2022 P Cr. L J 549
[Balochistan]
Before Muhammad Ejaz Swati and Rozi Khan Barrech, JJ
Syed MOHSIN ALI ---Appellant
Versus
The STATE through Deputy Prosecutor General (DPG), National Accountability
Bureau (NAB), Balochistan ---Respondent
Criminal Ehtesab Appeal No. 6 of 2018, decided on 24th May, 2021.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 9 ---Penal Code (XLV of 1860), Ss. 405 & 415--- Corruption and corrupt practices ---
Criminal breach of t rust---Cheating ---Expression 'public at large'--- Scope ---Accused was
convicted for fraudulently receiving money from the members of the public under the guise of a fake housing scheme without any allotment or delivery of physical possession of plots to the allottees and dishonestly converting it to his own use ---Accused had purchased a piece of
land measuring 23 acres wherein a housing scheme was announced and the payment of the said land was to be completed in five years ---Total number of persons who had s ought
booking in the scheme were 412---During this period, a dispute arose between accused and
vendor ---Vendor had obtained stay orders from the Civil Court, as such the accused had
failed to develop the scheme ---Out of 412 only 10 allottees had appeared before the Court ---
Two of the said witnesses had admitted in cross -examination that they had not paid the
complete consideration amounts to the accused--- Investigating Officer had admitted that the
scheme had not matured due to civil litigation ---Legislatur e from the expression "public at
large" had intended to focus the public at macro level ---Expression did not aim at the
offences committed at the micro level ---Prosecution in order to attract the mischief of S.
9(a)(ix) and (x) of National Accountability O rdinance, 1999, was obliged to bring on record
that the accused was found guilty of defrauding the public at large scale ---Prosecution had
only produced ten witnesses and such a small faction of the society did not fall within the definition of expression "public at large" ---Case was one of civil dispute based upon alleged
breach of the agreement for which remedies laid somewhere other than in a criminal court ---
Appeal was accepted and the impugned judgment was set aside.
Rafiq Haji Usman v. Chairman, NAB and another 2015 SCMR 1575 rel.
(b) Penal Code (XLV of 1860)---
----S. 415 ---"Cheating" ---Scope ---Person inducing or luring the other to deliver him any
property for any consideration must be doing so with the preconceived intention of not fulfilling the o bligation arising out of such arrangement resulting in receiving any property---
Initial intention to deceive must be established in order to justify a conviction of cheating.
(c) Penal Code (XLV of 1860)---
----S. 405 ---"Criminal breach of trust"--- Scope ---To constitute the offence of criminal breach
of trust, the element of entrustment of property or money which is dishonestly
misappropriated or disposed of in violation of any direction prescribed by law or the mode in which such trust was to be discharged or in the context of any contract etcetera, must be
established ---However, an arrangement when one person receives money or investment from
another person for carrying on business per se will not attract the entrustment of property as provided under S. 405, P.P.C.
(d) Interpretation of statutes ---
----If an expression is not defined in any law, then its dictionary meaning can be followed
and adopted.
Chairman Pakistan Railway Government of Pakistan v. Shah Jehan Shah PLD 2016
SC 534 rel.
(e) Words and phrases ---
----"Public"---Meaning ---Relating or belonging to an entire community, state or nation.
Black's Law Dictionary, 9th Edition rel.
(f) Words and phrases ---
----"At large"---Meaning ---Free; unrestrained; not under control; not limited to any parti cular
place, person, matter or question.
Black's Law Dictionary, 9th Edition rel.
Syed Ayaz Zahoor for Appellant.
Aminuddin Bazai, D.P.G. NAB for the State.
Date of hearing: 15th April, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---Syed Mohsin Ali (appellant ) was tried by
Accountability Court -I, Quetta ("trial court") in Reference No. 11/2017 titled as "The State v.
Syed Mohsin Ali" whereby vide judgment dated 16.02.2018 ("impugned judgment") he was convicted by the trial court under sections 9(a)(ix) and 9(a )(x) of the National Accountability
Ordinance, 1999 (hereinafter referred to as "N.A.O., 1999") and sentenced under section
10(a) read with section 11 of the Ordinance ibid to undergo R.I for five years and to pay fine
of Rs.8767753/ -. In case of non- payme nt of fine, he was ordered to further undergo S.I for
six months. The benefit of section 382- B, Cr.P.C. was also extended in his favour.
He was also disqualified for a period of ten years for seeking or from being elected,
chosen, appointed or nominated a s a member or representative of any public body or any
Statutory Local Authority or in service of Pakistan or of any province. He shall not be allowed to apply for or be granted or allowed any financial facilities in the form of any loan or advances by any bank of financial institution owned or controlled by the Government for a
period of ten years.
