TASSADUQ HUSSAIN JILLANI, J - Mian Muhammad Faruq appellant, a former Member of National Assembly and Provincial Assembly Punjab, was tried on 36 charges, under Section 10 of National Accountability Bureau Ordinance, 1999, by the learned Judge, Accountability Court No. 3, Lahore and vide impugned judgment dated 22.2.2003, while acquitting him on all the remaining charges, convicted him on Charge No. 32 and sentenced him to seven years' R.I. With a i.e of rupees fifty lac in default whereof to. Further undergo R.I. For two years. Benefit of Section 382(b), Cr.P.C, was extended to him. He was also disqualified to hold any public office for a period of ten years in terms of Section 15 of the National Accountability Bureau Ordinance, 1999.
2. As the NAB/State has not filed appeal against appellant's acquittal on other charges, there is no need to refer to those charges and the evidence in support thereof. The charge under which he stands convicted, reads as under:- "(xxxii) That in the year 1990, he got allotted Plot No. 113, Block G-III, Muhammad Ali Johar Town, Lahore, measuring 420 sq. Meters from Chief Minister's discretionary quota for reserve, price of only Rs. . 96,000/- by giving false declaration, which he later on sold for a sum of Rs. 13,75,000/-."
The learned Trial Court has dealt with the afore-quoted charge and found the appellant to be guilty in terms of its finding contained in para 33 of the impugned judgment, operative part of which reads as under:- "....... After hearing both the learned counsel for the parties I am of the view that as the plot was allotted to the accused while he was MPA on his application placed on record as Ex.PW24/1 and its evidence is also on record as Ex.PW24/3 along with certificate of domicile of the accused as Ex.PW24/5 and by the production of Dr. Mazhar Ali Shah the purchaser of the plot by the prosecution brings home guilt against the accused beyond any doubt within the definition of corruption and corrupt practices as given by NAB Ordinance. It cannot be said that since affidavit of the ' accused with the application for allotment of plot is not proved, the allegation is not proved and argument has no substance. The accused drew undue gain from the Government on the ground that he had no plot in the residential schemes in Lahore which he later on sold for personal monetary gain to PW28 as stated by PWs".
In support of the afore-referred charge, the prosecution produced Abdu Samad Khan, Assistant Director Allotment LDA Lahore (PW24), Abdul Aziz, Ex-PSO to Chief Minister, Dr. Mazhar Ali Shah, Consultant Radiation Oncologist as PW28 and Syed Abuzar Sabtain, Inspector FIA (NAB) as PW29.
3. Learned counsel for the appellant submitted that the prosecution considerably failed to prove the charge as no evidence wa led either oral or documentary to show that the affidavit tendered by the appellant at the time of allotment of Plot No. 113 in Block G - III, Johar Town, Lahore was to be subject- matter of the charge) and that the appellant or any of his dependents did not own any other residential plot when he was allotted the plot in question. Learned counsel particularly referred to the statement of PW29 to contend that the Investigating Officer himself conceded that the appellant did not own any other plot when he was allotted the plot in-question.
4. Mr. Imran Ahmad Malik, Advocate for NAB, defended the impugned judgment by referring to the statement of Mehmood-ul-Hassan, District Housing Officer (PW15) and the documents produced by him i.e. Expwy 5, PW1 5/2 and PW1 5/3. While dilating on the ambit of Sections 9 and 10 of the National Accountability Bureau Ordinance, 1999, learned counsel submitted that the conduct/act of the appellant fell within the mischief of Section 9(a)(iv) as he procured the allotment by misusing his official position as Member of the Legislative Body. On a Court query, as to whether the allotment of plot, subject-matter of Charge No. 32, violated any terms of provision of residential scheme in which it was allotted, learned counsel frankly conceded that the said scheme was not placed on record by the prosecution and he is not in possession of the same either.
