PLJ 2009 SC 289
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
AHMAD RIAZ SHEIKH & others--Petitioners
versus
STATE & others--Respondents
Crl. M.A. No. 62 of 2008 in Criminal Petition No. 349 of 2005, Civil Petitions No. 2379 & 2380 of 2005, decided on 14.3.2008.
(On appeal from the judgment dated 26.8.2005 of the Lahore High Court, Lahore passed in Cr.A. No. 1965/01, Writ Petitions No. 15582 and 7109 of 2004).
National Reconciliation Ordinance, 2007--
----Ss. 7 & 39-F--National Accountability Ordinance, 1999, Ss. 9(a)(c) 10, 18(g) & 24--Constitution of Pakistan, 1973, Art. 89--Withdrawal and termination of prolonged pending proceeding initiated prior to 1999--Complaint was filed against petitioner before Chief Ehtesab Commissioner--Corruption and corrupt practices--Inquiry exonerated from charges--Matter was taken over by NAB authorities--Conviction and sentence--Criminal appeal and writ petitions were dismissed--Assailed--During pendency of the petitions--Promulgation of NRO--No direct allegation of corruption or corrupt practices--Allegation to be benamidars of principal accused--Validity--Prosecution had failed to prove any of factor determining benami as neither source of consideration, nor possession or motive had been proved--Appellant had been acquitted of the charges u/S. 7 of NRO who is holder of public office, therefore, the same benefit is also extended to his benamidars--Petitions were converted into appeal and were allowed.
[P. 293] B
Words and Phrases--
----Benamidar--The Word "benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused. [P. 293] A
Ch. Mushtaq Ahmed Khan, Sr. ASC, Mr. Farooq H. Naik, ASC, Mr. M.A. Malik, ASC and Syed Zafar Abbas Naqvi, AOR for Petitioners (in all cases).
Dr. Danishwar Malik, PG NAB and Dr. M. Asghar Rana, ADPG NAB for Respondents (in all cases).
Malik Muhammad Qayyum, Attorney General for Pakistan (on Court notice).
Date of hearing: 14.3.2008.
Judgment
Abdul Hameed Dogar, CJ.--Through this judgment we intend to dispose of Criminal Petition No. 349 of 2005, Civil Petitions No. 2379 of 2005 and 2380 of 2005 arising out of judgment dated 26.8.2005 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 1965 of 2001 filed by petitioner Ahmed Riaz Sheikh was dismissed, however the sentence was reduced to five years with benefit of Section 382-B Cr.P.C. Similarly, Writ Petitions No. 15582 & 7109 of 2004 filed by petitioners Mst. Shabina Riaz and Mst. Uzma Beg respectively were dismissed.
2. Briefly stated facts of the case are that on 9.8.1997 a complaint was filed against petitioner Ahmed Riaz Sheikh before Chief Ehtesab Commissioner alleging that he being a holder of public office had indulged in acts of corruption and corrupt practices and had acquired assets beyond his source of income. This complaint was sent to Chairman Ehtesab Cell, Prime Minister's Secretariat, Islamabad for inquiry/investigation. Mr. Eijaz Elahi Rana, Deputy Director FIA, Rawalpindi Zone, Rawalpindi was appointed as Inquiry Officer who on the conclusion of the inquiry exonerated him from the charges. The inquiry report was recommended by Director General, FIA but the Secretary Ministry of Interior ordered de novo inquiry in the matter. However, due to the filing of Writ Petition No. 565 of 1997 the proceedings of de novo inquiry could not be initiated. In the meanwhile, National Accountability Ordinance, 1999 was promulgated in 1999 and the matter was taken over by the NAB authorities which culminated in Reference No. 15 of 2001 under Sections 18(g) and 24 of the NAB Ordinance, 1999. On the conclusion of trial, petitioner Ahmed Riaz Sheikh was convicted and sentenced under Section 10 read with Section 9(a)(v) of the NAB Ordinance to 14 years R.I. with fine of Rs. one crore or in default thereof to further undergo three years R.I. The property comprising 306 Kanals in Qalanderpur Tehsil Minchinabad District Bahawalnagar, plot in Ammerpura and land measuring 4 kanals in Qalandarpur allegedly in the name of his wife petitioner Shabina Riaz and articles in the nature of jewellery and ornaments in the name of petitioner Mst. Uzma Beg as benamidars of petitioner Ahmed Riaz Sheikh were forfeited. Feeling aggrieved petitioners filed Criminal Appeal and writ petitions as stated above before the learned Lahore High Court which were dismissed and the conviction of petitioner Ahmed Riaz Sheikh was maintained, however, sentence was reduced from 10 years to 5 years R.I. with fine of Rs. two crores or in default the same shall be recovered from the petitioner in the manner prescribed under Section 386 Cr.P.C. whereas the direction for forfeiture of properties was upheld vide the impugned judgment.
