Chundrigar Road, Karachi,, in the name of his wife petitioner Najma Iqbal.
He admitted that on 26-4-1995 he opened Account No,111062020 with American Express Bank, Shaheen Complex, Karachi and the total deposits in the account from 26-4-1996 to 30-9-1999 were U.S. $ 294 and the account was closed on 30-9-1999. He also admitted that on 22-12-1994 he got opened an Account No,52233-30-5 with Deutsche Bank in the name of his wife petitioner Najma Iqbal and the total deposits in the account from 22-12-1994 to 23-4-1999 was US $23,738.50.
He admitted that on 18-12-1997 he got opened an Account No,21028044 with ABN Amro Bank, Karachi, in the name of his wife petitioner Najma Iqbal but denied that total deposits in the account from 18-12-1997 to 1-9-1999 were US $1,09,741.98. He also admitted that he through Hawala got transferred US $51,000 from abroad to Mashriq Bank in favour of his son Ali Hassan but explained that after the freezing of dollar accounts, the corresponding amount of Rs,27,36,270 in Pak Rupee was paid to his wife including the profit given on US $ deposited in the account. He denied that he in his Annual Declarations of Assets with the department neither declared all the assets nor mentioned their correct value. He admitted that in the Wealth Tax Returns Ex.158 to Ex.164 for the tollowine: years he declared the Value of Assets noted against each year.
Year Description of Assets Value 1994-95 120sq. yds plot of land Shah Latif Town 6,000 Stock and Shares 1,40,000 Defence Savings Certificates 1,53,000 Nissan' Car 2,25,000 Jewellery 40 tolas 80,000 Cash in hand 1,02,315 HBL A/C 1309-1 1,003 Furniture and fittings 54,000 Total Rs.6,61,318 1995-96 -do- Rs.7,14,350 1996-97 1. Flat M-4 Chapel Resort 6,70,000 2. Shop No. 10, Chapel Resort 2,85,000 3. 492 Sq. Yds plot in Phase IV DHA 3,85,000 4. Defence Savings Certificates 6,56,000 5. Nissan Car 2,25,000 6. Jewellery 40 tolas 80,000 7. Cash in hand and prize bonds 2,18,001 8. HBL A/C 1309-1 8,476
9. Furniture and fittings 54,000 Total Rs.35,80,852 1997-98 1. Flat M-4 Chapel Resort 6,70,000 2. Stock & Shares (PSO) 7,66,000 3. Defence Savings Certificates 6,84,000 4. Nissan Car 2,25,000 5. Cash in hand 1,44,455 6. HBL A/C 1309-1 533 7. Furniture and fittings 54,000 Total Rs.25,43,988 1998-99 All assets immovable and moveable Rs.22,19,897 1999-00 -do- Rs.19,03,933 2000- 2001-do- Rs.16,09,679 He also admitted that he in his Declaration of Assets for the year ending 31-12-1998 declared the value of his own and that of his wife's assets at Rs,29,20,000. He also admitted that his wife petitioner Najma Iqbal in her Wealth Tax Return for the year, 1999-2000 declared the value of her assets at Rs,97,37,342. He also admitted that he and his wife petitioner Najma Iqbal moved a joint application on 12-6-1995 to Operation and Technology Card Division for affording Credit Card facility and Master Cards were issued to him and his wife but explained that he was not sure about the total transactions. He admitted that he started purchase and sale of shares in the name of his wife through Messrs Kausar Abbas Bhayani,.Member of the Karachi Stock Exchange from the month of March, 1997 to April, 2000 for the value of Rs,2,14,04,513. He also admitted that he in the name of his wife petitioner Najma Iqbal started purchase and sale of shares through Ali Hussain Rajab Ali, from the month of March, 1997 till the month of July, 2001 for the value of Rs,23,23,150. However, he did not examine himself. On oath as required under section 340(2), Cr.P.C. But he produced ten witnesses in his defence.
10. Petitioner Najma Iqbal in her statement recorded under section 342, Cr.P.C. In reply to several questions regarding the purchase of properties in her name by petitioner Iqbal Ahmad Turabi, she adopted the answers given by her husband in his statement under section 342, Cr.P.C. She neither examined herself on oath under section 340(2), Cr.P.C. Nor led any evidence in her defence.
