1. ' RAHMAT HUSSAIN JAFFERI, J.---The present appeal is directed against the judgment, dated 11-7- 2002 passed by the learned Judge, Accountability Court No,5 Sindh Karachi, by which the Learned Judge convicted the appellant for offence punishable under section 10 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance) and sentenced him to suffer imprisonment for five years and fine of Rs,1,85,00,000 or in default thereof to suffer R.I.
2. For two years. The trial Court further disqualified the appellant as provided under section 15 of the said Ordinance and forfeited the property, which was the subject-matter of the case.
3. ' Brief facts giving rise to the present appeal are that the Chairman NAB filed Reference against the appellant alleging therein that the appellant had purchased the property viz. Cheatu De La Reine in Le Mensil-Leiubray in Normandy, France, worth French Francs 48 lacs, equivalent to Pakistani Rs,1,81,32,482 on 12-4-1990 in his name and in the name of his wife that is disproportionate to his known source of income and acquired the property from illegal source of income. The Chairman NAB showed the source of income of the appellant which the appellant had showed in his income returns from the years, 1976 till 1990 that comes to Rs,15,15,355. It was alleged that this amount was much less than the value of the property on which the appellant had purchased it.
4. ' At the trial the prosecution examined 11 witness to prove the case. The appellant in his statement recorded under section 342, Cr.P.C. Admitted the purchase of the property in his name, and in the name of his wife in the above-mentioned amount, but took the plea that the same was purchased from legitimate sources of income as he was Zamindar, successful businessman of Film World, owner of big Cinema Building in Karachi, remained Director of Eastern Federal Union Insurance Company and Commerce Bank, which was subsequently, merged in United Bank Ltd. He further took the plea that he owned properties worth crores of rupees. He was selling and purchasing the agricultural properties. With regard to the purchase of bungalow in question. He took the plea that he pledged EFU shares before the United Bank Ltd., obtained loan, and thereafter, purchased the said property. He further took the plea that his daughter-in-law Mohtrama Benazir Bhutto was the then Prime Minister of Pakistan; that there was political rivalry between the government and his daughter-in-law, therefore, he has been involvedin the case falsely. He also took the plea that the Government had filed Ehtisab Reference in the year, 1998 against his daughter-in-law on the allegation that the property in question was owned by her through her husband and the appellant.
5. In his support he examined nine (9) witnesses.
6. ' The Learned Judge after going through the evidence and hearing the parties' counsel, took the view that the appellant failed to explain sources, of income from which he purchased the property, therefore, convicted and sentenced him as mentioned above under the impugned judgment.
7. ' We have heard advocate for the appellant, DPGA for NAB and perused the record of this case very carefully.
8. ' The learned advocate for the appellant after taking us to statements of the prosecution witnesses particularly P.W.4 Freddy Rusthomjee, Head of Operation Deutsch Bank, P.W.5 Abdul Wasi, Assistant Director, Foreign Exchange Department of State Bank of Pakistan and D.W.3 Muhammad Amin OG- II, United Bank Ltd. Argued that the EFU shares were pledged with UBL and after obtaining loan from it, US dollars were purchased for the required amount and then the property was purchased. He has further argued that the appellant was Director of EFU, therefore, for becoming a Director it was necessary to have sufficient numbers of its shares to qualify to become the Director; that the units were purchased from the income of agricultural, film business and selling of agricultural properties; that the observation of the trial Court that the appellant was pauper is not supported from the record, but on the contrary, he owned large numbers of properties and cash. He has further stated that the appellant has satisfactorily explained legitimate sources of income from which the property was purchased and it was not difficult for him to purchase the said property because he was owner of properties worth crores of rupees.
9. ' Conversely, the learned DPGA has stated that the appellant has failed to explain as to from where he purchased EFU shares from which the property was purchased; that the appellant was required to explain such source and without such evidence it cannot be said that the property was purchased from legitimate source of income. He has further stated that the impugned property was not declared before the Election Commission and Income Tax Department, as such, he had concealed the same, which clearly shows the guilty mind of the appellant. He has supported the impugned judgment.