5. We have heard learned counsel for the parties and have gone through the evidence on record.
6. The focal issue in the charge under consideration is as to whether the appellant had given any false affidavit on the basis of which he was allotted the plot subject-matter of the charge. The said affidavit is Exh.PW4, was tendered by the appellant in response to the allotment letter dated 2.12.1989 (Exh.PW24/8) and was to the effect that in compliance with the orders of the Chief Minister Punjab dated 26,9.1989 (Plot No. 11.3, Block. G/III, measuring 420 Som of M.A. Johar Town Scheme) had been allotted and the formal letter of allotment would be issued subject to his furnishing, inter alia, an affidavit specimen of which was also attached with the said letter. Relevant part of the affidavit in-question reads as under:-
(1) "Neither I nor my wife or any of any dependents own a residential plot or house or flat in any urban area of Punjab nor have been allotted any plot or house or flat in any Urban Housing Scheme."
7. Learned counsel for the respondent NAB has not referred to any piece of evidence to indicate that the appellant or any of his dependents had any plot in any housing Scheme prior to 26.9.1989 when the Chief Minister issued the allotment order on 25.2.1990 when the afore-referred affidavit (Exh.PW24/3) was signed and tendered by the appellant. The learned Trial Court held the appellant guilty merely because the appellant sold the plot to PW28. The precise finding of the learned Trial Court is as under The accused drew undue gain from the Government on the ground that he had no plot in the residential schemes in Lahore which he later on sold for personal monetary gain to PW28 as stated by PWs".
The afore-referred reasoning is not tenable as merely because he subsequently sold the plot to someone else, would not make the affidavit to be false and there was no condition attach to him either that the plot would not be sold to a third person. Confronted with this, learned counsel for NAB referred to statement of Mehmood-ul-Hassan (PW15), District Housing Officer and the documents produced by him to contend that the appellant's wife owned a residential plot and, therefore, the affidavit tendered by him was false. We have gone through Exh.PW15/1, PW15/2 and Exh.PW15/3. Exh.PW15/1 is an undated application addressed to the Chief Minister for allotment of a plot in Peoples Colony, Faisalabad. Exh.PW15/2 is a letter dated 3.1.1990 from Deputy Secretary,.
Chief Minister Secretariat Punjab to Secretary, HP and EP and Exh.PW15/3 is a letter dated 4.4.1990 from Section Officer HP&EP to Director, Sargodha Housing and Physical Planning Circle, Sargodha to the effect that the "The Chief Minister, Punjab, has been pleased to allot one Kanal plot by Bifurcating the area measuring two Kanals under green belt adjacent to Plot No. 1/C Peoples Colony, Faisalabad, to Mrs. Masood Akhtar wife of Muhammad Faruq, Chak No. 247/RB, Tehsil and District Faisalabad on usual terms and conditions, in relaxation of the existing policy", a copy of which was also endorsed to appellant's wife. Thus till 4.4.1990 there was no formal allotment ordor in favour of appellant's wife and the averments made in the affidavit filed by the appellant (Exh.PW24/3, dated 25.2.1990) were not false, It was in this background that Syed Abu Zar, Inspector FIA (NAB), who conducted the investigation and filed the final report/reference under Section 173, Cr.P.C, conceded in cross-examination that "according to my investigation, the accused did not have any plot in Lahore prior to 26.9.1989". This Court specifically asked the learned Special Public Prosecutor, during arguments, to refer to terms and conditions of the Housing Scheme in which appellant was allotted a plot in question to show that there was any violation, to which, he very frankly admitted that neither such a scheme was produced in evidence nor he was in possession of the same.
8. For what has been discussed above, we are of the considered view that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt to sustain conviction.
The appeal is allowed, the impugned^! Judgment dated 22.2.2003 passed by Rana Zahid Mahmood, Judge Accountability Court No. 3, Lahore is set-aside, the appellant is acquitted of the charge levelled against him and is discharged of his bail/'surety bonds.