PLJ 2003 Cr.C. (Lahore) 772 (DB)
Present: tassaduq hussain jilani and bashira. mujahid, JJ. EJAZ AHMAD-Appellant
versus
STATE-Respondent
Crl. A. No. 561 of 2001, decided on 10.4.2003. (i) National Accountability Bureau Ordinance, 1999--
—-Ss. 9-A(v) & 10-A & 32~Conviction and sentence of 14 years
imprisonment awarded to petitioners for having acquired properties and
assets disproportionate to known and declared sources of income,
assailed-Counsel for appellant and respondent conceded that charge
against appellant pertains to property/assets held hy "benamidars" and on
the strength of Supreme Court Judgment (PLD 2002 SC 408) case has to
be remanded to trial Court for providing opportunity of hearing to
benamidars-Case was remanded to Trial Court for giving opportunity to
benamidars to explain their position, cross-examine witnesses and for
leading evidence if so warranted, under the law. [Pp. 776 & 777] A
(ii) National Accountability Bureau Ordinance, 1999-
—Ss. 9-A(v) & 10-A & 32-Conviction and sentence awarded were set aside
and case was remanded to trial Court for fresh trial-Appellant having
undergone one half of the sentence and early disposal of case being not in
sight, he was granted bail during pendency of trial subject to furnishing
bail bonds in the sum of Rs. 10 lacs with two sureties each in the like
amount to the satisfaction of trial Court. [P. 777] B
' 2002 PCr. LJ 2084 and PLD 2002 SC 408 ref. Mr. Rashideen Nawaz, Advocate for Appellant. Malik Jauaid Shaukat, D.P.G. for NAB. Date of hearing : 8.4.2003.
judgment
Bashir A. Mujahid, J.-Appellant Ijaz Ahmad Sheikh was tried by Accountability Court No. I in NAB Reference No. 10/2000, on the allegation that he acquired properties and assets disproportionate his known and declared sources of income amounting to Rs. 5,93,17,105/-. the learned trial Court vide its judgment dated 7.4.2001 convicted him under Section 9-A(v) read with Section 10-A of the National Accountability Bureau Ordinance, 1999 and sentenced him to RI for a period of fourteen (14) years and a fine of Rs. 4,77,00,000/-. In default whereof to further undergo R.I. for three years. He was also disqualified to hold any office for 20 years in terms of Section 15 of the NAB Ordinance. Appellant's vehicle Mitsubishi Pajero Engine No. 4-
2003 ejaz ahmad v. state Cr.C. 773
(BashirA. Mujahid, J.)
M40-CL3147, Chassis No. JMY ONV 640/WJ-001022 Registration No. Ejaz-I, was also forfeited in favour of the State with the direction/observation that the sentence of fine imposed on the accused will be recoverable within 6 years through warrant for levy of fine under Section 386-B Cr.P.C.
2. In terms of the charge framed it was alleged as under :--CHARGE SHEET
I, Farrukh Lateef, Judge, Accountability Court-I, Attock Fort do hereby charge you accused :
Ejaz Ahmad Sheikh s/o Sheikh Muhammad Shafi, Ex. MPA/Minister for Labour and Manpower, Government of the Punjab, r/o 94-C, Sarwar Road, Sialkot Cantt.
As follows :--FIRST
That in the years 1995 to 2000 you Ejaz Ahmad Sheikh accused, your spouse Mrs. Yasmeen Ejaz, dependant S.M. Khalid Ejaz and Gohar Ejaz and your associates/benamidars Saeed Ahmad, Naseer Ahmad Waris Ali Shah and Liaqat All, owned and possessed pecuniaiy resources reflected in Annexure A & B of the reference, movable and immovable properties detail whereof is given below, disproportionate your known and declared sources of income, which you could not reasonably account for.
