EJAZ AFZAL KHAN, C.J.---A case against the respondent was registered under sections 420 P.P.C.
Read with sections 5(2) and 5(c) of the Prevention of Corruption Act, 1947, Vide F.I.R. No,14 dated 1- 8-1995 in Police Station Anti-Corruption Establishment, Peshawar. The allegations against the respondent were that he accumulated assets well beyond his means, Lie detail of the assets is reproduced as below:-- S. No.Detail of propertyOwner name and relation with accused iLand measuring 2453 kanals 4-1/4 marlas at village Surizai Bala, PeshawarIftikhar Zaffar (son) and Nigar Sultana (wife) ii Land measuring 8 marla at Tehkal Bala, Peshawar Iftikhar Zafar (son) iiiLand measuring 3-1/2 marla at Tehkal Bala PeshawarIftikhar Zafar (son) ivLand measuring 2 kanals one marla in Tehkal Payan, PeshawarSaday Khan (father) vBungalow No.3-A on 5 kanal, at Park Avenue, University Town, PeshawarMst. Zolanai (mother), Mst. Nigar Sultan(wife) and Children. viLand measuring 1 kanal and 11 marlas in Tank Bazar, Tank.Haji Alif Shah, purchaser, who gifted it to accused's mother and his family. viiLand measuring 56-kanal, 14 marla in village Kech Tehsil D.I. KhanMst. Nigar Sultana (wife) viiiPlot No.130 Sector K-4 Phase-3, HayatabadPurchased by the son of the respondent ix Prize bondRespondent alleged that he invested the money in prize bond. x Bittani Brick KilnRespondent alleged that his mother owned Bittani Brick Kiln. xiBittani Arcade constructed over a landed property measuring 2 kanals 1 marla.In the name of Saday Khan, the father of the respondent xiiG.K. Construction CompanyG.K. Construction Company run by the mother of responent. xiiiTaichee Engineering and Contractors CompanyThis is another source of business of the wife and mother of the respondent. xivMotor Car No.PRC-91 (HONDA-1990) Iftikhar Zafar (son) xvPajero Jeep No.DNB-7339. Pir Murbarak Shah (no relation) xviMotor Car (Nissan-1991) Taj Khan (no relation) xviiLand measuring 64 kanals 12 marlas in village Tank District Tank.Purchased by Mst. Zolanai (mother) xviiiLand measuring 2 kanals, 5 marla (with construction) at Sahibzada Abdul Qayum Road, University Town, Peshawar.Mst. Nigar Sultana (wife)
2. On completion of investigation, the respondent was forwarded to the Court of the learned Special Judge, Anti-Corruption N.-W.F.P. Peshawar for trial. The learned Judge on conclusion of the trial, acquitted the respondent, vide judgment' dated 12-8-2000, hence this Criminal Appeal.
3. The learned A.A.-G. Appearing on behalf of the State argued that though the respondent by occupying different offices in C & W Department must have earned. a lot in the form of salary and other privileges but the assets accumulated by him are out of proportion to what he could legitimately earn in this Department. The learned A.A.-G. Argued that 2453 kanals 4-1/4 marlas was purchased through as many as 67 mutations in the name of his wife and son for a sum of Rs,74,76,137 but neither of them being a house wife and student respectively had any independent means of income. Though, the learned A.A.-G. Added, an effort was made to produce oral evidence to show that the said prices were exaggerated but such evidence being inadmissible cannot override the entry in the document. The learned A.A.-G. Next contended that two plots one mearuing 8 marlas and the other measuring 3-1/2 marlas, were also purchased by the respondent in the name of the said son, who besides being minor and student did not have any means of income. Bittani Arcade, constructed over a landed property measuring 2 kanals, 1 marla, the learned A.A.-G. Submitted, was also an enterprise of the respondent but it has been shown to have been raised in the name of `Saday Khan' his father. The learned A.A.-G. Submitted that Bungalow No,3-A Park Avenue University Town, constructed over an area of 5 kanals, is an offshoot of the means disproportionate to the legitimate means of the respondent but this, too, has been attributed to the means of his mother, wife and children, who had no independent resources of income. Bungalow No,42-B, constructed on Sahibzada Abdul. Qayyum Road, University Town, Peshawar, over an area of 2 kanals and 5 marlas, the learned A.A.-G contended, is another asset belonging to the respondent, which was maneuvered to have been transferred to the name of Mst.
