FAZAL UR RAHMAN J:--- This appeal under section 32 of the National Accountability Bureau Ordinance. 1999 is directed against the judgment dated 28-5-2001, passed by the learned Judge Accountability Court-II Balochistan, Quetta by which, he convicted the appellant under section 10 read with 11 and 12 of NAB Ordinance, 1999 and sentenced to suffer R.I. For 3 years and to pay fine of Rs,40,00,000 with forfeiture of the assets and properties as set off against the amount of fine and in case of non-recovery/non-payment of the fine to further undergo for a period of 1 year R.I. The appellant has been further disqualified to hold public office, contest election and grant of any financial facility in the form of loan or advance from any bank or financial institution for a period of 10 years. The benefit of section 382-B, Cr.P.0 has however been extended in favour of the appellant.
2. Briefly stated the facts of the case are that a reference under sections 18(g) and 24(b) of the National Accountability Ordinance, 1999 was filed against the appellant by the National Accountability. Bureau alleging that the appellant who remained as Deputy Commissioner had indulged in case of corruption and corrupt practices and acquired in his name and the names of his family members assets and properties disproportionate to his known source of income. The details of the properties indicated in the reference and charge framed by the learned trial Court are as under:--
(1) One bungalow on a plot measuring 5400 sq.Ft. In Block No,5 Satellite Town Quetta valuing Rs,25,93,800.
(2) One plot measuring 3615 sq.Ft in Housing Scheme Sariab Road Quetta valuing Rs,4,33,800.
(3) One 4 storeyed plaza at Hub consisting of 17 shops and 12 flats valuing Rs,79,88,000 with monthly rent of Rs,36,000.
(4) A residential plot at Hub valuing Rs,5,80,800.
(5) One residential plot measuring 1000 sq.Yards in Singar Housing Scheme, Gawadur valuing Rs,2,00,000.
(6) Different agricultural lands in District Lasbella in the names of his three sons namely Jehanzeb, Jahangir and Alamgir valuing Rs,10.07,348.
(7) one Toyota Car valuing Rs,3 30,000. The total value of the properties has been assessed to be Rs,1,28,45,828 whereas, the total salaries and allowances of the appellant from 1967 to 1999 have been calculated to be Rs,16,21,920.
3. The learned Judge Accountability Court framed charge against the appellant on 27-4-2001 to which, he pleaded not guilty and claimed trial. The main allegation in the charge was that the appellant acquired properties/assets through corruption and corrupt practices as defined under section 9 of National Accountability Ordinance, 1999 punishable under section 10 of the said Ordinance.
4. The prosecution in support of its case examined P.W.1 Zahoor Ahmed, Municipal Architect, P.W.2 Abdul Latif, Patwari, P.W.3 Shafi Muhammad, Patwari, P.W.4 Gohar Rehman, Senior Clerk Benevolent Fund Housing Scheme Sariab Quetta, P.W.5 Tariq-ur-Rehman, Tehsildar Hub, P.W.6 Haji Shahbaz Khan, Tehsildar Uthal, P.W.7 Mehrab Shah, Tehsildar Sonmiani, P.W.8 Qazi Muhammad Yaqoob, Director Agriculture, Engineering Department, P.W.9 Muhammad Akhtar Azad, Excise and Taxation Officer, P.W.I0 Muhammad Abid Nigha, Banker M.C.B., Jinnah Road, Quetta, P.W.I 1 Muhamamd Azhar, Deputy Accountant General, P.W.12 Dr. Syed Pervaiz Abbas, Deputy Commissioner, Gawadar, P.W.13 Muhammad Ismail Mengal, S.D.O. B&R Hub and P.W.14 Khaliq Dad (R) D.D.P/I.O RAB, Quetta.