PECUNIARY RECOURCES:
(i) as reflected in various statements of Bank accounts mentioned in Annexure A & B of the reference;
(ii) Account No. SDA-1304, NDFC Sialkot Cantt. In the name of S.M. Humayoon as shown in annexure B, opened by you with Rs. 75,00,000/- and was operated by you in the aforesaid name;
(iii) special US$ bond encashment certificates of the value of 2,00,000/- purchased on 5.5.1999 by your spouse Mrs. Yasmeen Ejaz and encashed on the following day at equivalent value in Pak rupees amounting to Rs. 92,00,000/-;
(iv) US$ 90,730 received by your son Khalid Ejaz through foreign telegraphic transfer dated 7.5.1999 from M/s. Wall Street Money Changer, Dubai encashed through Sheikh Bilal, Money Changer, Sialkot at equivalent value of Pak Rs. 46,00,011/- the encashment was done through Metropolitan Bank Limited Karachi; and
(v) FEBCs to the tune of Rs. 2,41,72,836/- purchased by your wife Yasmeen Ejaz and your son Khalid Ejaz during the period
7.2.1994 to 24.7.1997 without any equivalent foreign exchange remittance;
IMMOVABLE PROPERTY
Property in Sialkot Bearing No. S-III-IS-394/A-1 and No. S-III-IS-394/A-II measuring one kanal thirteen marlas purchased by you from one Tariq Mehmood in consideration of Rs. 50,00,000/- in the name of your sons Khalid Ejaz and Gohar Ejaz;
MOVABLE PROPERTY
A vehicle Mitsubishi Pajero Model 1998 Registration No. Ejaz-I purchased by you for a consideration of Rs. 38,00,000/-;
and you thereby committed an offence punishable under Section 10 read with Section 9(a)(v) of National Accountability Ordinance, 1999 within the cognizance of this Court;
SECONDLY
That you dishonestly and unlawfully attempted to legalize ill-gotten money in the shield of Economic Reforms Act, 1992 and FEBC Rules 1985, by purchasing FEBCs to the tune of Rs, 2,41,72,836/- in the name of your spouse Yasmeen Ejaz without requisite support of equivalent balance in Foreign Currency Bank account or foreign remittance, with a view to obtain pecuniaiy advantage to the aforesaid extent and after the initiation of investigation of this case, you, your wife Yasmeen Ejaz and your son Khalid Ejaz dishonestly and unlawfully attempted to avail Amnesty Scheme 2000 on 30.6.2000 respectively to the tune of Rs. 16,63,827/-; Rs. 65,48,246/-; and Rs. 50,00,000/- with the object to legalize the said black money to the tune of Rs. 13,212,073/- in order to obtain pecuniaiy advantage for your self, your said spouse and son to the extent of the aforesaid amount and you thereby committed an offence punishable under Section 10 read with Section 9(a)(iv) of the National Accountability Ordinance, 1999 within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charges.
February 13, 2001 JUDGE, ACCOUNTABILITY COURT-I .
ATTOCKFORT.
Certified that the charge as framed above has been read out and explained to the accused. Let his statement be recorded.
JUDGE ACCOUNTABILITY COURT-I
To prove that charge, the prosecution examined 29 witnesses including the investigation officer. The appellant in his statement under Section 342 Cr.P.C. denied the prosecution case. However, he admitted that
an amount of US$ 1,17,000/- should have been transferred from his bank account to the account of a firm after converting the same in to Pak Rupees. With regard to other charges, appellant's plea was that the Account No. STA -104 was not a benami account but was in the name of S.M. Hamayun his brother in law. With reference to the encashment of afore said bonds of appellant's wife he replied that those were declared and were validly encashed by his wife. Wife regard to the FEBCs mentioned in Question No. 23, appellant's reply was that those belong to his son and had been declared by him in wealth tax return. He accepted that he was owner of vehicle Mitsubishi Pajero Model 1998 but explained that he was owner of Pajero Model 1995 regarding which he had made a declaration in the wealth tax return pertaining to the year 1994-95 and the subsequent years thereafter. He explained that the afore-referred Pajero Model of the year 1998 was purchased by him by selling the earlier Pajero and by taking a loan as mentioned in his statement from one Sufi Churched owner of Saga Sports.
