' CH. EJAZ YOUSAF, J.--- This criminal petition for leave to appeal is directed against the judgment dated 30-5-2006 passed by a learned Division Bench of the Peshawar High Court, Peshawar, whereby Ehtesab Criminal Appeal No,5 of 2004 filed by the petitioner against his conviction and sentences recorded by Judge, Accountability Court No,III, Peshawar, was dismissed. Writ Petition No,93 of 2005 titled Syed Qasim Shah v. Regional Accountability Bureau, which was in essence a bail application, too was dismissed.
2. Facts of the case, in brief, are that NAB Authorities started investigation against the petitioner on the charge that he had accumulated wealth worth Rs,17,61,55,613 which was disproportionate to his known sources of income. On completion of investigation the petitioner was challaned to face trial under section 9 of the National Accountability Bureau Ordinance, 1999 hereinafter referred to as "the Ordinance" in the Accountability Court No,III, Peshawar. Schedule of properties included the properties of the petitioner as well as in the name of his spouses, dependants/Benamidars. Since detail of the properties is available in the impugned judgment as well as judgment of the trial Court therefore, needs not to be mentioned here for the sake of brevity.
3. Charge was accordingly framed to which the petitioner pleaded not guilty and claimed trial. At the trial, the prosecution in order to prove the charge and substantiate the allegations leveled against the petitioner produced 22 witnesses in all whereafter the petitioner was examined under section 342, Cr.P.C. In his above statement the petitioner, while denying the allegations pleaded that the properties in question were acquired by him through legitimate sources and, in no way, were disproportionate to his known sources of income. He also appeared as his own witness in terms of section 340(2), Cr.P.C. Besides producing 29 witnesses in defense. After hearing arguments of the learned counsel for the parties the learned Judge Accountability Court No,III, Peshawar convicted the petitioner and sentenced him to the punishments, vide judgment dated 24-6-2004, as under:--- ' Under section 9 of the NAB Ordinance, 1999 for possessing assets to the tune of Rs,3,62,90,303 sentenced to four years' R.I. Along with a fine of Rs,3,62,90,303 under section 10 of the National Accountability Ordinance, 1999. The amount of fine was to be paid by the accused within one month from the date of the judgment, failing which the same was to be recovered through auction of the confiscated properties. The agricultural land mentioned at Sl. No,1 to 26 of the reference and share of the accused in the industrial units and chain of hotels were also confiscated to the State.
The accused was also to face the consequences i,e, disqualification provided under section 15 of the National Accountability Ordinance, 1999.
' Benefit of section 382-B, Cr.P.C. Was however, afforded to the petitioner/accused.
' The aforementioned judgment was assailed before the High Court, through Ehtesab Criminal Appeal No,5 of 2004, which could not find favour and was dismissed. Hence, this petition.
4. Mr. Muhammad Sardar Khan, Senior Advocate Supreme Court, learned counsel for the petitioner has contended that findings of the High Court as well as of the trial Court holding that the petitioner possessed assets disproportionate to his known sources of income is based upon misreading and non-reading of material evidence on record; that prosecution having failed to prove any element of mens rea or commission of acts of corruption and corrupt practices by the petitioner, conviction and sentences recorded against him under the provisions of the Ordinance, are not sustainable. It is further his case that in cases where allegation is that the assets are disproportionate to the known sources of income, it is always necessary to separately evaluate the assets acquired through the known sources and then to compare the same with the total assets without doing the exercise it therefore, could not have been held that the petitioner was holding assets disproportionate to his known sources of income. He has further contended that even paid- up loans, for establishment of Industries was wrongly treated as his own money; that evaluation of the properties has not been done on the basis of share-holding; that the private limited companies have not been treated as private limited companies but have been treated as being owned by the petitioner; unreal valuation has been assessed of private limited companies ignoring the valuation of shareholding with Security and Exchange Commission of Pakistan, Income Tax Department and assessed by Auditors and Chartered Accountants; that calculation of his salary was also incorrect.
He maintained that though the income claimed by the petitioner was documented, over the years, in public documents which were exhibited through official witnesses, yet the same was not considered by the learned trial Court as well as the High Court; that Kaghan Ghee Mills (Private)
Limited, which had an income of Rs,6,30,89,118 (Exhibited by D.C. Income Tax) and was used in inter- project investments by the Company into other units/hotels, though exhibited by official witnesses the income referred to above has not been taken into consideration as a known source; that the learned Trial Court as well as the High Court have unjustifiably refused to count agricultural income as well as the income from forest produce, towards known sources of income of the petitioner hence, have fallen in error while calculating the value of his known sources of income.
