' KHALID MAHMOOD, J.---Appellant Ghulam Basit has filed this appeal under section 13(c) read with section 32(b) of the National Accountability Ordinance, 1999 against the judgment/order dated 13- 6-2012 passed by Judge Accountability Court-I, Peshawar in Objection Petition No,4 of 2012.
2. Brief facts of the case are that Reference No,4 of 2007 was filed against accused Jamil Tariq, Ex.
Food Grain Inspector, Food Department Kohistan in 2007. Accused Jamil Tariq went into hiding and was declared proclaimed offender. House No, 118/6 and other property allegedly owned by accused Jamil Tariq and shown in his name and benami were frozen by the Accountability Court.
Against freezing order, objector filed objection petition to the Accountability Court during abscondence of accused Jamil Tariq. After his arrest, both the objection petitions were dismissed.
Against the order of the Accountability Court, Criminal Appeal No, 124 of 2010 was also dismissed in limine by Peshawar High Court Abbottabad Bench on 10-6-2010. Feeling aggrieved objector knocked at the door of the Supreme Court of Pakistan in Criminal Petition No, 391 of 2010 which was disposed of as withdrawn vide judgment dated 25-1-2012 with the observations that if the objector approaches the trial Court for a decision of the matter afresh then in view of the later development, the trial Court shall pass a fresh order in that regard without being unduly influenced by its earlier order as well as the order passed by the High Court. In view of these directions of the apex Court, the objector sought fresh order from the Accountability Court. The objection petition was again dismissed on 13-6-2012 by the Judge Accountability Court No,1, Peshawar. Aggrieved from the order dated 13-6-2012 of Judge Accountability Court, the appellant has filed the instant appeal for setting aside the said order and release of House No, 118/6.
3. Arguments of the learned counsel for the appellant as well as NAB/respondent heard and with their valuable assistance record perused.
4. Appellant had purchased the disputed house from one Muhammad Umar Qasim vide unregistered deed dated 4-6-2007. In this regard the appellant had produced four cheques through which the payment was made to the vendor. The disputed house was for the first time frozen by the respondent vide freezing order dated 29-8-2007 which was later on confirmed by the learned trial Court on 11-10-2007. Just after confirmation of order, the appellant filed application on 22-10-2007. Disputed house has only been frozen on the basis of statement of Sanaullah original owner of said house. The statement of Sanaullah under section 164, Cr.P.C. Was recorded on 20-11- 2007. The ground for freezing the disputed house was the statement of Sanaullah. It is pertinent to mention that about three months before recording of his statement, the disputed house was freezed. The other ground which was alleged by the respondent was that appellant being Benami purchaser of the disputed house is in fact for the benefit of the said accused. As per allegation, the disputed house has been purchased by money received through corrupt practices of the said accused. The other ground advanced by the prosecution was that the accused Jamil Tariq has mentioned the address of the same disputed house on the stamp paper, hence the address so mentioned in the application is sufficient ground of Benami purchase of the said house in question to be the result of corrupt practices carried out by the said accused.
5. A specific allegation against the appellant was that appellant is Benamidar. The respondent had not produced Sanaullah, the original owner on the basis of whose impugned statement, appellant has been declared Benamidar purchaser. Appellant has produced the relevant record and private witnesses for confirmation of the agreement to sell and also four cheques through which the payment was onward made to Muhammad Umar Qasim. Allegation against the appellant was that the disputed house has been purchased from Sanaullah in 1998 and as per his statement the payment was made by the accused. To prove the allegation made by Sanaullah, prosecution failed to produce said star witness to face the cross-examination and to unearth the real facts before the trial Court. Without production of the said witness, his statement cannot be relied upon.
