1. ' RAHMAT HUSSAIN JAFFERI, J.--- The petitioner has filed the petition for grant of bail, on fresh ground that evidence has been recorded after dismissal of his earlier bail application which was dismissed by this Court on 1-6-2007..
2. ' This is a case of acquiring properties disproportionate to the known sources of income of the petitioner. The learned Advocate for the petitioner has stated that the complaint was made by a private person; that it has no nexus with the NAB Ordinance, therefore, the NAB Authorities had no jurisdiction to investigate the case. He has further stated that the dispute is a private dispute as such it cannot be tried by Accountability Court. He has relied upon an unreported authority of the Honourable Supreme Court of Pakistan in Civil Petition No,560 of 2007 (Nadeem Majeed v. State) decided on 29-6-2007. He has further stated that the prosecution is required to prove that the properties were acquired through corruption and corrupt practices which the prosecution has failed to show either in the complaint or in the evidence therefore presumption as required under section 14(c) of the NAB Ordinance cannot be drawn. In his support, he has relied upon the case of Muhammad Hayat v. State PLD 2002 Pesh.
3. 118.
4. ' Conversely, the learned A.D.P.G.A. Has stated that the petitioner is a holder of public office as such rule laid down by the Honourable Supreme Court of Pakistan in the unreported authority is not applicable- in the case and that in the said authority only leave was granted to consider whether the private persons can be prosecuted by the NAB Authorities. He has further stated that the offence would fall under section 9(a)(v) of the 'NAB Ordinance which by itself is an offence of corruption and corrupt practices; that the prosecution is not required to prove corruption and corrupt practices independently in view of the provisions of section 14(c) of the NAB Ordinance, therefore, he has opposed to the grant of the bail.
5. ' As regards the first contention of the learned Advocate for the petitioner, it is pointed out that the complainant was a private person who furnished certain information to the NAB Authorities. The Chairman NAB has power to take cognizance of three sources either on the Reference received from the Government or on his own accord or through some complaint as provided under section 18(b) of the NAB Ordinance. After receipt of the complaint of the present case, the Chairman NAB formed opinion that the matter required inquiry and investigation therefore he referred the matter to the investigating agency for inquiry, and investigation as required under section 18(c)' of the NAB Ordinance. Thus the actions of the Chairman NAB are protected under the provisions of section 18(b) and (c) of the NAB Ordinance.
6. ' As regards the second contention of the learned Advocate for the petitioner that a private dispute cannot be decided by the NAB authorities and relied upon the ruling of the Honourable Supreme Court Of Pakistan, suffice it. To say that the petitioner is a holder of a public office therefore he is not a private person. The allegation against the petitioner is of accumulation of assets which are allegedly disproportionate to the known sources of income. The offence would fall under section 9(a)(v) of the NAB Ordinance. In the above mentioned Supreme Court authority, the Supreme Court granted leave to examine the question as to whether the private persons can be prosecuted under the NAB Ordinance. The learned Advocate for the petitioner has further' argued that the Honourable Supreme Court granted bail to the accused therefore petitioner may also be granted bail. In that case, the accused was a private person but in the present case the accused is a holder of public office as such the said authority is distinguishable from the facts of the Present case.
7. ' As regards the last argument of the learned Advocate for the petitioner, the offence of acquiring properties disproportionate to the known sources of income is defined under section 9(a)(v) of the Ordinance that wads as under:---
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---
(v) if he or any of his dependants or Benamidars owns, possesses, or has (acquired) right or title in any ("assets or holds irrevocable power of attorney in respect of any assets") or, pecuniary resources disproportionate to his known sources of income, which he cannot (reasonably) account for (or maintains a standard of living beyond that which is commensurate with his sources of income)."
8. ' From perusal of the above provision, it is clear that if the holder of a public office or any other person or his dependents or Benamidars owns or possesses. Or has acquired right or title in any.
9. Assets or gives irrevocable power of attorney in respect of any assets or pecuniary resources which are disproportionate to his known sources of income and which he cannot reasonably account for then it will be an offence of corruption and corrupt practices. Under this provision of law, the prosecution is required to prove the following points:---
(1) The accused was holder of public office.
(2) Nature and extent of pecuniary resources of property which were found in his possession.
(3) What were his known sources of income i.e., known to the prosecution after thorough investigation.
(4) Such resources or property found in possession of the accused were disproportionate to his known sources of income.
10. ' Once the above ingredients are established by the prosecution, the offence under section 9(a)(v) is complete, unless the accused is able to account for such resources and property. Thereafter, the Court is required to presume, unless contrary is proved that the accused is guilty of offence of corruption and corrupt practices and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption as, provided under section 14(c) of the NAB Ordinance.
11. Reference is invited to Hakim Ali Zardari v. State 2007 MLD 90.
12. ' The learned Advocate for the petitioner has referred to the case of Muhammad Hayat which is of Division Bench of Peshawar High Court. In that authority, section 14(c) was examined and ultimately it was observed as under:--- "Unless the facts constituting misuse of authority as contemplated under section 9(a)(vi) of the National Accountability Bureau Ordinance, 1999 are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the said Ordinance."
13. ' It will be noticed that offence as defined in section 9(a)(vi) is a different offence. The said provision reads as under:---
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---
(vi) (if he) misuses his authority so as to gain any benefit or favour for himself or any other person, or (renders or attempts to render) or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority."
14. Clause (v) by itself is an offence of corruption and corrupt practices so also clause (vi) and other clauses. As already observed that if the ingredients of clause (v) are first established by the prosecution then the offence of corruption and corrupt practices would be made out and for that the above mentioned requirements are required to be proved. With utmost respect, we are unable to share with the observation made in the case of Muhammad Hayat of Pe.Shawar High Court as clause (v) of section 9(a) is clear which by itself is an offence of corruption and corrupt practices.
15. The presumption under section 14(c) is that the Court is required to presume if the prosecution proves that the accused is guilty of offence of corruption and corrupt practices on the condition that the prosecution proves the ingredients of clause (v) of the offence.
16. ' The learned Advocate for the petitioner has also relied upon the authority of Haji Kabir Khan v.
17. State 2003 YLR. 1607, on the proposition that misuse of power must relate to a period during which a person in a position as holder of public office has misused his position for private gain. In the present case, acquiring of properties is within the period when the petitioner was holding the public office. This is not a case of misuse of public authority as such the said authority is not applicable to the facts and circumstances of the case.
18. ' After considering the material available on the record, we are of the considered view that the petitioner is not entitled to the concession of bail, hence the petition is dismissed. Nevertheless the trial Court is directed to decide the case within the statutory period.