11. The case was adjourned for arguments on 14-2-2002 when absconding petitioner Asif Hussain appeared before the trial Court after grant of bail by High Court on 13-2-2002. The Special Public Prosecutor submitted an application for separate trial of petitioner Asif Hussain alongwith other petitioners which was allowed. Learned trial Court while allowing the application, however, observed that the entire evidence with regard to other petitioners have been recorded in their presence and they have also availed the opportunity to cross-examine the witnesses. It was further observed that petitioner Asif Hussain should be given opportunity to defend himself and if few witnesses from the prosecution side already examined are re-examined then it will not prejudice the case of the other petitioners. Charge was framed against petitioner Asif Hussain for abetment and criminal conspiracy with petitioner Iqbal Ahmed Turabi for acquiring offices Nos. 2 and 3 on Plot No,10/C, 8th Commercial Lane Zamzama, Clifton, Karachi under section 9(a)(iv)(v) of the Ordinance punishable under section 10 of the Ordinance. Petitioner Asif Hussain pleaded not guilty of the charge. P.W. Muzaffar Hussain, Sub-Registrar, T-Division, Karachi was examined, who produced the certified true copies of sale-deed in respect of offices No,2 and 3 on plot No,10-C, Commercial Lane, Phase-V, DHA, Karachi in favour of petitioner Asif Hussain. This witness was earlier examined as P.W.11 against other petitioners. Petitioner Hassan Raza surrendered before the Court after grant of pre-arrest bail from the High Court. Special Public Prosecutor submitted an application for separate trial of petitioner Hassan Raza alongwith other petitioners. This application was allowed with the consent of the learned counsel for the parties. An amended charge was framed against petitioners, namely, Asif Hussain and. Hassan Raza. Petitioners were charged for the Commission of offence of criminal conspiracy and abetment with petitioner Iqbal Ahmed Turabi for acquiring. Flat/Office No, M-04, Mezzanine Floor, Falak Naz Centre,Shahrah-e-Faisal, Karachi under section 9 of the Ordinance punishable under section 10 of the Ordinance. Petitioners Asif Hussain and Hassan Raza were further charged for absconding in order to avoid the service of NAB on them under section 31-A of the Ordinance. Both the petitioners pleaded not guilty. The prosecution examined P.W.33 Haroon Khanani (already examined 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 examine as P.W.7), P.W.37 M. Ashraf, P.W.38 Hadi Bux, A.S.-I., P.W.39 Rahim Khan, ASI, 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).
12. Petitioner Hassan Raza in his statement under section 342, Cr.P.C. Denied his relationship with petitioner Iqbal Ahmed Turabi and also denied that he in connivance with him had purchased premises No,M-4 Mezzanine Floor, Falaknaz Centre, Shahrah-e-Faisal against a sum of Rs,20,00,000 and claimed that he purchased the said property through sale-deed from P.W. Mehboob Ali. About absconsion, he denied to have remained absconded and claimed that he being the resident of village Gambat, District Kairpur had gone there and returned in the month of November, 2001 and then he came of know about his case. He applied for bail before arrest and after 'grant of the same, he joined the proceedings. He also possessed the property in village Gambat, District Khairpur. He, hOwever, admitted that petitioner Asif Hussain is the husband of his sister. He, however, did not examine himself on Oath under section 340(2), Cr.P.C. But examined Syed Mohsin Rizvi in his defence.
13. Petitioner Asif Hussain in his statement recorded under section 342, Cr.P.C. Admitted that petitioner Iqbal Ahmed Turabi is his brother-in-law. He categorically denied that he is connivance with petitioner Iqbal Ahmed Turabi purchased the offices bearing Nos.2 and 3 alongwith the roof top on Plot No,10-C, 8th Commercial Lane, D.H.A. Karachi, for Rs,25,00,000 He also denied his absconsion and pleaded that none of the prosecution witnesses had deposed against him. He further claimed that in fact he did not abscond but was present in Karachi and his statement was recorded by the Investigating Officer. However, he was on leave from Metropolitan Bank where he was working as Officer Grade-1 from 3-10-2001 to 30-12-2001 and after getting bail before arrest, he appeared before the Court. He neither examined himself on oath nor led any evidence in his defence.
