MUHAMMAD HASHIM BABAR vs THE STATE and another

1. ' CH. IJAZ AHMED, J.---Necessary facts out of which the present petition arises are that Ehtesab Reference No,19 of 1997, later numbered as AC/R-9/99 was filed against the petitioner under section 14(1) of Ehtesab Ordinance 1997 by the then Chief Ehtasab Commissioner seeking his trial under section 3 read with section 4 of the Ehtesab Ordinance 1997. This reference was initially entertained by the Ehtesab Bench of the Lahore High Court constituted under the Ehtesab Ordinance 1997. Later, after the promulgation of National Accountability Bureau Ordinance 1999, the reference was transferred to Accountability Court Lahore for trial of the petitioner. The learned Accountability Court after completing legal formalities such as framing of charge, recording of evidence of the prosecution, recording of statements of the petitioner/accused and defence witnesses and hearing of the counsel of the parties convicted and sentenced the petitioner vide its judgment dated 17-11-2000 as under:-- ' Under section 4 of Ehtesab Ordinance, 1997 read with section 35 of the NAB Ordinance, 1999.

2. ' R.I. For three years and so also to pay Rs, Two millions as fine, or in default to undergo R.I. For eighteen months.

3. ' Under Proviso to subsection (1) of Section 4.

4. ' House No, 17, College Road, F-7/3, Islamabad, to the extent of the share of the petitioner/accused was ordered to be forfeited to the Federal Government.

5. ' He shall also suffer disqualification as propounded by section 9 of Ehtesab Ordinance, 1997 and stand disqualified in the terms as enshrined by said section read with sub-clause (h) of clause (1) of Article 63 and Article 113 of the Constitution of the Islamic Republic of Pakistan. Benefit of section 382-B, Cr.P.C. Was extended to him.

6. ' Petitioner being aggrieved filed Criminal Appeal No, 1629 of 2000 in the Lahore High Court, Lahore.

7. The learned High Court reduced the sentence of imprisonment of the petitioner from three 'years to the imprisonment already undergone by him and the amount of fine of Rs,two millions was reduced to Rs, 5,000,00. However, sentence of forfeiture of his share in House No, 17, College Road, F-7/3, Islamabad in favour of Federal Government was maintained. With the aforesaid modification the learned High Court dismissed the appeal of the petitioner. The petitioner being aggrieved filed Criminal Appeal No,216-L of 2005, During the pendency of the above petition, petitioner filed Cr.M.A.

8. No, 17-L of 2008 under section 33-F of NAB Ordinance, 1999 and section 7 of NRO 2007 wherein the prayer was made that in view of the aforesaid two provisions of law proper orders may be passed for acquitting the petitioner. The said application was allowed by this Court vide order dated 7-5- 2008. Consequently Criminal Petition No,216-L/ 2005 was converted into appeal and the appellant/was acquitted of the charges in view of section 7 read with section 33-F of the NRO, 2007 and that moveable and immoveable properties mentioned in the order shall stand released. The said order was set aside by this Court vide order dated 29-3-2010 in view of the dictum laid down by this Court in Mubashar Hassan versus Federation of Pakistan (PLD 2010 SC 1) wherein NRO has been declared void ab initio, non-est, being ultra vires the relevant provisions of the Constitution.

9. Therefore, order dated 7-5-2008 referred to hereinabove, has become inoperative, as such, Criminal Petition No, 216-L of 2005 stand revived to its original number. The said petition has been revived in terms of the order of this Court dated 29-3-2010.

2. The learned counsel of the petitioner submits that Ehtesab Bench had framed the charge in the following terms reproduced by the trial Court in para 2 of its judgment:-- "We, Mr. Justice Mian Allah Nawaz and Mr. Justice Muhammad Islam Bhatti, Members of Ehtesab Bench do hereby charge you, Muhammad Hasham Babar son of Muhammad Akram Khan, erstwhile Director Military Lands and Cantonment, Rawalpindi in BPS-20 as under:-- ' That while serving as Director Military Lands and Cantonment, Rawalpindi you purchased House No, 17, College Road, F-7/3, Islamabad on an area of 1244 sq. Yds., for a sum of Rs,30,00,000 (Rupees thirty lac) on the 4th November, 1989 and then spent a further amount of Rs,19,75,900/ - (Rupees nineteen lac, seventy five thousand and nine hundred) on its renovation and repairs and another amount of Rs, 18,00,000 (Rupees eighteen lac) on its furnishing and fixtures raising its total cost to Rs,69,40,900 (Rupees sixty nine lac forty thousand and nine hundred) inclusive of registration' ancillary charges, ' That presently a Guest House under the name and style of Jacaranda is being run by your wife in the said house, ' That in this way the house which you own is disproportionate to your known source of income which you cannot reasonably account for and thus you have committed an offence of corruption as defined under section 3 and punishable under section 4 of the Ehtesab Ordinance, 1997 which is triable by us.