5. In his statement recorded under section 342, Cr.P.C. The appellant has denied the allegations and pleaded his innocence. He has also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. The same being very important is reproduced below for the sake of facility:-- "I belong to Lasbella District Balochistan. I joined Government service in year 1967. My last posting was as Director Industries Balochistan. I never remained involved in any corrupt practice. My father owned agricultural land in District Lasbella. 163 Acres 14 Polls of land was transferred by my father during his life time in the name of we seven brothers. My father had been giving me share from the agricultural income from the very beginning. In year 1971 my father purchased a plot NO.15 situated in Mouza Baroot Tehsil Hub in consideration of Rs,1500 through registered sale-deed. The plot was purchased in the name of my younger brother Dr. Khalil Ahmed. In year, 1973 another plot No,26-A was purchased in the same area for Rs,1,452 in the name of my other younger brother Rashid Ahmed through Register, sale-deed. In year 1993 when my father was ill at Karachi I requested him for transfer of both the above plots to me. My father informed my younger brother Khalil and Rasheed that the plots has been given to me and the same be transferred in my name. I never used my official status for purchase of any plot/property. I have been declaring all my assets to Government. NAB has over valued the properties owned by me. In year 1994 after death of my father both the above plots were transferred in my name through register gift deed. In year, 1976 I purchased plot No,130 Satellite Town Quetta on instalment. The price of the plot was Rs,21,600. In year 1983 I wanted to construct house on the said plot I had no cash. I approached my father at Karachi. I was provided Rs,3,00,000 by my father in presence of my younger brother Dr.Khalil Ahmed and Shamus-ul-Haq. I obtained loan of Rs,1,40,000 from House Building Corporation. I completed my Bangalow in 1984 whereas, completion certificate was issued to me in 1985. In year 97/98 the income tax department over valued my Banglow at Satellite Town and plot at Hub against which I filed an appeal. On which my Banglow at Satellite Town was valued for Rs,8.50,000 and my plot at Hub was valued for Rs,85.000. The total investment made by name of my sons situated in Somiani and Uthal Tehsils and car is Rs,6,95,355. I never tried to conceal my property. I had been paying income tax and wealth tax. The shopping plaza at Hub was constructed on my plot through agreement of partner ship with Muhammad Aslam and Aman Utah. I produce the partnership agreement Exh.D/A. I produce the statement of income and purchased property prepared by me which is Exh.D/B. A.G. Office did not include my pay for two years in the statement filed in this reference and the calculation is also incorrect. The reference has been based on incorrect data. The share of my income from the rent of Plaza at Hub is presently about Rs,8,000 per month. I produce photo copy of the certificate Exh.D/C. Regarding ownership of agricultural property (admissibility subject to objection of special prosecutor). I am innocent, I committed no offence. XXX Mr. Abdul Ghays Nausherwani-Advocate, (Special Prosecutor). It is incorrect that from 1967 till 1-10-2000 I received pay and allowances amounting to Rs,16,21,922.
