' ALI BAQAR NAJAFI, J. --- This appeal is directed against judgment dated 19.06.2004 passed by the learned Judge, Accountability Court No, 1, Rawalpindi/Islamabad, whereby appellants, Aurangzeb Khan Toru and Javed Khan were convicted under Section 9(a)(v)&(vii) read with Section 10 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the Ordinance, 1999) and sentenced to 10 years' R.I. Each with fine of Rs, 5 million each, extending the benefit of Section 382-B, Cr.P.C. Besides confiscation of (i) CNG Station, (Capital Gas Pvt. Ltd.) situated in Khyaban-e- Sir Syed near Pir Wadhai area, Rawalpindi, (ii) Plot measuring one Kanal and 10 Marlas (Mutation No, 4977), situated in Mohra Noor, (Bani Gala), Islamabad, in the name of Aurangzeb Khan Toru, (iii)
Two plots measuring 14.5 Marlas (Mutation No, 4976) and 16.5 Marlas (Mutation No, 5066) in the name of Javed Khan, appellant and (iv) Plot measuring 13.05 Marlas, (Mutation No, 4978) situated in Mohra Noor (Bani Gala), Islamabad in the name of Mst. Fozia Yasmeen, wife of Aurangzeb Toru, appellant. They were also disqualified for obtaining loan or advances or other financial accommodation from any bank or financial institution owned or controlled by government for a period of 10 years from their conviction and shall forthwith ceased to hold public office and disqualified from contesting election and seeking appointment or nomination for any public office for 10 years from their release after serving the sentence as ordained under Section 15 of the Ordinance, 1999.
2. According to the reference No, 49 of 2001 filed under Sections 18(g) and 24(b) of the Ordinance, 1999 by the Chairman, NAB allegations against the appellants are that Aurangzeb Khan Toru, Director, NIH, Islamabad amassed huge assets and properties through corruption and corrupt practices approximately valuing Rs, 1,72,69,174/- in his own name or in the name of his wife Mst.
Fozia Yasmeen, brother Sukbar Khan and his son Javed Khan, benamidars.
3. After investigation challan was submitted in the Accountability Court No, 1, Rawalpindi/Islamabad where the prosecution produced as many as 27 witnesses besides documentary evidence to prove allegations levelled in the reference against the appellants whereas the appellants produced their defensive oral as well as documentary evidence to prove their innocence. They also got recorded their statements under Section 342, Cr.P.C. And the appellant, Aurangzeh Khan Toru also got recorded his statement under Section 340(2), Cr.P.C. The Accountability Court after trial convicted and sentenced the appellants mentioned supra.
4. Ch. Abdul Aziz, Advocate/learned counsel for the appellants contends that the Trial Court has confiscated above-said four properties but released other properties on the same evidence. Adds that PW-27/I.O. Has admitted that neither any investigation was conducted regarding financial authority of Aurangzeb Khan Toru/appellant while working in the government departments nor there were any allegation of corruption against him. Further adds that the appellant was not the member of "Purchase Committee" or "Evaluation Committee" which could possibly bring an opportunity for him to indulge in the corrupt practices. Also contends that profits income from money exchange business, shoe caring at Faisal Mosque, car parking at Ayubia Chair Lift, etc. Were neither taken into account by the Investigating Officer nor were considered by the learned Trial Court. Adds that Account No, 635 HBL, Toru, Mardan was opened in the year, 1976 in which huge transactions had taken place, which shows his sound family background having business since 1977 like Saw-Machine, Floor-Chaki and Timber in village Toru. Further adds that he declared his assets in the declaration form of the year 1990 and onward by giving the entire details of his properties, which coincides with the corresponding assets, which the appellant has built and declared. Adds that he earned salary amounting to Rs, 11,00,000/- and although the prosecution has exorbitantly calculated the incurred expenses at 80% but even assuming it to be true, the appellants' valid sources of income are much more than their assets.
5. Conversely, learned Additional Deputy Prosecutor General submits that the appellants with their mutual connivance and active participation have built up business which not proportionate to their known sources of income as the money was invested by Aurangzeb Khan Toru and Javed Khan son of Sukbar Khan and Mst. Fozia Yasmeen were Benamidars. Adds that the Trial Court has given full benefits of the disclosed source of income by the appellants. Further adds that Aurangzeb Khan Toruappellant has not disclosed his entire assets in the declaration form for the relevant years, therefore, prays for the dismissal of the appeal.