Feeling aggrieved thereby, the appellant filed the instant appeal.
2. The proceedings which led to the filing of the reference before the trial court
originate d from the information imparted by Nazar Hussain (PW -3) through an application. It
was alleged by Nazar Hussain that the accused Syed Mohsin Ali was involved in the act of corruption and corrupt practices of criminal breach of trust and fraudulently receiv ing the
certain sum of money from the members of the public at large under the guise of a fake housing scheme without any allotment or delivery of physical possession of any plots to the allottees and dishonestly converting it to his own use on account of which the Director -
General NAB Balochistan Quetta assigned the task of investigation to Noor Muhammad (PW -6/investigation officer) in accordance with the provision of section 18(c) of N.A.O.,
1999 vide letter dated 20th September, 2006. The investigation officer NAB completed his investigation and submitted the final investigation report against the appellant with the allegation that on 26th October, 1998, the appellant Syed Mohsin Ali purchased a piece of
land measuring 23 Acres situated at Ghaza Band road Balaili area of Quetta District from
late Syed Maula Dad son of Haji Bore Muhammad in lieu of sale consideration of Rs.16675000/ -. The purchaser, i.e. Syed Mohsin Ali, paid an amount of Rs.20000/ - in cash
whereas another amount of Rs.180000/ - was paid thr ough cheque, No.974234. In respect of
payment of the remaining amount, the appellant issued and delivered two cheques to late Maula Dad i.e. Cheque No.974235 for Rs.3295000/ - dated 1st April 1999 and Cheque No.
974234 for Rs.3295000/ - dated 1st October 1999. In the case of encashment of the
aforementioned cheques, the remaining amount was stipulated to be paid on the basis of monthly installments of Rs.200000/- each.
After the agreement for purchasing the property, the appellant obtained a General
Power of Attorney from the seller, namely Haji Maula Dad (late), in respect of the aforementioned piece of land and initiated a housing scheme called the "the Pine Town Housing Scheme" without the physical possession of the same and without getting it transferred in his own name in the Revenue Record and without obtaining NOC from Quetta
Development Authority and with mala fide intentions and ulterior motives of cheating the public at large by dishonestly receiving certain sums of money from them on the fal se pretext
of the allotment of plots in their names at the so -called Pine Town Housing Scheme. It is
further alleged in the investigation report that the accused fraudulently received a total amount of Rs.12078839/ - from 412 allottees of the Pine Town Hous ing Scheme.
After the conclusion of the investigation, a reference was filed against the appellant
before the trial court. The charge was framed against the appellant, to which he pleaded not
guilty and claimed trial. The prosecution in order to prove its case against the appellant,
produced as many as sixteen witnesses. On conclusion of the prosecution evidence, the appellant was examined under section 342, Cr.P.C. wherein he professed his innocence and
denied the allegation levelled against him. The accused got recorded his statement on oath as
envisaged under section 340(2), Cr.P.C., however, he did not produce any witness in his
defense. After completion of the trial, the trial court proceeded to convict and sentence the appellant as stated above, hence the instant appeal.
3. We have heard learned counsel for the parties and have also gone through the record
of the case with their able assistance. It has come on record that the accused/appellant purchases a piece of land measuring 23 Acres, situated at G haza Band Road, Balaili area
Quetta District from late Haji Maula Dad son of Bore Muhammad on 26th October 1998 in lieu of sale consideration of Rs. 16675000/ - through sale agreement. After the agreement of
sale, the appellant Syed Mohsin Ali obtained a Ge neral Power of Attorney from the late Haji
Maula Dad in respect of the aforementioned piece of land and initiated a housing called the Pine Town Housing Scheme, and the said scheme was announced on 16.04.1999. According
to the record of the case, the payme nts of the scheme were to be completed in five years. It is
worthwhile to mention here that the total number of persons who had sought booking in this
project was 412. During the said period, a dispute arose between the appellant and late Haji Maula Dad, and the said Haji Maula Dad filed a Civil Suit bearing No. 16 of 2002 before the Civil Judge Quetta in the year 2002 and obtained stay orders from the civil court in respect of the above -said property. The said suit was decreed on 31.03.2006 by the learned Civil Judge -
I, Quetta in favour of the late Haji Maula Dad. Being aggrieved the accused/appellant filed Civil Appeal No. 14 of 2006 before this court. It is worthwhile to mention here that due to
stay from the civil court in 2002, and after obtaining a dec ree by the seller, namely Haji
Maula Dad, against the appellant from the civil court in respect of the said property, the appellant could not start the development work of the housing scheme, whether under such situation there is any dishonest intention on the part of the appellant so as to convert his act
into crime.