Nigar Sultan, wife of the respondent, on the basis of a fake settlement through Court. The learned A.A.-G. While recounting the assets, also referred to the land measuring 1 kanal and 11 marlas, in Tank Bazar, which was firstly purchased by the respondent and one, Haji Alaf Shah, vide Mutation No,2361 dated 24-2-1991, but was subsequently transferred by way of gift to the respondent, his mother, wife and children without there being any reason for that, whereon 'Batani Market' consisting of 13 shops was constructed by the respondent. The learned A.A.-G. By mentioning the land measuring 64 kanals, 12 marlas in village Tank, submitted, that, this too, was purchased by the respondent in the name of his mother, whereon he constructed a Bungalow, whose value has been assessed Rs,15,98,893. Similarly the learned A:A.-G. Added, a landed property measuring 56 kanals, 14 marlas in village Kech Tehsil D.I., Khan, has been purchased by the respondent in the name of his wife for a nominal price of Rs,26,665 which was later sold at Rs,11,86, 300. The learned A.A.-G.
Submitted that Plot No,130 Sector K-4, Phase No,III, Hayat Abad, Peshawar, was purchased by the respondent, which was subsequently sold. The learned A.A.-G. Submitted that over and above all this purchase of Motor Car Mode 1990-1991 worth Rs,3,00,000, one Motor Car Nissan, Model, 1991 worth Rs,3,00,000 Pajeero Jeep worth Rs,2,00,000 and Land Cruiser Model 1990 worth Rs,27,00,000 in the name of his son Iftikhar Zafar go along with to prove that the respondent accumulated assets beyond his ostensible means. The learned A.A.-G. By referring to the prize bond worth Rs,21,00,000 contended that though the stance of the respondent is that he won prize- bond and re-invested its amount but, this being an afterthought cannot plausibly explain they means. The learned A.A.-G. By concluding his arguments contended that all the assets being disproportionate to the legitimate means make out a case for conviction but the learned Trial Court laboured and overstretched the facts and circumstances of the case to make out a case for acquittal.
4. As against that, the learned counsel appearing on behalf of the respondent contended that none of the assets shown in the account of the respondent belonged to him and that the Prosecution by overstretching the facts and circumstances of the case, tried to attribute all these assets to him and that the learned trial Court after appraising the entire evidence on the record rightly concluded that these being owned by the mother, wife and son of the respondent cannot be credited to his account to make out a case for conviction. The learned counsel by referring to section 5(c) of the Prevention of Corruption Act contended that once the assets have been accounted for to the satisfaction of the trial Court, this Court cannot re appraise the evidence or substitute its own view for that of the trial Court. The learned counsel next contended that though a landed property measuring 2453 kansals and 5 marlas has been shown to have been purchased in the name of the wife of the respondent and his son through 67 mutations for a sum of Rs,74,76,137 but the price appears to have been inflated to defeat pre-emptive action against the vendees and that the actual price of the said land does not go beyond sixteen lac, if seen in the light of the yearly average, hence it is well within the means of his wife and son, as the former being a daughter of the Chief Engineer in the erstwhile West Pakistan inherited many built up houses in the posh area of Peshawar and earned a handsome amount on their disposal. The house, the learned counsel by elaborating his argument submitted, situated in Shaheen Town earned her ten lac as is evident from Ex.DW1-1 and an amount of Rs,1,50,000 through the sale of a house in Sufaid Dehri as is evident from the registered deed Ex.DWX-5. The wife of the respondent, the learned counsel explained, has also earned, Rs,1,29,32511 through her business as is evident from Exh.PW1- DX-3 and the Police statement of the wife of the respondent and his son. This fact, he submitted, has also been admitted by the Investigating Officer in his statement recorded in the Court. Some foreign remittances, the learned counsel submitted, also added to the assets of the wife of the respondent and his son. He