In this regard, reference can be made to the case of Tanvir Ahmad and 9 others v. The State (2009 PCr.LJ 919) wherein it has been held that during the inquiry the statements of witnesses recorded under section 164, Cr.P.C. If not produced, the same cannot be relied upon. The learned trial Court has also not appreciated this point of law in its true sense. When star witness who was not produced in the witness box, then how the subsequent testimony in the shape of mere giving the address of the disputed house in the document mentioned above can be based as Benami transaction. For the proof of Benami transaction, the apex court has laid down criteria to declare certain transaction as a Benami wherein it has been held that for the proof of Benami transaction, following factors should be considered:--
(i) Source of consideration.
(ii) From whose custody the original titled deed and other documents came into evidence.
(iii) Who is in possession of the suit property.
(iv) Motive for the Benami transaction.
' In this regard wisdom can be drawn from the case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCM R 703). The suit property which is claimed to be the ownership of the appellant has been frozen by the respondent on the ground of Benami. It was the duty of the respondent to have proved that the transaction rendered by the appellant is a Benami one but in the present case, payment through different cheques on behalf of the appellant to the vendor has been proved by the appellant. The document in this regard has also been produced and for its proof evidence has also been produced before the trial Court. It is claimed that the suit house is in possession of the appellant which has not been rebutted by producing any evidence by the respondent. Moreover, respondent has also failed to prove any motive for accused for the executing Benami transaction. It is also nowhere mentioned that sale consideration was paid from the accounts of the accused whereas appellant has proved that sale consideration was paid undisputedly from his own bank account. This fact has gone unrebutted from prosecution side.
Prosecution also failed to shatter the evidence so produced by the appellant.
6. Counsel for the respondent vehemently argued that the previous writ petition has been dismissed by this court. Hence appellant cannot agitate same matter before any forum. In this regard, counsel for the appellant referred to the judgment of the apex court wherein while disposing the appeal it was clearly rendered as under:- "In view of certain developments having taken place as a result of a plea-bargain by the relevant accused person namely Jamil Tariq with the National Accountability Bureau the learned counsel for the petitioner wishes to withdraw this petition so as to approach the learned trial Court again for a fresh decision of the petitioner's claim over the property in issue. This petition is, therefore, disposed of as having been withdrawn. We may, however, observe that if the petitioner approaches the learned trial Court for a decision of the matter afresh then, in view of the later developments, the learned trial Court shall pass a fresh order in that regard without being unduly influenced by its earlier order as well as the order passed by the High Court in that connection."
' Hence the verdict of this court has been set aside by the apex court as the same had no bearing on the status of the appellant.
7. Accused in the present case after plea bargain was released by the trial Court. He was released on the guarantee of four guarantors and two houses were also attached with the said guarantee.
During the course of arguments, it was also brought to the notice of this court that two houses of guarantors along with two houses of accused Jamil Tariq as per terms and conditions have also been frozen.
8. The deputed house was frozen on 29-8-2007 which was confirmed by the Accountability Court on 11-10-2007. For freezing of the property, law has been laid down in the National Accountability Bureau Ordinance, 1999 which reads as under:-- "Section 12(c)(O.-by all or of any such methods as the Chairman NAB or the Court may deem fit:- ' Provided that any order of seizure, freezing, attachment or any Prohibitory order mentioned above by the Chairman NAB, shall remain in force for a period not exceeding [fifteen] days unless confirmed by the 'Court, where the Reference under this Ordinance shall be sent by Chairman NAB.
' Provided further that notwithstanding anything to contrary contained therein, that the order of Chairman NAB or the Court shall be effective from the time of passing thereof or proclamation thereof in a Newspaper, widely circulated and despatch at the last known address of the accused either by registered post A.D. Or courier service or electronic media as the Court may deem proper having regard to the facts and circumstances of the case."
' But after the release of the accused, the frozen house was also released under section 12(f) of NAB Ordinance which reads as under:- "Section 12W.---The order of freezing mentioned in subsections (a) to (e) shall remain operative until the final disposal of the case by the Court, and in the event of the acquittal of the accused, shall continue to remain operative for a period of ten days after receipt of certified copy of the order of acquittal [or release] by NAB, whereafter it shall be subject to an order by the court in which an appeal, if any, is filed."