10. ' And we hereby direct that you be tried by this Bench on the aforesaid charge."

11. ' The learned trial Court had formulated the following Questions which had arisen for consideration:- ' Whether the purchase of House No, 17 College Road, F-7/3, Islamabad, on an area of 12-44 sq yds, for a sum of Rs,3000000, through sale deed dated 4-11-1989, Ex. P.S., and the expenditure made by the accused therefore is disproportionate to known sources of income of the accused, and he cannot reasonable account for it?

(ii) Whether after purchase of aforesaid house, the accused had carried out the renovation and repair of aforesaid house, if so, whether an amount of Rs, 19,75,900 was spent for said purpose and if not, how much amount was spent for this purpose and by whom, and said expenditure is disproportionate to known sources of income of the accused, and he has failed to reasonably account for it?

(iii) Whether another amount of Rs,18,00,000 was spent by the accused on .Furnishing and furniture of aforesaid house, if so, whether any such expenditure is disproportionate to his known sources of income and he cannot reasonably account for it?

(iv) What is the effect of the accused having not obtained prior approval of competent authority - for the purchase and expenditures as mentioned at Nos.(i), (ii) and (iii) above.

(v) How far the accused is responsible for running the guest house, under the name and style of Jacaranda Guest House, in the building jointly purchased by him and his wife through sale deed, dated 4-11-1989, Ex. P.S. And with what consequences?

12. ' The learned counsel of the petitioner submits that learned trial Court found the petitioner guilty vide charge Nos.1 and 2 (Question Nos.1 and 2) formulated vide para. 94 of its judgment whereas Question Nos. 3 to 5 were found not proved against the petitioner vide paras Nos.80, 85 and 88 of its judgment. The learned High Court acquitted the petitioner from charge No,2 as is evident from para No, 37 of its judgment whereas the finding of the trial Court on charge No, 1 was upheld by the High Court. The petitioner has already served the sentence awarded to him. The question only remains to be decided according to him is that the learned High Court had erred in law to maintain the sentence of the petitioner to the extent of the sentence already undergone by him and reducing the amount of fine from Rs, 2 millions to Rs,500,000 lac and maintaining the sentence of forfeiture of his half share of house in question without adverting to the evidence on record. The learned trial Court had reproduced tables DE in para 48 of its judgment under the heading of yearwise available sources from 1982 to 6-11-1989 with the petitioner wherein Rs, 14 lac have been mentioned under heading of cash with son and daughter in the year 1988 in table E. The learned trial Court had reproduced the said table properly but erred in law to mention Rs, 14 lac in column of expenses instead of considering the same as his own income. The petitioner has explained his sources in statement under section 342, Cr.P.C. And also in his statement under section 340(2), Cr.P.C. Recorded by the trial court as D.W.10. Both the courts below had recorded finding of guilt against the petitioner without adverting to the explanation submitted by the petitioner in the aforesaid statements. He further urges that petitioner has filed declaration of assets for the year ending 30th December, 1982 which also includes agricultural land secured by him through inheritance which was accepted by the two Courts below and also accepted explanation of the petitioner that he has cash of Rs, 5 lac secured through sale of plot Nos.6/i and 6/ii, 29th Street, Defence Society measuring 2000 sq. Yrds. Both the courts below had also accepted that petitioner had also income of Rs, one lac per year from his inherited agricultural land. The same was not counted towards 14 lac mentioned by him in the name of his son and daughter in table E mentioned by the trial Court in para 48 of its judgment. The petitioner has filed statement of assets and liabilities for the financial year ending on 30th June, 1984 wherein the petitioner mentioned cash in hand amounting to Rs, 70,000 and saving account cash with son and daughter Rs, 12 lac.