3. During the pendency of these petitions President of Pakistan in exercise of his powers under Section 89 of the Constitution of Islamic Republic of Pakistan, 1973 promulgated the National Reconciliation Ordinance, 2007 (hereinafter referred to as "the NRO"). By virtue of Section 7 of the NRO a new Section 33-F has been inserted in the Ordinance, which reads as under:--
"Withdrawal and termination of prolonged pending proceedings initiated prior to 12.10.1999 (1). Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court including a High Court and the Supreme Court of Pakistan initiated by or on a Reference by the National Accountability Bureau inside and outside Pakistan including proceedings continued under Section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public officer shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date."
In view of above provision of law petitioner Ahmed Riaz Sheikh has filed Cr. M.A. No. 62 of 2008 in this Court for withdrawal of proceedings against him.
3A. We have heard M/s Ch. Mushtaq Ahmed Khan, learned Sr.ASC, Farooq H. Naik, learned Sr.ASC for the petitioners, Dr. Danishwar Malik, learned Prosecutor General NAB and Malik Muhammad Qayyum, learned Attorney General for Pakistan at length and have through the record and proceedings of the case in minute particulars.
4. It is vehemently contended by learned counsel for the petitioners that originally a complaint dated 9.8.1997 was filed by one Muhammad Muzaffar against petitioner Ahmed Riaz Sheikh alleging misconduct and corruption. According to him, the matter was inquired into and on conclusion of the inquiry he was exonerated from the charges, however, the competent authority i.e. Secretary Ministry of Interior ordered de novo inquiry but the same could not commenced due to order passed by learned High Court in Writ Petition No. 565 of 1997. Learned counsel further contended that after the promulgation of the National Accountability Ordinance in 1999 the matter was taken over by the NAB which culminated into filing of Reference No. 15 of 2001. According to him since inquiry was initiated prior to the cut off date as given in Section 7 of the NRO, as such his case is fully covered under the same. He contended that the petition pending before this Court stands withdrawn and terminated, hence the same cannot continue further. As regards to petitioners, namely, Mst. Shabina Riaz and Mst. Uzma Beg learned counsel for the petitioner contended that they are also entitled to the same benefit.
5. On the other hand Dr. Danishwar Malik, learned Prosecutor General NAB conceded that the case of petitioner Ahmed Riaz Sheikh, falls within the ambit of Section 7 of the NRO.
6. Learned Attorney General for Pakistan supported the case of petitioner and conceded that Section 7 of the NRO is applicable in the case of petitioner as inquiry/investigation was conducted prior to the cut off date i.e. 12th October, 1999 as such the case against petitioner may be withdrawn.
7. After hearing learned counsel for the parties and going through the record we are of the view that case of petitioner Ahmed Riaz Sheikh squarely falls within the ambit of Section 7 of the NRO. He was working as Deputy Director, FIA and inquiry against him was initiated in 1997 and the matter was transferred to National Accountability Bureau whereupon Reference No. 15 of 2001 was filed before the Accountability Court which shows that proceedings were initiated before 12th October 1999 the cut off date. The provisions of Section 7 of the NRO stipulates that under Section 33-F of the Ordinance the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and he will not be liable to any action under the Ordinance.
8. In view of above discussion Cr. M.A. No. 62 of 2008 is allowed. Resultantly, Criminal Petition No. 349 of 2005 is converted into appeal and is allowed in terms of Section 7 of the NRO. Appellant Ahmed Riaz Sheikh is acquitted of the charges as he is on bail his sureties are ordered to be discharged.
9. So far as Civil Petition No. 2379 and 2380 of 2005 are concerned, there are no direct allegation of corruption or corrupt practices against petitioners namely, Miss Uzma Beg and Mrs. Shabina Riaz Sheikh but they are only alleged to be benamidars of the principal accused/appellant Ahmed Riaz Sheikh. The word "benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused. The prosecution has failed to prove any of the factor determining benami as neither source of consideration, nor possession or motive has been proved. Since appellant Ahmed Riaz Sheikh has been acquitted of the charges under Section 7 of the NRO who is holder of public office, therefore, the same benefit is also extended to his benamidars. Accordingly, both the petitions are converted into appeal and are allowed. The order of confiscation of properties is set aside and shall be released to the appellants.
10. These are the reasons of our short order of even date.
(R.A.) Appeal allowed.
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, HCJ, Ijaz-ul-Hassan &
Ch. Ejaz Yousaf, JJ.
AHMAD RIAZ SHEIKH & others--Petitioners
versus
STATE & others--Respondents
Crl. M.A. No. 62 of 2008 in Criminal Petition No. 349 of 2005, Civil Petitions No. 2379 & 2380 of 2005, decided on 14.3.2008.
