' MRS. IRSHAD QAISAR, J.---This judgment shall dispose of both the Ehtesab Criminal Appeals Nos.4 of 2004 filed by Syed Anwar Badshah against NAB and Ehtesab Criminal Appeal No,6 of 2004 filed by NAB against Syed Anwar Badshah as they arise out of a common judgment.
2. Brief facts of the case are that Reference No, 5 of 2002 was filed by the Chairman, NAB against the appellant alleging therein that he had, while serving as Chief Officer, District Council and Municipal Corporation, Haripur, acquired following movable/immovable properties and other assets disproportionate to his known sources of income in his name and in the names of his dependents/benamidars:- SR. No.DESCRIPTION YEARPURCHASE VALUE (RS.)MARKET VALUE 1 Purchase land 8 marlas in Khaksar Mohallah Mardan in his own name.1967 2500 560000 2 Purchased land 4 marlas in Khaksar Mohallah Mardan in the name of his wife.1974 3800 280000 3 Purchased land 3.5 marlas in Khaksar Mohallah Mardan in the name of his wife.1975 2000 245000 4 Purchased land 5 marlas in Khaksar Mohallah Mardan in his own name.1978 3500 350000 5 Purchased land 6 marlas in Khaksar Mohallah Mardan in his own name.1979 75000 420000 6 Purchased land 1.5 marlas in Khaksar Mohallah Mardan in his own name.1981 105000 7 Purchased land 7 kanals, 3 marlas in village Toru Mardan in his own name.1986 400000 8 Purchased a plot measuring 1 kanal, 10 marlas in Tehkal Payan, Arbab Road, Peshawar in the year 1984 in the name of his father and then gifted to self in the same year.1984 150000 300000 9 Purchased a Plot No.269-E measuring One kanal in Sheikh Maltoon Town, Mardan in his own name.1992 450000 1000000 10 Purchased a Plot No.01-J measuring 1 kanal in Sheikh Maltoon Town, Mardan in the name of his brother Syed Hidayat- ur-Rehman.1998 775000 1000000 11 Purchased a Plot No.58-11 measuring 10 marlas in Sheikh Maltoon Town, Mardan in his own name.1984 32500 500000 12 Purchased and sold a Plot No.305 in Sheikh Maltoon Town, Mardan in the name of his son Asif Anwar.2001100000 100000 13 Purchased a shop measuring 1088 sq.ft. at Mardan in his own name and then constructed a showroom.1990 114000 514000 14 Constructed one Garage in Mardan City on Government land.1976 35500 35500 Total 17,94,600 8509500 Construction Cost of Houses only 15 Constructed a house at Khaksar Mohallah Mardan in his own name.1985- 19864,42,800 705078 16 Constructed four double/single room family quarters at Khaksar Mohallah Mardan in his own name.1981- 822,73,820 850000 17 Constructed a house at Sheikh Maltoon Township in his own name.1994- 9519,93,190 2304589 18 Constructed a house at Arbab Road Tehkal Payan Peshawar in his own name.1990- 9111,48,332 1442032 Total 3858142 5301699 Vehicles Description Year Approximate Market Value 19 Purchased Suzuki Car Model 1988 Registration No.H-4706 in the name of his son Asif Anwar.1998 100000 ' That in the year 1999 he set up a shop of medicine business in Jamal Plaza, Malakand Road, Mardan after investment of Rs,10,00,000. The shop is being run by his son Asif Anwar.
' That he also purchased Prize Bonds worth Rs, 1,06,000.
' That he incurred expenditure of Rs, 8,21,249 on the education of his two sons namely Syed Abbas Anwar and Syed Usman Anwar.
4. That he with his spouse went to Saudi Arabia to perform Umrah on two occasions and incurred expenditure of Rs, 3,00,000.