6. We have heard both the sides and have also gone rough the material available on record.
7. The appellants were charged in total for possessing 8 properties and operating. 6 bank accounts by acquiring/holding sets/properties disproportionate to their source of income: The emphasis of the argument by the learned counsel for the appellants remained basically for the release of 4 confiscated properties. However, we have been taken through the entire evidence which we have carefully but to give definite findings, it is appropriate that case be discussed in its totality.
8. To begin with the charge framed against the appellants on 23.11.2001, reproduced as under for ready reference:--- ' Firstly, that you Aurangzeb Khan Toru, accused No, 1 being holder of Public Office, through misuse of power, position and authority and in connivance with accused Nos. 2 and 3 acquired Assets/Properties of the value of Rs, 1,72,69,174/- which are disproportionate to your legitimate sources of income and for which you could not reasonable account for. The detail of the aforesaid Assets and Properties so acquired by you during the period from June 1988, till date is as under:-
(a) You purchased plot No, 292, Sector 1- 8/3, Islamabad in September 1993, at a value of Rs, 9,90,000/- in your own name.
(b) You constructed a house on plot mentioned at (a) above, valued at Rs, 12,35,515. The house was later on transferred in the name of your wife Mst. Fozia Yasmin.
(c) You purchased a plot measuring 1 kanal & 10 marlas in Mohra Noor (Bala), Islamabad in June, 19 worth Rs, 6,00,000/- in your own name.
(d) You purchased a plot measuring 13.5 marlas in Mohra Noor (Bani Gala), Islamabad, at a value of Rs, 2,70,000/-in the name of your wife, Mst. Fozia Yasmin.
(e) You purchased two plots measuring 16.5 marlas, and 14.5 marlas in Mohra Noor (Bani Gala), Islamabad, at a value of Rs, 300,000/- and Rs, 2,81,000/- respectively, in the name of accused No, 2 i,e, Javed Khan.
(f) You own a CNG Station i,e, Capital Gas (Pvt.) Ltd., jointly with your wife and accused Nos. 2 and 3 and the total value of which is approximately Rs, 1,28,73,951/- and which actually belongs to you.
(g) You purchased Capital Forex (Money Changer Business) situated in Al-Asghar Plaza, Blue Area, Islamabad in the name of accused No, 2 Sukber Khan; at a value of Rs, 1,20,000/-. This business is being operated by you i,e, accused No, 1 through accused No, 3 and which is now registered as Khan Money Changer.
(h) You purchased Euro Dollar Money Changer (Money Change Business) situated in Hajvairy Plaza, Blue Area, Islamabad in June 1999 in the name of your wife and nephew i,e, accused No, 3 with a total investment of Rs, 5,65,000/-.
' You also held/operated six bank accounts either in your own name or in the name of your wife through the co-accused and detail of the said bank accounts is as under---
(1) A/c No, 635 in Habib Bank Ltd. Toru, Mardan, in your name.
(2) A/c No, 002923-2 in National Bank of Pakistan, NIH Branch; Islamabad in your own name.
(3) A/c No, PLS-3553 in Allied Bank of Pakistan, G-7/2, Islamabad in your own name.
(4) A/c No, 1315 in Allied Bank Ltd., G-7/2, Islamabad, in the name of Sukber Khan & Sons, but operated by yourself.
(5) A/c No, 01-100-1263-4 in Bolan Bank Ltd., Blue Area, Islamabad, in the name of your wife.
(6) Foreign Currency A/c. No, 7151773 in National Bank of Pakistan, Civic Centre, Islamabad in the name of your employee, Muhammad Manzoor but managed by you.
' By acquiring/holding Assets/Properties above-mentioned either in your own name or in the name of benamidars co-accused mentioned above and your wife and which are disproportionate to your known sources of income and which you cannot reasonably account for, you accused No, 1 committed offence of corruption and corrupt practices as defined under Section 9 and punishable under Section 10 of the NAB Ordinance, 1999, within the cognizance of this Court.