13. Similarly the petitioner filed statement of assets and liabilities for the financial year ending on 30th June, 1988 wherein saving account cash with son and daughter amounting to Rs, 14 lac was shown.

14. Petitioner also filed statement of assets and liabilities for the financial year ending on 30th June, 1989 Exh. D.K. He also filed an application dated 30-12-1996 regarding expost-facto sanction for purchase/sale of properties. He also placed on record sale deed of Plot No,6/i and 6/ii, the contents of which clearly show that petitioner had received Rs,4,60,000 on 5th November, 1989 whereas both the Courts below had erred in law to ignore the amount received by the petitioner through sale of the plot merely on the ground that sale deed was executed on 13th November, 1989 before the purchase of the house in question. Learned counsel of the petitioner further highlighted that both the courts below have erred in law to render finding of guilt against the petitioner on charge No,1 by misreading and non reading of the aforesaid pieces of evidence in violation of basic principles of criminal jurisprudence wherein petitioner has only to furnish reasonable explanation. The petitioner submitted explanation of the source of income and had .Not concealed anything. The petitioner belongs to a respectable family. His father died when he was one year old and on his death he inherited agricultural land from him. When the reference was filed against him the petitioner was in Grade 20. The petitioner has purchased the house in question along with his wife who has her independent source of income. The house in question was purchased by him along with his wife before his marriage. There was no allegation of corruption or mis-conduct against the petitioner during whole of his service career except the reference in question.

3. The learned Additional Prosecutor General, NAB, has supported the impugned judgment.

4. We have given our anxious consideration to the contentions of the learned counsel Of the parties and have perused the record. It is better and appropriate to reproduce finding of guilt recorded by both the Courts below with regard to Rs, 14 lac against the petitioner to resolve the controversy:-- ' Finding of guilt recorded by the Trial Court vide para 47 of the judgment. In declaration of assets filed by the accused for the year ending on 31-12-1982, (Ex. P.A) the accused had shown four items which he held in his name and the same are:--

(1) Agricultural land

(2) Jewelry

(3) Cash

(4) ICPs shares ' The cash at Rs, 5 lac was shown as sale proceeds of Plot Nos.6/i, and 6/ii, situated in 29th Street Defence Society, measuring 2,000, square yrds. This amount was shown in different figures during the subsequent years due to further multiplications. This much huge amount has not been shown to have been invested anywhere and as such the same remained cash in hand and nothing has been said as to how it multiplied during the subsequent years. The accused has nowhere explained this multiplication either in his declaration of assets, or Income Tax Returns or Wealth Tax Returns or in his statements under sections 342 and 340(2), Cr.P.C. Made before this Court. It is interesting to note that in declaration of assets for the years ending on 31-12-1985, aforesaid amount has been shown to be at Rs, 6 lac because of multiplication, but it has not been shown as to how being invested and while it was merely cash in hand. However, the cash in hand was shown at Rs, 50,000 in the declaration of assets for the year ending on 31-12-1991 Exh. P.J. And the same amount was repeated in the declaration of assets for the years ending on 31-12-1993 Exh.PL and the year ending on 31-12-1994 Exh. P.M. The same item has been shown to be at Rs, 1 lac, as saving from agricultural land and so also sale of plot mentioned at column No, 4. (This fact is incorrect for in column No, 4, there is no mentioning about sale of plot, and perhaps it refers to the sale, of the same plot as has been mentioned earlier in the first declaration of assets for the year 1982). Further, in the declarations of assets for the year ending on 31-12-1995, Exh. P.O., and for the year ending on 31-12- 1996, Exh. P.P., no amount as cash in hand has been shown. From these narration of facts it is crystal clear that the agricultural income was shown as part of cash in hand, and it was not mentioned as a separate item."

15. ' Finding of guilt recorded by the High Court vide Para 34.