It is correct that I was posted as D.C. Lashella during period from December, 1994 to December, 1996. During my service I visited abroad five times. Two times I went for performing Umra once I went for Hajj whereas, one of my visit was with NIPA the second visit was under the programme of World Bank whereas one of my visit to .Singapore was made as I was nominated for that tour by Federal Government. It is correct that the plot on which the plaza has been constructed is situated in Abadi Deh. It is incorrect that the said plot was directly transferred in my name from the name of Provincial Government. It is incorrect that by misuse of my authority I transferred Government land in the name of my brother. My father was Government employee as Qazi since the time of Lasbella State and he was also agriculturist. I do not remember that what was his last pay. It is incorrect that no property measuring 163 Acres 14 Pols was transferred by my father in the name of we seven brothers. It is incorrect that no plot at Hub was purchased by my father. It is incorrect that the said plot was not legally transferred in my name as the same were situated at Abadi Deh. It is incorrect that all the transactions were made using my official status. It is incorrect that my father did not pay Rs,3,00,000 to me for construction of my house. It is incorrect that I obtained loan of Rs,1,40,000 from House Building Corporation only to legalize the property acquired by illegal amount. It is incorrect that information for income tax and wealth tax was filed by me by using my official status. It is incorrect that I wrongly stated that I made investment of Rs,6,95,355 for acquiring all the properties. It is incorrect that the investment is Rs, 1.28,45,828. It is incorrect that neither my father nor my self made payment of Malia/Ushr. It is correct that material for supply of shopping plaza at Hub was supplied by Habibullah Omrani. Voluntarily said he was contractor. It is correct that payment to Habib Ullah Omrani was made by me. It is incorrect that the statement Exh.D/B has been prepared by me which is imaginary. It is incorrect that A.G. Office produced correct statement of my pay and allowances. It is incorrect that the value of the property has been made after due inquiry by the Revenue Authority and engineers. It is correct that the rent for the whole of the plaza is received by me through my agent voluntarily stated that after receiving the same I distribute it among partners. It is incorrect that I am the sole owner of the plaza. It is incorrect that agreement Exh.D/A has been prepared subsequently and the same is afterthought. It is incorrect that I prepared the same only to shift the liability. It is incorrect that the certificate Exh.D./C is forged. It is incorrect that all the properties have been acquired by me through illegal means. It is incorrect that I had no other mean of income but pay and allowances. It is incorrect that I made false statement to save myself from punishment." He has also produced D.W.1 Zahir Ahmed, Inspector Income Tax Officer. Circle II, Quetta, D.W.2 Muhammad; lqbal, Assistant Director, Q.D.A., D.W.3 Barkat Ali Assistant Manager, H.B.F.C. Quetta, D.W.4 Ali Muhammad, Senior Clerk Sub-Registrar Officer, Hub, D.W.5 Abdul Rehman, Patwari Tehsil, Lakhra, D.W.6 Muhammad Aslam, Police Employee, Dubai, D.W.7 Dr. Khalil Ahmed Hakani, Chowk Aram Bagh S.R.S K.M.C. Hospital, D.W.8 Haji Muhammad Islam, Transporter and D.W.9 Dr. Qadir Bakhsh in his defence.
6. The learned trial Court formulated the following points for determination:---
(1) Whether the properties as detailed in reference Ex-P/ 14-E are owned by accused?
(2) Whether the value of the properties detailed in Exh.P/14-E is Rs,1,28,45,828?
(3) Whether accused acquired the properties through corruption and corrupt practices?
(4) What offence if any is made out against accused?
7. The learned trial Court after assessment of the evidence deleted property at S.No,1 from the assets and properties of accused as the same was considered to be out of ambit of National Accountability Ordinance, 1999 which deemed to have come into force from 1st day of January.
1985. The learned trial Judge also observed that the undisputed value of the plot at the time of its purchase is Rs,21.600 while both the parties produced no evidence whatsoever, to show that what was the construction rate at the relevant time and what was the total cost incurred on the said construction, therefore, it, cannot be ascertained that what amount accused paid to acquire the property and whether the same was beyond his means at the relevant time. The learned Judge vide impugned judgment held that the prosecution failed to prove any corruption or corrupt practices in acquiring of two plots i,e, the plot on which, four storeyed plaza has been constructed and the residential plot at Hub (Plot Nos.3 & 4). Learned trial Court has also observed that the allegation of prosecution that accused constructed four storeyed plaza from his own sources finds no support from the evidence and there is no evidence even to suggest that accused contributed any amount towards the said construction. According to the learned trial Court there is no evidence. Even to raise presumption that accused acquired the plot or the building by spending any amount. It has been stated that allegation of corruption or corrupt practices for acquiring said shopping plaza could not be established, the same has not been challenged by the prosecution.