The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
Learned counsel for the appellant at the very outset has argued that it is a case for fresh trial as the charge pertains to the property/assets held by "benamidars" and on the strength of the judgments of the Apex Court reported in PLD 2002 SC 408 titled Mst. Zahida Sattar and others. Vs. Federation of Pakistan and others and 2002 PCr. LJ 2084 titled Raja Muhammad Hanifvs. The State it has been maintained that the case is to be remanded to the trial Court for providing an opportunity of hearing to the said benamidars. Learned counsel has also prayed that while remanding the case for fresh trial, the appellant be granted bail as he has already served out more than 8 years of sentence and the trial will not be concluded expeditiously.
Malik Javed Shaukat, learned Deputy Prosecutor General for NAB has not opposed the prayer for remanding the case and has fairly conceded that in all similar cases the Hon'ble Supreme Court and this Court had remanded the cases to enable the Be-Namidars to be heard. But he has opposed to the grant of bail to the convict/appellant.
We have given due consideration to the contentions raised at the bar and have perused the record.
o
The first charge in heading-II was regarding bank A/c No. SDA-1304 NDFC in the name of S.M. Humayun as sown in Annex-B while in heading-IV the allegation was that US$ amounting 90, 730/- was received by Khalid Ejaz, son of the appellant, Likewise, FEBCs to the tune of Rs. 2,41,72,000/-was purchased by the wife and son of the appellant and the immovable property under heading-V was also purchased in the names of sons of the appellant and his associates Saeed Bilal, Naseer Ahmad, Waris Ali Shah and Liaqat Ali also owned and possessed pecuniary resources. As per law
declared by the Hon'ble Supreme Court in Para-16 of the judgment reported as PLD 2002 SC 408 titled Mst. Zahida Sattar and others vs. Federation of Pakistan and others which like upon has been reproduced in judgment reported as 2002 P.Cr. LJ 2084, wherein their Lordships observed as under:
"The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB •Ordinance, we would hold that he (benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and given them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless conferred by the statute. Under the relevant provisions of NAB Ordinance as regards appeal against final judgment of the Accountability Court, it can only be maintained by the state or the accused person. This being so, the ostensible owners or benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution."
Benamidars should have been given an opportunity of being heard to shop/prove their own sources/recourses/title and bona fide about the alleged benamidari deeds/transactions, etc. and to cross-examine the PWs who deposed about those, but in the instant case none was associated in the trial, except S.M. Hamayun, who appeared as DW-4, though explained his own position/resources etc. yet has been deprive of the right: to cross-examine the. PWs and in the way the learned Accountability Court/trial Court has lost sight of/ignored the precedent case laws, which were binding in nature upon.
In view of the above, without diluting upon the merits of the case and by following the precedents the appeal is accepted and judgement dated 7.4.2001 is set aside and the case is remanded to the Accountability Court with a direction to retry the accused qua those charges which pertain to benamidars and recall those witnesses which deposed with regard to the
benamidari transactions of the charge and shall issue notice to the benarnidars granting them permission to explain their position and cross-examine such witnesses and providing them opportunity to lead evidence if so warranted under the law.
Regarding the question of bail, it has not been denied that the appellant has already undergone more than one half of the sentence and the August Supreme Court and this Court have -generally suspended the sentence of the convict/appellant who had undergone major portion of their sentence in several cases particularly when early conclusion of the trial is not in sight, therefore, we are inclined to allow/grant bail to the appellant during the pendency of the trial, subject to his furnishing bail bonds in the sum of Rs. 10 lacs with two sureties each in the like amount to the satisfaction of the trial Court. The appellant will appear before the Senior Administrative Judge, Accountability Court on 21.4.2003.
(A.P.) Case remanded.