14. On 10-5-2002, petitioner Iqbal Ahmed Turabi and acquitted accused Ziauddin Taimuri moved applications under section 25 of the Ordinance in furtherance of earlier pending application for plea bargain. This time the offer for settlement was raised to Rs,24 million. After 19 days petitioner Iqbal Ahmad Turabi moved another application under section 25 of the Ordinance on his behalf and on behalf of the remaining petitioners and raised the offer to Rs,25 million. He appended with the application, the list of the properties owned, acquired, sold and still held by him and a list of reconciliation of final wealth was also filed. According to which, the petitioner declared the wealth wroth Rs,11,515,894. The cash amount of Rs,16,575,915 said to have been obtained through salary, share trading and property business. The cash earned from the assets/investments before joining PSO and salary received from United Bank Limited and Overseas were shown as Rs,36,83,900. Thus, the total resources allegedly owned by him were declared as Rs,20,259,815. The details whereof are reproduced as under:-- CASH GENERATED FROM PROPERTIESDURING THE JOB IN PSO
1. PROPERTIES TAKEN BY I.O. IN REPORT WHICH WERE SOLD AND NET PROFIT/CASH GENERATED: Flat No.206 MehmoodabadPURCHASED 27-6-1996 Rs.835,000 House (D.W.1) SOLD 1997 Rs.26,25,000 (Ex. No.202) PROFIT Rs.17,90,000 Flat No.B-8 PURCHASED 7-7-1991 Rs.410,000 SUPER PALACE (Ex. No.227,229& 230) SOLD 1995 Rs.975,000 Profit Rs.565,000 Profit Rs.23,55,000 THIS PROPERTY WAS NOT TAKEN BY I.O. BUT SHOWN/DECLARED DURING STATEMENT IN COURT (EX. No.216 & 219)
Purchased 1997 Rs.54,00,000 Sold 1998 Rs.58,00,000 Profit Rs.4,00,000 TOTAL CASH/PROFIT FROM PRO PERTIES Rs.27,55,000
2. PROFIT ON SHARES TRADING AS TAKEN BY I.O. IN HIS REPORT (P.W.16) (Ex. No. 61)Rs.54,30,105
3. SALARY RECEIVED FROM PSO (P.W.1) (EX. No.12) Rs.23,06,322
4. PRIZE BOND WINNINGS (EX. No.215 & 216) Rs.2,65,000
5. HOUSE LOAN FROM PSO (AS PER I.O. REPORT SR. NO. 19 UNDER FINANCIAL WORTH OF REFERENCE)Rs.8,24,420
6. LOAN FROM BANKS (AS PER I.O REPORT) 1994 ABN AMRO Rs.18,30,068 (S. No.04, UNDER W OF REFERENCE)
HABIB BNAK AG ZURICH (SR. NO. 09, UNDER F. W OF REFERENCE) Rs.17,20,317 MCB BROADWAY BRANCH (SR. No. 05, under F. W OF REFERENCE) Rs. 14,44,683 Rs.49195.0618 TOTAL CASH GENERATED Rs.1,65,75,915 The details of the cash generated at Rs.36,83,900 were given as under: DETAIL OF ASSETS AND THEIR SALE PROCEEDS/ENCASHMENT THESE ASSETS WERE PURCHASED/INVESTMENTS MADE BEFORE JOINING PSO AND SOLD/ENCASHED THEIR AFTER
1. VEHICLE-TOYOTA CORROLLA FROM DUBAI SOLD IN 1986 Rs. 320,000 (PASSPORT COPY ATTACHED)
2. SALE PROCEEDS OF FLAT-SAGHIR CENTER PURCHASED IN 1974 SOLD IN 1991Rs.275,000 (TRANSFER APPLICATION ATTACHED)
3. SALE PROCEEDS OF PLOT-KARACHI ADMINISTRATION SOCIETY PURCHASED IN 1974 SOLD IN 1991Rs.650,000 (TRANSFER APPLICATION ATTACHED)
4. SALE PROCEEDS OF HOUSE-NORTH KARACHI PURCHASED IN 1979 SOLD IN (GENERAL POWER OF ATTORNEY, D.W.04, EX. No.214)Rs.175,000
5. SALE PROCEEDS OF FLAT-MAYMAR AVENUE PURCHASED IN 1981 SOLD IN 1994 (GENERAL POWER OF ATTORNEY, D.W.04, EX. NO. 214)Rs.7,00,000
6. RENT OF FLAT MAYMAR AVENUE @ RS.3200/PER MONTH DURING 1983-1994 (TENANCY AGREEMENTS ATTACHED)Rs.4,99,000
7. PROCEEDS OF DSC'S ON ENCASHMENT INVESTMENT MADE DURING 1983-86 FACE VALUE Rs.228,000Rs.9,24,700 ENCASHED DURING 1981-1996 (D.W.03, EX. No.213)
8. PROCEEDS OF DSC'S ON ENCASHMENT INVESTMENT IN 1986 Rs.100,000 Rs.1,40,000 ENCASHMENT DURING 5-6-1989 (D.W.03 Ex. No.213)
CASH GENERATED FROM PROCEEDS OF SALES AND ENCASHMETN OF INVETSMENTSRs.36,83,900 CASH GENERATED FROM PROCEEDSOF SALES AND ENCASHMETN OF INVETSMENTS Rs,36,83,900
15. As per his application, the Investigating Officer as well as the NAB Court wrongly shown his final wealth as Rs,2,88,44,243 on 30th June, 1998 whereas the cutoff date was 30-6-1999. He also mentioned in the application that he has declared assets in the returns up to the assessment year 1999-2000. According to him, out of none immovable properties, three properties were not owned by him whereas one was sold in 1995. On 30-6-1998, he had four properties in his name and in the name of his wife. He also mentioned that the value of share has been recorded correctly whose actual wealth was Rs,1,15,15,894 and not Rs,2,88,45,243. His wealth tax return for the year 1999-2000 was Rs,11,70,899 whereas that of his wife was Rs,97,37,342. It was also mentioned therein that they had declared their wealth before the authorities properly and the cash generated from it was converted in US Dollars deposits, which too were declared in the return. It was asserted that amount declared did not pertain to corrupt practices but was declared in the tax return as assets and was utilized in Defence Savings Certificates investment and some further investments in the year, 1998. He also mentioned in the application that acquitted accused Ziauddin Taimuri accepted that Shop No,24 was purchased by him. Likewise, petitioner Hassan Raza accepted the property in his name. Petitioner Asif Hussain denied the properties standing in his name. He, however, gave his own final net wealth and his wife as under:-- "1.Properties Rs.52,30,000.00
2. Shares Rs.920,248,75
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.Mashraq 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.Jewelry Rs.450,000.00 18.11th ICP Mutual Funds Rs.250,000.00 19.Outstanding balance under loan. Rs.824,420.00 TOTAL WORTH IN PAK- PURPEESRs.11,090,147.94 TOTAL WORTH IN US 42 AND 46 Rs.7,416,585.52 LESS LOANS/ADVANCES Rs. 5,819,489.69 PAK RS. Rs.12,687,243.77"
16. The request of plea bargain of acquitted accused Ziauddin Taimuri was accepted and he was released from custody. However, he was convicted under section 10 of the Ordinance as required under section 15 thereof and sentenced to cease to hold any public office if held by him and was disqualified for a period of 10 years.