4. In the above backdrop, on the conclusion of the trial, the appellant was found guilty
of having committed an offence under section 9(a)(ix) and (x) of N.A.O., 1999 and was convicted under s ection 10(a) of the N.A.O., 1999. Before proceeding further, it would be
appropriate to have a look as to how sections 9(a)(ix and x) of N.A.O., 1999 are worded by the legislatures:-
"9. Corruption and Corrupt Practices. (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices: -
(ix) If he commits the offence of cheating as defined in section 415 of the Pakistan Penal Code, 1860 (Act XLV of 1860), and thereby dishonestly i nduces members of
the public at large to deliver any property including money or valuable security to any person; or
(x) If he commits the offence of criminal breach of trust as defined in section 405 of
the Pakistan Penal Code, 1860 (Act XLV of 1860), wi th regard to any property
including money or valuable security entrusted to him by members of the public at
large".
5. Since section 9(ix) refers, and adopts the offence of cheating as provided in the
Pakistan Penal Code, 1860 (P.P.C.) hence we would also refer to the meaning and scope of the offence of cheating as provided under section 415 of the P.P.C. in the following words: -
"415. Cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent
that any person shall retain any property or intentionally induce the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is li kely to cause damage or harm to
that person (or any other person) in body, mind, reputation or property, is said to "cheat".
6. Bare reading of section 415, P.P.C. shows that a person inducing or luring the other to
deliver him any property for any conside ration must be doing so with the preconceived
intention of not fulfilling the obligation arising out of such arrangement resulting in receiving any property. The initial intention to deceive, therefore, must be established in order to justify a conviction of cheating. Therefore, the prosecution during the investigation failed to collect any evidence in respect of the intention of the accused to cheat the public at large. It is stated earlier that due to obtaining stay orders from the civil courts, the work of the project, i.e. the Pine Town Housing Scheme, was not started.
7. Similarly, subsection (ix) to section 9 of the Ordinance refers, and adopts the offence
of Criminal Breach of Trust as provided in P.P.C., hence we would also refer to the meaning and s cope of the offence of Criminal Breach of Trust as provided under section 405 of P.P.C.
in the following words: -
405. Criminal breach of trust.---Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappr opriates or
converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he ha s made touching
the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
8. To constitute the offence of criminal breach of trust, the element of entrustment of
property or money which is dishonestly m isappropriated or disposed of in violation of any
direction prescribed by law or the mode in which such trust was to be discharged or in the context of any contract etc, must be established. However, an arrangement when one person receives money or investm ent from another person for carrying on business, this transaction
per se will not attract the entrustment of property as provided under section 405, P.P.C. It is evident from the above that the said housing scheme was announced on 16.04.1999 and the payme nts were to be completed in five years, but in the meanwhile, the seller of the property,
namely late Haji Maula Dad filed a civil suit in the year 2002 and obtained stay orders from
the civil courts. Out of 412 allottees, only ten allottees, i.e. (PW -3 to PW-13) appeared
before the court. The detail of witnesses and amounts invested by them is summarized as
under:
Sr. No. Name Amount Paid
1 Muhammad Sami (PW -2) Rs.27,000/ -
2 Nazar Hussain (PW3) Rs .60,000/ -
3 Muhammad Ashfaq (PW -4) Rs.23,000/ -
4 Muhammad Arif (PW -5) Rs.63,000/ -
5 Malik Mumtaz Hussain (PW -6) Rs.149,000/ -
6 Allah Noor (PW -8) Rs.43,000/ -
7 Shamsullah (PW -9) Rs.61,000/ -
8 Abdul Qayum (PW -11) Rs.96,000/ -
9 Abdul Aleem (PW -12) Rs.38,000/ -
10 Muhammad Hussain (PW-13) Rs.24,000/ -
Total amount Rs. 584,700/ -
9. PW-2 Muhammad Sami and PW -3 Nazar Hussain stated during cross -examination
that they did not pay the complete consideration amounts to the accused. It is worthwhile to mention here that the time frame of the project was five years and the allottees were to pay the total consideration amount to the project director, i.e. the appellant, in installments within five years, but the said project was stopped due to stay obtained by the seller from the ci vil
courts. PW -16, namely Noor Muhammad, who conducted an investigation of the case, also
confirmed this fact the also supported the plea of the accused. In this respect, he stated during the cross -examination that the scheme was not matured due to civil l itigation.