3. In support of the charge, the prosecution produced 25 witnesses. Thereafter the appellant was examined under section 342 of Cr.P.C. As well as under section 340(2), C.P.C. On oath. He also produced defence witnesses and submitted written statement wherein he denied the charge and has given the detail of his means of income and assets. After hearing the arguments the learned Accountability Court-II, Peshawar vide his judgment and order dated 21-6-2004, convicted and sentenced him section 10 of N.A.O., 1999 to undergo rigorous imprisonment for a period of 2-1/2 year and fine of Rs, 15,00,000, keeping in view the old age of accused and the illegal amount of Rs,11,27,800, while he was exonerated from the remaining charges levelled against him as it is held by trial Court that prosecution failed to prove the allegation. Feeling aggrieved both the parties filed their respective appeals noted above.
4. Learned counsel for the appellant/convict has contended that the prosecution has failed to prove the sources of income of the appellant, as he had not only received the salary allowance etc. Since, 1957; but has other sources of income. He has been able to prove his other legal sources of income in the shape of remittance from abroad, agricultural and rental income, salary of his sons, Prize Bonds etc., but these have not been counted toward his genuine source of income by trial Court. That prosecution has also failed to prove the ingredient of offence under section 9(a)(v) of the National Accountability Ordinance, 1999, that without proving the ingredients of the offence, the provisions of section 14(c) of the Ordinance will not attract. That trial. Court has exonerated the appellant from the charges mentioned in serial Nos.1 to 4, 10, 12 to 14 of the Reference Book, But convicted him for an amount of Rs,11,27,800, in respect of property mentioned at serial Nos. 5 to 9, 11, 15 to 18 which is also not correct because the prosecution has to prove that an amount of Rs, 11,27,800 is disproportionate to the known sources of income of the appellant but they have not led an iota of evidence to prove such facts; therefore, trial Court was not justified in convicting the appellant. Alternatively, he has argued that even otherwise the appellant has sources of income and that the said amount is not disproportionate to the amount earned by him. He has relied upon judgment 2001 SCMR 138, PLD 2004 Lahore 155, 2001 MLD 910. He further contended that the properties acquired prior to 1985 could not form subject-matter of the charge before an Accountability Court. That the prosecution utterly failed to prove any misuse of authority resulting in the accumulation of wealth through illegal means. That in the absence of any prosecution evidence or rebuttal the learned trial Judge could not reject the defence evidence. That appellant has produced defence, submitted his written statement under section 265-F(5), Cr.P.C. And also appeared on oath under section 340(2), Cr.P.C. And in the absence of any rebuttal, the averments made therein have to be prevailed. That no show-cause notices were issued to the benamidars to prove whether the transaction is benami or they are actual owner of the respective properties.
5. Conversely, learned DPG has argued that the Chairman NAB filed reference of Rs, 79,79,991-00 the present market value of which is 1,61,38,488-00, against the accused for accumulating of assets beyond his known sources of income during his service in District Council and Municipal Corporation Haripur as Chief Officer; but, the trial Court awarded minor sentence. Since the sentence awarded to the accused is neither in accordance with law or commensurate to the offence committed therefore they filed appeal for enhancement of sentence. That the trial Court while awarding conviction and sentence had failed to appreciate the correct legal as well as factual position. That accused was required to show resources regarding each and every property but he failed to connect the properties with the legal resources available to him. That the fine imposed is not in accordance with law and same shall in no case be less then the gain derived by accused. That prosecution has produced oral and documentary evidence to prove its case but the trial Court has misread the evidence by not taking into consideration the amount spent by him on the purchase and construction of different properties; therefore, a miscarriage of justice has occurred.
6. First we have to deal with the appeal filed by NAB (F) for enhancement of sentence. Learned counsel for respondent/accused raised an objection with regard to the competency of the appeal on the ground that no approval/ direction of the Chairman, NAB for filing this appeal has been annexed with it and in the absence of that the appeal is not maintainable and liable to be dismissed. Now it is to be seen whether the prosecution has been able to fulfill the mandatory requirement of section 32 of N.A.O., 1999 before filing the present appeal or not? For proper assistance the provisions of sub section 1 of section 32 ibid is reproduced below;-- "32. Appeal [and revision]:
(a) Any [person convicted or the Prosecutor General Accountability, if so directed by [the.