17. We have heard Messrs Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court and Azizullah K. Shiekh, learned Sr. Advocate Supreme Court for the petitioners and Mr. Muhammad Jaffar Hashmi, learned counsel for NAB at length and have gone through the record and proceedings of the case in minute particulars.
18. Mr. Muhammad Akram Sheikh, learned Sr. Advocate Supreme Court vehemently contended that the legal and factual aspect of the case has not been appreciated in its true perspective by the learned Division Bench which resulted in serious miscarriage of justice. He argued 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 movable/immovable properties and pecuniary resources, disproportionate to the known sources of his income for the period from April, 1987 to the date of framing the charge i,e,12-12-2001. He argued that while recording the judgment and deciding the issues against petitioners Iqbal Ahmed Turabi and his wife, the trial Court ignored its own observation and considered the evidence against petitioner Iqbal Ahmed Turabi, recorded during the separate trial of petitioners Asif Hussain and Hassan Raza. He further argued that the evidence recorded in subsequent trial has been used by the trial Court against principal petitioner Iqbal Ahmed Turabi which could not be used against him as he did not participate in the subsequent trial, and he was not given any opportunity to further cross-examine the witnesses and the material/evidence so brought on record was not put to petitioner Iqbal Ahmed Turabi for the purpose of furnishing explanation as required under section 342, Cr.P.C. He urged that the 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. He contended that in the first instance the prosecution is required to prove corruption and then presumption can be raised under section 14 of the Ordinance. In this behalf he pointed out that the learned trial Court has jumped to the presumption provided under section 14(c) of the Ordinance without fulfillment of the conditions precedent therein. He argued that the learned trial Court has not properly appreciated the explanation furnished by petitioner Iqbal Ahmed Turabi regarding the source of acquiring the assets and has misdirected in construing the real nature of the bank transactions. He further argued that the learned trial Court as well as the learned High Court has not fully appreciated the nature of transactions in several bank accounts. According to him, this case was actually initiated on the letter of the Ministry of Petroleum and Natural Resources written to Chairman NAB for holding inquiry against Managing Director and other Officers of PSO. Out of them, it was only petitioner Iqbal Ahmad Turabi was made escape goat whereas the others were neither joined in the inquiry nor were proceeded. Thus the Accountability being selective in nature is highly discriminatory. The benefit of which must be given to the petitioners. He submitted that the sentence awarded against petitioner Iqbal Ahmed Turabi is manifestly violative of Article 12(1)(b) of the Constitution of Islamic Republic of Pakistan, 1973 inasmuch as the offence of possessing assets beyond known sources as contained in section 9(a)(v) of the Ordinance is not a new offence created under the Ordinance but the same has also been an offence under the Prevention of Corruption Act, 1947 attracting maximum punishment of imprisonment for seven years and the same cannot be enhanced for the same offence under the Ordinance. Irrespective of oral arguments, learned counsel also submitted written arguments and relied upon the cases reported as Inamur Rehman v. Federation of Pakistan and others (1992 SCM R 563), Muhammad Rafiq v. The State (1995 SCM R 1525) and Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).
