2004 PLP 1949 (YLR)

(ii) Accused obtained and misappro priated 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 misappro priated 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 17 witnesses in support of its case besides the documentary evidence. Mrs. Sarfraz Shabbir , (P.W.1), Mst. Nelofar Iqbal (P.W.2), Mrs. Saima Ayub (P.W.3), Muhammad Suleman (P.W.4), Shahzad lqbal Malik (P.W.5), Syed Ameer Ali (P.W.6), Riffat Ullah Khan alias Rafique Waris Khan (P.W.7), Mian Shafqat Kaleem (P.W.9), Javed Saleem (P.W.10), Sarfraz Ahmad (P.W.11), Mian Muhammad Arif (P.W.12), Ashraf Hassan (P.W.13), Qazi Iftikhar Ahmad (P.W.14), Muhammad Munir (P.W.15), Mrs. Robina Ahsan (P.W.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 F.I.A./NAB (P. W.17) investigated this case and submitted the challan. Muhammad Shahzad Butt, Nadim Hakim, Raja Nazir Ahmad and Mst. Nargis Wajih‑uz‑Zaman were also examined as C.W.1 to C.W.4 respectively, who supported the prosecution case.

5. The appellant in his statement tinder 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 P. Ws. Now, actually, I owe Rs.2,17,38,000 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 rigours 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 advice 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 lie 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‑P.Ws. who had given different facts and figures about the money they paid and the amount they received back from him. In fact he had also executed a pronote in favour of Mst. Nelofar Iqbal (P.W.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 P. Ws.

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 affectee's.

12. In this connection, reference may be made to the following portions of the judgment: ‑‑ "Mst. Nargis, Wajih‑uz‑Zaman C.W.1, deposed that borrowed Rs.6,00,000.00 once Rs.4,00,000.00 again from Abdul Rehman accused for redemption her plot measuring 8 Kana stipulated in Hadbast, Mol Bachoke Majha, Tehsil a District, Kasur. It was further stated that after redemption afore‑mentioned industrial plot 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 Unicentre I.I. Chundrigarh Road, Karachi." "In view of evidence as discussed above, Mst. Ali Nargis to secure her title of afore‑mentioned 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 Nargis in that eventuality shall have no claim against that property or sale proceeds thereof. In case Mst. Ali Nargis 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. Nelofer who is looted at the cruel hands of accused, Abdul Rehman, and remaining amount of Res.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 may itself auction the property and give effect f 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 Nargis. After receiving the sale proceeds, the trial Court may realize Rs.1 million and return rest of the money to Mst. Ali Nargis after a justifiable claim is established by her. From the sale proceeds, Rs.8,00,000 shall have to be paid to Mst. Nelofer Iqbal, respondent No.3. This writ petition is, therefore, also disposed of with these observations. H.B.T./N‑34/L Order accordingly.