10. ' From the facts of the case, the appellant has been tried for offence as defined under section 9(a)
(v) and punishable under section 10 of the Ordinance. The offence was allegedly committed in the year, 1990 and the reference was filed in the year, 2001, as such, the provisions of law, which were applicable in the year, 2001, would be applicable. At the relevant time section 9(a)(v) of the NAB Ordinance, 1999, was as under:-- "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:--
(v) if he or any of his dependents or benamidars owns, possesses, or has (acquired) right or title in any (movable or immovable property) or pecuniary resources disproportionate to his known sources of income, which he cannot account for or"
11. ' In order to prove the case, the prosecution is required to prove the ingredients of the offence, which are (1) it must establish that the accused was holder of a public office, (2) the nature and extent of the pecuniary resources of property which were found in his possession, (3) it must be proved as to what were his known sources of income, i,e,, known to the prosecution after thorough investigation and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence as defined under section 9(a)(v) is complete, unless the accused is able to account for such resources or property. Thus, mere possession of any pecuniary resources or property is by itself not an offence, but it is failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence. If he cannot explain, presumption under section 14(c) of the Ordinance that accused is guilty of corruption and corrupt practices is required to be drawn. Reference is invited to a case Biswa Bhushan Naik v. State (AIR 1954 SC 350) in which identical provision in Prevention of Corruption Act, 1947 were interpreted.
12. ' In the present case, the prosecution alleged that the appellant was holder of a public office being Member of National Assembly in the years, 1988 and 1993. The appellant has admitted such position, as such, first ingredient of the offence is proved.
13. ' As regards the second ingredient, the prosecution alleged that the appellant had acquired a property viz. Cheatu De La Reine in Le Mensil-Leiubray in Normandy, France, Worth French Francs 48 lacs, equivalent to Pakistani Rs,1,81,32,482 on 12-4-1990. The said aspect of the case has also been admitted by the appellant not only during the course of cross-examination, but in his statements recorded undersections 342 and 340(2), Cr.P.C. And by leading oral and documentary evidence.
14. Apart from above property, the appellant has shown various other properties, but the prosecution did not show such properties in the reference, however, the prosecution requested the Court to try the appellant in respect of one Bungalow in France only. Thus, it is an admitted fact' that the appellant owns the impugned property. By not adding the other properties owned and possessed by the appellant, the prosecution apparently is of the view that the said properties were acquired from legitimate sources of the income of the appellant except the impugned bungalow.
15. ' As regards the third and fourth ingredients of the offence and about the known sources of income, the expression "known sources of income" must be taken to the sources known to the prosecution on a thorough investigation of the case. It does not mean sources known to the accused for the simple reason that the prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of Article 122 of Qanun-e-Shahadat Order, 1984, which reads as under:- "When any fact is specially within the knowledge of any person burden of proving that fact is upon him."
16. ' This also does not mean that the prosecution is absolved from holding any enquiry or investigation about the sources of income. There are two types of persons within the scope of holder of public office under the Ordinance; public servant and other persons holding public office.
17. The cases of public servants and other persons are required to be dealt with separately and differently, as in the former case his known source of income would be salary and for other sources he is required to declare them in the annual declaration of assets filed with the department or income received from any lawful sources, the receipt of which has been intimated in accordance with the provisions of any law, rules or order for the time being applicable to public servant, therefore, such sources can easily be obtained by examining such documents. Secondly, he can earn income from his properties and investments that are also required to be mentioned in such statement. Whereas the case of other persons holding public office is quite different and distinguishable from the public servant, as the source of income of a particular individual depends upon his position in life with particular reference to his occupation or avocation in view. Thus, known source of income in the case of other persons, the prosecution is required to hold a detailed enquiry and investigation to ascertain the said sources of income. Furthermore, the word "income" used in the above provision is also a very mignificant; its meaning has been defined in Chambers 21st Century Dictionary as"money received over a period of time as payment for work, etc., or as interest or profit from shares or investments." Further, for the word "income" it would be primary to observe that in the capacity of public servant the income would be what is attached to his office or post, commonly known as remuneration or salary. The term "income" by itself, is classic and has a wide connotation. Whatever comes in or is received, is income. But, however wide the import and connotation of the term "income", it is incapable of being understood as meaning receipt having a nexus to one's labour, or expertise, or property, or investment, and being further a source which may or may not yield a regular revenue. These essential characteristics are vital in understanding the term "income". Therefore, it can be said that, though "income" is receipt in the hand of the recipient, every receipt would not partake into the character of income. Qua the public servant, whatever return he gets of his service, will be the primary item of his income. Other income which can conceivably be income qua the public servant, will be in the regular receipt from (a) his property, or (b) his investment. A receipt from windfall, or gains of graft, crime or immoral accretions .By persons prima facie would not be receipt form the "known sources of income" of a public servant or a person holding public office as mentioned in the above provision of law.