19. On the other hand, Mr. Muhammad Jaffar Hashmi, learned counsel for the State defended the impugned judgment on the reasoning which weighed with the learned trial Court and the learned Division Bench of High Court of Sindh. He argued that the learned trial Court has not committed any illegality while conducting joint trial of petitioners Asif Hussain, Hassan Raza alongwith the other petitioners. He further argued that petitioners Asif Hussain and Hassan Raza surrendered before the Court after recording the entire evidence against petitioners Iqbal Ahmed Turabi, Najma Iqbal and acquitted accused Ziauddin Taimuri. He submitted that the learned trial Court had validly observed that the evidence recorded in subsequent trial should be considered against petitioners Asif Hussain and Hassan Raza only. He urged that assigning the consecutive and continuous numbers to the prosecution witnesses and exhibits can be termed at the most, an irregularity, which would not cause any prejudice to the case of petitioners Iqbal Ahmed Turabi and Najma Iqbal Turabi and has not occasioned any miscarriage of justice. The learned Prosecutor stated he did not know anything as to what happened with the inquiry against Managing Director and other officers of PSO. He, however, emphasized that the prosecution has fully established its case against the petitioners by bringing on record that petitioners Iqbal Ahmad Turabi and Najma Iqbal Turabi possessed immovable/movable properties beyond their known source of income which they could not be reasonably accounted for. Whereafter the burden shifted upon them to prove otherwise which they miserably failed, thus were rightly convicted and sentenced. According to him, the case against petitioners Hassan Raza and Asif Hussain also stood proved as they had failed to furnish reasonable explanation about their absconsion and relationship with petitioner Iqbal Ahmad Turabi.
20. When examined under section 342, Cr.P.C., petitioner Iqbal Ahmad Turabi candidly admitted to have acquired purchased and owned property, the reference of which have been given in Para-9 of this judgment. At the same time, he had also given the entire details in respective plea-bargain applications which further corroborated the version that he voluntarily at his own instance admitted to have acquired the assets beyond his known source. Statement of Najma Igbal also explicitly implicates herself as well as her husband about acquiring the above mentioned properties in her name as well as in her husband's name. Though petitioners Asif Hussain and Hassan Raza have denied the purchase of property in their names by petitioner Iqbal Ahmad Turabi, yet, they have not furnished any explanation as to whom those properties belong, as such, by mere denial the offence on the above aspect cannot be brushed away. Right from the very initiation proceedings in inquiry as well as at the trial, petitioner Iqbal Ahmad Turabi has not been able to show the other source of income except his salary. Irrespective of this, he has also not brought on record that he owned any immovable or movable property prior to joining the service, as such, there is no hesitation to hold that he acquired all the above mentioned assets, properties and bank accounts disproportionately and beyond his source. Thus was rightly convicted under subsection (v) of section 9 of the Ordinance. Initially the burden lies upon the accused to prove his innocence in the cases arising out of the NAB Ordinance but after the judgment of this Court in the case of Khan Asfadyar Wali v. Federation of Pakistan etc. (PLD 2001 SC 607) initial burden to prove the case prima facie was shifted upon the prosecution and once prosecution brings on record convincing material to connect the accused with the Commission of offence then burden to prove his innocence lies upon the shoulder of accused.
21. In the instant case the prosecution has initially proved its case by bringing on record evidence by P.W. Haroon Khanani, Assistant Accounts Officer in PSO. According to whom, petitioner Iqbal Ahmad Turabi was doing part time business of Estate Agent in MehentiCorporation. He approached him to purchase shop, therefore, he contacted P.W. Muhammad Shafi of Mehdi Corporation and purchased. Shop No, 25, Prince Complex, Opposite PSO House, Karachi, in the sum of Rs,35,00,000 and the sale-deed was executed in the name of acquitted accused Ziauddin Taimuri. P.W. Muhammad Shafi stated that he was Estate Agent of Mehdi Corporation and in the month of June, 1997, Shop No,25, Prince Complex, Frere Town, Clifton, Karachi was purchased by petitioner Iqbal Ahmad Turabi against an amount of Rs,35,00,000 in the name of acquitted accused Ziauddin Taimuri. P.W. Rizwan Iqbal also corroborated the sale of above said shop. P.W.
Hasan Ali Kazmi Senior Vice President and Area Chief of Habib Bank Limited, A.G. Zurich, I.I.
Chundrigar Road, Karachi stated that he had taken the above mentioned premises on rent from acquitted accused Ziauddin Taimuri at the rate of Rs,40,000 per month and had also paid Rs,4,44,060 as an advance. The fifth witness on the above point was P.W. Riazuddin a (businessm an) who stated that he purchased the above-mentioned shop from petitioner Iqbal Ahmad Turabi for a sum of Rs,29,00,000. He also produced the sale agreement. Though cross- examined at length, yet the petitioners could not shatter their testimony, as such, it was established on record that the above mentioned shop was purchased by petitioner Iqbal Ahmad Turbai in the name of acquitted accused Ziauddin Taimuri and his mere denial that he did not know acquitted accused Ziauddin Taimuri at all is of no avail. P.W Muzaffar Hussain, Sub-Registrar, T Divisiofi, D.H.A.