10. From such features, it can be assessed that the transaction in question whether falls
within the ambit of criminal breach of trust or it comes within the purview of the contract. It needs no elaborate discussion that breach of contract is am enable to the jurisdiction of civil
court whereas the grievance arising out of criminal breach of trust can best be redressed through the process of criminal law.
11. There is another aspect of the matter, which is deemed to be appropriate to discuss.
Such an aspect of the matter pertains to the number of affectees of the project. During the
investigation the NAB investigation agency invited claims from the members of the public at large and the fate of the Pine Town Housing Scheme through different daily newspapers on 19th August 2006 and 21st August 2006. It is only ten people out of 412 allottees who had come forward and got recorded their statements, i.e. PW -2 to PW -13.
12. From the perusal of the foregoing provisions, it evinces that section 9(a)(ix) pe rtains
to cheating, whereas section 9(a)(x) relates to, criminal breach of trust if committed in relation to members of the public at large. In this backdrop, the primary question which is required to be attended by this Court pertains to the fact that as to how the expression
"public -at-large" is defined. Certain expressions, which are used in N.A.O., 1999 are defined
in section 5 of the N.A.O., 1999. Admittedly, the expression "public -at-large" finds no
mention in section 5 of N.A.O., 1999. It is a salut ary principle of law that if an expression is
not defined in any law, then its dictionary meanings can be followed and adopted. In this
regard, we are enlightened by the principles of interpretation laid down by the Hon'ble
Supreme Court of Pakistan in the case of Chairman Pakistan Railway Government of
Pakistan v. Shah Jehan Shah (PLD 2016 Supreme Court 534), wherein the Hon'ble apex Court held as under: --
"when a word has not been defined in the statute, its ordinary dictionary meaning was to be looked a t."
13. We have gone through different dictionaries and have come across that the expression
"public -at-large" is not defined in its literal sense, and instead, the two words, i.e. "public"
and "at large" are defined separately. In the Black's Law Dictiona ry, 9th Edition, the
definition of the word "public" includes the following: --
"relating or belonging to an entire community, state or nation"
14. Similarly, "at large" stands defined in the Black's Law Dictionary, 9th Edition as: -
"Free; unrestrained; not under control. Not limited to any particular place, person,
matter or question".
15. It can be gathered from the above definitions that the from the expression "public -at-
large", the legislatures have intended to focus the public at the m acro level. The expression
does not aim at the offences committed at the micro level. In this backdrop, in order to attract the mischief of section 9(a)(ix) and (x) of N.A.O., 1999, the prosecution is obliged to bring on record that the accused was found guilty of defrauding the public at large scale. While observing so, we have also kept in mind the purpose of enactment of N.A.O., 1999. Even at
the time of its promulgation, the law to cater for such like cases was already in the field through the provision s of the Pakistan Penal Code, relating to offence of cheating and
criminal breach of trust. Needless to mention here that the N.A.O., 1999, being a special law, its provisions are to be applied in special circumstances only. In the instant case, as discuss ed
above, the prosecution, in an endeavour to make out the offences, with which the appellant was charged, produced ten witnesses only. We cannot subscribe that such a small faction of the society can fulfill the definition of the expression "public -at-large".
16. The Hon'ble Supreme Court of Pakistan in the case of Rafiq Haji Usman v. Chairman,
NAB and another (2015 SCMR 1575) while embarking upon the expression "member of public -at-large" observed as under: --
"We are of the view that 13 persons would ha rdly constitute public in its literal and
ordinary sense; furthermore meaning of the word large i.e. "considerable or relatively great size, extent or capacity having wide range and scope" does not bring 22 or 13 persons as the case may be within its concept and fold. Thus, from this angle as well they said section seemingly perhaps can be held not attracted to the instant case".
17. It is trite law that the provisions of law which constitute criminal offences shall be
strictly construed and applied, thus prima facie, we have not been persuaded by the plea made by the learned Deputy Prosecutor General NAB that in such a case, section 9(x) ibid shall be attracted. The case in hand has appeared to us to be a classic case of a civil dispute
based upon alleged b reach of the agreement for which remedies laid somewhere other than in
a criminal court.
In view of what has been discussed above, the instant appeal is accepted.
Consequently, the impugned judgment dated 16.02.2018 passed by Accountability Court -I,
Quett a, is set aside. The appellant is acquitted of the charge in Reference No. 11 of 2017.
The appellant is on bail; therefore his bail bonds shall stand discharged.
SA/112/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.