16. ' So far as the cash amount of Rs, 14 lac in the name of children of the appellant is concerned, the learned counsel for the NAB has referred to the statements of declaration of assets of the accused from 1982 till 1990 and has pointed out that in the declaration for the year 1982 (Exh.P.A) he had declared the cash as Rs, 5 lac while no cash in the name of his children had been shown. In the declaration for the year 1984 Exh. P. C, the cash in declared as Rs, ,5 lac but no cash in the name of his children had been shown; in the declaration for the year 1985 Exh. P.D, the whole of cash was declared as Rs,6 lac and no cash was shown in the name of his children. However, for justifying his illegal wealth, he filed the statement of wealth for the year 1984 (Exh. D.H) in February, 1993 wherein he had shown the cash of Rs, 12 lac in the name of his children. In his statement of wealth for the year 1988 (Exh. D.J) filed in the year 1993, he had shown. The cash as Rs, 14 lac in the name of his children; that the amount of Rs, 14 lac had not been explained to have been obtained through legitimate sources; that the amount of Rs, 1 lac as value of furniture should have been included in the declaration of Assets whereas no such asset in the form of furniture was declared in his declaration of assets for the year 1982-83 (Exh. P.A and Exh. P.B respectively); in 1982 the cash was shown as Rs, 5 lac but in 1989 it was shown as Rs, 14 lac and there was no proof as to how the cash had increased from Rs, 5 lac to Rs, 14 lac; that the satisfaction of Income Tax Officer regarding the declaration of income and assets of the appellant does not neutralize the scope of NAB Ordinance.

17. ' It is pertinent to mention here that in order to prove the case is the duty and obligation of the prosecution to prove the ingredients of the offence which are as follows:--

(i) It must establish that the accused was holder of a public office.

(ii) The nature and extent of the pecuniary resources of property which were found in his possession.

(iii) It must be proved as to what were his known sources of income.

(iv) It must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate .To his known sources of income.

18. ' The aforesaid ingredients are proved then the offence as defined under section 9(a)(v) is complete, unless the accused is able to account for such resources or property. It is also settled proposition of law that mere possession of any pecuniary resources or property is by itself not an offence, but failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitutes offence meaning thereby that if an accused cannot explain, presumption under section 14(c) of the Ordinance that accused is guilty of corruption and corrupt practices is required to be drawn. See Biswa Bhushan Naik v. State (AIR 1954 SC 350). The evidence brought on record read with the presumption under section 14 of the said Ordinance established the charge against the petitioner beyond any reasonable doubt. As the learned counsel of the petitioner has failed to point out any piece of evidence which was misread or non-read by the Courts below while rendering finding of guilt against the petitioner by merely mentioning Rs,14 lac in the expenses head cannot discharge the onus of the petitioner to furnish explanation with regard to having Rs,14 lac. The explanation of sources with regard to the amount mentioned hereinabove is not furnished by the petitioner as is evident from the finding of guilt recorded by the courts below reproduced hereinabove. It is also settled principle of law that the initial burden of proof is on the prosecution to establish the possession of properties by an accused disproportionate to his known sources of income to prove the charge of corruption and corrupt practices under NAB Ordinance, 1999 and once this burden is satisfactorily discharged, onus is shifted to the accused to prove the contrary and give satisfactory account of holding the properties and in case of his failure, Court may raise the presumption of guilt. In the light of the aforesaid principles, we have re-examined the evidence on record with the assistance of the learned counsel of the parties and have come to the conclusion that finding of guilt recorded by the courts below is in consonance with the evidence on record. Learned counsel of the petitioner has failed to point out any infirmity or illegality committed by the courts below while arguing the case of the petitioner. The contentions raised in support of this petition certainly relate to appreciation of evidence and the factual controversy having been concluded by the concurrent findings of two Courts below cannot be reopened before this Court. This is a settled law that this Court does not lay its hand in case of concurrent findings based on proper appraisal of evidence unless serious question of law arises or the findings are found improper, perverse or untenable in law. In the present case, as mentioned above, we find that the High Court while following principles laid down by this Court has drawn conclusion that the petitioner was holding assets amounting to Rs, 14 lac disproportionate to his known resources and was guilty of offence when he was charged.

19. The scope of the petition under Article 185(3) of the Constitution is confined to the extent of substantial question of law and no such question of law has been raised to maintain this petition.

5. In view of what has been discussed above we do not find any force in this petition which is dismissed and leave refused.