as well as his wife, the learned counsel submitted, being born under the influence of a Lucky Star won prize bonds. The learned counsel by recounting other assets also mentioned a house situated on Sahibzada Abdul Qayum Road, which was also transferred to the wife of the respondent through a Court decree dated 13-9-1978. The learned counsel next contended that all 'these assets, even if, they are counted as those of the respondent, can be explained, if their real price as it was at the relevant time is calculated and considered. The learned counsel next contended that the respondent's father was not a man without a background as he owned a property in village Kech which was purchased by him in 1971 for Rs,26665 and sold it in 19901992 for Rs,11,86,300. Bittani Arcade and the property thereunder, the learned counsel submitted, belonged to the father of the respondent which was well within his means as neither the cost of the property, nor the cost of construction thereon exceeded his means. Land measuring 64 kanals, 12 marlas, the learned counsel added, was the ownership of the mother of the respondent and in case it is taken as the property of the respondent, it was well within his means to purchase it, if the sale consideration mentioned in the relevant documents is taken into account. The land measuring 5 kanals and Bungalow, the learned counsel maintained, was an outcome of the assets of the mother of the respondent. With regard to the plot measuring 10 marlas, the learned counsel argued, that it was purchased for Rs,29,000; that though cost of construction raised thereon has been shown to be Rs,5,63000 but if the profit of the contractor is excluded, it would be far less. A property measuring two kanals and 15 marlas, the learned counsel submitted, was allotted to Haji Alif Shah for a sum of Rs,71,00,000 out of which one kanal 11 marlas has been gifted to the respondent, his wife and sons but it was in lieu of possession which had been with the mother of the respondent before its allotment to the said Haji Alif Shah. The father of the respondent, the learned counsel submitted, had many other sources of income just as watermill as is evident from the extracts from the record of rights. The property measuring 64 kanals situated in Ali Khel, the learned counsel added, was the ownership of the father of the respondent, which devolved on him on his demise to the extent of 38 kanals and that its disposal brought him a handsome amount of money. The mother of the accused, the learned counsel contended, also owned a brick-kiln which not only yielded a good amount of income to her but also brought her fortune on its disposal. Over and above that, the learned counsel submitted, she was also Director of G.K. Construction Company, which earned her a huge income. No case, the learned counsel added, is made out, if the income, his. Wife and son earned through independent business is taken into account. The learned counsel by concluding his arguments contended that the Prosecution has miserably failed to prove the case against the respondent and that the finding of acquittal being based on proper appraisal of evidence cannot be interfered with. The learned counsel to support his contentions placed reliance on the cases of Khalid Aziz v. The State (2011 SCMR 136), Syed Zahir Shah and others v. National Accountability Bureau and others (2010 SCMR 713) and Allandino Khan v. The State (1992 MLD Karachi 564).
5. I have gone through the record carefully and considered the submissions of the learned counsel for the parties.
6. The first property to be considered in this case is the one, which is measuring 2453 kanals 4 1/2 marlas, situated in Mauza Surizai Bala, Tehsil and District Peshawar. It was apparently purchased through 67 mutations by Iftikhar Zafar and Nigar Sultana, son and wife of the respondent respectively. Its sale price has been shown as Rs,74,76,137. The stance of the respondent is that this property was not purchased by him but his wife and son for a sum of Rs,16,00,000 but in order to avoid pre-emptive action, it was entered as Rs,74,76,137. Granted for the sake of arguments,. That this property was purchased by the wife and son of the respondent, but where did they bring this amount from? The answer of the respondent was that both of them had independent business.
