2022 PLP 166 (YLRN)

ZULFIQAR ALI SANGI, J.

Through the instant Criminal Accountability Appeal, the appellant has assailed the judgment dated 31.01.2018 passed by the learned Accountability Court No. II, Karachi in Reference No.04/2016, whereby the appellant was convicted under section 10(a) of the National Accountability Ordinance, 1999 (NAO) and sentenced to undergo ten (10) years R.I. and to pay fine of Rs.23,550,000/- and in case of default in payment of fine, he was ordered to undergo further R.I. for two (02) years.

2. The facts leading to the present case are that on receipt of complaint against accused Muhammad Anwar regarding illegal allotment of land situated at Block No.137/3 and 4 Deh Barodari Taluka Shaheed Fazil Rahoo admeasuring 07 acres and 34 ghunta an inquiry was authorized which was converted into investigation on 22.07.2015; that accused in active connivance and collusion with officers/officials of Barrage Mukhtiarkar Office Taluka Shaheed Fazil Rahu managed to get allotted the said land in his favour in clear violation of land grant policy, 1989. Apart from present accused there were three other accused persons namely Mian Muhammad Iqbal, Ex-Revenue Officer, Kotri Barrage Hyderabad; Makhdoom Sher Muhammad, Ex-Barrage Mukhtiarkar, Shaheed Fazil Rahu and Muhammad Siddique Haloo, Ex-Tapedar / Supervising Tapedar, Shaheed Fazil Rahu, who were also involved in the offence of corruption and corrupt practices with the present accused but they all died on 26.10.1999, 30.03.2000 and 13.11.2003 respectively; that the said land was situated within the municipal limits but it was allotted for Harap purpose in clear violation of Land Grant Policy, 1989. The process of issuance of T.O. forms was required to be issued after completion of continuous occupation of 20 years but the entire process was managed by the appellant and the three deceased co-accused within three days from 16.05.1993 to 18.05.1993; that the grant was not transferable before the expiry of 20 years but accused Muhammad Anwar sold six plots measuring 50,862 sq. ft. each as non-agricultural land for industrial purposes in the years 2004 and 2005. Thus accused Muhammad Anwar in connivance of deceased accused persons had managed the allotment of land situated at Block No.137/3 and 4 Deh Barodari Taluka Shaheed Fazil Rahoo admeasuring 07 acres and 34 ghuntas in his favor and illegally acquired government land resulting in loss to government exchequer to the tune of Rs.23,550,000.

3. After compliance of provision of section 265-C, Cr.P.C., the charge of corruption and corrupt practices as defined under section 9(a) (iii) of N.A. Ordinance, 1999 punishable under section 10 of the Ordinance was framed on 08.04.2016 against appellant Muhammad Anwar to which he pleaded not guilty and claimed trial.

4. In order to prove its case, the prosecution examined 11 witnesses who exhibited various documents in support of the prosecution case where after the prosecution closed its side. The appellant/accused recorded his statement under section 342, Cr.P.C. He did not give evidence on Oath or call any DWs in support of his defence case. Thereafter the trial Court, after hearing the parties and assessing the evidence before it, convicted and sentenced the appellant through the impugned judgment dated 31.01.2018 as mentioned earlier in this judgment against which the appellant has filed the instant appeal.

5. Learned counsel for the appellant has argued that the appellant is innocent and was involved by the NAB on the application of his relative; that complainant was also interested in the same land and also civil cases are pending before competent courts of law; that appellant paid all the installments of the land and proper T.O. was issued in his favour; that no illegality in the allotment was committed by any revenue official; that this is a case of no evidence and all the witnesses are interested; that land grant policy was relaxed by the chief minister of Sindh on such basis entire installments were paid by the appellant; that the possession of the land was with the appellant and he sold out some portion; that the prosecution failed to produced trustworthy and confidence-inspiring evidence against the appellant. Lastly, he prayed that the appellant may be acquitted from the charge.