18. ' In the present case, what the prosecution did that during the investigation they called the Income Tax Returns of the appellant and relied upon the said returns. In the Income Tax returns of the appellant from the years, 1976 and onwards the appellant claimed exemption of certain amounts in respect of agricultural income. The prosecution relied upon the said figures and took the said income tax returns as conclusive proof of income of the appellant and formed the opinion that the amount mentioned by the appellant in the Income Tax Returns was the only source of income. The said amount was calculated at Rs,15,15,355. The prosecution took the said amount to have been earned by the appellant as full source of income and then formed opinion that from that amount property worth Rs,1,81,32,482 could not have been purchased, therefore, the said property was disproportionate to the known source of income. It will be advantageous to reproduce some portions of cross-examination of Income Tax Officers P.Ws.8 and 9:-- ' Cross-examination of P.W.8:-- "The above stated details are for individual assessee Mr. Hakim Ali Zardari and not of Messrs Zardari Group of (Pvt.) Ltd., The record did not show any other exemptions from tax claimed by the assessee. This is the exempted income shown in the declaration; there can be other taxable income. There can betaxable income alsoIn the income tax returns, the said assessee had not declared the total value of the EFU certificates, and only declared the amount of income earned therefrom, and claimed exemption thereof. It was not necessary for an assessee to declare in the return of income tax the total value of the property , out of which a particular earning or profit is claimed by him. The details of the agriculture property, and otherwise were not shown in the returns, for the reason that there was no such requirements It is correct to say that the returns come within the meaning of public record, I do not remember if Mr. Tatari Investigating Officer had demanded the certified copies of the said returns from me. I do not remember the value of EFU certificates. (Question to the witness "I say that the total worth of the EFU certificates out of which exempt income is shown by the assessee is worth Rs,3 crores". It may be possible or may not be so possible, but it is not relevant for the purposes of the information asked for from me. I did not hold any enquiry pertaining to the actual value of the EFU certificates, out of which the profits/income was claimed by the assessee. The witness voluntarily states that the scrutiny of the returns had already been finalized. I cannot say if my predecessor held any such enquiry. I cannot comment on the question if the grand total income of Rs,12,16,490 mentioned by me can only be drawn out of agriculture land, worth millions of Rs,"
19. ' Cross-examination of P.W.9:-- "I own the contents of para. No,1 of my 161, Cr.P.C. Statement, whereby I stated that Mr. Hakim Ali filed his revised wealth tax returns on 31-12-1999 for the assessment years 1990-91 to 1997-98, thereby declaring the property purchased abroad in the joint name of his wife Mrs. Zarin Ara. I also stated therein that she was not coming as an assessee within myincome tax circleIrrespective as to the legal embargo, if within time or beyond time, an assessee is at liberty, by law, to file the revised wealth tax returns, at any time. The assessment was still pending, whenthe revised wealth tax returns were filed, on 31-12-1996I do not know if the appeal in this respect of Hakim Ali is still pending in the competent forum. It is correct to say that for the purpose of exemption from income tax, the foreign exchange bearer certificates are exempted. (The income tax, and that he had charged the tax against a foreign asset). It is incorrect to say that if FEBC are exempt from the declaration in the wealth tax returns. It is correct to say that under the Finance Act of 1996, foreign exchange bearer certificates are exempt from declaration in the wealth tax returns. It is correct to say that the Foreign Exchange Bearer Certificates Rules 1995 direct exemptions from declaration of FEBC in the Wealth Tax Returns.