Reference was made to a Certificate showing that an amount of Rs,1,29,32,511 was paid to Taichee Engineering Company. D.W.2 appeared in the Court to testify to the correctness of this Certificate but who was the Managing Director of this Company who owned that and how its income was dished out to the wife and son of the respondent remained unsubstantiated. A reference was made to the Police statement but such statement having limited scope under section 162 of the Cr.P.C., cannot be treated as substantive piece of evidence. Nor can it be used to corroborate the witness making it. The wife and the son of the respondent having the firsthand account could have substantiated all this but neither of them bothered to appear in the Court to do the needful. Their evidence could have been the best possible evidence in this behalf but when it was withheld, the inference would be unavoidable that it would have gone against him, if it were produced.. Even otherwise, the stance that the Company was run by the wife and son of the respondent, appears to be preposterous when the one being a house wife and the other being a minor could not have done that independently. Even if, for a while, it is assumed that it could be done independently by each of them, the fact that where did they get the money from for such investment remained unproved and unsubstantiated. It was, however, canvassed at the bar that the wife of the respondent ,being a daughter of Chief Engineer in the erstwhile West Pakistan inherited huge assets from him but it, too, was not given the substance of proof. It can, therefore, be safely deduced that this Company with all its investment and earnings was an enterprise of the respondent himself. But as he failed to account for the amount of investment, the amount of earning cannot be held to be proportionate to his known means of income.
7. Next comes the property measuring 8 and 3-1/2 marlas situated in Tehkal Bala. It was allegedly purchased in the name of Iftikhar Zafar. This deal, too, appears to have been transacted by the respondent, as the son of the respondent being minor has been held above to have no means of his own to purchase this property.
8. The property at serial No,4 measuring 2 kanals and 1 marla whereon Batani Arcade" has been constructed is shown to be the property of Saday Khan, the father of the respondent. But where did he bring the money from for purchasing it, has not been proved on the record. It was alleged that the father of the respondent was a businessman but what type of business he ran and how could he earn that much to purchase this property which is worth Rs,90,20,000, according to the. I.O. Has not been accounted for that the price of the vacant site as mentioned in the mutation is Rs,82,000 but where did the money for raising superstructure thereon, which is worth Rs,34,39, 619, come from, remained unanswered. It was also alleged that the father of the respondent was not a rootless phenomenon but a man well-entrenched in the tribal area with abundant means and resources but these assertions remained bare and bald and have not been given the attire of proof. The value of construction was also disputed by arguing that if the profit of the contractor is deducted, the amount does not go to that height. The value of forty shops at any rate would not go to the half, even if we exclude 10 or 20 % profit of the contractor. It would, never-the less, go above 30,00,000. This value appears to be correct when according to the assessment order dated 21-6- 1997 of the Special Officer Income Tax and Wealth Tax, the cost of the construction has been antssed as Rs,37,29,500. In the absence of any explanation or any evidence in black and white showing that the father of the respondent had any independent means and resources or a flourishing business, this Court would be constrained to hold that this property too was owned by the respondent and so was the superstructure raised thereon. The fact that it went to the children of the respondent to the exclusion of others when the father of the respondent was succeeded and survived by many legal heirs besides the respondent, would also prove that this was the exclusive ownership of the respondent.
9. Bungalow No,3-A is yet another property in the series. It is shown to have been purchased by Mst.
Zolanai, mother, Mst. Nigar Sultana, wife and four sons of the respondents. It is a bungalow situated at Park Avenue, University Town, Peshawar, constructed over an area of 5 kanals. It was purchased for a sum of Rs,10,00,000 (Rs,Ten lac), vide registered sale-deed dated 29-11-1990. Its parameter is shown to have costed them Rs,70,000. The price of the vacant site, as per report of the Administrative Officer of Town Committee which is Exh.P.W.1/92 is Rs,10,00,000 and as per report of Patwari Halqa, which is Exh.P.W. 1/93 is Rs,70,00,000 (Rs, Seventy lac). A Bungalow constructed over an area of 5 kanals could not conceivably be purchased for a sum of Rs,10,00,000 even in 1990. This being unspeakably low cannot be accepted. Therefore the estimate as to the probable price of the vacant site given by the Patwari does not appear to be far from the hard facts in the world of reality. No effort has been made either by the Prosecution or by the defence to prove as to what are the details of the covered area and what is its value but in no case, its value could be less than Rs,50,00,000 in the year, 1990. It has been alleged by the appellant that it was purchased by his son Iftikhar Zaffar out of his income but it does not appear to be correct as I have already held that he had no independent means and sources of income. Whether its value is Rs,10,00,000 or 50,00,000, it could be purchased by a man of respondent's background in view of his earnings from his service, he rendered in C & W Department.