6. Learned Special Prosecutor NAB, on the other hand, fully supported the impugned judgment and contended that the allotment of land is admitted by the appellant; that there is no policy to pay the entire installments within two days which were otherwise settled to be paid within twenty years; that the relaxation note of Chief Minister on the application is fake and there is no record in any office that such directions were issued by the Chief Minister; that no letter from the Chief Minister's Secretariat is available on the record; that there is no provision in the Land Grant Policy 1989, to take entire amount at once; that the appellant sold out the land before the expiry of the period of twenty years which is a violation of the land grant policy; that the prosecution established its case beyond a reasonable doubt by producing trustworthy and confidence-inspiring oral and documentary evidence. Lastly, he prayed that the appeal of the appellant may be dismissed.

7. We have heard the learned counsel for the parties and have gone through the record with their able assistance and considered the relevant law.

8. On our reassessment of the evidence, we have found that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing trustworthy and confidence-inspiring evidence.

9. We have observed that the case of the prosecution is based on three main points (a) the land comes within the limits of the Municipal Committee, therefore, was not available to be granted permanently under condition No. 2(i)(b) of the Land Grant Policy 1989, (b) the installments were paid in violation of conditions No. 17(4) of the Land Grant Policy 1989 and (c) land' was sold out by the appellant in violation of conditions No. 21(2) of the Land Grant Policy 1989.

10. As regards to (a) before discussing the evidence produced by the prosecution the condition No. 2 (i) of the Land Grant Policy 1989, is reproduced as under:- 2 (i). "land" means the arable state land other than the land .. (a). reserved for public purpose; (b). lying within limits of Metropolitan Town or Municipal Committees or Corporations or Town Committees or Cantonments; (c). included in Town Planning Schemes whether sanctioned or not; (d). within the prohibited limits of villages, towns or cities specified by the collector. PW-2 Aziz Ahmed was examined by the prosecution who produced the documents related to the grant of appellant Viz, Program file, the announcement of the schedule, land grant certificate, challan payment register, A-form, T.O. form, and revenue order letter from CM, Sindh, and deposed that these documents were seized by the Investigation Officer NAB and he also signed the seizure memo which he produced during his evidence. PW-5 Abdul Aziz (Mukhtiarkar) was also examined by the prosecution who deposed that he called report from Tapedar of the subject beat and in the report, it was mentioned that Block No.137/3,4 comes within the limits of town/municipal Shaheed Fazal Raho and its approximate market value at present is in between Rs.25,00,000/- to Rs.35,00,000/- as per prevailing market value as recorded in the record of rights through sale deed. He further deposed that he also countersigned the same report. He further deposed that Tapedar produced a Deh map and town planning map and the same were exhibited by him in the evidence. The Land Revenue Expert of the NAB Ramesh Kumar was examined as PW-10 who deposed that at the time of allotment of land in the year 1993, the allotment policy of Land Grant policy of Harap Barrage Land 1989 was in the field. He further deposed that according to condition No.2 of the said policy, the land is not to be granted permanently within the limits of the Municipal Committee whereas the subject land is situated within the limits of the Municipal Committee and under condition 7(3) of the Land Grant Policy 1989, the publicity period of the schedule of land is two months but in this case after the publication of schedule, kachehri was fixed within 15 days and it was postponed and after two months allotment was made after publication of the notice. From the evidence of the above two witnesses we are satisfied that the subject land comes within the limits of the Municipal Committee, therefore, was not available to be granted permanently under condition No. 2 (i) (b) of the Land Grant Policy 1989.