The trial Court however, convicted and sentenced the appellant in respect of remaining properties and bank accounts in the manner hereinabove mentioned. The relevant portion of the conclusion drawn by the trial Court is reproduced below for the sake of facility:-- "Accused who had received sum of Rs,10,04,413.4 during period from 1990 to 1998 failed to justify the transactions in the bank Accounts. Whereas purchase of property worth Rs,6,73,755 against income of Rs,10,04,413.4 does not seem reasonable because saving of Rs,6,73,755 from Rs,10,04,413.4 without having any other sources of income is not possible. This leads to the only conclusion that accused had acquired properties and assets i,e, agricultural lands at Sonmiani and Uthal, residential plot at Sariab Road, Quetta and Singhar Housing Scheme Gawader and had been maintaining Bank Account disproportionate to his known sources of income was involved in corruption and corrupt practices as defined under section 9 of National Accountability Ordinance, 1999. The value of above properties acquired by accused by corruption and corrupt practices as per showing of accused at the time of purchase was valuing Rs,6,73,755 whereas, prosecution has shown its present market value as Rs,19,63,800 though accused denied the same but no evidence whatsoever could be produced to negate the said valuation made by the persons who are involved in affair of said properties, their evidence in absence of any contrary proof cannot be brushed off. Therefore, the present market value of ill-gotten properties is to be considered to be Rs,19,63,800 which accused is liable to return as the ill-gotten gain alongwith increase in value is to be returned. Further more that bank transaction also reflect that the same were disproportionate to the known sources of income of accused and accused failed to account for any of the same, therefore, the huge amounts shown as credit balance in all the three accounts are found to have been acquired by corruption and corrupt practices. Therefore, in addition to return of ill-gotten property accused is also liable to return the cash deposited in his accounts which he failed to justify, however, the exact amount of gain cannot be calculated but keeping in view the deposits in all the three accounts and properties proved to have been acquired by corruption and corrupt practices sum of Rs,40,00,000 is found to be reasonable to be recovered from accused on account of his being involved in corruption and corrupt practices.'
8. Feeling aggrieved by the judgment of learned Judge Accountability Court, the present appeal has been filed under section 32 of the said Ordinance.
9. We have heard Mr. H. Shakil Ahmed, Advocate learned counsel for the appellant and Mr. Muhammad Saleem Ansari, learned Special Prosecutor NAB.
10. After hearing the learned counsel for the parties and having gone through the relevant record with their assistance, we are of the view that the case of the prosecution is doubtful in nature. The evidence available on record is in no way sufficient to lead to a conclusion that the accused/appellant can be convicted of the offence alleged against him. We also do not concur with the conclusion arrived at by the trial Court as the prosecution has failed to discharge the onus of proof and the evidence put forwarded by the accused appears to be more probable therefore, he was entitled to the benefit of doubt.
11. According to section 18 of the Ordinance, the Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman, NAB or an officer of the NAB duly authorized by him. The provisions of the Code of Criminal Procedure, 1898 have been made applicable to the proceedings under this Ordinance mutatis mutandis unless they are not inconsistent with the provisions of the Ordinance. Similarly, the provisions contained under Chapter XXIIA of the Code have been made applicable to the trials under this Ordinance. The reference tiled against the appellant did not contain any allegation that the appellant had been maintaining bank accounts disproportionate to his known source of income nor the same has been incorporated in the charge which was framed against the appellant by the learned trial Court. Similarly, no question had been put to the appellant regarding maintenance of bank accounts while he was being examined under section 342, Cr.P.C. Questions to be put to the accused should be definite and specific. The trial Court is bound to ask such questions from an accused under section 342, Cr.P.C. Which related to root of prosecution evidence and based for conviction. Question No,3 relates to the properties indicated in the reference and the charge while in Question No,4, the value of the above mentioned assets has been indicated but no such questions regarding bank transaction and accounts have been put to the appellant. It is wholly against the provisions of Criminal Procedure Code and the principle of natural justice, that a person should not be convicted on the basis of -something of which he was not given any notice and to which he was only required to give his own reply. This section is based on the principle involved in the maxim Audi Alteram Partem namely that no one should be condemned unheard and the accused should be heard, not merely on what is prima facie proved against him but every circumstances appearing in evidence against him. It is by now well-settled that unless a circumstance sought to be used against the accused is put to him during examination under section 142, Cr.P.C. That circumstance cannot be used against him. Omission to draw the attention of an accused person to a circumstance to be used against him is prejudicial to him. So it can neither be considered nor used against him for any purpose. In PLD 1984 FSC 57, it has been held that it is well-settled now that if prosecution relies upon any fact or circumstance against the accused person, the same should be put to him so that he may explain the same. As a result of omission to put the incriminating piece of evidence against the accused/appellant while recording his statement under section 342, Cr.P.C. At the trial, the same cannot be considered to be the piece of evidence against him and in such circumstances conviction is not sustainable.