' Secondly, that you, Sukber Khan, accused No, 2, in collusion with Aurangzeb Khan Toru, accused No, 1(a) allowed yourself to act as benamidar on his behalf in respect of M/s. Capital Forex (Money Changer business) which was purchased by accused No, 1 in your name in me sum of Rs, 1,20,000/- in 1995 and which had been actually financed by him i,e, accused No, 1 and (b) you accused No, 2, in collusion with him also acted as his benamidar in respect of bank account No, 1315 of Allied Bank, Sitara Market Branch, Islamabad and which actually belonged to him i,e, accused No, 1 and was operated by him and the total amount credited to the said account was Rs, 31,04,178/- and thus you accused No, 2 committed the offence of corruption and corrupt practices under Section 9, read with Section 10 of the NAB Ordinance, 1999, within the cognizance of this Court.
' Thirdly, that you, Sukber Khan accused No, 2 as benamidar of accused No, 1, held in your possession FEBCs worth US Dollars one lakh, purchased in November, 1997 from NBP Islamabad and the same were got encashed by you, Sukber Khan, accused No, 2 on 15.11.1999 for a sum of Rs, 5,086,082/- and being benamidar of assets aforesaid, obtained through corruption and corrupt practices, you were guilty of the offence of corruption and corrupt practices under Section 9, read with Section 10, within cognizance of this Court.
' Fourthly, that you Javed Khan, accused No, 3, as benamidar of accused No, 1 held in your possession FEBC's worth US Dollars one Lakh purchased in July 1997 from NBP, Peshawar and the same were got encashed by you Javed Khan, accused on 18.3.1999 for a sum of Rs, 46 lakh and being benamidar in respect of assets aforesaid obtained through corruption and corrupt practices, you were guilty of the offence of Corroption and Corrupt practices under Section 9, read with Section 10, within the cognizance of this Court.
' Fifthly, that you Javed Khan, accused No, 3, acted as benamidar on behalf of accused No, 1 who had purchased the business known as M/s. Euro dollar Money Changer from one Muhammad Hussain in June 1999 for a sum of Rs, 6,65,000/- and you are a benamidar to the extent of 25% share of business transferred to your name and you are running the said business as front man of accused No, 1 and that accused No, 1 purchased a plot measuring 16% Marlas in Mohra Noor, Islamabad in your name for a sum of Rs, 3,00,000/- and in respect of the afore-said plot you allowed yourself to be a benamidar of accused No, 1 and that accused No, 1 purchased a plot measuring 14% Marlas in Mohra Noor, Islamabad in your name and you again allowed yourself to be a benamidar of accused No, 1 in respect of aforesaid property and thus you accused No, 3 committed acts of Corruption and Corrupt practices under Section 9, read with Section 10, of the NAB Ordinance, 1999 within the cognizance of this Court.
' Sixthly, you Sukber Khan and Javed Khan, accused Nos. 2 and 3 are holding Equity/Shares to the extent of Rs, 93,57,446/- and which are far in excess of your known sources of income and there was an unexplained accretion of Rs, 37,86,258/- to the same and which you were unable to reasonably account for and hence you both accused Nos. 2 and 3 committed the offence of Corruption and Corrupt practices under Section 9, read with Section 10, within the cognizance of this Court.
9. A perusal of above charges reveals that in all these charges, the known source of income of the appellants has not been and it was left to the defence to prove that they owned these properties out of their legitimate sources of income. In order to understand whether this approach is legal, here it will be appropriate to reproduce Section 9(a)(v) and sub-clause (vii), National Accountability Bureau Ordinance, 1999.
' Corruption and Corrupt Practices. (a) A holder of public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:-
(i) .
(ii) .
(iii) .
(iv)
(v) If he or any of his dependents or benamidars owns, possesses, or has [acquired] right or title in any [assets or holds irrevocable power-of-attorney in respect of any assets] or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; (vi)
(vii) If he has issued any directive, policy, or any SRO (Statutory Regulatory Order) or any other order which grants or [attempts to grant] any [undue] concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or any benamidar, [or any other person] or
10. The above clause of NAB Ordinance has been abundantly made clear that disproportionate assets can only be ascertained with reference to the known source of income and the burden to prove this known source of income has been primarily upon prosecution as interpreted by the apex Court in Khan Asfandyar Wali v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607, in the following terms:--- "Be that as it may, prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. The above provisions do not constitute a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of Section 14(d):---
(1) The prosecution shall first make out a reasonable case against the accused charged under Section 9(a)(vi) and (vii) of the National Accountability Bureau Ordinance, 1999.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
11. The overall effect of the above provisions as well as the law laid down by the Supreme Court of Pakistan is that an accused person cannot be held responsible for having owned the properties purchased through unknown source of income or illegitimate means. We have scanned the entire evidence but could not find a word in the prosecution case under which the accused was required to explain the specific source beyond the known source of income.