11. As regards to (b) before discussing the evidence produced by the prosecution the condition No. 17(4) of the Land Grant Policy 1989, is reproduced as under:- 17. (4). The first installment by haris (peasants) and small khatedars shall be payable after two years of commencement of the grant, but the hari grantee shall not be entitled to complete the payment of the price of land before the expiry of twenty years from the date of allotment. The prosecution examined PW-2 Jumman Shah the banker who produced copies of challan paid by the appellant in the National Bank of Pakistan, Golarchi Branch District Badin. PW-10 Ramesh Kumar was also examined who deposed that under condition 17(4) of the Land Grant Policy 1989, the payment is to be made on twenty installments in the period of twenty years but in the instant case, the initial payment of Rs.100/- was paid on 16-05-1993 whereas remaining amount was paid on the next day viz 17-05-1993 on the pretext of C.M. Directives. He further deposed that as per file the directives of C.M. were given for another file. He deposed that the endorsement of the Chief Minister on an application is not treated as his directives but the same is to be received through a letter from C.M. Secretariat and the same are to be rotated through their officials but not directly. We carefully examined the application of the appellant submitted to the Chief Minister for relaxation available on page 181 of the paper book and have not found the date on it nor the directives of the Chief Minister having any date which itself speaks volumes about its genuineness. We found one letter available at page 179 of the paper book which speaks about the said relaxation which showed the date 17-05-1993. In our view, it is not possible that in one day a hari approaches the Chief Minister directly who on the same day relaxed the policy and such routed among the revenue officials and payments were made in the bank on the same day. Furthermore, how would the appellant who is allegedly poor hari arrange such money within such a short period of time?

12. As regards to (c) before discussing the evidence produced by the prosecution the condition No. 21(2) of the Land Grant Policy 1989, is reproduced as under:- 21 (2). The grant of hari or small khatedar, shall be non-transferable for a period of twenty years i.e. the grant be deemed to be held on the restricted tenure and the right title and interest of the hari shall not be transferred or changed by any sale, gift, mortgage, lease or otherwise. The appellant did not deny that he sold out some portion of the land to different people for industrial purposes. The prosecution, however, examined PW-06 Phero Mal and PW-07 Sajad-ur-Rehman who deposed that they purchased the land from the appellant in the year 2004 and 2005 respectively. In support of their case, the prosecution also examined PW-9 Nisar Ahmed Soomro, the sub-registrar, who produced the registered sale deeds registered in their favour. PW-10 in this respect deposed that under condition 21(2) of the Land Grant Policy 1989, the land was not to be transferred before the expiry of twenty years but in the instant case, five plots were sold for industrial purpose whereas land was granted for agricultural/Harap purpose before this period. He further deposed that after completion of twenty years of land grant land is transferred permanently through conveyance deed vide condition No. 30 of the land Grant Policy 1989. He deposed that this grant of land was on account of a manipulation of documents. The land was granted to the appellant in the year of 1993 and he sold out the same in the year 2004 and 2005 hence he had violated the condition No. 21(2) of the Land Grant Policy 1989.

13. Thus based on the discussion made hereinabove, we are of the considered view that the prosecution has proved its case beyond a reasonable doubt against the appellant by producing reliable, trustworthy, and confidence-inspiring oral evidence as well as documentary evidence in support of the same and therefore in these circumstances, we maintain the conviction. With regard to sentencing, we find that there are violations of the Land Grant Policy 1989, and if the same conditions were not violated then the case was otherwise on different footings. We find the sentence rather harsh keeping in view that the main accused (Revenue Officials) who violated the policy while granting the land to the appellant were already dead and only the appellant was facing the trial and the loss of approximately Rs.2.5 crores is not exorbitant keeping in view NAB's mandate to prosecute mega corruption cases of Rupees billions. Under these circumstances, we hereby reduce/ alter the sentence of the appellant from ten (10) years to seven (07) years R.I. and maintain all the other sentences in the impugned judgment except that we also reduce the fine of the appellant to Rs.65 lacs as this would have been his share of the liability had the other co-accused survived and been convicted.

14. The appeal is disposed of in the above terms. JK/M-193/Sindh Sentence reduced.