20. It is correct to say that in the amendment made in the Wealth Tax Act, 1963, by Finance Act, 1996, a relaxation is provided in penalty proceedings for voluntarily filing of the returns, detailed thereunder. Only new tax payers who had not filed wealth tax return were provided immunity from payment of wealth tax, against a jointly owned house, by two or more persons. It is correct to say that old tax payers were also given the facility to avail immunity for past defaults, for any reason, by similarly filing returns and paying tax for past years, latest on December, 31, 1996. From such an angle, the revised wealth tax returns filed on 31-12-1996 by Hakim Ali Zardari were within time."
21. ' Thus, it is clear that the income tax returns were not portraying correct picture of the income of the appellant as they showed exemption obtained on certain amounts without disclosing the total income.
22. ' We have already pointed out that the case of the appellant is to be examined differently from the case of public servant keeping in view his position in life with particular reference to his occupation, business or avocation. In the case of the appellant the prosecution was required to hold a detailed enquiry to ascertain the sources of income, but it appears that the Investigating Officer did not perform his duties diligently and properly as he did not conduct any sort of investigation to know the other sources of income as is clear from his own admissions. In the cross-examination the Investigating Officer P.W.11 Muhammad Ahmed stated as under:-- "I had a discussion with accused Hakim All Zardari, and did not record his statement. He is neither my friend nor related to me. I held the said discussion about the allegations of this case. It is correct to say that I did not reduce his replies into writings. I did not ask him -to give his witnesses in his defence, to the allegations made against him. I started enquiry 1st or 3rd March, 1998. It may be suggesting that the enquiries were already going on upto the level of DG, FIA, Islamabad, I did not record 161, Cr.P.C. Statement of D.G. It is correct to say that evidence regarding the income, exempt from the tax, have been produced, and that the income which is taxable has not been produced. I do not know if the income-tax return, pertaining to the agricultural income, is not to be submitted before the Income Tax Department. I do not know if theagricultural income was free from tax, of what-so-ever extents, it might have been. It is incorrect to suggest that I was given the instructions to send a report against accused Hakim Ali Zardari and, therefore, I did not feel it necessary to ask from the Income Tax Department about the actual income shown by him in his other returns. It is incorrect to say that the actual numbers of Foreign Exchange Bearer Certificates are available with the Deutche Bank, Karachi, and I failed to seek such details from them. I do not know about the EFU shares, owned by the accused. I did not conduct any enquiry, to have such details from any relevant quarter. I do not know that the accused earned amount of Rs,2 crore by selling out his petrol Pump of Rawalpindi, and a big plot called "Tourist Village ' I did not approach any revenue mukhtiarkar to get the details, regarding the agricultural land owned by the accused. I did not feel it necessary to conduct inquiry as to whether the accused could have other legal sources of income, for acquiring the amount, for purchasing the property. It is incorrect to suggest that I did not hold such an enquiry, only because it was previously determined to submit a report against the accused, to implicate him in this case. I did not enquire, nor do I know, as to how much wealth-tax was paid by accused Hakim Ali Zardari. I do not know the extent of income from per acre agricultural-land, and pertaining to different corps and different fruit-farms. I do not know if per acre income from Banana comes to Rs,50,000 to 60,000. I do not know if the accused and his wife are having cultivated lands of 50 hundred acres, comprising of banana, sugarcane and other fruits. It is incorrect to say that I have ignored mala fidely the fact that Hakim Ali Zardari was having cultivated lands of 2000 acres under different costly-crops, during the year, 1990, and onwards, and even before the year 1990. It is incorrect to suggest that I have concealed the shares of EFU and of other companies, the legitimate assets of the accused, and the income from the same. It is incorrect to suggest that I have prepared the documents dishonestly, while sitting in my house, and that I failed to conduct honest-investigation. It is incorrect to suggest that I did so, having received such instructions from the higher authorities. It is incorrect to suggest that I have acted dishonestly against the accused, under the instructions of high-dignitaries, due to their political-hostilities to the accused, and to Ms. Benazir Bhutto."
23. ' From the above statement of the Investigating Officer, it is clear that the prosecution did not hold proper enquiry or investigation to ascertain the known sources of income of the appellant, therefore, theprosecution has failed to prove third and fourth parts of the ingredients of the offence.