Karachi, shows that Nasim Firdous Mehdi had executed sale-deed in favour of Asif Hussain petitioner. P.W. Haroon Khanani recorded his statement twice, one during the trial of petitioner Iqbal Ahmed Turabi and second during the trial of petitioner Asif Hussain. He deposed that he was employee of PSO and used to work under petitioner Iqbal Ahmed Turabi. He was doing part time business of sale and purchase of properties. He stated that petitioner Iqbal Ahmad Turabi had purchased the office premises through Haroon Khanani who had contacted P.W. Muhammad Shafi of Mehdi Corporation and that transaction was finalized for a sum of Rs,22,00,000. The amount was paid by petitioner Iqbal Ahmad Turabi. The documents were prepared in the name of petitioner Asif Hussain. Petitioner Iqbal Ahmad Turabi who had handed over the same to P.W. Shafi Muhammad for completing the deeds and papers gave a copy of identity card of Asif Hussain to the witness.
P.W. Muhammad Shafi deposed that he was Estate Agent of Mehdi Corporation ankwas having two office premises for sale which were sold to petitioner Iqbal Ahmed Turabi for a sum of Rs,21,00,000 or Rs,22,00,000 through Haroon Khanani. According to him the premises were also shown to petitioner Iqbal Ahmad Turabi and payment was received through Haroon Khanani in installments.
He stated that the documents were prepared in the name of petitioner Asif Hussain under the instruction of petitioner Iqbal Ahmad Turabi. He stated that the sale-deeds were one sided, in which seller was not present.At the time of execution of sale-deeds. From the above evidence, it is clear that the office premises were purchased by petitioner Iqbal Ahmad Turabi in the name of petitioner Asif Hussain and the payment was made by petitioner Iqbal Ahmad Turabi through P.W Haroon Khanani in installments, who made the payment to P.W. Muhammad Shafi. Petitioner Iqbal Ahmad Turabi also let out the property to Khalid Hussain, one of the partners of National College Information Technology Centre under a tenancy agreement at the rate of Rs,17,000 per month. The prosecution also examined Yar Mohammad, one of the partners of National College of Information Technology Centre. His 'statement was recorded twice. Firstly, when petitioner Iqbal Ahmad Turabi was being tried and secondly, when petitioner Hassan Raza and Asif Hussain were being tried which shows that premises bearing No, M-4 Falaknaz Centre, Shahrah-e-Faisal, Karachi, was let out to Khalid Hussain, one of the partners of National College of Information Technology Centre in the month of January, 2000 at the rate of Rs,17,000 per month through Estate Agent. The premises was taken from 'petitioner Iqbal Ahmad Turabi but the tenancy agreement was executed in which petitioner Hassan Raza was shown as landlord. In the beginning the rent was being collected by petitioner, Iqbal Ahmad Turabi but after few months petitioner Hassan Raza started collecting the rent. From the above evidence, it is clear that the letting out of the premises to Khalid Hussain has not been denied by any of the petitioners. It is pertinent to point out that in benami transaction, from whom the consideration money came and from whom the document of sale are produced in Court plays a dominant roll when the dispute is between the real owner and the benamidar. If the dispute is between the third party on the one hand and the real owner and the benamidar on the other hand then the above-mentioned consideration looses its importance. In such situation the conduct of the parties and the surrounding circumstances are to be taken into consideration to determine, whether the transaction wasa benami transaction or not. It is no doubt true that the source of consideration money and the possession of the titled documents are essential elements to determine the nature of the transaction where the dispute arises in between benami and the real owner.
22. As regards Joint Bank Account No, 1932-2 in A.B.L., PIDC House, Branch, Karachi, in the name of petitioners Iqbal Ahmad Turabi and Najma Iqbal Turabi, it is stated that it was opened on 8-6-1988 and up to 17-2-2000 a sum of Rs,54,02,685/56 was deposited. P.Ws namely Syed Khalid Hussain, Manager of the aforesaid Bank testified the above fact. According to him the total transaction in the account was Rs,54,97,202/78 with a zero balance as the account was closed. Petitioner Iqbal Ahmad Turabi also admitted this fact in his statement under section 342, Cr.P.C. But denied the transaction by taking the plea that there was a period of share application forms, under which an application for purchase of shares were to be placed in balloting and if the application is drawn then the shares were to be purchased and if the application is not found in the balloting then the amount is refunded and then again the same amount is deposit in the account and this way, the same amount was being repeatedly withdrawn and deposited in the account. Petitioner Iqbal Ahmad Turabi examined 11 witnesses in his defence but none of them have deposed anything about the balloting of share applications. It is established fr m the record that there was a total transaction of Rs,54,97,202/78 in this account.
23. Regarding Account No,22521-8 with A.B.L., P.I.D.C. Branch, Karachi, the prosecution examined P.W.20 Syed Khalid Hussain, Manager of the aforesaid Bank was dh posed that petitioner Iqbal Ahmad Turabi opened the above mentioned account on 18-12-1997 with an initial deposit of Rs,1,000 and that t e total transaction in the account uptodate was RS.19,31,141 with a banefit of Rs,30. The petitioner also admitted this fact in his statement under section 342, Cr.P.C. But explained that the account was opened with running finance facility under which, whatever the amounts were withdrawn, the same were deposited by him on subsequent date hence the total transaction in the account has not been denied by petitioner Iqbal Ahmad Turabi.