(On appeal from the judgment dated 26.8.2005 of the Lahore High Court, Lahore passed in Cr.A. No. 1965/01, Writ Petitions No. 15582 and 7109 of 2004).
National Reconciliation Ordinance, 2007--
----Ss. 7 & 39-F--National Accountability Ordinance, 1999, Ss. 9(a)(c) 10, 18(g) & 24--Constitution of Pakistan, 1973, Art. 89--Withdrawal and termination of prolonged pending proceeding initiated prior to 1999--Complaint was filed against petitioner before Chief Ehtesab Commissioner--Corruption and corrupt practices--Inquiry exonerated from charges--Matter was taken over by NAB authorities--Conviction and sentence--Criminal appeal and writ petitions were dismissed--Assailed--During pendency of the petitions--Promulgation of NRO--No direct allegation of corruption or corrupt practices--Allegation to be benamidars of principal accused--Validity--Prosecution had failed to prove any of factor determining benami as neither source of consideration, nor possession or motive had been proved--Appellant had been acquitted of the charges u/S. 7 of NRO who is holder of public office, therefore, the same benefit is also extended to his benamidars--Petitions were converted into appeal and were allowed.
[P. 293] B
Words and Phrases--
----Benamidar--The Word "benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused. [P. 293] A
Ch. Mushtaq Ahmed Khan, Sr. ASC, Mr. Farooq H. Naik, ASC, Mr. M.A. Malik, ASC and Syed Zafar Abbas Naqvi, AOR for Petitioners (in all cases).
Dr. Danishwar Malik, PG NAB and Dr. M. Asghar Rana, ADPG NAB for Respondents (in all cases).
Malik Muhammad Qayyum, Attorney General for Pakistan (on Court notice).
Date of hearing: 14.3.2008.
Judgment
Abdul Hameed Dogar, CJ.--Through this judgment we intend to dispose of Criminal Petition No. 349 of 2005, Civil Petitions No. 2379 of 2005 and 2380 of 2005 arising out of judgment dated 26.8.2005 passed by learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No. 1965 of 2001 filed by petitioner Ahmed Riaz Sheikh was dismissed, however the sentence was reduced to five years with benefit of Section 382-B Cr.P.C. Similarly, Writ Petitions No. 15582 & 7109 of 2004 filed by petitioners Mst. Shabina Riaz and Mst. Uzma Beg respectively were dismissed.
2. Briefly stated facts of the case are that on 9.8.1997 a complaint was filed against petitioner Ahmed Riaz Sheikh before Chief Ehtesab Commissioner alleging that he being a holder of public office had indulged in acts of corruption and corrupt practices and had acquired assets beyond his source of income. This complaint was sent to Chairman Ehtesab Cell, Prime Minister's Secretariat, Islamabad for inquiry/investigation. Mr. Eijaz Elahi Rana, Deputy Director FIA, Rawalpindi Zone, Rawalpindi was appointed as Inquiry Officer who on the conclusion of the inquiry exonerated him from the charges. The inquiry report was recommended by Director General, FIA but the Secretary Ministry of Interior ordered de novo inquiry in the matter. However, due to the filing of Writ Petition No. 565 of 1997 the proceedings of de novo inquiry could not be initiated. In the meanwhile, National Accountability Ordinance, 1999 was promulgated in 1999 and the matter was taken over by the NAB authorities which culminated in Reference No. 15 of 2001 under Sections 18(g) and 24 of the NAB Ordinance, 1999. On the conclusion of trial, petitioner Ahmed Riaz Sheikh was convicted and sentenced under Section 10 read with Section 9(a)(v) of the NAB Ordinance to 14 years R.I. with fine of Rs. one crore or in default thereof to further undergo three years R.I. The property comprising 306 Kanals in Qalanderpur Tehsil Minchinabad District Bahawalnagar, plot in Ammerpura and land measuring 4 kanals in Qalandarpur allegedly in the name of his wife petitioner Shabina Riaz and articles in the nature of jewellery and ornaments in the name of petitioner Mst. Uzma Beg as benamidars of petitioner Ahmed Riaz Sheikh were forfeited. Feeling aggrieved petitioners filed Criminal Appeal and writ petitions as stated above before the learned Lahore High Court which were dismissed and the conviction of petitioner Ahmed Riaz Sheikh was maintained, however, sentence was reduced from 10 years to 5 years R.I. with fine of Rs. two crores or in default the same shall be recovered from the petitioner in the manner prescribed under Section 386 Cr.P.C. whereas the direction for forfeiture of properties was upheld vide the impugned judgment.