12. The learned trial Court disbelieved the prosecution evidence regarding assets and properties at S.Nos.1, 3 and 4 included in the reference and charge and no appeal has been filed against the same. The appellant was convicted regarding acquisition of properties and assets i,e, agricultural lands at Sonmiani and UthaI, residential plot at Sariab Road, Quetta, Singhar Housing Scheme, Gawadar and for maintaining bank account which have been considered disproportionate to his known source of income within the meaning of Clause-V of section 9 of the National Accountability Ordinance, 1999. The Court would be justified in raising a presumption of guilt against the accused under section 14(c) of the Ordinance only when the prosecution succeed in proving the basic ingredients of the charge: The initial burden continues to be on the prosecution. It is incumbent upon the prosecution that the accused or any of his dependents own or possess or has right or title in assets, the known source of income of the accused and the assets and properties acquired are disproportionate to the known source of income of the accused. To bring a charge against some one under the law under consideration, the prosecution has to give details of the "known source of income" compared it objectively with the assets etc. And only in case of the later being disproportionate, can it file the reference. In the instant case, all -salaries, allowances, privileges etc. And agricultural income have not been properly investigated and included in the income. It is the duty of the Investigating Officer to thoroughly enquire into the known source of income of the accused and the later has, to be given full opportunity in this regard. The agricultural income can be assessed as per provisions contained in the Land Revenue Assessment Rules. The accused, in his defence produced details about the source of his income and also led oral and documentary evidence. The statement of the accused cannot be brushed aside. D.W.1 Zaheer Ahmed, Inspector Income Tax office has produced record Exh.D/1 A, the order of the Appellate Additional Commissioner of Income Tax/Wealth Tax whereby, the appeal of the appellant was accepted regarding valuation of the house at Satellite Town, Quetta and Plot at Lasbella. This witness has even not been cross-examined by the learned Special Prosecutor. Similarly, D.W.2 Muhammad lqbal, Assistant Director, Q.D.A. Who has produced agreement Exh.D/2A has not been cross- examined. D.W.3 Barkat Ali, Assistant Manager, H.B.F.C., Quetta has produced receipt for final cheque Exh.D/3A. This witness in cross-examination has stated that the loan is granted keeping in view the capacity of applicant for repayment and value of the property. D.W.4 Ali Muhammad Sub- Registrar office, Hub has produced record pertaining to gift deed. D.W.5 Abdul Rehman, Patwari has produced Exh.D/5A and Certificate Exh.D/5B. In the Certificate, the annual agriculture income of the land jointly owned by the appellant and his brothers is indicated Rs,6,00,000. Exh.D/5C and Exh.D/5D are copies of Jamabandies. D.W.6 Muhammad Aslam has produced agreement Exh.D/A.
