ALI NAWAZ CHOWHAN, J.- This judgment shall dispose of Crl. Appeal No. 1684/2001 as well as Writ Petition No. 14760/2002.
2. The appeal under Section 32 of the NAB Ordinance arises on account of judgment dated 25.10.2001 passed by Mr. Abdul Ghaffar Khan, learned Judge of the Accountability Court No. VI, Lahore. Whereby he convicted the appellant Abdul Rehman under Sections 9/10 and Schedule of Ordinance read with Sections 409, 419 and 420, PPC and sentenced him to 14 years R.I. With a i.e of Rs.7,00,00,000/- under Sections 9/10 and Schedule of NAB Ordinance. Whereas, under Section 409, PPC he was sentenced to 10 years' R.I. And a i.e of Rs.1,00,00,000/- under Section 419, PPC he was sentenced to 7 years' R.I. And under Section 420, PPC he was sentenced to 7 years with a - i.e of Rs.
1,00,00,000/-. All the sentences were to run consecutively.
3. Reference made under Section 18(g) of the NAB Ordinance, 1999 against the appellant is as follows:- "(i) Accused obtained an amount of Rs. 1,30,0, 000/- pertaining to Mrs. Neelofar Iqbal on the pretext of various property transactions during the period from 1996-98.
(ii) Accused obtained and misappropriated an amount of Rs. 25,00,000/- pertaining to Mrs. Saima Ayub, on the pretext of various deals in real estate business in the year 1997.
(iii) Accused obtained and misappropriated Rs.43,90,447/- pertaining to Mrs. Sarfraz Shabir during the years 1996-97 and 1998."
4. During the trial, the prosecution produced as many as 1 7 witnesses in support of its case besides the documentary evidence. Mrs. Sarfraz Shabhir (PW-1), Mst. Nelofar Iqbal (PW-2), Mrs. Saima Ayub (PW-3), Muhammad sulman (PW-4), Shahzad Iqbal Malik (PW-5), Syed Ameer Ali (PW-6), Riffat Ullah Khan alias Rafique Naris Khan (PW-7), Mian Shafqat Saleem (PW- 9), Javed Saleem (PW-10), Sarfraz Ahmad (PW-11), Mian Muhammad Arif (PW-12), Ashraf Hassan (PW-13), Qazi Iftikhar Ahmad (PW-14), Muhammad Munir (PW15), Mrs. Robina Ahsan (PW-16) appeared as witnesses to support the prosecution case and mentioned the amounts by which they were defrauded. Most of whom were cross-examined by the appellant himself who could not impeach their credibility with respect to the allegation made by them, while he failed to cross- examine the some other witnesses although opportunities were given to him. Muhammad Ahmad, Inspector FIA/NAB (PW-17) investigated this case and submitted the challan. Muhammad Shahzad But, Nadim Hakim, Raja Nazir Ahmad and Mst. Nargis Wajih-uz- Zaman were also examined as CW-1 to CW-4 respectively, who supported the prosecution case.
5. The appellant in his statement under Section 342, Cr.P.C, recorded before the NAB Court made the following admissions:- "My liability actually is amounting to Rs. 3,14,38,000/- out of which Rs. 97,000/- has also admittedly been received by PWs. Now, actually, I owe Rs.2,1 7,38000/- only."
6. On the question whether he had previously confessed his guilt before a learned Magistrate, his reply was in the affirmative.
7. Again on the question whether he had to say anything else, he replied as under:- "I be given benefit of Section 382-B, Cr.P.C, while recording conviction and sentence against me."
And he refused to appear as his own witness and also refused to produce evidence in his defence.
8. The learned counsel for the appellant who was conscious of the admissions made by the appellant before the Trial Court, contended himself by confining his arguments only with respect to the sentences awarded to the appellant. He prayed that the sentences of imprisonment be ordered to run concurrently. While arguing^ he stated that this was the first case against the appellant and nothing had been brought on record to suggest that he was a previous criminal or a hardened criminal. That he has suffered rigors of trial and has returned some amount which he had taken from public for purposes of investment. That he did not have the advantage of proper legal device as he was not able to appoint a counsel to defend him. On the latter statement of the learned counsel, this Court asked him whether he was deprived of the opportunity of engaging a counsel by the Court below, when the reply of his counsel was in the negative. But he could not explain the reasons for non-appointment of a counsel nor was there any serious urging on the part of the appellant before the Trial Court to suggest that he required a counsel at State expense. He did choose to cross-examine the witnesses himself and later also voluntarily made the admissions.