10. Next cornet the property measuring one kanals and 11 marlas situated in Tank Bazar. According to the version projected by the respondent on the record; this property was gifted by Alif Shah to the respondent, his mother, his wife and sons but what was the reason for gifting it to the aforesaid persons has not been plausibly explained. An effort was made to prove on the record that this property was not only in possession of the mother of the respondent but a good number of shops was also constructed thereon by her and that one kanal and 11 marlas was gifted to the names of the above mentioned persons not without occasion but in lieu of possession but this story appears to be an afterthought. If it were so, then the shops would have been constructed over the entire property and the entire property would have been in possession of the mother of the respondent.
Apart from this, how could the mother of the respondent get or retain possession of this property in the presence of her husband, her sons and grandsons. It, therefore, follows that the respondent himself is the owner of the property and the plea of gift in lieu of possession is just a veneer to hoodwink the onlookers and the Court. This stance of the respondent also runs counter to the stance he has taken in his written reply which is Exh.P.W.17/1. In any case, the value of this property, according to the mutation, whereby it was transferred to Alif Shah by the Central Government is Rs,71,00,000 (Rs,Seventy one lac). The share of the respondent comes to Rs,35,50,000. The value of the shops thereon has been worked out by the technical staff as Rs,2,66,000. I, thus, hold that the landed property measuring one kanal and eleven marlas and shops constructed thereon form part of the assets of the respondent which being out of proportion to his known means, cannot be said to have been satisfactorily accounted for. I. Against this backdrop, do not agree with the finding of the learned trial Court which besides being laboured sand overstretched is not supported by any evidence on the record.
11.Another significant asset in the account of the respondent is the land measuring 56 kanals and 14 marlas in village Kech Tehsil D.I.Khan. According to the revenue papers, this property was purchased by Mst. Nigar Sultana, the wife of the respondent, at a price of Rs,26,665 in the year, 1971 but it was sold for Rs,11,86,3300. The stance of the respondent is that this property was purchased by his wife who being a daughter of a former Chief Engineer of the then West Pakistan had the means to do so but there is no evidence on the record to show that this amount was paid to her by her father or her brothers out of the assets left by her father. The learned trial Court has erroneously accepted the bald assertion of the respondent without there being any evidence to substantiate the same. The wife of the respondent never opted to appear as DW in person nor through her attorney to substantiate the same, therefore, this landed property, too, appears to be an asset of the respondent.
12.Plot No,130 Sector K-4 Phase-3, Hayatabad, was yet another asset of the respondent to be accounted for. The price of this plot including construction thereon has been assessed as Rs,9,85,034. According to the trial Court, this plot was purchased by the son of the respondent but when it has already been held above that the son of the respondent on account of his being student at the relevant time had no independent means of income to purchase this property, this too, would be a part and parcel of the assets of the respondent. An attempt was made to show that the plot as well as construction thereon is not worth Rs,9,85,034 but that fell flat as the specification of the covered area and its nature detailed in Exh.P.W.1/88 went unrebutted. Therefore, it would be presumed to be correct in the circumstances of the case. Even otherwise, a covered area of 2563 Sft in the relevant year could not be constructed for an amount less than the one mentioned above.
13. Then come the prize bonds. The respondent alleged that he invested the money in prize bonds and that he won prizes up to 21,25,000. He produced evidence in defence to substantiate the same and succeeded to a great extent in proving his plea, the 'Prosecution could not produce any evidence to show that the respondent purchased the bond from a lucky winner to whiten his black money, hence the amount of the bond has rightly been added to the legitimate assets of the respondent.
14. The respondent alleged that his mother owned Bittani Brick kiln but he could not establish as to where did his mother bring this money from to establish brick kiln. He also alleged that his father left behind a landed property measuring 64 kanals 6 marlas in village Ali Khel out of which he inherited 38 kanals and that its disposal brought him a handsome amount. But how his father happened to be the owner of this property, when was it sold, and what was received in turn, when sold, remained abstract and unproved as far as the record goes.