Dr. Khalil Ahmed (D.W.7) is brother of appellant has deposed about the transfer of the plots to the appellant through gift deed. He has also stated that his father owned agriculture land at Bella. He has also stated that the appellant demanded money for construction of house at Satellite Town and an amount of Rs:3,00,000 was provided to him by the father.D.W.8 Haji Muhammad Aslam and D.W.9 Dr.Qadir Bakhsh stood marginal witnesses of agreement Exh.D/A. The statement and defence evidence of the accused can be considered and treated as evidence for rebutting the presumption raised. The learned trial Court believed the defence version to the extent of properties at S.Nos.l, 3 and 4 but did not consider the same in respect of remaining assets. The observations of the learned trial Court and conviction in respect of the bank accounts and transaction for the reasons stated hereinabove were not warranted by law. The appellant in his statement gave an explanation regarding properties. He has referred to his agriculture income, the salary, allowances, loan and also produced statement Exh.D/B, the same is reproduced below for the sake of facility:-- State v. Qazi Siraj Ahmad Former Deptuy Commissioner, Lasbela STAEMENT OF INCOME AND PURCHASE OF PROPERTY OF QAZI SIJRAJ AHMAD S.No. Year Salary (Rupees)T.A. Agriculture IncomeLoan Property Purchased/ Gifted 1 1-7-1967 4410 --- --- --- --- 2 1-7-1968 4998 --- --- --- --- 3 1-7-1969 4810 --- --- --- --- 4 11-5-1970 5880 --- 2000 --- --- 5 10-5-1971 13-7-19715127 --- 2400 --- --- 6 4-4-1972 11-5-1972 4-6-19726467 --- 2500 --- --- 7 25-5-1973 1-8-1973 1-12-197313046 --- 3000 --- --- 8 1-12-1974 9420 --- 3000 --- --- 9 1-12-1975 9840 --- 2500 --- --- 10 1-12-1976 4275 --- 3500 --- Purchased one Plot No.130 B/5 600 yards Satellite Town Quetta from Q.D.A. on instalments Total amount Rs.21600 11 1-5-1977 18-7-1977 1-12-197718522 3750 4500 --- --- 12 1-7-1978 1-12-197817150 2205 6000 --- --- 13 1-7-1979 1-12-197917460 2672 5500 --- --- 14 1-7-1980 1-12-198014985 3385 7000 --- --- 15 20-4-1981 1-7-1981 1-12-198123554 12160 9000 --- --- 16 1-7-1982 20-11-1982 1-7-19831-12-198225841 8455 8000 --- --- 17 46020 5132 12000 Three lac (Rs.300000)
Oral Gift by Father for construction of house Satellite Town QuettaStarted construction of house of Q.D.A. Plot No. 130 purchased on instalments in 1976 18 24-4-1984 1-12-198457824 6974 15000 Rs.140000 loan from House Building Finance Corporation for construction of houseHouse completed in 1984 at rate of Rs.110 per sq.ft. total covered area 3474 ft x Rs.110 = Rs.382140 total approximate cost Rs.4,00,000 19 1-7-1985 1-12-198557270 4304 17000 --- --- 20 1-7-1986 1-12-198646974 5410 20000 --- --- 21 1-4-1987 3-4-1987138733 16985 24000 --- --- 22 1988 -- 2310 36000 --- --- 23 31-5-1989 1-12-198984514 2860 30000 --- --- 24 11-7-1990 80314 14950 36000 --- --- 25 26-9-1991 1-6-1991 1-10-1991165675 X 45000 --- Purchased on Plot 3615 ft. from benevolent Fund Scheme Sariab Quetta on instalment paid up to 1998 total amount Rs.133755 26 1-10-1992 22-10-1992 1-12-1992228905 15000 60000 --- Purchased one Plot No.5, 1000 yard in Housing Scheme Gwadar on instalment total Rs.55000 27 1-12-1993 67062 X 55000 --- --- 28 1-6-1994 1-12-1994118410 32247 70000 --- 1. my brother Dr. Khalil Ahmed gifted me Plot No.15 measuring 510 sq. yard Abadi Deh Mousa Baroot Tehsil Hub Lasbela
2. My brother Qazi Rashid Ahmed gifted me Plot No.26-A Mehmood Abad Mousa Baroot Hub Lasbela measuring 484 sq. yard.
29 1-6-1995 1-12-1995235060 42982 60000 --- A R P.