Chairman, NAB] aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the [xxxxxx] Court prefer an Appeal to the High Court of the Province where the Court is situated[:]
7. All the record has been scanned with the assistance of learned DPG but there is nothing on the file that the Chairman has accorded approval/directions for filing of appeal. It means that provision of section 32 ibid has not been complied with, which provides inter alia that Prosecutor- General Accountability if so directed by the Chairman NAB can file an appeal within ten days against the final judgment. It is the consistence view of this Court and apex Court that when appeal has been filed without the required direction/approval of Chairman, NAB the appeal filed by State is not competent. In this respect reference is made to Ehtesab Criminal Appeal. No,13 of 2003 decided on 24-1-2003, wherein it is held;-- "Once the language of a statute is clear and unambiguous then; the Court of law is not permitted to give it a different meaning, is a century old settled principle and no departure could be made from this universal principle on any consideration, whatsoever".
' It is further observed "It is also well-settled principle with regard to construction of statute that even if two interpretations of the criminal statute are equally possible then, the one favourable to the subject/accused must be preferred".
' Reference may also be made to Ehtesab Criminal Appeal No,7 of 2003 title "State through PGA v.
Haji Fazal-ur-Rehman". This Court vide judgment dated 24-5-2012 in Para No,7 thereof, while interpreting the provisions of section 32 of the Ordinance held the same view.
8. We also seek guidance from the judgment of the apex Court in case Criminal Petition No,55/P of 2006 dated 8-4-2009 where exactly similar proposition of law i.e, section 32(a) was involved and where in it is held;-- "5. We have considered their submission made. A bare reading of the minutes of the Prosecution Wing of the NAB which have been appended with the petition, indicates that it was an internal correspondence between the concerned officials of the Wing with the Chairman NAB and after internal decision regarding filing of appeal, a formal direction to the Prosecution General NAB was to follow which admittedly has not been done in this case."
' In the present case when the appeal has been filed without the required approval and direction of the Chairman, NAB, the ultimate authority under the law, then, the appeal filed by State is not maintainable and the same is hereby dismissed.
10. Now while dealing with the appeal filed by convict/accused it has to be seen whether he has rightly been convicted for an amount of Rs,11,27,800 which was found disproportionate to his known sources of income.
11. Having heard the learned counsel for the parties and perusing the record, 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, amount of Rs,79,79,991-00, the present market value of which is Rs,1,61,38,448 for accumulation of assets through illegal and unknown source of income. But the trial Court did not agree with the prosecution with regard to the above mentioned amounts but convicted him only for an amount of Rs,11,27,800, which was allegedly disproportionate to his legal source of income. The trial Court has also completely exonerated the appellant from the charge mentioned at serial Nos.1 to 4, 10, and 12 to 14 of Reference Book.
12. 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.
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 source of income of the appellant but the same has not been proved, therefore, the appellant was not required to explain everything as the burden was not shifted upon him as provided under section 14(c) of the Ordinance.
13. The offence of acquiring properties disproportionate to the known source of income is defined under section 9(a)(v) of Ordinance and under this provision of law the prosecution is required to prove the following points;--
(i) The accused was holder of Public Office.
(ii) Nature and extent of pecuniary resources of property which were found in his possession.
(iii) What where the known source of income i.e, known to the prosecution after thorough investigation.
"(iv) Such resources or property find in possession of the accused were disproportionate to his known source of income.
' Once the above ingredients are established by the prosecution, the offence under section 9(a)(v) is complete, unless the accused is able to account for such resource and property.
14. Keeping in view the above principle in mind it is to be seen whether prosecution has been able to prove prima facie case against appellant or not?
15. The prosecution in order to prove its case had produced 25 witnesses who have given the detail of the properties acquired by accused/appellant either in his name or in the names of others as benamidars while in his statement recorded under section 342, Cr.P.C. He denied the allegations.
He produced 20 witnesses to prove his legal source of income. He himself was examined on oath as D.W.21. He also submitted his written statement under section 265-F(5), Cr.P.C. And submitted the detail of each and every property.