3. During the pendency of these petitions President of Pakistan in exercise of his powers under Section 89 of the Constitution of Islamic Republic of Pakistan, 1973 promulgated the National Reconciliation Ordinance, 2007 (hereinafter referred to as "the NRO"). By virtue of Section 7 of the NRO a new Section 33-F has been inserted in the Ordinance, which reads as under:--
"Withdrawal and termination of prolonged pending proceedings initiated prior to 12.10.1999 (1). Notwithstanding anything contained in this Ordinance or any other law for the time being in force, proceedings under investigation or pending in any Court including a High Court and the Supreme Court of Pakistan initiated by or on a Reference by the National Accountability Bureau inside and outside Pakistan including proceedings continued under Section 33, requests for mutual assistance and civil party to proceedings initiated by the Federal Government before the 12th day of October, 1999 against holders of public office stand withdrawn and terminated with immediate effect and such holders of public officer shall also not be liable to any action in future as well under this Ordinance for acts having been done in good faith before the said date."
In view of above provision of law petitioner Ahmed Riaz Sheikh has filed Cr. M.A. No. 62 of 2008 in this Court for withdrawal of proceedings against him.
3A. We have heard M/s Ch. Mushtaq Ahmed Khan, learned Sr.ASC, Farooq H. Naik, learned Sr.ASC for the petitioners, Dr. Danishwar Malik, learned Prosecutor General NAB and Malik Muhammad Qayyum, learned Attorney General for Pakistan at length and have through the record and proceedings of the case in minute particulars.
4. It is vehemently contended by learned counsel for the petitioners that originally a complaint dated 9.8.1997 was filed by one Muhammad Muzaffar against petitioner Ahmed Riaz Sheikh alleging misconduct and corruption. According to him, the matter was inquired into and on conclusion of the inquiry he was exonerated from the charges, however, the competent authority i.e. Secretary Ministry of Interior ordered de novo inquiry but the same could not commenced due to order passed by learned High Court in Writ Petition No. 565 of 1997. Learned counsel further contended that after the promulgation of the National Accountability Ordinance in 1999 the matter was taken over by the NAB which culminated into filing of Reference No. 15 of 2001. According to him since inquiry was initiated prior to the cut off date as given in Section 7 of the NRO, as such his case is fully covered under the same. He contended that the petition pending before this Court stands withdrawn and terminated, hence the same cannot continue further. As regards to petitioners, namely, Mst. Shabina Riaz and Mst. Uzma Beg learned counsel for the petitioner contended that they are also entitled to the same benefit.
5. On the other hand Dr. Danishwar Malik, learned Prosecutor General NAB conceded that the case of petitioner Ahmed Riaz Sheikh, falls within the ambit of Section 7 of the NRO.
6. Learned Attorney General for Pakistan supported the case of petitioner and conceded that Section 7 of the NRO is applicable in the case of petitioner as inquiry/investigation was conducted prior to the cut off date i.e. 12th October, 1999 as such the case against petitioner may be withdrawn.
7. After hearing learned counsel for the parties and going through the record we are of the view that case of petitioner Ahmed Riaz Sheikh squarely falls within the ambit of Section 7 of the NRO. He was working as Deputy Director, FIA and inquiry against him was initiated in 1997 and the matter was transferred to National Accountability Bureau whereupon Reference No. 15 of 2001 was filed before the Accountability Court which shows that proceedings were initiated before 12th October 1999 the cut off date. The provisions of Section 7 of the NRO stipulates that under Section 33-F of the Ordinance the proceedings initiated against holders of public office shall stand withdrawn and terminated with immediate effect and he will not be liable to any action under the Ordinance.
8. In view of above discussion Cr. M.A. No. 62 of 2008 is allowed. Resultantly, Criminal Petition No. 349 of 2005 is converted into appeal and is allowed in terms of Section 7 of the NRO. Appellant Ahmed Riaz Sheikh is acquitted of the charges as he is on bail his sureties are ordered to be discharged.
9. So far as Civil Petition No. 2379 and 2380 of 2005 are concerned, there are no direct allegation of corruption or corrupt practices against petitioners namely, Miss Uzma Beg and Mrs. Shabina Riaz Sheikh but they are only alleged to be benamidars of the principal accused/appellant Ahmed Riaz Sheikh. The word "benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused. The prosecution has failed to prove any of the factor determining benami as neither source of consideration, nor possession or motive has been proved. Since appellant Ahmed Riaz Sheikh has been acquitted of the charges under Section 7 of the NRO who is holder of public office, therefore, the same benefit is also extended to his benamidars. Accordingly, both the petitions are converted into appeal and are allowed. The order of confiscation of properties is set aside and shall be released to the appellants.
10. These are the reasons of our short order of even date.
(R.A.) Appeal allowed.
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