24. If the Investigating Officer had conducted proper and thorough enquiry or investigation, then he would have come to know about the other sources of the income of the appellant. Therefore, the prosecution was required to calculate the said income and determine whether the impugned property was disproportioned to the known sources of income of the appellant. It is pertinent to point out that the appellant apart from the impugned property has various other properties, which have not been mentioned in the reference, out of the properties, the prosecution choose the property, which was subject-matter of Ehtisab Reference filed against Mohtarma Benazir Bhutto in the year, 1998 alleging that the property was owned by her through her husband and the appellant.
25. Apparently, it shows the mala fides on the part of the prosecution. Thus, the prosecution has not established all the ingredients of the offence, therefore, the burden to account for property has not been shifted upon the appellant. However, the appellant has explained his position in his detailed statement recorded under section 342, Cr.P.C., which was recorded by his advocate with permission of the Court. The said statement reads as under:-- "The accused has authorized me to state that the accused is facing conditions pertaining to the Court-atmosphere, jail-atmosphere. Sir, the accused is not a free-man being confined in jail. He is unable to contact built and owned one of the best Cinema Houses of Karachi, called "Bambino Cinema". In 1964, project was developed and constructed 45 offices, showrooms and another Theatre named "Scala" were constructed and then accused started business of film-distribution and formed one of the biggest film distribution company in Asia at that time under the banner of "Bambino Films". Again accused constructed "Star Cinema" adjoining Bambino Cinema. Accused was one of the Directors of "Commerce Bank of Pakistan" and Director of Eastern Union Federal Insurance Company, which is largest Insurance Company of Asia. Accused had owned following lands in various places, some of those which accused remember are in the 28 properties of details duly signed by me, which are produced as Exh.92 to Exh.119. I am unable to produce originals of these documents as they are not with me. I will request this Hon'ble Court to call the following witnesses:--
(1) Mukhtiarkar, Tando Allahyar
(2) Tapedar, Tando Allahyar
(3) Sub-Registrar, Tando Allahyar
(4) Mukhtiarkar, Sinjhore
(5) Tapedar, Sinjhore
(6) Tapedar of Tappa Ritaniabad
(7) Sallam Khan Zardari R/o Nawabshah
(8) Muzaffer Hussain Sayed R/o Karachi (full address not known)
(9) Mr. Rasheed Ahmed Razvi, Advocate, Karachi.
(10) Senior Vice-President, Executive Circle, UBL, Karachi.
(11) Mqasood Ahmed, the then Assistant Vice-President, Banking, UBL, Karachi.
26. ' I also produce the photocopies of relevant papers in 37 leaves regarding the Scala, Theatre and Bambino Cinema as Exh.120.
27. ' In the present case, the allegations against the accused are that in the end of March, 1990 he had purchased this property. In March, 1990, he was holding 56125 shares of EFU Insurance Company in his name and 3500 shares in the name of his wife, total number of shares comes to 59625. He mortgaged these shares with the UBL and obtained the loan worth Rs,6.700 Millions. I produce photocopy of the Sanction letter, dated 18-3-1990 as Exh.121. Then again he mortgaged 1,11,125 shares which were standing in his name, and other 4000 shares in the name of his wife, total shares come 1,15,125 and again he obtained the loan (total) for Rs,12.999 Millions. I produce such letter, .Dated 26-3-1990 as Exh.122. In all, I had mortgaged 1,22,825 shares in number which were worth, at that time, Rs,299,69,300. At that time rate of one share was Rs,122 per share. Thereafter there was a dispute in between the accused and the UBL, wherein the accused asked them to supply him a copy of statement of account, but they did not supply it to the accused. In this respect, relevant papers of the accused might be in possession of Mr. Rasheed A. Razvi, Advocate.