5. Dr. Muhammad Asghar Rana, learned Additional Prosecutor-General NAB, on the other hand, while controverting the contentions of the learned counsel for the petitioner, has submitted that the petitioner, in the reference, was charged for accumulation of assets beyond his known sources of income which is covered under section 9(v) of the Ordinance and section 14(c) of the said Ordinance and provides that Court shall presume, unless the contrary is proved, that the accused is guilty of corruption and corrupt practices and his conviction shall not be invalid for the reason only that it is based on such a presumption. He has added that the trial Court while assessing assets of the petitioner has held that the properties at Serial Nos.1 to 26 of the reference exclusively belonged to the petitioner and his dependants. The value of those properties was determined at Rs,64,94,655 and the petitioner was required to explain the said amount. Regarding industrial units and chain of hotels, the trial Court separated the shares of the brothers of the petitioner from the total value of the assets and thus the petitioner was held responsible to explain the amount of Rs,3,33,85,311 and in this way, the petitioner was held liable to explain an amount of Rs,3,98,79,966 and thus calculating the income of the petitioner, the Court held that the petitioner has proved the income of Rs,35,89,663 and while affording benefit of the amount accounted for, the rest was required to be explained by the petitioner. Since the petitioner failed to do so therefore, he was rightly held guilty for the offence for not explaining the amount of Rs,3,62,90,303. Learned counsel maintained that though the petitioner was doing business prior to 1985 and had a lot of money yet, since no evidence was produced in this regard and only some photo copies of work orders were furnished at the trial, which were of no use, hence the defence plea was rightly not accepted. He further stated that since there was no proof that the agriculture land which basically consists of Shamilat was owned and possessed by the petitioner therefore, benefit of the income from the said land could not have been afforded to the petitioner. Further, most of the land is situated at the height of about 7000 feet and being at such a height, it was not capable to produce anything, thus the petitioner was not entitled to take benefit of income from the said land. Having been questioned as to whether any evidence on record was available to show that the land at such a height was barren and was not capable to produce anything, learned counsel candidly conceded that no such evidence was available, however, stated that it was understood. As regard the derived income from forest, he stated that though the petitioner had claimed an income of Rs,56,21,172 on that count yet, since the documents on the basis whereof the income was claimed, were self- prepared and were not official documents, therefore, no reliance could have been placed thereon.
6. We have heard the learned counsel for the parties at length and have perused the record minutely.
7. The perusal of record reveals that the accumulative wealth of the petitioner has been calculated by the NAB Authorities by considering the movable as well as immovable assets of the petitioner in his own name as well as in the name of his spouse and other relatives as Benamidars. The total assets include 26 properties consisting of land, 4 industrial units and 2 chains of hotels. Admittedly, all the properties were acquired during the period from 1990 to 1998 whereas the accumulative wealth of the petitioner was calculated in the year, 2004 on the basis of market values of all the properties prevailing at the time of filing of the reference and the facts was not considered that the properties were acquired at much less price. As per contentions raised by learned counsel for the petitioner, the petitioner was owner of various properties before 1985 and has also received huge amount after the disposal of some of these properties. For instance, the petitioner was owner of 1/3rd share in the Kaghan Match Factory at Mansehra which was established during the period 1975 to 1979 and sold to provincial government on 30-3-1981 for a consideration of Rs,3,329,000 and the petitioner received his share of Rs,1,109,666. The petitioner was also owner of Kaghan Brick Works at Islamabad which was incorporated on 14-4-1977 with a total share of Rs,650,000 which was later on sold to Overseas Pakistani Foundation and he received his share of Rs,2,166,666. The petitioner was also owner of Co-operative Housing Societies namely, Bana Alai Forest Cooperative Society and Potten Des Forest Society and he earned Rs,5,640,404 from the sale of plots of the same. The petitioner also received Rs,841,130 from the insurance claim. Similarly, the assessment of the hotels was not made properly as the same were owned by petitioner and his two brothers and each of them contributed Rs,2,610,000 but the NAB Authorities have wrongly assessed the value of the same at the market value of the land prevailing at the time of filing of reference and including the buildings constructed prior to 1981 and the benefit of escalation in the prices was not given to the petitioner. Kaghan Ghee Mill, was valued at Rs,39,458,000 but the same was jointly owned by petitioner and his brothers and the same was established after obtaining loan of Rs,23,000,000 from IDBP, N.