RAHMAT HUSSAIN JAFFERI, J. -- This judgment shall dispose of both the titled criminal appeals, as they arise out of a common judgment.
2. On 22nd March, 2000, Chairman, National Accountability Bureau, Islamabad, filed a reference against the appellant alleging therein that he had accumulated wealth and collected gain of huge amount of Rs, 11,80,96,000/- through corrupt, dishonest and illegal means and got deposited the said amount in the following Bank accounts in the name of his wife Mrs. Nilofer Khalid, ; Managing Director of the Firm known as M/s. Hay at and Brothers (hereinafter referred to as the Firm'):--- Sr.
No,Name of Bank Account No,Total Amount depositedYear
1. National Saving Centre, University Town, PeshawarSSSA-38 ' 37,200,000 1992-97 2.-do- SSR 21,200,000 -do- 3.Bankers Equity Ltd., Mall Road,SSR 15,00,00,00 -do- ' The reference was filed after investigation conducted by the Investigation Officer. During the investigation, the evidence was collected, which was presented before the Chairman, NAB, who after going through the same filed the reference. : Peshalvar. I I 4.Grindlays Bank, Peshawar.113134095600140,6,91,000 -do- 5.Emirates Bank, Peshawar.116655712900 V'40,05,000 1988 ' Rs, 11,80,98,000/-
3. On 10.04.2000, the Accountability Court for the Province of the then NWFP (now KP) framed the charge against the appellant. The prosecution examined 11 witnesses, who produced various documents.
4. The appellant in his statement recorded under Section 342, Cr.P.C.; written statement; and statement on oath took the plea that the amount alleged in the reference did not belong to. him, as it belonged to M/s. Hayat and Brothers, which was their family Firm, established in the year 1870 with its Branches in the cities of undivided India and Peshawar, that was established in the year 1936. ln the year 1993, his wife Mrs. Nilofer Khalid after becoming Managing Director of the Firm dealt with the money of the Firm in the best interest and to safeguard the money of the Firm. He explained that three of the alleged accounts in the Banks namely Bankers Equity Ltd., Mall Road, Peshawar; Emirates Bank, Peshawar; and Grindlays Bank, Peshawar were the accounts of the Firm, whereas the Account bearing No, SSA-38 in National Saving Centre, University Town, Peshawar was got opened by his wife before she became Managing Director and deposited an amount of Rs, 207,000/-, which was withdrawn in the year 1995. Thereafter, the amounts deposited in it belonged to the Firm, as per resolution of the Firm authorizing his wife to deposit the said amount in her personal account; that the amount deposited in the second personal account was also owned by the Firm, which was also deposited' as per Firm's resolution, In his support, he examined four witnesses and produced documentary evidence.
5.The Trial Court after considering the evidence led by the prosecution, explanation furnished by the appellant in his statement and taking into consideration the evidence led by the appellant formed the opinion that the appellant was liable to explain an amount of Rs, 4,60,9y6,000/-, deposited in two private accounts of his wife, as he got the said amount deposited in the private accounts of his wife, but exonerated him from the remaining amount in the said accounts and three aforesaid Bank accounts, therefore, convicted him under Section 10 of National Accountability Ordinance^ 1999 (hereinafter referred to as 'the Ordinance') and sentenced him to suffer R1 for ten years and also confiscated the above-mentioned amount under judgment dated 21.06.2000. The appellant preferred appeal before Peshawar High Court, Peshawar, which after reappraising the evidence in the light of the submissions made by parties' counsel formed the opinion that the. appellant was required to explain Rs, 38,43,500/-, only deposited in one private account of his wife, which he failed to do so by further exonerating him from the second private account of his wife through the following observations made in paragraph 51 of the impugned judgment:-- "51. By drawing an inference favourable to the accused with regard to the amount of Rs, 15 million paid by the Education Deptt, (for which the furniture has been supplied or not, is not the subject- matter in this case, through a cheque in the name of Company which was later on invested first in SSA-38 and then along with interest by purchasing Saving Certificate in the name of Fatehullah and also excluding the redeposit on the grounds of withdrawal and deposit an equal amount, on the same date and also excluding Rs, 2,07,000/- the amount deposited before the year 1995, the following amount in SSA-38 could not have been explained or shown by the appellant or his wife to be the company's account/money, as shown in Ex.PW.5/4/C: Sr.