16. Before going to the discussion and decision of the facts of the case it would be appropriate to give finding on the legal issue which was strongly agitated by the appellant that the properties alleged to have been acquired prior to 1985 could not be made a part of reference and that out of the properties referred in the charge, eight have been acquired before 1985 and construction of four quarters were also raised before 1985. The arguments of the learned defence counsel have no force in the eye of law, because this ordinance has been promulgated to eradicate corruption and corrupt practices. In the preamble it is stated;-- "To provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, [misuse or abuse] of power, [or authority] misappropriation of property, [taking of] kickbacks, commissions and for matters connected and ancillary or incidental thereto".
' The corruption and corrupt practices and misuse of powers obviously must relate to the period during which a person is in position as a holder of Public Office to misuse this office for private gain.
It is the consistent view of Superior Courts that a person who was a civil servants or was holding public office before 1-1-1985 cannot get a certificate of clearance by giving an interpretation that such Ordinance is only with regard to the properties of acquired thereafter. The Ordinance would and should apply to all properties which have been acquired whether prior to coming in to force of Ordinance or thereafter but with respect of person against whom cognizance can be taken under the ordinance. In such circumstances all the assets will be scrutinized in the light of the evidence produced by the parties and no exemption can be given to the accused.
17. In order to reach the correct stage of accountability, it is necessary to first check the whole evidence produced by the parties and to calculate the amounts which were available with the accused at the relevant time as his known sources of income.
18. Accused while examined as D.W.21 on oath under section 340(2), Cr.P.C. Has given the detail of his source of income. He stated that after his matric he joined the service as a clerk to the Commissioner Office Peshawar in the year, 1957, the copy of his service card is Exh.P.D.W.1/1 and then in 1961 he joined the Tourist Bureau N.-W.F.P. As clerk. During arguments prosecution did not challenge the service of accused rendered by him from 1957 to 1961. P.W.3 Gohar Zaman produced his service record including his declaration of assets Exh.P.W.3/-1, Exh.P.W.3/2 and copy of statement of pay and allowances of accused Exh.P.W.3/3. But his salary from 1957 to 1961 has not been mentioned. It was the duty of the Investigating Officer to give credit of this salary to accused but he failed.
19. In his statement accused also gave the financial background of his family and stated that his father was Arabic Teacher in Education Department and retired from service in 1955. Then he joined Auqaf Department as Khateeb Jamia Masjid Toru and held this office till his death on 27-11-1984.
That he was agriculturist having sufficient property beside seven houses and Hujra in the village. He was a wealthy man and has sufficient sources to send his elder son Syed Badshah to U.S.A. For higher education before partition on his own expenses who has been retired as a Director, Agriculture Department. His other brothers are also highly educated and posted in different departments as Section Officer, SDO WAPDA, Manager, Grandly Bank and Public Health Engineer.
That his brother who is living in U.S.A. Had executed power of attorney in his favour to supervise and receive the produce of his landed property measuring 60 kanals since 1974. That through registered deed in 1974 his father had given one house to each of his sons and one left over house measuring 13 marlas was sold by them at the cost of Rs,150,000 and the proceed was distributed amongst all brothers and sisters. He also received extra share of his brother Syed Masood- urRehman amounting to Rs, 21,500 besides his own. That his brother Masood-ur-Rehman also sent Rs, 80,000 upto 1980-81. He received about 900000 as produce of his agriculture land since 1974 to 2000. He also received an amount of Rs,4,00,000 .As share of his brother in the sale of trees. That his brother also remitted more than Rs,6,26,000 in his name and in the name of his son through Bank from U.S.A. He also received Rs,37,606 as compensation of land of his brother from WAPDA and it was utilized by him. He received an amount of more than Rs,9,39,000 as prize bond of different denominations. He obtained loan of Rs,10,000 from House Building Finance Corporation for construction of house at Mohallah Khaksar Manzil Mardan on 8 Marlas. He obtained Rs,1,00,000 in 1985 for construction of two quarters, Rs,1,00,000 in 1991 for construction of house at Arbab Road. He received. Rs,1,00,000 as share in the inherited cash amount. He received Rs,26,02,800 as security/rent of four quarters and two houses. His wife received Rs,2,00,000 as her share in her father's landed property.