9. The objection petition filed by the appellant was pending from 22-10-2007 till its final adjudication through the impugned judgment but under the above mentioned sections of law, 12(t), after release order of Jamil Tariq, the disputed house was also released/de-frozen. This part of law has not been appreciated by the trial Court as after the plea bargain, new chapter has been opened wherein four guarantors and their two houses as per record of the case has been frozen.
After release on the basis of plea bargain, accused Jamil Tariq defaulted regarding payment of the remaining agreed amount as per terms of the plea bargain deed two References Nos.3 of 2010, 4 of 2010 under section 5(r) of NAB Ordinance were filed. Those two references were dismissed and Jamil Tariq convict was released. In the said order, learned trial Court has held that recovery of defaulted amount should be recovered from the accused as arrears of land revenue. The relevant portion of the judgment is reproduced as under:- "It appears that the applicant at the time of Plea Bargain agreed to make payments in both the cases, and as a result he was discharged. For the sake of arguments this decision on the basis of Plea Bargain amounts to conviction as provided in section 15 read with section 25(b) of the Ordinance ibid. The expression wilful default as defined in section 5(r) is punishable under section 10, meaning thereby that a convict would again be tried for the same offence punishable under the same provision of Law, in violations of the protection guaranteed under Article 13 of the Constitution of Islamic Republic of Pakistan. Whether default is wilful or not is yet another question? Be that as it may, it is clearly laid down in section 33(E) of the Ordinance ibid that any fine or other sum due under this section or as determined by this Court shall be recoverable as arrears of land revenue. This mode of recovery is considered as the most proper and effective in the administration of justice. In section 5(r) the words convict or accused have not been used which makes the intention of the Law makers manifest."
' For the recovery of defaulted impugned amount mechanism is laid down in West Pakistan Land Revenue Act. At the time of entering into plea bargain proceedings, not only bond of four guarantors for the recovery of amount was executed rather two houses were also given as a token of guaranty to ensure the recovery of amount.
10. As has earlier been discussed, the failure of respondent to prove the impugned transaction as a Benami one and also that after the release of accused under section 12(f) of NAB Ordinance the suit house owned by the appellant cannot be freezed/attached in connection with the alleged corrupt practices of the said accused. It is also pertinent to note that as per allegation of prosecution, from original owner Sanaullah, one Shaukat had obtained registered general power of attorney wherein Sanaullah, said vendor has categorically mentioned that he had received the sale consideration. Shaukat vendee later on sold out the suit house in favour of one Muhammad Umar Qasim through a registered deed from whom appellant had purchased the suit house on payment through cheques which have been produced before the trial Court. In the present context, real owner was Muhammad Umar Qasim who can only challenge the ownership of the appellant from whom appellant derived the title. In this respect, reference can be made to the case of Iqbal Ahmad Turabi and others v. The State reported in (PLD 2004 Supreme Court 830. The relevant portion of judgment is reproduced as under:- "It is pertinent to point out that in benami transaction, from whom the consideration money came and from whom the documents of sale are produced in Court plays a dominant role when the dispute is between the real owner and the benamidar. If the dispute is between the third party on the one hand and the real owner and the benamidar on the other hand then the above- mentioned consideration looses its importance. In such situation the conduct of the parties and the surrounding circumstances are to be taken into consideration to determine, whether the transaction was a benami transaction or not. It is no doubt true that the source of consideration money and the possession of the titled documents are essential elements to determine the nature of the transaction where the dispute arises in between benami and the real owner."
' The case of the present appellant is on better pedestal as compared to the said accused.
11. Appellant has successfully proved that the said house has been purchased from his independent source i.e, payment through 4 cheques by producing original document, being in possession of the suit house, having no motive to purchase on behalf of accused. Whereas prosecution has badly failed to bring on record any proof through which it could be proved that suit house has been purchased through money procured from accused which he arranged through alleged corrupt practices.
' We, therefore, accept the appeal and set aside the impugned judgment and release the suit house.