12. The accused was made to explain his source of income and in response to which he has not only produced his own defence witnesses but has also explained his entire assets and has reasorabiy explained the source to purchase those assets which were in the form of profits in various business which he has declared in the Wealth Tax Statement and Income Tax Returns as well as in Declaration Form prescribed for a government servant. In our considered opinion by merely showing the details of assets and without disclosing the source of income, the prosecution has not been successful in shifting the onus to the accused to prove his innocence.
13. We have not been able to point out a single piece of evidence or even allegation either at the investigation stage or before the Trial Court to suggest that appellant Aurangzeb Khan Toru, has allegedly misused his authority to earn the ill-gotten money in order to build up his assets illegally.
The learned Trial Court on its own while adopting the inquisitorial proceedings has calculated the known source of income in paragraph No, 79 of the judgment whereas to our opinion the Court was simply required to weigh the prosecution evidence and to see as to whether it had successfully proved the case against the appellants beyond reasonable doubt. To cater the situation we have been guided again by the Supreme Court of Pakistan in Ghani-ur-Rehman v. National Accountability Bureau and others PLD 2001 Supreme Court 1144, wherein it was held that the prosecution must bring on record the misuse of authority of the public servant to show that the assets built by him is disproportionate to the known source of income. Relevant extract of said judgment is reproduced as under:- "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 and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily to account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. 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, probably on account of their sheer incompetence, utterly failed do the needful in this regard and it is regrettable that even the learned Trial Court as well as the learned Appellate Court had completely failed to advert to this critical aspect of the present case."
14. After having pointed out fatal legal lacunas in the impugned judgment, still we would like to give our finding on the evidence recorded by the Courts below.
15. Learned counsel for the appellant has referred to PW namely, Malik Manzoor Hussain, Admin.
Office, NIH, Islamabad who brought relevant declaration of assets for year 1989-1999 which are Ex.PC, to Ex.PC/11 as well as assets forms for the year 1998-99 and 2000 which are Ex.PC/25 to Ex.PC/38. The declaration form is Ex.PC/39. A perusal of these documents reveals that Aurangzeb Khan Toru, the appellant has been showing his house valuing Rs, 20,00,000/- National Saving Certificates valuing Rs, 90,000/-and other two plots in the name of his wife, Mst. Fauzia Yasmeen.
The appellant joined the services on 12.06.1988 as Management Officer in BS-18 and was posted at Viral Vaccine Production Laboratory. This witness has admitted that NIH is an autonomous body and the appellant is subject to the relevant NIH rules and that no departmental proceedings have ever been taken against him for violation of rules. He has also shown his ignorance of any allegation against the appellant Aurangzeb Khan Toru. His statement signifies that the appellant did not enjoy any office in which either he could mint money by corruption and corrupt practices or even he ever faced any allegation regarding embezzlement of any amount. PW-6, Manager, NBP who stated that Account No, 002923-2 was operated by Aurangzeb Khan Toru, and Ex.PG to Ex.PG/13 were the documents related to the said account, bank statement Ex.PF/2 shows tansactions made on different dates between 1990 to 1997 ranging from Rs, 5000/- to Rs, 1,05,300/- which cannot connect the appellant with the alleged crime. PW-7/Ahmed Naeem, Officer Grade-II, NBP Main Branch Islamabad, stated about the issuance of FEBCS which has been properly reflected in the assets declaration form by the appellant. PW-9, Second Manager, Allied Bank, Sitara Market Branch, admitted two bank accounts No, 1315 in the 'name of Sukbar Khan & Sons and Account No, 3553 in the name of appellant Aurangzeb Khan Toru. PW-10 is Syed Alamdar Hussain, Officer Grade-HI, Bolan Bank, Blue Area Branch who informed about various transactions