20. In order to prove his stance he has produced 20 witnesses in his defence D.W.1 to 3 and 6. Javed Iqbal, Amirzada, Ahmad Javed and Sahibzada stated that they are tenants under accused. They also gave the detail of rent and advance paid by them to accused. D.W.5 Hidayat Hussain stated that his sister is married to accused. His father was a landlord and had given through him 32 tolas Golden ornaments to the wife of accused. That his father died in 1983 and they paid Rs,2,50,000 to the wife of accused in lieu of her share in the landed property left by his father. D.W.8 Fazal Rabi Incharge Main Branch Habib Bank Limited Mardan stated that an amount of Rs, 6425 + 9300 and 103480 were received in his branch from Said Rehman from U.S.A which were paid to accused.
Attested copies of three receipts are Exh.D.W.8/1 to Exh.D.W.8/3. D.W.9 Haroon, Officer State Bank of Pakistan produced the record Exh.D.W.9/1 to Exh.P.W.9/3 in respect of Prize Bond drawn in his favour and stated that the total amount received by him is Rs,9,19,375 D.W.10 brought record pertaining to the house building loan sanctioned in favour of accused the detail of which is Exh.D.W.10/1, 2 and Exh.D.W10/A-1. Javed Ahmad, Manager, NBP prepared the statement of account of Syed lshfaq Anwar, son of accused, from 14-6-2000 to 26-9-2002 Exh.D.W11/1. D.W.12 Musasart Shah and D.W.16 Hidayat-ur-Rehman brothers of accused gave the financial family background of accused. D.W.12 produced registered deed dated 9-9-1959 Exh.12/1 vide which his father purchased a house and it was sold through him for Rs,1,50,000 vide deed Exh.D.W.12/2. This price was distributed amongst all legal heirs of their father and accused was given two shares i.e, his share and share of his brother Masood-ur-Rehman who is in U.S.A. At the time of death of their father, he left a cash balance of Rs,3,50,000 and each son received share of Rs,50,000. He also received two shares. He further stated that Plot No,1-36 situated in Shaikh Mardan was purchased by his father and after his death it was in his possession till date, because it has been transferred in his name, while according to D.W.16 the plot bearing J-1 in Sheikh Maltoon Town is owned by him. D.W.14 Inayat Khan carried out the evaluation of four properties owned by accused and prepared four detailed BOQs Exh.D.W.14/1 to Exh.D.W.14/4. Manzoor Ahmad distributor of three Pharmaceutical firms was examined as D.W.15.
He brought the record of the goods supplied to the store of Asif Shah, son of accused, Exh.D.W.15/1 and stated that supplies are made on credit. The record of Goshwara Takhmeena in respect of agricultural property of Masood-ur-Rehman was produced by D.W.13 and D.W.17. Both the sons of the accused were examined as D.W.18 and D.W.19. They have also given the detail of their income as well as the income of their father. Despite the fact that, all the defence witnesses were cross- examined at great length but nothing beneficial were squeezed from their mouth in favour of prosecution. They have given the detail of source of income of accused. There is nothing of record that they are not truthful witnesses. Some of the witnesses are official witnesses and they have no interest to depose in favour of accused. Prosecution produced 25 witnesses who have produced record in respect of salary of accused as well as the property purchased by him and the construction raised by him in his landed property. The purchase of the property in his name and the construction raised thereon has not been denied by him. He has also submitted the statement of his income and expenditure from 5-8-1957 to 31-12-2001 marked as Exh. D.W .21/18 .
21. From the careful perusal of impugned judgment it reveals that trial Court also considered the statements of some of the D.Ws. e.g. For the construction of the houses and quarters mentioned at serial No, 15 to 18 in column of "construction cost of houses". The learned trial Court has accepted the statement of D.W.14 Inayat Khan who carried out the evaluation of four properties owned by accused and prepared BOQs Exh.D.W.14/1 to Exh.D.W.14/4 and rejected to assessment reports Exh.P.W.10/1 to Exh.P.W.1014 prepared by P.W.10 Abdur Rehman. It is admitted fact that accused had constructed houses and quarters and he was also charged for the same I.O. Also admitted the existence of the quarter and houses when the photographs of the four quarters marked as Exh.25/D-3 and Exh.25/D-4 were confronted to him in his cross-examination. It is not expected that the quarters and the houses have been lying vacant for indefinite time after their construction till the filing of reference. In order to prove the tenancy and rent accused produced tenants who were examined as D.Ws.1 to 3 and 6. The trial Court has not brushed aside the statement of these D.Ws.