15. O.K. Construction Company, D.I. Khan, was also alleged to be a Company run by his mother but how all this blossomed into a business concern and where did the money come from for investment, remained unsubstantiated.
16. Taichee Engineering and Contractors Company was another source of business of the wife and mother of the respondent but where did the money for investment therein come from have already been commented above.
17. The finding of the learned trial Court appears to be correct as far as vehicles are concerned.
However, the prices of Motor Car No,PRC-91 (HONDA-1990) as Rs,3,00,000, Pajero Jeep No,DNB-7334 as Rs,27,00,000 and Motor Car (Nissan-1991) as Rs,3,00,000 are accepted to be correct in the absence of any evidence brought by the respondent to the contrary. Expenditure on the education of children and election also appears to be correct, therefore, these findings need no interference.
18. Yet another landed property measuring 64 kanals and 12 marlas situated in village Tank allegedly purchased by Mst.Zolanai, the mother of the respondent, was required to be accounted for. Respondent showed no concern of his own with that. Its value was worked out as Rs,20,45,500 but the respondent claimed that its price was not more than Rs,67,000. A bungalow has been constructed thereon which is shown to have been made of mud and then covered with cement, but as I have already held above that the mother of the respondent had no sources of her own, this property, too, has to be credited into the account of the respondent. The value of the property has been worked out to be Rs,20,45,500, while the value of the Bungalow constructed thereon has been assessed by the Technical Expert as {{TABLE}}Rs,15,00,000. The value .Of the land which is shown to be Rs,64,600 in the mutation is accepted to be correct, as no other reliable evidence has been brought on the record by the Prosecution to prove it to be more than that. The value of the construction made on the said property if assessed by excluding the profit of the contractor and other ancillary expenditure, it would not be less than Rs,10,00,000 by any means. Its value is, thus, determined accordingly.
19. Then comes the landed property measuring 2 kanals and 5 marlas and the Bungalow constructed thereon. It was also argued that it was transferred by the brother of the respondent's wife to her name pursuant to a settlement amongst the legal heirs of the Chief Engineer but averment in the plaint of the said suit showing that the said house was purchased by her from her brother belies . The claim that it was transferred by her brother pursuant to a settlement amongst the legal heirs. The indecent haste with which the proceeding in the Civil Court was concluded within three days shows that it was purchased by the respondent himself and that the proceeding before the Civil Court was just a contrivance to give it a different hue and colour. Some thing in black and white could have been brought on the record to show that the house, thus, transferred was owned by the father of the respondent's wife and that it fell to her lot pursuant to a family settlement, but nothing of that sort was done. I, therefore, hold that the land was purchased by the respondent himself and that it was he who built it. The value of the landed property and the construction thereon, according to the T.O. Has been assessed as Rs,14,07,400 but according to the analysis and assessm ent of the learned trial Court, which appear to be close to the grave ground realities, it comes to Rs,5,71,604. The value of the landed property would, in no way, be less than 5,00,000, even if it is stretched to the lowest of the low. The total value of the bungalow with the vacant site is, thus, worked out as Rs,10,71,604.
20. Then comes the turn of two pieces of land at Serial Nos. Ii and iii. The former measuring 8 marlas has been purchased for Rs,1,20,000, vide Mutation No,7384 dated 18-8-1990 while the latter measuring 3 and a half marla has been shown to have been purchased for Rs,50,000, vide Mutation No,7388 dated 1-9-1990 in the name of Iftikhar Zafar. As it has already been held above that he was minor at the relevant time and had no independent means of income, this property would also go into the account of the respondent.
21. During the course of arguments, the learned counsel for the respondent contended that the respondent through his salary has earned more than Rs,17,00,000 and as such, he could purchase many of the assets listed above, therefore, no case is made out against him, but this stance of the learned counsel does not appear to be tenable, when the value of all the assets on their calculation, is found to have exceeded his earnings and known means of income.