We find that he was not able to impeach the credibility of the witnesses nor was he able to bring about a case showing that what he accepted as his liability towards the complainants, was a true and correct statement in contrast to the statements made by the complainants-PWs who had given different facts and figures bout the money they paid and the amount they received back from him. In fact he had also executed a pronote in favour of Mst. Nelofer Iqbal (PW-2). None of the witnesses had any enmity with him except that they were asking for the refund of the amounts paid. The Trial Court, therefore, rightly believed the statement of the PWs.
9. Against a payer of the learned counsel for the appellant that sentences of imprisonment should run concurrently, there was an opposition from the counsel of NAB but while later in view of the circumstances of the case left to this Court to determine this question.
10. We after hearing the argument and appraising the evidence are of the view that there is no infirmity attached to the order of conviction. We uphold the same while making the following modification with respect to the sentences of imprisonment only, In which case, we direct that all these sentences shall run concurrently. He shall also be given the benefit under Section 382-B, Cr.P.C. The appeal is decided accordingly.
11. Through the accompanying writ petition, Mst. Nargis Wajih-uz-Zaman is assailing the portion of the judgment whereby she is directed to deposit an amount of Rs.1/- million in the Court having been a beneficiary from the appellant, out of which Rs. 8,00,000/- are to be paid to Mst. Nelofar Iqbal, one of the affecters.
12. In this connection, reference may be made to the following portions of the judgment:- "Mst. Nargas, Waji Zaman, CW-1, deposed that she borrowed Rs. 6,00,000.00 once, Rs. 4,0, 000.00 again from Abdul Rehman accused for redemption of her plot measuring 8 Kanals, stipulated in Hadbast, Mohal Bachoke Majha, Tehsil and District Kasur. It was further stated that after redemption of afore-mentioned industrial plot its title deed was received by Abdul Rehman, accused, against outstanding loan of Rs. 10,00,000.00 which she owed to him and she was ready to pay back that loan money to Abdul Rehman accused and for payment of that loan money was seeking respite of at least 6 months. Accused Abdul Rehman during cross- examination admitted that title deed of industrial plot was still intact in the name of Composite Chemical Industries Pvt.
Ltd., 510 Uncentre I.I. Chundrigarh Road, Karachi."
"In view of evidence as discussed above, Mst. Ali Nargas to secure her title of aforementioned industrial plot shall have to deposit Rs. 10,00,000.00 in Court within 6 months failing which it shall be realized out of sale proceeds of that property and Mst. Ali Nargas in that eventuality shall have no claim against that property or sale proceeds thereof, In case Mst. Ali Nargas pays Rs. 1,00,000.00 to secure her right over afore-mentioned property within 6 months, out of that amount Rs. 8 lacs shall be paid to Mst. Neelofer who is looted at the cruel hands of accused, Abdul Rehman, and remaining amount of Rs. 2,00,000.00 shall be forfeited to NAB Authorities."
13. It is said that Mst. Nargis Wajih-uz-Zaman could not sell the property nor raise funds for deposit as was stated because the name of the NAB was now a clog on the property. Her counsel stated before this Court that the Court pay itself auction the property and give effect to its judgments after realizing the same price.
14. Under the circumstances, the Trial Court is directed to arrange through a Civil Court the sale of the property while acting upon its own directions given in the judgment.
15. It was next stated that as the property was more valuable than Rs. 10,00,000/- due from her, the amount in excess ought to be refunded to Mst. Ali Nargas. After receiving the sale proceeds, the Trial Court may realize Rs. 1/- million and return rest of the money to Mst. Ali Nargas after a justifiable claim is established by her. From the sale proceeds, Rs. 8,0, 000/- shall have to be paid to Mst. Nelofer Iqbal, respondent No. 3. This writ petition is, therefore, also disposed of with these observations.