-W.F.P. Equity support of Rs,5,000,000 and Directors Loan of Rs,958,000. The NAB Authorities as well as learned Courts admitted the loan but the amount of loan was not deducted from the value of the factory on the ground that the same had been repaid by the Mill from the profit of the Mill, however, only outstanding amount of Rs,6,411,874 of equity fund was deducted from the value of the Mill. Afghan Ghee Industry was valued at Rs,41,164,250, which was established with a total amount of Rs,14,333,005 invested by the Kaghan Ghee Mill, Rs,1,084,998 invested by one Iftikhar Hussain and Rs,8,849,396 was to be payable to the creditors. The amount of Rs,14,335,005 invested by Kaghan Ghee Mill and the amount of Rs,1,084,998 invested by Iftikhar. Hussain was deducted by the Court and the amount to be explained was fixed as Rs,25,746,247. Kaghan Flour Mill was valued at Rs,10,946,570 out of which the outstanding amount of loan was deducted and the amount to be explained was calculated as Rs,9,848,338. As per learned counsel for the petitioner, the actual value of the Mill was Rs,7,861,000 out of which Rs,600,000 was invested by other persons and Rs,300,000 was Directors Loan. Skardu Flour Mills was assessed at Rs,18,040,000 which was established by making investment of Rs,3,999,700 by the Kaghan Flour Mills and Rs,9,000,000 invested by other persons. The trial Court deducted the amount of Rs,9,000,000 invested by other persons but the amount of Rs,3,999,700 invested by the Kaghan Flour Mill was not deducted from the value of the Mill.
8. Both the Courts below have failed to consider that prior to 1985 the petitioner was not penniless but was owner of valuable assets and had also sources of income other than his salary which could have been utilized for purchasing the immovable properties. The immovable properties consisting of agricultural as well as residential land was purchased by the petitioner during the period 1990-1998 at different times and meanwhile the properties also yield agricultural as well as forest income. The Courts have also failed to appreciate the fact that as per assessment order of Wealth Tax Department for the year, 1981-1982, the value of the immovable assets owned by the petitioner was shown as Rs,1,902,960. The Mills were established with small amount invested by the petitioner and the remaining amount was either invested by other persons or was borrowed from the Bank which was paid of during the said period. The petitioner can only be held accountable for the actual amount invested by him and not the total amount used for the establishment of the Mills as the explanation was already given regarding the same. It is also astonishing to note here that the learned trial Court while calculating the value of Afghan Ghee Industry deducted the amount invested by the Afghan Ghee Mill but while calculating the value of Skardu Flour Mills did not deduct the amount invested by Kaghan Flour Mills. Likewise the income from forest and agriculture land were also not calculated towards his known sources of income on the presumption that the land situated at an altitude of 7000 feet was not capable to yield anything.
9. Now we come to section 14 of the Ordinance. The main emphasis of learned counsel for the respondent was that in view of section 14 of the Ordinance, the prosecution was not under obligation to prove the case against the accused/petitioner and it was obligatory on the accused to disprove the charge against him. It is settled principle of law that accused is always presumed to be innocent and the onus of proving the commission of offence and the guilt of the accused lies on the prosecution but under the Ordinance, an exception has been provided to this rule and it has been in section 14(c) provided that in any trial of an offence punishable under clause (v) of subsection (a) of section 9 of the Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of assets or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactory account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction, therefore, shall not be invalid by reason only that it is based solely on such a presumption. However, the presumption is subject to the condition that the prosecution shall first make out a "reasonable" case against the accused.
Language used in the proviso tagged to the main provision i,e, section 14 is explicit in this regard.
The proviso reads as follows:-- "Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of subsection (a) of section 9."
