2007 PLP 980 (YLR)

This Constitutional Petition under Article 199 of the Constitution is filed by the petitioner Muhammad Ramzan Khawaja with the following prayers:-- (1) To declare order annexure 'E'' as illegal. (2) To declare that trial proceedings pending in the NAB Court against the petitioner are taken without lawful authority and are of no legal effect hence be quashed/terminated. Moreover they are violating Fundamental Rights of the petitioner. (3) To declare that proceedings amount to be an abuse of process of law and it is liable to be quashed. (4) To declare that on the basis of record and proceedings there is no probability of conviction of the petitioner for any charge framed against him. (5) To pass any other order which is just and legal in this case. (6) To award costs." We have heard Mr. Azizuilah Shaikh, Advocate for the petitioner. Mr. Shafaat Nabi K. Sherwani DPA for NAB. Petitioner is sent up to the Court of Administrative Judge, Accountability Courts Sindh at Karachi and is facing trial in Reference No.28 of 2002; it is alleged by the prosecution that a partnership concern under the name of M/s T.J. Ibrahim and Company was formed in the years 1979-1980 by accused Nos.11, 12 shown in the said reference; one Pir Haji Muhammad Usman since deceased used to deliver spiritual lectures to his thousands of followers from all walks of life, and thereby induced them to deposit their savings with the said company; subsequently also with another company of the name of Alliance Motors (Pvt.) Ltd. (registered with Corporate Law Authority on 17-7-1987); the above said accused Nos.1, 11, 12 were partners of M/s T.J. - Ebrahim whereas accused Nos.8, 10, 11, 13 (shown in the reference) were Directors of M/s Alliance Motors (Pvt.) Ltd; full details of the partners and directors of the said companies are mentioned in this reference. It is further alleged that the public -at-large, especially the followers of the said Pir Usman, under his influence, deposited their huge savings with M/s T.J. Ibrahim and Company as well and M/s Alliance Motors (Pvt.) Ltd. in the hope of earning profits, but the accused persons allegedly cheated and defrauded them (general public) portraying themselves as pious and religious businessmen, whereas in fact they were not bona fide businessmen; instead they were minting money from the innocent people under the garb of piety, only to collect money from the depositors which ran in millions per day; instead of investing the same in profitable business, as per promise, they used to distribute a portion of it as profit to such investors and misappropriated the balance by converting it to their own use, and to the use of their associates, friends, relatives and benamidars, who are the beneficiaries and have been shown as co-accused in the said reference under the provisions of National Accountability Ordinance and the schedule thereof. It is alleged that petitioner Muhammad Ramzan Khawaja received a handsome amount from co-accused Asghar Ali Qureshi for strengthening the business of steel and metal in Multan, and then in Lahore; further that the documents collected during the investigation revealed that during the period from 1982 till 1995, the petitioner, in connivance with co-accused Asghar Ali Qureshi, used the different companies and firms for import of different goods/articles as shown at page 74 of the investigation report, and maintained bank accounts as detailed at page 75 thereof, and also accumulated properties in his own name and those of his family members/associates as shown at pages 71, 72 and 73 thereof. It is alleged (as stated above) there was no intention on the part of the accused persons to do any business; instead, their aim and intention was to deceive and .defraud the public-at-large and in order to, fulfil their own actual desires, they purchased benami properties and invested the amount so collected (for their own purposes/benefits to the exclusion of the said investors) and thereby they committed offences of fraud, cheating, deceiving the public-at-large as defined in clauses (ix) (x) and (xii) of section 9(a) punishable under section 10 of the National Accountability Ordinance, 1999 and schedule thereto. Charge is framed by the learned trial Court against the petitioner and some witnesses have also been examined by the prosecution in support of its case. Learned counsel for he petitioner argued that the case against the petitioner is absolutely, false and that none of the said witnesses have implicated the petitioner, and an application under section 265-K, Cr.P.C. was filed before the learned trial Court which stands dismissed and therefore this Constitutional Petition is filed for the grant of above quoted prayers. Learned counsel further argued that the petitioner was not serving as a public servant at any time and that while bail application (filed by the petitioner) was heard, following arguments of his learned counsel were recorded in the order of grant of bail of the petitioner: "The allegations made against the present petitioner/accused are shown at Sr. No.14 of the Investigation Report (which is made part of the said reference submitted by Chairman NAB before the Accountability Court; Learned counsel for the petitioner/ accused has argued that the' petitioner never claimed or owned the properties shown at S. Nos.1 to 38 (typed pages 74 and 75) of the said report and further that if the properties shown therein are ever' purchased by anybody as Benami transaction, with fraudulent and dishonest intentions, all such criminals may be prosecuted if any such proof of Benami transaction exists for such properties; petitioner would never have any abjection against freezing of such properties; the learned counsel has further argued that admitted fact with the prosecution. is that only three statements are recorded for the purpose of the said reference against the petitioner viz. one is of he petitioner's son, the other of petitioner's brother; both stated nothing else, but to give details of the business conducted by the petitioner since his father migrated to Pakistan on creation of Pakistan, and that the said