Present: tassaduq hussain jilani and bashira. mujahid, JJ. EJAZ AHMAD-Appellant
versus
STATE-Respondent
Crl. A. No. 561 of 2001, decided on 10.4.2003. (i) National Accountability Bureau Ordinance, 1999--
—-Ss. 9-A(v) & 10-A & 32~Conviction and sentence of 14 years
imprisonment awarded to petitioners for having acquired properties and
assets disproportionate to known and declared sources of income,
assailed-Counsel for appellant and respondent conceded that charge
against appellant pertains to property/assets held hy "benamidars" and on
the strength of Supreme Court Judgment (PLD 2002 SC 408) case has to
be remanded to trial Court for providing opportunity of hearing to
benamidars-Case was remanded to Trial Court for giving opportunity to
benamidars to explain their position, cross-examine witnesses and for
leading evidence if so warranted, under the law. [Pp. 776 & 777] A
(ii) National Accountability Bureau Ordinance, 1999-
—Ss. 9-A(v) & 10-A & 32-Conviction and sentence awarded were set aside
and case was remanded to trial Court for fresh trial-Appellant having
undergone one half of the sentence and early disposal of case being not in
sight, he was granted bail during pendency of trial subject to furnishing
bail bonds in the sum of Rs. 10 lacs with two sureties each in the like
amount to the satisfaction of trial Court. [P. 777] B
' 2002 PCr. LJ 2084 and PLD 2002 SC 408 ref. Mr. Rashideen Nawaz, Advocate for Appellant. Malik Jauaid Shaukat, D.P.G. for NAB. Date of hearing : 8.4.2003.
judgment
Bashir A. Mujahid, J.-Appellant Ijaz Ahmad Sheikh was tried by Accountability Court No. I in NAB Reference No. 10/2000, on the allegation that he acquired properties and assets disproportionate his known and declared sources of income amounting to Rs. 5,93,17,105/-. the learned trial Court vide its judgment dated 7.4.2001 convicted him under Section 9-A(v) read with Section 10-A of the National Accountability Bureau Ordinance, 1999 and sentenced him to RI for a period of fourteen (14) years and a fine of Rs. 4,77,00,000/-. In default whereof to further undergo R.I. for three years. He was also disqualified to hold any office for 20 years in terms of Section 15 of the NAB Ordinance. Appellant's vehicle Mitsubishi Pajero Engine No. 4-
2003 ejaz ahmad v. state Cr.C. 773
(BashirA. Mujahid, J.)
M40-CL3147, Chassis No. JMY ONV 640/WJ-001022 Registration No. Ejaz-I, was also forfeited in favour of the State with the direction/observation that the sentence of fine imposed on the accused will be recoverable within 6 years through warrant for levy of fine under Section 386-B Cr.P.C.
2. In terms of the charge framed it was alleged as under :--CHARGE SHEET
I, Farrukh Lateef, Judge, Accountability Court-I, Attock Fort do hereby charge you accused :
Ejaz Ahmad Sheikh s/o Sheikh Muhammad Shafi, Ex. MPA/Minister for Labour and Manpower, Government of the Punjab, r/o 94-C, Sarwar Road, Sialkot Cantt.
As follows :--FIRST
That in the years 1995 to 2000 you Ejaz Ahmad Sheikh accused, your spouse Mrs. Yasmeen Ejaz, dependant S.M. Khalid Ejaz and Gohar Ejaz and your associates/benamidars Saeed Ahmad, Naseer Ahmad Waris Ali Shah and Liaqat All, owned and possessed pecuniaiy resources reflected in Annexure A & B of the reference, movable and immovable properties detail whereof is given below, disproportionate your known and declared sources of income, which you could not reasonably account for.