' Hence, notwithstanding the presumption contained in section 14(c) of the Ordinance, the initial burden of proof always rests on the prosecution. It is well-settled that the burden to prove all thdats ingredients of the charge always lies on the prosecution and, it never shifts on to accused who can stand on the plea of innocence, assigned to him under the law, till it is dislodged. In other words unless the C presumption of innocence imputed to the accused is crowed out by the force of suspicious circumstances he cannot be called upon to prove that the charge was false or he was innocent. The prosecution, therefore, is never absolved of from proving the charge beyond reasonable doubt and burden shifts to the accused only when the prosecution succeeds in establishing the presumption of guilt. In this view we are fortified by the observations made in the case of Mansoorul-Haq v. Government of Pakistan PLD 2008 SC 166, wherein it was laid down as under:- ' The National Accountability Bureau Ordinance, 1999, no doubt is a special law and prosecution having the advantage of the provision of section 14(a) of the Ordinance may not under heavy burden to discharge the onus of proving the charge as the Court may on discharge of initial burden of proving prima facie case by the prosecution raise a presumption of guilt but in the light of concept of criminal administration of justice, the prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under NAB Ordinance as the burden of proof is only shifted on the person facing charge if the prosecution succeeds in making out a reasonable case by discharging the initial burden of proving the charge. The provision of section 14(d) of the said Ordinance envisages that burden of proof is only shifted to the accused to rebut the allegations if the prosecution succeeds in establishing the preliminary facts to raise the presumption of guilt.
(10) This Court in Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 having examined the provisions of section 14(d) of the said Ordinance, has held as under:- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgation the same notwithstanding the phraseology used therein. The above provisions do not constitute a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of section 14(d):
(1) The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi) and (vii) of the National Accountability Bureau Ordinance, 1999.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt.
10. Similarly this Court in the case reported as Pir Mazharul-Haq v. The State PLD 2005 SC 63, has held that section 14 of the Ordinance cannot be used to undermine the well-established rule of law that burden to prove guilt of the accused initially is on the prosecution and it never shifts to the accused unless discharged through cogent and reliable evidence. The section does not affect the onus of proving the guilt of an accused which always rests on the prosecution and does not cast any burden on the accused to prove that no crime was committed, nor does it warrant the conclusion that if any thing remains unexplained, then the accused is found to be guilty. The relevant extract from the said judgment is reproduced hereinbelow:--- ",428) In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." In this regard reference can be made to the cases titled PLD 1956 FC 123, AIR 1956 SC 316, Phipson Evidence 7th Ed. Page 33, Jagdish Ram v. Mukand Lal, 1928 L.763, Hem Chandra De Sarkar v. Amiyabala De Sarkar, 52 C. 121, Muhammad Tahir v. Raghubar Dayal, 11 IC 761, Pankjammal v. Secretary of State, 40 I.C. 516, Pandurang v. Tukaram, 1934 N. 253, Peddi Reddy Fagi Reddi v. Panem Chinnabbi Reddi 561. A. 6, Chainta Dasya v. Bhalku Das, 1930 C.591, Ganga Ram v. Rulia, 2 L.249, Rangavva Hanmappa Bidri v. Sheshappa Bidri 51 B.258, Pandurang v. Tukaram 1934 N 253, Bishambar Das v. Telu Ram 1934 L.1019, Pokhar Day v. Thakar Das, 1930 L. 213(2), Jadu Nath v.
Ramun Mal, 1921 L.284, Ruthna Gramany v. Veerabudra Aiyar, 21 IC 96, Sita Ram v. Haidar Khan, 25 I.C. 138, Makund v. Bahori Lal, 3 A. 824, Muhammad Tahir v. Raghubar Dayal 11 I.0 76, Hajee Lin v.
Maung Ba 5 R. 822, Jadu Nath v. Ramun Mal 1921 L. 284, Peddi Reddy Jogi Reddi v. Panem Chinnabbi Reddi 56 1.A. 6, Uttam Chand Ishwar v. Hakim Muhammad Sharif 1932 L. 417, Phipson, Ey., 7th Edn. 33, Taylor and 371, Over v. Harwood (1900) I QB 803, Bindra v. 1934 0. 485, Deputy Legal Remembrancer, Behar and Orssa v.Mathukdhari Singh 32 IC 137, Shahzad Khan v. E, 1933 P.513, 515, Robert Strari Wanchoe v. E. 161 C. 168, Wolmintton v. The Director of Public Prosecutions 1935 AC 462, Nannhum v.
E 165 IC 458, Muhammad Rafi v. E 1933 P. 598, Mohidin Karim v. E 551 IC 849, Gendan Lal v. E. 1930 0.
460, Basudeb Mandar v. E 1929 P. 112, Lila Ram v. E 1927 L. 862(2), Surat Singh v. Crown 1923 L.42, Mst.