24. The prosecution examined P.W.3 Munawar Ahmed, Chief Manager, Metropolitan Bank, Pape Market Branch, Karachi, who deposed that petitioners Iqbal Ahma Turabi and Najma Iqbal Turabi opened joint bank Account No,20 10-714-115914 in the Bank on 15-2-2000 with an initial deposit of R .33,750 and the total transaction in the account was Rs,26,39,533/14. To testify the same, he produced bank statement. Petitioners Iqbal Ahma Turabi and Najma lqbal also admitted this fact in their statements under section 342, Cr.P.C. Thus it is crystal clear that the total transaction in the above mentioned account was Rs,26,39,533.14.
25. P.W.3 Munawar Ahmed, Chief Manager Metropolitan Bank, Paper Market Branch, Karachi, Iso deposed that on 8-7-2000 petitioners lqbal Ahmed Turabi and ajma Iqbal opened joint Account No,20610-714-118618 with the aforesaid bank with an initial deposit of Rs,500. According to him till 21- 7-2001 a total transaction in the account was Rs,11,77,430/22 with a balance of Rs,48/14. To verify the above position, he also produced bank statement. Both the petitioners admitted this fact in their statements recorded under section 342, Cr.P.C.
26. P.W.4 Ghulam-u-Syeden Jafferi, Vice President H.B.L., A.G. Zurich, I.I. Chundrigar Road Branch, Karachi, deposed that petitioners lqbal Ahmad Turabi and Najma Igpla Turabi opened Joint AccountNo,1714-174242-116-01 with his Bank on 9-6-1996 with an initial deposit of Rs,100. According to him the total transaction in the account was Rs,3,71,63,055/94 up to 8-6-2000 with a zero balance. Total transaction in the account has been admitted to be Rs,3,71,63,055/54.
27. P.W.13 Lindsay Lobo, Manager Operations ABN Amro Bank, Karachi, deposed that foreign currency Account No,2102001 was opened in the name of petitioner Najma Iqbal Turabi on 15-12- 1997 with an initial deposit of US $ 10. According to him, the total transaction in the account was 25,185.74 US $ up to 10-7-1998 with a zero balance and an amount of US $ 185.74 was transferred to Pak Rupee Account of petitioner Najma Iqbal Turabi bearing No,21028052 of their bank. Petitioners Iqbal Ahmad Turabi and Najma Iqbal Turabi also admitted this fact. Thus it has been proved that the total transaction in the aforesaid account of US$ 25,185.74. The P.W. Further deposed that on 16- 12-1997 petitioner Najma Iqbal Turabi opened another Account No,21028028 in the Bank with an initial deposit of Rs,1,000 and it was a loan account and initial loan was Rs,30,00,000, which was withdrawn on 16-12-1997. The total transaction in the account was Rs,1,08,69,145/23 up to 13-6-2000.
Petitioner Iqbal Ahmad Turabi admitted this fact in his statement under section 342, Cr.P.C. Thus it has been proved that total deposits in the above-mentioned account were of Rs,1,08,69,145/23 with the loan facility of Rs,30,00,000. The P.W. Also stated that petitioner Iqbal Ahmad Turabi also opened Account No, 21028052 with his bank on 17-12-1997 with an initial deposit of Rs,22,25,925. The total transaction in the account was Rs,80,94,035/39 up to 13th June, 2000 with a zero balance.
Petitioner admitted this fact in his statement recorded under section 342, Cr.P.C.
28. Regarding Account No,21028044, the P.W. Deposed that this account was opened in the name of petitioner Najma Iqbal Turabi on 18-12-1997 with initial deposit of US $ 10,000. According to him total transaction in the account was US $ 1,09,741.98 upto 1st September, 1999 with a zero balance.
Petitioner Iqbal Ahmad Turabi also admitted this fact in his statement recorded under section 342, Cr.P.C.
29. Abdul Basit Khan, Chief Manager Muslim Commercial Bank, Broadway Branch, Karachi appeared as P.W.7 and deposed that on 4-6-1997 petitioners Iqbal Ahmad Turabi and Najma Iqbal Turabi opened Joint Account No,4-5 with the Bank with an initial deposit of Rs,3,000 and the total transaction in the account was Rs,85,71,011 up to 30-6-2000 with a balance of Rs,13/85. He further deposed that on 2-8-1997 an advance facility of Rs,16,00,000 was given to the account-holders against shares of Rs,9,20,948/75 and Defence Saving Certificate valuing Rs,12,56,000 and the advance was adjusted, therefore, the shares and the certificates were returned. Petitioners in their statements recorded under section 342, Cr.P.C. Admitted this fact.
30. P.W.21 Naveed Iqbal, Senior Vice President MCB Shaheen Complex Branch, Karachi deposed that petitioner Iqbal Ahmad Turabi opened Account No,1-11583 with the bank on 20-10-1996 with an initial deposit of Rs,1,000.