Rather endorsed the same. But the trial Court has not given the benefit of this rent amount to the accused simply on the ground that it has not been proved that what was the monthly rent, advance amount and the period for which certain tenants were occupying this property. The accused has produced his defence to substantiate his plea but now it was the duty of the prosecution to procure the tenants of these properties, to secure the rent deed and the receipt of payment of rent and advance etc. And to produce such persons in Court but it failed. Thus in the IB absence of prosecution evidence, weight has to be given to the statements of D.Ws. And according to the accused he earned Rs,26,02,800 as rental amount.
22. D.Ws.13 and 17 Sher Farzand and Khan Bahadur gave the detail of agricultural land measuring 60 kanals owned by Masood-urRehman/brother of accused. D.W.13 produced Khasra Girdawari and Goshwara Takhmeena Exh.D.W.13/1 and D.W.13/3. The total income has been worked out to Rs,17,07,604-60. D.W.17 Khan Bahadur who cultivated the agricultural land of Masood-ur-Rehman stated that he gives the produce of land to the accused h'cause the land owner had so instructed him. He also stated that half of the money of the sale of the trees is also taken by the accused.
Accused also produced the power of attorney Exh.D.W.21/7, D.W.21/8 and affidavit Exh.D.W.29/1 which were executed by Syed Masood-ur-Rehman in favour of accused. Exh.D.Ws.21/7 and 8 were executed in March, 1986 wherein he authorized the appellant to manage his landed/residential property and to receive the amount. Prosecution witness No, 16 produced statement of bank account of accused which shows that an amount of Rs,37,607 was transferred to the account of accused on 29-5-1985. The accused stated that it was the amount of compensation of his land.
This contention takes support from Exh.D.W.21/8. All the documents produced by accused and D.Ws.
Have been exhibited without any objection on the part of prosecution. From the record it reveals that accused has been able to prove his known sources of income through which he had acquired moveable and immovable properties/assets and which are not disproportionate to his legal source of income.
23. Though he is charged and convicted for a purchase of plot measuring 1 kanal, 10 marlas in Tehkal Payan Arbab Road, Peshawar in 1984 in the name of his father and then gifted to himself in the same year. It is proved from record that his father was a man of means and he had the sources to purchase properties but the prosecution has not been able to prove that it was the accused who purchase the land in the name of his father and subsequently gifted the same in his name.
Accused produced his brother Musarat Shah D.W.12. He stated that Plot No,1-36 situated in Sheikh Maltoon was purchased by his father and later on it was transferred in his name. He has not been cross-examined by the prosecution in this respect. It shows that his father has sufficient properties and he used to transfer the same among his sons.
24. Record shows that I.0 has not conducted the investigation properly as he admitted that he has not conducted the investigation in respect of the career of his father, his service and assets.
Throughout his cross-examination he did not deny the question put on him about the assets of accused but he simply showed his ignorance. The I.O. Shamsur-Rehman had conceded before the trial Court that nothing in this regard has been brought on the record during investigation by him.
We have found that even in the reference submitted by National Accountability Bureau and the charge framed against the appellant by the learned trial Court no mention had been made of the appellant's exact income, the source, of his income or the details of his resources so that the same could be set up against the value of assets of the appellant, his dependents or the so called benamidars for alleging that the former was disproportionate to the latter.