28. As stated by the prosecution, the accused sold out his shares of FEBC viz. On 29-3-1990 FEBC worth Rs,17.00 millions and two hundred thousand which were got encashed from Duetche Bank, Karachi Branch. And thereafter, FEBC worth Rs,1,87,000 were got encashed and thereby demand draft for US$ worth 8222.05 and US$ worth 7,95,968.38 were got encashed from the Duetche Bank of Karachi, in exchange of the said FEBC. In this respect, I rely upon the statement of P.W. No,04. These FEBC's sources were not to be questioned by any authority in the country leaving aside my agricultural and other incomes, the details of these FEBCS and EFU shares show that the worth thereof was more than the double the price of the palatial house, which was purchased by accused. It was purchased by the accused legally in the crucial month of March, 1990. Before that he had sold outhis agricultural lands to Mr. Ghulam Mustafa Jatoi, worth millions of rupees. I will submit list of further .DWs on the next date of hearing. The accused is innocent. None of the prosecution witnesses has deposed against the accused. Only the Government servant witnesses have deposed against the accused, they are under the influence of the Governnient....
29. ' No other property is mentioned except this house and therefore I am unable to state about the allegation- of accumulation of the properties. It is not understandable about the particulars of allegations of corruption and corrupt practices as no date, time or place is mentioned for the said allegations. It is impossible for accused to reply for the vague and general allegation made against the accused. Question No,2 is out of ambit of the provision of NAB Ordinance, 1999 and section 342, Cr.P.C. The previous Government of Nawaz Sharif started victimizing my daughter-in-law Ms. Benazir Bhutto and her husband Mr. Aasif Ali Zardari, who is my son. In the year, 1997 an inquiry was conducted by the authorities, regarding the purchase of this house. But, as they could not find any proof of any malpractice at his hands, therefore, accused was shown as a "Benamidar" of this property, and a Reference was submitted against his son by the then "Ehtesaab Bureau" alleging that he is owner of this property, having purchased it in the name of accused. I have filed a copy of the Reference previously filed against him, which I produce as Exh.123. When the Government failed to pressurize my son Aasif All Zardari for compromise, this Reference- was filed against the accused for the very same property, for which previous reference was filed earlier. Inspite of statement of the S.P.P. That it would be withdrawn, the same is not yet withdrawn and this case suffers from law of "double jeopardy", while this property is purchased by me in my name and in the name of accused's wife, the whole family is being involved forthis one house.
30. ' Accused had filed, Revised Declaration of assets/Wealth within time viz. 31-12-1996 as notified by the C.B.R. I rely upon the deposition of P.W. Gohar' Ali, who had admitted that filing of Revised Return was within time by Commissioner I/Tax without writing, passed an illegal order, which is challenged by the accused before the Appellate I/Tax Tribunal, and the matter is sub judice before the competent forum, therefore, this Court is not competent to adjudicate upon this issue. The Income Tax Department already assessed- the properties and I have already paid the wealth tax. There was no column in the form of Declaration of Assets provided by the Election Commission ofPakistan and therefore could not mention his property situated in aboard viz. France. More-over, the photocopies of the returns do not bear his signatures, nor the same are admissible in evidence.
31. Therefore, he has not committed any offence pertaining thereto. The Election Commission have misguided this Court. Accused had declared his foreign based property staking the benefit of immunity / txemptions announced by the C.B.R. Regarding the case of 31-12-1996. The allegations are denied by the accused."
32. ' The above statement of the appellant is supported by various documents and evidence led by him and so also from the prosecution witness P.W.4 and D.W.3, who gave the full account as to how the property was purchased. The appellant also examined his advocate on his behalf on oath, in which he gave the same details as mentioned above.
33. ' The entire case of the prosecution rests upon the Income Tax Returns, but it is pointed out that the rigid approach which should be made in dealing with cases against the public servants depending only on salary cannot be made against categories of other persons, who are permitted not only to draw their salaries, but also to receive payment or permitted private practice or from other sources of income. In the present case, the appellant was Member of National Assembly. He was drawing salary along with perks attached with the said office, but the law did not put any restriction upon him to do any business or earn income from other sources.
34. ' Previously, in the Representation of the People Act, 1976 it was not required to file statement of the assets and liabilities by returned-candidate, but the same are filed vide Ordinance XVI of 1993, dated 19-8-1993, by which the returned-candidates are required to file statement of assets as per Exh.34. If the property was not declared in the said return before the Election Commission or in the Income Tax Return then adequate provisions are available thereunder to deal with the situation, as such, non-compliance of such laws would be dealt with under the said laws, but it cannot be termed that the appellant had not earned the income. The main question is that the income should be earned through legitimate source. The appellant has shown the sources of income in his statement recorded under section 342, Cr.P.C. One of them was also Director EFU, therefore, all the income earned through those sources was through legitimate sources.