31. P.W.5 Saligir Ahmad, Assistant Vice President HBL, A.G. Zurich, Karachi deposed that on 7-12-1997 petitioners Iqbal Ahmad Turabi and Najma Iqbal Turabi opened a Joint Account No,174242 in the said Bank with a deposit of US$ 15,068.63. According to him a total transaction in the account was US$ 61,275.93 up to 12-9-1996 with a zero balance.
32. P.W.12 Hassan Imam, Manager American Express Bank, Karachi deposed that on 26-4-1995 petitioner Iqbal Ahmad Turabi opened Account No,.111062020 in the aforesaid Bank with totaltransaction of US $ 294.
33. P.W.19 Tariq Qayyum, Deputy Head Customer Service Deutsche Bank, Karachi, deposed that on 22-12-1994 petitioner Najma Iqbal Turabi opened Account No,52233-30-5 in the aforesaid Bank and the total transaction in the Account was US $ 23,738.50.
34. As regards, transfer of 51,000 US $ from aboard to Mashriq Bank, P.W. Aqeel Ahmed Quershi, Investigating Officer produced a letter of Manager Customer Services Mashriq Bank, which was written to the Investigation Officer in response to the queries made by him. It shows that 55,100 FC Term Deposit No,02-280-0070-6 valuing US $55,100, issued on 23rd April, 1997 in the name of his son Ali Hassan, was encashed in the amount of US $ 59,484.14 equal to Rs,27,36,270/44 on 18th July, 1998 and encashment certificate to this effect was issued in the name of petitioner Najma Iqbal at the request of Ali Hassan. He has also produced the term deposit receipts of the above-mentioned account and encashment certificate. Petitioner Iqbal Ahmad Turabi admitted in his statement under section 342, Cr.P.C. That he had deposited 51,100 US $ in the account in the name of his son Ali Hassan.
35. Regarding credit card facility, it is the case of the prosecution that petitioners Iqbal Ahmad Turabi and Najma Iqbal had availed the credit card facilities of Rs,9,25,106 from MCB Branch, Karachi. In this connection the prosecution produced P.W.9 S.M. Arif, Senior Vice President Operation & Technology/Credit Card Division, MCB Branch, Karachi. He deposed that both the petitioners had applied for credit card facility on 12-6-1995 with a credit facility of Rs,25,000 but in the year, 1997, the facility was increased to Rs,1,50,000. Petitioner Iqbal Ahmad Turabi admitted this fact in his statement recorded under section 342, Cr.P.C.
36. As regards stock exchange transaction through P.W.16 Khurram Raza Bhayani Sub-broker of Messrs Kausar Abass Khayani it was admitted that petitioner Iqbal Ahmed Turabi purchased shares worth Rs,2,14,04,513 during the period from March, 1997 to April, 2000 in the name of his wife petitioner Najma Iqbal and paid Rs,79,89,005 to the broker through cheque and earned profit of 54,30,105.
37. So far as the shares purchased from P.W.17 Ali Hassan Rajab Ali are concerned, the petitioner purchased shares amounting to Rs,23,23,150 during the period from 19-4-2000 to 10-5-2000 in the name of his wife petitioner Najma Iqbal and paid Rs,14,89,737 through cheques to the broker and profit Rs,1,06,000 was gained. According to the petitioner the said shares were transferred to Messrs Kausat Abbas Bhayani Stock Exchange broker.
38. As regards. ICP shares worth Rs,2,50,000 P.W.28 Haji Hatim Dayala, Acting Senior Vice President, Mutual Funds Department ICP, Karachi stated that on 17-6-1997 petitioner Iqbal Ahmed Turabi purchased 25,000 shares (a Rs,10 each and transferred 20,000 shares in the name of his wife petitioner Najma Iqbal. Petitioner Iqbal Ahmed Turabi received dividends Rs,56,250 in the year, 1997 and Rs,40,500 in the year, 1998 while petitioner Najma Iqbal received dividends of Rs,33,750 in the year, 1999 and Rs,33,750 in the year, 2000.
39. The case law referred (supra) by the learned counsel for the petitioners is on different facts and circumstances and has no bearing in the case in hand.
40. From the above resume, we are of the considered opinion that the prosecution has fully established its case against the petitioner under subsection (v) of section 9 of the NAB Ordinance and thus they were rightly convicted and sentenced as stated above.
41. However, while maintaining the conviction and sentence of petitioners Iqbal Ahmad Turabi, Hassan Raza and Asif Hussain, we deem it proper to reduce the sentence of petitioner Najma Iqbal on humanitarian ground and being housewife. Accordingly, while maintaining the conviction, reduce the substantive sentence of petitioner Najma Iqbal from five years to three years R.I.
Whereas the sentence of fine is maintained.
42. With the above modification in sentence, both the petitions are dismissed and leave to appeal refused.