No,Amount Date of depositDate of withdrawal
1. Rs,9,00,000/- 24.8.1995 10.9.1996 2.Rs, 13,00,000/- 24.6.1996 5.1.1997 3.Rs,3,43,500/- 10.9.1996 15.4.1997 4.Rs,7,00,000/- 9-12.1996 16.4.1997 5.Rs,6,00,000/- 21.10.1996 16.4.1997 Total: Rs, 38,43,500/- ' Therefore, while maintaining the conviction reduced the sentence to two years' R1 and fine of Rs, 50,00,000/- or in default thereof to undergo R1 for six months with benefit of Section 382-B, Cr.P.C, under the impugned judgment dated ' 14.05.200it Renee, these appeals by leave of the Court.
6.Learned counsel for the appellant has argued that the prosecution has failed to prove the sources of income of the appellant, as he had not only received the salary, allowances etc. but had properties from which he was . getting income, as such, the prosecution has also failed to prove the ingredients of offence of Section 9(a)(v) of the Ordinance; that without proving the ingredients of offence, the provisions of Section 14(c) of the Ordinance will not attract; that even otherwise the appellant has furnished plausible explanation to explain the amounts deposited in the private accounts of his wife; that the Trial Court has exonerated the appellant from the amount deposited in three scheduled banks but convicted him on the basis of two private accounts of National Saving Centre; that the High Court has also confirmed the finding of the Trial Court with regard to the exclusion of amounts mentioned if the bank accounts, but also excluded the second account of his wife and from the first account viz. SSA-38 only an amount of Rs, 38,43,500/- has been considered, whereas the other amounts have been excluded from the consideration on the ground that the proper explanation was furnished by the appellant; that the total amount of the said account was Rs, 3,72,00,000/- as mentioned in the reference out of which Only a meager amount of Rs, 38,43,500/- has been taken into consideration; that the said amount belongs to the Firm, but the High Court has wrongly taken the said amount to be that of the appellant and that it is the prosecution, which has to prove that an amount of Rs, 38,43,500/- is disproportionate to the known sources of income of the appellant but they have not led any evidence to prove such fact, therefore, the High Court was not justified in convicting the appellant. Alternatively, he has argued that even otherwise the appellant has sources of income from the salary and other properties and that the said amount is not disproportionate to the amount earned by the appellant from his sources of income. He has relied upon the judgments reported as Hakim Ati Zardari v. State (2007 MLD' 910), Farrukh Javed Ghumman v. State (PLD 2004 Lahore 155) and State of Maharashtra v.
Wasudeo Ramehandra (AIR 1981 Supreme Court 1186).
7. Conversely, learned Additional Prosecutor General, NAB has argued that the prosecution has proved that the amounts in the scheduled banks and the personal accounts of Mrs. Nilofer Khalid are the amounts of the appellant through reliable and cogent evidence; that in this regard oral as well as documentary evidence has been produced, but the Trial Court and the High Court have misread the evidence by not taking into consideration the amounts deposited in the banks and other accounts properly, therefore, a miscarriage of justice has occurred. He has further argued that the judgments of both the Courts below be set aside and the appellant may be convicted for depositing the amount of Rs, 11,80,96,000/- in the banks and private accounts of his wife, therefore, he may be adequately punished.k
8. Having heard the learned counsel for the parties and perusing the reaped, including the oral as well as documentary evidence produced by the prosecution and the appellant, we find that the reference was filed in respect of an amount of Rs, 11,80,96,000/- deposited in the accounts of three scheduled banks in the name of the Firm and two personal accounts of Mrs. Nilofer Khalid, wife of the appellant. The Trial Court did not agree with the prosecution with regard to the above- mentioned amounts and found that the appellant had failed to explain the amount of Rs, 4,60,96,000/- deposited in two personal accounts of his wife which was got opened in National Saving Centre. The Trial Court also found that the amounts mentioned in three scheduled banks were that of the Firm. The High Court after scrutinizing the evidence confirmed the finding of the Trial Court in respect of the amount deposited in scheduled banks and further excluded the second account of Mrs. Nilofer Khalid in the shape of Saving Certificates and also excluded amount of more than two Crores from the first account bearing No, SSA-38 but found that the amount of Rs, 38,43,500/- was to be explained by the appellant, which he failed to do, therefore, the appellant was convicted.