PECUNIARY RECOURCES:
(i) as reflected in various statements of Bank accounts mentioned in Annexure A & B of the reference;
(ii) Account No. SDA-1304, NDFC Sialkot Cantt. In the name of S.M. Humayoon as shown in annexure B, opened by you with Rs. 75,00,000/- and was operated by you in the aforesaid name;
(iii) special US$ bond encashment certificates of the value of 2,00,000/- purchased on 5.5.1999 by your spouse Mrs. Yasmeen Ejaz and encashed on the following day at equivalent value in Pak rupees amounting to Rs. 92,00,000/-;
(iv) US$ 90,730 received by your son Khalid Ejaz through foreign telegraphic transfer dated 7.5.1999 from M/s. Wall Street Money Changer, Dubai encashed through Sheikh Bilal, Money Changer, Sialkot at equivalent value of Pak Rs. 46,00,011/- the encashment was done through Metropolitan Bank Limited Karachi; and
(v) FEBCs to the tune of Rs. 2,41,72,836/- purchased by your wife Yasmeen Ejaz and your son Khalid Ejaz during the period
7.2.1994 to 24.7.1997 without any equivalent foreign exchange remittance;
IMMOVABLE PROPERTY
Property in Sialkot Bearing No. S-III-IS-394/A-1 and No. S-III-IS-394/A-II measuring one kanal thirteen marlas purchased by you from one Tariq Mehmood in consideration of Rs. 50,00,000/- in the name of your sons Khalid Ejaz and Gohar Ejaz;
MOVABLE PROPERTY
A vehicle Mitsubishi Pajero Model 1998 Registration No. Ejaz-I purchased by you for a consideration of Rs. 38,00,000/-;
and you thereby committed an offence punishable under Section 10 read with Section 9(a)(v) of National Accountability Ordinance, 1999 within the cognizance of this Court;
SECONDLY
That you dishonestly and unlawfully attempted to legalize ill-gotten money in the shield of Economic Reforms Act, 1992 and FEBC Rules 1985, by purchasing FEBCs to the tune of Rs, 2,41,72,836/- in the name of your spouse Yasmeen Ejaz without requisite support of equivalent balance in Foreign Currency Bank account or foreign remittance, with a view to obtain pecuniaiy advantage to the aforesaid extent and after the initiation of investigation of this case, you, your wife Yasmeen Ejaz and your son Khalid Ejaz dishonestly and unlawfully attempted to avail Amnesty Scheme 2000 on 30.6.2000 respectively to the tune of Rs. 16,63,827/-; Rs. 65,48,246/-; and Rs. 50,00,000/- with the object to legalize the said black money to the tune of Rs. 13,212,073/- in order to obtain pecuniaiy advantage for your self, your said spouse and son to the extent of the aforesaid amount and you thereby committed an offence punishable under Section 10 read with Section 9(a)(iv) of the National Accountability Ordinance, 1999 within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the said charges.
February 13, 2001 JUDGE, ACCOUNTABILITY COURT-I .
ATTOCKFORT.
Certified that the charge as framed above has been read out and explained to the accused. Let his statement be recorded.
JUDGE ACCOUNTABILITY COURT-I
To prove that charge, the prosecution examined 29 witnesses including the investigation officer. The appellant in his statement under Section 342 Cr.P.C. denied the prosecution case. However, he admitted that
an amount of US$ 1,17,000/- should have been transferred from his bank account to the account of a firm after converting the same in to Pak Rupees. With regard to other charges, appellant's plea was that the Account No. STA -104 was not a benami account but was in the name of S.M. Hamayun his brother in law. With reference to the encashment of afore said bonds of appellant's wife he replied that those were declared and were validly encashed by his wife. Wife regard to the FEBCs mentioned in Question No. 23, appellant's reply was that those belong to his son and had been declared by him in wealth tax return. He accepted that he was owner of vehicle Mitsubishi Pajero Model 1998 but explained that he was owner of Pajero Model 1995 regarding which he had made a declaration in the wealth tax return pertaining to the year 1994-95 and the subsequent years thereafter. He explained that the afore-referred Pajero Model of the year 1998 was purchased by him by selling the earlier Pajero and by taking a loan as mentioned in his statement from one Sufi Churched owner of Saga Sports.