22. The value of the assets as has been worked out after examining the evidence on the record is reproduced below:--- S No.Detail of property Value iLand measuring 2453 kanals 4-1/4 marlas at village Surizai Bala, PeshawarRs.74,70,137 iiLand measuring 8 marla at Tehkal Bala, Peshawar Rs.1,20,000 iiiLand measuring 3-1/2. marla at Tehkal Bala Peshawar Rs.50,000 ivLand measuring 2Kanals one marla in Tehkal Payan, PeshawarRs.82,000 vBungalow No.3-A on 5 kanal, at Park Avenue, University Town, PeshawarRs.50,00,000 vi Land measuring 1 kanal & 11 marlas in Tank Bazar, Tank.Rs.35,50,000+ Rs.2,66,000 Total: Rs.38,16,000 viiLand measuring 56 kanal 14 marlas in village Kech Tehsil D.I.
KhanRs.26,665 viiiPlot No.130 Sector K-4 Phase-3, Hayatabad. Rs.9,85,034 ixPrize bondMoney invested in prize bond. x Bittani Brick Kiln ownership not established xiValue of vacant site of Bittani Arcade: Rs.82,000 Value of construction: Rs.30,00,000Rs.30,82,000 xiiG.K. Construction Company No income has been shown xiiiTaichee Engineering & Contractors Company Rs.1,29,32,511 xivMotor Car No.PRC-91 (HONDA-1990) Rs.3,00,000 xvPajero Jeep No.DNB-7339. Rs.27,00,000 xviMotor Car (Nissan-1991) Rs.3,00,000 xviiLand measuring 64 kanals 12 marlas in village Tank District Tank.Rs.20,45,500 xviiLand measuring 2 kanals, 5 marla (with construction) at Sahibzada Abdul Qayum Road, University Town, Peshawar.Rs.5,00,000 Rs.5,71,604 Total Rs.3,99,81,451
23. The legitimate earning of the is detailed below:--
(i) Amount through salary Rs,17,00,000
(ii) Amount through Prize Bond Rs,25,00,000
24. A man with the earnings mentioned above could easily purchase the properties listed at Serials Nos. Ii, iii, iv, vii and viii. But the properties at Serials Nos. i, xi, xvii and xviii appear to be disproportionate to his known means of income. Similarly, the vehicle at serial No, xv appears to be disproportionate to his known means. It was alleged that the vehicle belonged to his son, but that is not believable, as he being minor had no independent means of income, which could enable him to purchase it. The vehicles reflected at serial Nos. Xiv and ,xvi do not appear to be disproportionate to his known means. Properties .Mentioned at Serials Nos. i, xi, xvii and xviii have not been satisfactorily accounted for and appear to be disproportionate to the known means of the respondent. The charge against the respondent in the circumstances of the case has been proved beyond doubt, therefore, the finding of the learned trial Court being laboured and against evidence on the record cannot be maintained .
25.The cases of Syed Zahir Shah and others v. National Accountability Bureau and others (2010 SCMR 713) and Khalid Aziz v. The State (2011 SCMR 136), are not relevant to the case in hand in view of the peculiar facts and circumstances of the case. Therefore, notices to the Benamidaran would not be essential as two of them being dead and the other two being a house wife and a respondent minor respectively at the relevant time could not have any independent means of their own to purchase the assets. That is why, the learned counsel for the respondent, during the course of arguments, did not press this issue at all. Reference to the case of Allandino Khan v. The State (1992 MLD Karachi 564), too, will not advance the case of the respondent as preponderance of probabilities do not even remotely suggest that the assets accumulated by the respondent are not his.
26.The sum total of the above discussion is that the charge of misconduct stands proved against the respondent beyond any shadow of reasonable doubt. Having held so, I allow this appeal and set aside the impugned finding. The respondent being found guilty of misconduct is convicted and sentenced to three years' R.I. With a fine of Rs,50,00,000 (Rs, Fifty lac) or in default to undergo six months' S.I. Under section 5(2) of the Act. The properties at Serials Nos. i, xi, xvii and xviii being disproportionate to the known means of the respondent are directed to be confiscated. He is present in the Court. He be taken into custody for being shifted to Jail for serving the sentence.