Jahura Bibi v. E 1931 C. 11, Rannum v. E 7 L. 84, Ghauns v. E 7 L.561, Dinamani Udaipal Ram Twary v. E 98 IC 241, Nur Khan v. E. 1927 0. 611, Muzaffar v. E 99 IC 322, Bishambar Nath Baijpai v. E 1925 0. 676, Robert Stuart Wanchope v. E 61 C. 168, Woolmington v. The Director of Public Prosecutions 1935 AC 462, E. v. Damapala 14 R. 666, Nannhun v. E 165 IC 458, Bai Mani v. Usafali Bhudar 1931 B. 229, Muhammad Luqman v. State PLD 1970 SC 10, Shamoon v. State 1995 SCM R 1377, Wali Muhammad v.
The State 1969 SCM R 612, Khushi Muhammad v. Muhammad Hanif PLJ 1980 SC 478, Ali Sher v. State PLD 1980 SC 317, Hakim Ali v. State 1971 SCM R 432 and Rab Nawaz v. State PLD 1994 SC 858.
(29) We are not persuaded to agree with learned Deputy Prosecutor General NAB that conviction could have been awarded in view of the provision as contained in section 14 of NAB Ordinance, 1999 for the simple reason that "the section cannot be used to undermine the well established rule of law that save in very exceptional class of cases, the burden to prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of providing the guilt of an accused which always rests on the prosecution and it does not cast any burden on an accused person to, prove that no crime was committed, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty." The above view finds support from the authorities mentioned hereinbelow: -- ' Shambu Nath Mehara v. State 1956 SC 404, E v. Santa Singh 1944 L 339, State v. Pranjivan Gandalal 1952 Sau. 35, J.A. Humphrey v. Crown PLD 1952 L 632, E v. Damapla 1937 R 83, E v. Santa Singh 1944 L 339, Kanakasabai Pillai v. E. 1940 M 1, Senerviratue v. R 1936 PC 289, Attygalie v. R 1936 PC 169, Raghunath Gope v. E 1941 P 175, Mattial Chakravarty v. The King 1949 C 586, Lachman Singh v. The King 1949 C 235."
(30) It hardly needs any elaboration that "the ordinary rule that applies to criminal trials, viz., that the onus lies on the prosecution to prove the guilt of the accused, is not in any way modified by the rule of evidence contained in this section which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, that such inference can be negatived by proof of some fact which, in its nature, can only be within the special knowledge of the accused. If the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
(Narayanan v. Executive Officer, ILR [1964] 1 Ker. 177).
(31) It would be a misconception of law that every accused who faced trial in the Accountability Court or against whom a reference has been sent the "presumption as envisaged in section 14 of the NAB Ordinance, 1999" would start running against him. Where the prosecution has failed to discharge the onus of "proof" by adducing cogent, concrete and forthright evidence the presumption of guilt would not arise against him and thus the question of conviction would have not arisen. The said proposition has been clarified by this Court in case titled Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, operative portion whereof is reproduced herein above for ready reference: -- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the following directions for effective operation of section 14(d).
(1) The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi) and (vii) of the NAB.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court; the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
Moonda v. The State PLD 1958 SC (Pak.) 275, Farman Ali v. The State 1992 SCM R 2055, C.S.D. Swami v.
The State AIR 1960 SC 7, Rameswa r Prasad Upadhya v. State of Bihar AIR 1971 SC 2474, Javed v. The State PLD 1994 SC 679, Mst. Amir Khatun v. Faiz Ahmad PLD 1991 SC 787, Rashid Ahmad v. The State 2001 SCM R 41, Mir Abdul Baqi Baluch v. The Govt. Of Pakistan PLD 1968 SC 313, Syed Saeed Hassan v.
Dayar Ali PLD 1976 SC 6, Mir Ahmed v. The State PLD 1962 SC 849 and Syed Ali Nawaz Shah v. The State PLD 2003 SC 837.
(32) In no circumstances the defence should be expected to prove the accusation. In a similar wake of event while discussing the question of presumption it was held in Rehmat v. State PLD 1977 SC 515 as follows: -- "Needless to emphasize that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
11. In the light of the above discussion, we are of the considered view that in the instant .Case the prosecution has failed to prove charge against the petitioner beyond any reasonable shadow of doubt. Accordingly, the petition is converted into appeal and is allowed. The E impugned judgments passed by learned Peshawar High Court as well as learned Judge Accountability Court is set aside and the appellant is acquitted of the charges. In view of above, Criminal Miscellaneous Application No,5 of 2006 is dismissed as having become in fructuous.
12. These are the reasons for our short order of even date announced in open Court.