from the said accounts which of course were business account. This witness has also shown the various transactions made between two said accounts which of course does not mean that it was the transactions of ill-gotten money. PW-12/Muhammad Ilyas, UDC, Circle 16, Company Zone, Income Tax Office, Islamabad. PW13/Abdul Salam. UDC/Record Keeper, Circle-03, Income Tax Department, Companies Zone, Islamabad. PW-18 is Special Officer Income Tax Circle-12, Islamabad. Who has stated that the income tax of appellant/Aurangzeb Khan Toru, was deducted at source at the time of receipt of salary, therefore, PW-17 admitted that no income tax returns were ever filed by the appellant Aurangzeb Khan Toru. PW19/Muhammad Irshad. Stated that he sold land measuring 161/2 marlas situated in Mohra Noor to appellant Aurangzeb Khan Toru, for Rs, 3,00,000/- in June, 1999 in his capacity of General attorney which document he did not produce. He admitted that the mutation was sanctioned in the name of Javed Khan appellant. PW-20/Mutabar Khan, Revenue Patwar/Halqa, stated that 4 marla house was in possession of late Sukbar Khan, brother of Aurangzeb Khan Toru. PW21/Naseer-ud-Din, Vice-President, NBP Main Branch, Peshawar Cantt.
Stated about the FCBC No, DE-001082 in the amount of 1,00,000/- US Dollars. He stated that it was Mst. Fozia Yasmeen and Javed Khan, who presented FCBC of 40,000/- US Dollars for encashment.
PW-22, is Assistant Foreign Exchange Service, State Bank of Pakistan who stated that partners of M/s. S.K. Enterprises is Mst. Fouzia Yasmeen, Javed Khan and Malik Muhammad Hussain, but the business could not be carried on. PW-23/Asghar Ali Shah, Private Business of Information Technology, stated that he sold the business of Capital Forex Money Exchange to late Sukbar Khan, on 05.01.1995 through an agreement in which appellant/Aurangzeb Khan Toru, was not mentioned anywhere. PW-27/Niaz Ahmed, 1.0., Assistant Director, FIA, simply stated that he did not ascertain as to how much funds were placed at the disposal of the appellant/Aurangzeb Khan Toru, and how much were spent by him. According to this witness, appellant/Aurangzeb Khan Toru, disclosed before him that he has small business of Floor Mill (Chaki), Saw Machine and Timber before joining the service which was not negated by him during the investigation. He admitted that Aurangzeb Khan Toru, appellant was educated through the legitimate source of income by his family. The 1.0.
Admitted that account No, 635 remained active upto June 1999, which was opened in the year 1976 much before joining of service in 1988. The I.O. Has admitted that he has not calculated the source of income for the year 1989 to 1995, separately. Towards the end of his cross-examination this witness has admitted that he could not collect any evidence regarding misuse of his authority in the disposal of any finance or funds. He has also admitted that no evidence was brought on record that Javed Khan and Sukbar Khan, remained on the panel of supplier and contractor of NIH. On suggestion, he has denied that appllecant aurangzeb Khan Toru, claimed total income of Rs, 81,21,933/-.
16. In paragraph 79 of the impugned judgment while showing the known source of income of Aurangzeb Khan Toru, appellant, the income from money exchange and shoe caring at Faisal Mosque and car parking of Ayubia Chair Lift, was not taken into account.
17. The above discussed evidence leads us to an resistible conclusion that the Trial Court has misread the evidence and based its findings on infatuation by holding that the above-said properties were found to have been built beyond the source of income and has also not appreciated the defence evidence in its correct perspective and in fact the prosecution remained unable to prove the case against the appellants beyond any reasonable doubt. We are guided by the Hon'ble Supreme Court in case reported as Khalid Aziz v. The State (2011 SCM R 136). The relevant extract is reproduced below:--- "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 corrupt practice is required to be drawn."
18. For the above-stated reasons, we are persuaded by the arguments of the learned counsel for the appellants, therefore, while allowing this appeal we set aside the judgment passed by the Accountability Court No, 1, Rawalpindi/Islamabad and acquit the appellant of the charges. The appellants are on bail, their sureties stand discharged from their liabilities. Criminal .