25. Keeping in view the above facts and circumstances of the case and after going through the record of this case with the assistance of learned counsel for parties we have straightaway observed that the learned counsel for the appellant is quite correct in maintaining that the source of income of the appellant had never been enlisted, determined or quantified by the prosecution either during the investigation of this case or during the trial. The law now stands settled that in order to prove commission of an offence under section 9(a)(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income, because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. As noted above in the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial Court to conclude or, to hold that the appellant or his dependants or so-called benamidars owned or possessed assets or pecuniary resources disproportionate to the appellant's income. It is unfortunate that the Investigating Officer of this case as well as those responsible for prosecution of this case, before the learned trial Court had utterly failed to do the needful in this regard. That's was why the learned trial Court exonerated the accused from the majority of the charges and held him responsible only to the extend of Rs,11,27,800. The apex Court in a judgment delivered in case of "Khalid Aziz versus State reported in 2011 SCMR 136" dilated upon the necessary ingredient of section 9(a)(v) of National Accountability Ordinance, 1999 and has approvingly reiterated the principle laid down in that respect by a High Court Sindh in case 2007 MID 910, which read 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 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 source 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, the 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 page 350) in which identical provision in Prevention of Corruption Act 1947 was interpreted".
' In the said judgment it has further been observed by the learned D.B. Of Sindh High Court at different places of the judgment as follows-- "as regards the 3rd and 4th ingredient of the offence and above the known source of income the expression "known sources of income" must be taken to the source known to the ,prosecution on a thorough investigation of the case" "in the case of the appellant the prosecution was required to hold a detailed inquiry to ascertain the sources of income, but it appears that the investigating officer did not perform his duty diligently and properly as he did not conduct any sort of investigation to know the other source of income as is clear from his own admission".
' Emphasis on proof all the above-mentioned ingredients of the offences under section 9(a)(v) of the National Accountability Ordinance, 1999, has also been laid by the august Supreme Court in case "Muhammad Hashim Baber versus the State and another 2010 SCMR 1697".
' Reference in this respect is also made to PLD 2004 Lahore 155.
26. It is clear that prosecution has to establish the above four ingredient and then the burden would shift upon the appellant to explain his position as required under section 14(c) of the Ordinance. But the prosecution failed to prove.
27. According to the Reference filed and the charge framed against the appellant he had, through indulging in corruption and corrupt practices, accumulated assets in. His own name and also in the names of his wife and sons and the worth of such assets was to the tune of Rs,1,61,38,448 which was disproportionate to the appellant's known source of income. The wife of the appellant, his sons brothers and father were set up in this case as benamidars and admittedly the said wife, sons and brothers of the appellant had never been summoned by the learned trial Court for providing them an opportunity to produce evidence in support of their claims regarding ownership of the relevant assets in their own right or to substantiate that they had sufficient sources of their own to acquire the relevant properties. Such failure on the part of the learned trial Court also fatal to case of prosecution. Reference is made to Mst. Zahida Sattar and others versus Federation of Pakistan and others (PLD 2002 SC 408). It was observed by Supreme Court in that case as under:-- "16. The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It had also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under National Accountability Bureau Ordinance, we would hold that he (benamidar) has a right to approach the Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case"
30. It is admitted at all hands that in the present case the wife, sons and brother of the appellant, who were set up by the prosecution as benamidars, had never been summoned by the learned trial Court to explain their position and this failure or omission on the part of the learned trial Court had a vitiating effect. Moreover, the allegation of benami transaction by the accused could not be proved. This Court in case PLD 2002 Pesh. 1181 has laid down a criteria for determination of the question of benami transaction.
(i) "Source of consideration.
(ii) From whose custody the original title deed and other documents came in evidence.
(iii) Who is in possession of suit property.
(iv) Motive for Benami transaction".
"The onus probandi to prove" benami character of transaction lies upon him who alleges it as held in AIR 1938 Madras page 8; prosecution has failed to prove the benami transaction".
31. Record shows that reference filed against the appellant as well as the Charges framed against him by the learned trial Court had alleged that the appellant had accumulated the relevant assets and pecuniary resources by misusing his authority as Chief Officer; but, the prosecution had not produced any evidence worth its name before the learned trial Court to establish any misuse of his authority by the appellant so as to develop and establish any nexus between misuse of his authority and amassing of wealth or accumulation of assets by him. In the complete absence of any evidence brought on the record by the prosecution in the above mentioned regard it could not be held by the learned Court below that the Charge, as framed against the appellant, stood established by the prosecution.
32. For what has been discussed above this appeal is allowed, the conviction and sentence of the appellant recorded by trial Court is set aside and he is acquitted of the charge.