35. ' As regards the burden of proof the normal rule of law is that an accused is presumed to be innocent until his guilt is proved, established and the onus of establishing the guilt is always on the prosecution. But the rule of law laid down in section 14(c) of the Ordinance is a departurefrom normal law and under this section, a presumption of corruption and corrupt practices is required to be drawn, if the accused or any person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income for which sources he cannot satisfactorily account. For shifting the burden upon accused to account for the sources of income, the words of the statute are preemptory and the burden must lie all the time on the accused to prove the contrary, after the conditions laid down in the earlier part of the section I have been fulfilled by the prosecution through evidence to the satisfaction of the Court and then the Court is required to draw the presumption that the accused person is guilty as provided under section 14(c) of the Ordinance. Such presumption continues to hold the field unless the Court is satisfied that the statutory presumption has been rebutted. The onus upon the accused is not as strict as the initial onus on the prosecution which has first to establish the disproportion between the properties held by accused and the known sources of his income. But where from the facts the disproportion was not satisfactorily explained by the accused it could not be said that excessive burden was thrown on him to explain the disproportion. A reference is invited to Rameswar Prasad Upadhya v. State of Bihar (AIR 1971 SC 2474). Thus, the nature and extent of the burden cast on the accused is that he is not bound to prove his innocence beyond any reasonable doubt, but the prosecution is while examining the explanation of the accused the above principle is required to prove the charge beyond any reasonable doubt, therefore, required to be kept in view and if the accused is able to explain the circumstances to the satisfaction of the Court then that will be enough to discharge the burden.
36. ' The appellant not only in his statement recorded under section 342, Cr.P.C. Elaborately explained sources of income but has supported the same from the statement on oath of his advocate, the prosecution and defence witnesses and documents. In the case of State of Maharashtra v. Laxman (AIR 1962 SC 1204) a Bench of three Hon'ble Judges observed as under:-- "All that the learned Judge there meant to say was that the evidence of the statement of the accused in the circumstances of that case was not sufficient to discharge the onus but that does not mean that in no case can the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places the onus on him. Under section 342, Criminal Procedure Code, the Court has the power to examine the accused so as to enable him to explain any circumstances appearing in evidence against him. Under subsection (3) of that section the answers given by an accused person may be taken into consideration in such enquiry or trial. The object ofexamination under section 342 therefore is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused. Therefore, if the Courts below have accepted this explanation it must be held that the respondent has discharged the onus which was placed on him by section 66(2) of the Act (Bombay Prohibition Act, 25 of 1942). "
37. ' In Ayyaswa my's case, AIR 1965 AP 105; their Lordships Jaganmohan Reddy, J. (as he then was) and Venkatesam, J., after reviewing the Supreme Court decisions referred to supra, held that where a presumption such as the one under section 4 or section 5 of the Act places the onus upon the accused to rebut a presumption, it may be that mere explanation of the accused may not be sufficient, but that it cannot, at all same time, be said that explanation cannot, if accepted as true, rebut the presumption, and laid down the following principles:--
(1) It cannot be laid down as an absolute rule in rebutting the presumption placing the onus upon the accused either under subsection (1) of section 4 or subsection (3) of section 5 of the Act, that he must adduce evidence aliundi, and that his explanation taken with other circumstances which might appear in the prosecution evidence will not afford a rebuttal of that presumption.
(2) While the explanation of the accused may be taken into consideration and treated as evidence in the case in order to rebut such a presumption, it is not sufficient that the version by him is merely reasonable or probable.
(3) In order to rebut the presumption the statement of the accused taken with other circumstances must be accepted as true, or should amount to proof (within the meaning of section 3 of Evidence Act).
38. ' After considering the material available on the record, we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, the appellant was given benefit of doubt while passing the short order, dated 24-1-2007.
39. ' These are the reasons of the said short order.