1. Purchased 50-1-17 Teshil Uthal Rs.500 per acre total Rs.25000 A R P
2. Purchased 29-3-31 Teshil Sounmiani Rs. 1000 per acre total Rs.30000 30 20-12-1996 30-11-1996172068 67307 65000 --- A R P
1. Purchased 39-2-15 Aa hora Tehsil Uthal Rs.1000 per acre total Rs.40000 A R P
2. Purchased 6-0-00 Sounmiani Rs.20000 per 31 acre total Rs.120000 31 1-12-1997 3-12-1997183756 22318 60000 --- Construction started on my plot at Hub measuring 501 sq. yards in 1996 and completed in 1997 according to agreement with two partners on share basis.
Trial construction cost Rs.2800000 beared by my partners and 2/3 of property has been transferred to them.
Valuation of any share 1/3 is approximately nine lac only 32 4-12-1998 105775 X 75000 --- --- 33 1-7-1999 1-10-2000253125 X 80000 --- Purchased one second hand COROLLA Car Rs.270000
13. The Court has to juxtapose both conflicting evidence in order to arrive at conclusion as to which one of them is to be chosen for reliance as true. In the instant case it can be stated that the appellant has discharged the burden cast upon him and the prosecution has not been able to bring sufficient evidence on record which can indicate that the assets and properties were acquired through corruption and corrupt practices while the appellant remained as Deputy Commissioner and were disproportionate to his known source of income. Learned counsel for the appellant has also contended that the appellant's wife and sons have not been associated with the investigation of the case nor any notice had been issued to them. It has been submitted that if by an order interest of a person is adversely affected, he should be given a notice of hearing as natural justice so demands. Learned counsel for the appellant has also submitted that the prosecution has failed to establish its case as no material has been brought on record which can indicate that the said assets and properties were acquired through corrupt practices. Reliance has also been-placed on a judgment of this Court in Criminal Ehtesab Appeal No,13 of 2002. The defence evidence appears to be sufficient, that the appellant has given a satisfactory account of his source of income with which he acquired the assets and properties held by him.
14. The observations of the Hon'ble Supreme Court in case the State through Prosecutor-General Accountability, National Accountability Bureau, Islamabad reported in 2003 SCM R 150 are noteworthy, the relevant portion of which is reproduced below for the sake of facility:-- "The High Court had relied on the cases of Khan Asfandar Wali v. The Federation of Pakistan (PLD 2001 SC 607) and Mir Ahmed v. The State PLD 1962 SC 849), wherein it was held that if, on analysis of the evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case and in consequence thereof accused is entitled to the benefit of doubt on the ground that the prosecution has not proved its case beyond reasonable doubt. The learned High Court did consider the case in its proper perspective and rightly allowed the appeal of the respondent, whereas the trial Court failed to properly consider the evidence adduced by the parties." Similarly, in another case Syed Ali Nawaz Shah v. The State reported in PLD 2003 SC 837, it has been observed: "12.... ... ...This is well-known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt 'should rest squarely and G firmly on the evidence. It is the fundamental rule of criminal administration of justice that basic onus always rests on the prosecution, to prove the guilt of the accused and the special provision can neither be construed to mean that the onus of the prosecution to prove the guilt is shifted to the accused to prove his innocence or a presumption of guilt can be raised against an accused without discharge of initial burden by the prosecution.. The only exception to the above rule in special law can be that on the discharge of the initial burden of proving guilt by the prosecution through the evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, presumption of guilt can be raised against him...."
15. Having regard to the above mentioned factors, circumstances of the case and authorities, we are of the view that the prosecution has failed to discharge the onus of proof. The presumption of guilt raised against the appellant and his conviction is therefore, not warranted in law. The appellant is entitled for benefit of doubt which is accordingly extended in his favour. Consequently, we allow the appeal and set aside the conviction and sentence awarded to the appellant under the impugned judgment. The appellant is acquitted of the charge. He may be released if not required in any other case.