9.From the above resume, it is established that the explanation furnished by the appellant was considered and acted upon to some extent, therefore, the amount was reduced by the Trial Court and High Court. Being this factual position, the learned counsel for the appellant has forcefully argued that the prosecution was required to first prove the ingredients of the offence to show the sources of income of the appellant but the same has not been proved, therefore, the appellant was not required to explain anything, as the burden was not shifted upon him, as provided under Section 14(c) of the Ordinance. On this proposition, he has relied upon the case of Hakim Ali Zardari. supra, which was decided by a learned Division Bench of High Court of Sindh in which one of us (Rahmat Hussain Jafferi, J.) was a member and author of the judgment. While dilating upon the provisions of Section 9(a)(v) of the Ordinance, the Court observed as under:-- "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 a corrupt practice 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."
9.Similar view was also taken in the cases of Farrukh Javed Ghumman and State of Maharashtra supra. Thus, it is clear that the prosecution has'to establish the above-mentioned four ingredients and then the burden would shift upon the 'appellant to explain his position as required under Section 14(c) of the Ordinance.
10.In the present case, the prosecution has simply produced the Declaration of Assets for the years 1995-2000 filed by the appellant before the department, which show that the appellant owned various properties and was earning income therefrom. The prosecution has not lead any evidence to show about the amount received by the appellant from his salary, allowances etc. during the period of his service i,e, 1969 to the relevant time. Thus, the prosecution did not produce the required evidence to prove that the amount alleged or final amount determined by the High Court was disproportionate to the known sources of income, as such, the prosecution has failed to prove the main ingredient of the offence, hence, the burden was not shifted upon the appellant to furnish explanation as provided under Section 14(c) of the Ordinance. However, in spite of that the appellant explained his position by giving details of each and every transaction in the accounts of his wife and produced the relevant evidence in the shape of the statements of his wife (DW.3), his father-in-law (DW.2), Ishfaq Ahmed, Chartered Accountant (DW.1) and Haji Maqsood Ahmed, Advocate (DW.4) along with documentary evidence. They have fully supported the stand taken by the appellant with the documentary evidence. The question as to whether these amounts were not mentioned in the Income Tax Department or that the resolution was not filed with the Registrar, Cooperative Societies is by itself will not affect the explanation or draw any adverse inference against the , appellant as the appropriate action can be taken under the Income Tax Laws or by the Registrar, Cooperative Societies Act against the Firm under the relevant provisions of law, if such laws are violated. While interpreting Section 14 (c) of the Ordinance, it has been observed in the case of Hakim Ali Zardari supra, as under:-- "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 departure from 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 of 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 pre-emptory 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 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 persecution 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,, therefore, while examining the explanation of the accused the above principle is 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."
11.Keeping in view the above observations, we have examined the case in hand and find that the appellant is not required to prove the explanation beyond any reasonable doubt, therefore, the above principle is to be kept in view while examining the explanation tendered by the appellant and if it is found that the explanation in the circumstances is satisfactory then that will be enough to discharge the burden.
12.We have also examined the explanation furnished by the appellant in which he has explained all amounts alleged in the reference along with five transactions mentioned by the High Court in para 51 amounting to Rs, 38,43,500/-, which have been properly explained. Both the Courts below have excluded Crores of Rupees from the said amount keeping in view the explanation of the appellant but they appear to have reached a wrong conclusion that the appellant had failed to explain the said amounts without giving any specific finding that the said amount was disproportionate to the known sources of the income, which in fact was not available on the record, as the prosecution did not lead any evidence to prove the amount of salary, allowance etc. and the amount received by the appellant from the other properties shown in the Declaration of Assets and making calculation and deduction of expenses undergone by the appellant during the period of his service.
14. After considering the material available on record, we are of the view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt, therefore, the impugned judgment is set aside and the appellant, who has already served out the sentence, is acquitted of the charge.
15.Consequently, Criminal Appeal No, 361 of 2001 filed by the appellant _ Khalid Aziz is allowed and Criminal Appeal No, 362 of 2001 filed by the State is dismissed.