The trial culminated into conviction and sentence of the appellant as mentioned above. Hence this appeal.
Learned counsel for the appellant at the very outset has argued that it is a case for fresh trial as the charge pertains to the property/assets held by "benamidars" and on the strength of the judgments of the Apex Court reported in PLD 2002 SC 408 titled Mst. Zahida Sattar and others. Vs. Federation of Pakistan and others and 2002 PCr. LJ 2084 titled Raja Muhammad Hanifvs. The State it has been maintained that the case is to be remanded to the trial Court for providing an opportunity of hearing to the said benamidars. Learned counsel has also prayed that while remanding the case for fresh trial, the appellant be granted bail as he has already served out more than 8 years of sentence and the trial will not be concluded expeditiously.
Malik Javed Shaukat, learned Deputy Prosecutor General for NAB has not opposed the prayer for remanding the case and has fairly conceded that in all similar cases the Hon'ble Supreme Court and this Court had remanded the cases to enable the Be-Namidars to be heard. But he has opposed to the grant of bail to the convict/appellant.
We have given due consideration to the contentions raised at the bar and have perused the record.
o
The first charge in heading-II was regarding bank A/c No. SDA-1304 NDFC in the name of S.M. Humayun as sown in Annex-B while in heading-IV the allegation was that US$ amounting 90, 730/- was received by Khalid Ejaz, son of the appellant, Likewise, FEBCs to the tune of Rs. 2,41,72,000/-was purchased by the wife and son of the appellant and the immovable property under heading-V was also purchased in the names of sons of the appellant and his associates Saeed Bilal, Naseer Ahmad, Waris Ali Shah and Liaqat Ali also owned and possessed pecuniary resources. As per law
declared by the Hon'ble Supreme Court in Para-16 of the judgment reported as PLD 2002 SC 408 titled Mst. Zahida Sattar and others vs. Federation of Pakistan and others which like upon has been reproduced in judgment reported as 2002 P.Cr. LJ 2084, wherein their Lordships observed as under:
"The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB •Ordinance, we would hold that he (benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and given them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless conferred by the statute. Under the relevant provisions of NAB Ordinance as regards appeal against final judgment of the Accountability Court, it can only be maintained by the state or the accused person. This being so, the ostensible owners or benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution."
Benamidars should have been given an opportunity of being heard to shop/prove their own sources/recourses/title and bona fide about the alleged benamidari deeds/transactions, etc. and to cross-examine the PWs who deposed about those, but in the instant case none was associated in the trial, except S.M. Hamayun, who appeared as DW-4, though explained his own position/resources etc. yet has been deprive of the right: to cross-examine the. PWs and in the way the learned Accountability Court/trial Court has lost sight of/ignored the precedent case laws, which were binding in nature upon.
In view of the above, without diluting upon the merits of the case and by following the precedents the appeal is accepted and judgement dated 7.4.2001 is set aside and the case is remanded to the Accountability Court with a direction to retry the accused qua those charges which pertain to benamidars and recall those witnesses which deposed with regard to the
benamidari transactions of the charge and shall issue notice to the benarnidars granting them permission to explain their position and cross-examine such witnesses and providing them opportunity to lead evidence if so warranted under the law.
Regarding the question of bail, it has not been denied that the appellant has already undergone more than one half of the sentence and the August Supreme Court and this Court have -generally suspended the sentence of the convict/appellant who had undergone major portion of their sentence in several cases particularly when early conclusion of the trial is not in sight, therefore, we are inclined to allow/grant bail to the appellant during the pendency of the trial, subject to his furnishing bail bonds in the sum of Rs. 10 lacs with two sureties each in the like amount to the satisfaction of the trial Court. The appellant will appear before the Senior Administrative Judge, Accountability Court on 21.4.2003.
(A.P.) Case remanded.
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