two witnesses never meant to say (even to the least) that business conducted, or the properties purchased, were out of money collected (by the prime accused person by fraudulent and deceitful means) from the people; it is further argued that third statement recorded by the I.O. against the petitioner is of a customer who has only stated to the effect and to mean that the petitioner had been doing business in order to earn livelihood for him and for his family members and to live a life of respectable law-abiding citizen, nothing more and nothing less. Learned counsel appearing for NAB frankly conceded that there is no other evidence available in the investigation report against the present petitioner to prove that the money so collected from the public by prime accused persons was ever passed on to the petitioner; and that case of the prosecution; against the petitioner is based on the allegations of some of the co-accused persons alleging that some part of such fraudulently collected amount was passed on to the petitioner with an intention that he may invest the same in some business in partnership with the prime accused persons. Learned counsel for the petitioner argued that it is by now' a settled principle of law that 'statement of co-accused against one or more accused is not admissible in evidence and the same has got no legal value until and unless necessary and reliable evidence is produced to support such allegation made by co-accused persons against the petitioner. So far allegation made against the petitioner that properties acquired by him in his own name and those' of his family members and relatives as Benamidars out of funds transferred to him by above stated prime accused persons/companies, suffice it to say that the investigation report has admittedly not shown any proof/evidence towards such allegation of transfer of the amounts collected from the people at large to the petitioner, even to the least extent; learned counsel has referred to 1991 SCMR 703 Muhammad Sajjad Hussain v. Muhammad Anwar Hussain, relevant page 709 wherein Honourable Supreme Court of Pakistan has held that for proof of Benami transaction at least four conditions are required to be fulfilled to the effect; (1) source of consideration; '(ii) from whose custody the original title deed and other documents came in evidence, (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction. Admittedly the prosecution has failed to show any amount having been passed on to the petitioner out of the amounts so collected from the public-at-large; Petitioner is admittedly in custody of the original title deeds of the properties acquired by him in his own name and those of his family members/relatives and that he/they are also in possession of - such properties; the prosecution has miserably failed to show as to what could be the motive with the petitioner to act as a tool of the prime accused, shown in the reference, for the purpose of purchase of such properties as Benami; no such motive or Benami transaction is proved by the prosecution and accused cannot be burdened with any, liability on the basis of such vague/incorrect allegations." Suffice it to say that it is now a settled principle of law that the provisions of National Accountability Ordinance 1999 extend to the private persons also, against whom the allegations of corruption and corrupt practices are made, and/or having accumulated properties in their own names, in the names of their family, benamidars and/or associates; that properties claimed by the petitioner to be owned by him, his family members benamidars and/or associates are to be proved to have been purchased by him/them out of their own independent funds, having acquired from their own earning/business. Petitioner was admitted to bail with the above quoted observations (recorded by this Court in Petition No.D-191 of 2003, on the basis of the arguments advanced by his learned counsel); such observations are to be taken to be purely tentative and the same can never be taken to have decided the case itself. The petitioner, if he relies upon the same, has to make such prayers before the learned trial Court in specific terms; merely by quoting the said observations in his application under section 265-K, Cr.P.C., he cannot be said to have fulfilled the legal requirements for the purpose of arriving at a conclusion by the learned trial Court that the properties were allegedly purchased by someone else in his name and in the names of his family members, benamidars and associates without his knowledge; he has specifically to plead to that effect by making such an application under different provisions of law, particularly under section 25 of the National Accountability Ordinance viz. for the purpose of plea bargaining. Under the present circumstances of the case, the prosecution is necessarily to be afforded with due opportunity to produce all its evidence against the petitioner -and the co-accused persons. Delay in such proceedings is to be scrutinized minutely at appropriate stage of the case, and merely because the absconding accused persons are being arrested one after the other and produced before the trial Court at different stages of the case, the same cannot conductively be said to have given a cause for allowing application under section 265-K, Cr.P.C. moved by the petitioner/accused before the trial Court. For the time being, there is no reason to direct the quashment of the proceedings of the prosecution case against the petitioner; therefore this petition not carrying any force therein is hereby dismissed, with a direction to the prosecution to see that the proceedings of the case are taken by it expeditiously and the case be decided without any undue delay as observed by the Honourable Supreme Court of Pakistan in PLD 2001 SC 607 (fff) "Khan Asfandyar Wali v. Federation of Pakistan"; the trial Court must ensure that the credibility of judicial process is not undermined in any manner whatsoever and trial of the case should be completed most expeditiously within the timeframe laid down in the National Accountability Ordinance, 1999. H.B.T./M-15/K Petition dismissed.