' IKRAMULLAH KHAN, J.---Through this single judgment, we intend to dispose of Eh. Criminal Appeal No, 7 of 2010, Writ Petitions No, 555 of 2010 and 736 of 2010 wherein common questions of law and fact are involved and have arison out of the same judgment of the Accountability Court No,1, Peshawar dated 20-1-2010 in Reference No,4/2000.
2. Brief but material facts of the case are that on 22-4-2000 the learned trial Court framed the charge against the accused to the effect that during the tenure of his service as a Government servant he had amassed huge amount through corruption, dishonesty and by illegal means and with that ill-gotten income had purchased some land at Abdara Road, Peshawar, Plot No, 56 in Defence Colony with additional allotment of an area of 200 square yards in the name of his wife Mst. Tasneem Begum, two Flats constructed on the land at Abdara Road, a quarter in Gharib Abad, Peshawar, a plot measuring one Kanal with additional land measuring 1110 square feet in Hayatabad, a building comprising five shops on Saddar Road along with Balakhana known as UBL Building in the names of his wife and brother-in-law Syed Mansoor Ahmad and that on such property he had constructed a Hotel known as Sindbad Hotel.
3. The appellant was also charged for having purchased Deposit Certificates from the Islamic Investment Bank Main Branch Peshawar Saddar, Special Saving Certificates from the National Saving Centre Dabgari Peshawar, a Honda Car in the name of his son Syed Yasir Shah, National Saving Certificates in the name of his wife and a Toyota car in the name of Fayaz Ali Shah, the son- in-law of his brother.
4. Besides, he was charged for having foreign currency account in dollars in the name of his wife by using her fake name as Mst. Roohi Zahir in Grindlays Bank Peshawar Cantt. And that such other property including agriculture land, the total value of aforesaid assets was worked out to be rupees two crores fifteen lacs (Rs,21500000) which was disproportionate to the known sources of his income. The accused appellant denied the charges, pleaded not guilty and opted for trial.
5. On conclusion of the trial, the trial Court came to the conclusion that the prosecution has proved its case against the appellant and consequently the appellant was convicted and sentenced under section 10 of the Ordinance to suffer five years rigorous imprisonment and to pay a fine of Rs,21500000. The fine was directed to be paid within a period of one month failing which the amount shall be recovered by sale of his movable and immovable property including that which is in the, name of his wife and sons. The benefit of section 382-B, Cr.P.C. Was extended to the appellant.
6. Feeling himself aggrieved, the appellant filed Eh. Criminal Appeal No, 5/2000 in Peshawar High Court and the Division Bench of this Court while maintaining the conviction reduced the sentence of imprisonment to three years and fine was reduced to Rs,11500000. The fine was ordered to be paid within a period of two months failing which the appellant shall undergo one year further rigorous imprisonment. The property mentioned in para-66 of the judgment was ordered to be forfeited to the Government.
7. Still feeling .Dissatisfied, the appellant filed Criminal Appeal No, 31 of 2001 in the august Supreme Court. Benamidars Mansoor Shah, Yasir Shah sons, Tasneem Begum wife of accused appellant Syed Zahir Shah, Syed Fayaz Ali Shah husband of the niece of accused filed Civil Petition No, 1736 of 2005 while Mansoor Ahmad son of Ahmad Ali Shah brother-in-law of accused appellant filed Civil Petition No, 751-P of 2003 in august Supreme Court of Pakistan wherein they assailed the conviction of accused Syed Zahir Shah to the extent that in case of default of payment of fine by accused, the properties owned by them can be utilized for recovery of fine.
8. The honourable Supreme Court of Pakistan converted both the Civil. Petition No, 1736 of 2005 and Civil Petition No, 751-P of 2003 into appeals and were allowed in the terms that the said appellants shall have an opportunity of hearing and producing of evidence before the trial Court in the light of their alleged claims about properties in question. The august Supreme Court of Pakistan rendered the forfeiture of the properties as unlawful and unsustainable unless the questions relating to the Benami transaction in which certain rights and interests claimed by Benamidars were determined by the trial Court in the overall perspective of evidence. Criminal Appeal No, 31 of 2001 of Syed Zahir Shah was partly allowed. Thus the impugned judgments in these matters were set aside and the case was remanded to the trial Court with the direction to afford opportunity of hearing to the alleged Benamidars to produce evidence.
9. After the remand, the Benamidars attended the Court and produced their respective evidence.
After hearing the learned counsel for the parties, the accused appellant was convicted under section 10 of National Accountability Ordinance, 1999 and sentenced to three years rigorous imprisonment and also to pay a fine of Rs,11500000. Accused was directed to pay the amount of fine within a period of one month. In the case of failure, the same shall be recovered as arrears of land revenue. The properties of the accused in the name of Benamidars were ordered to be forfeited to the Government. The accused appellant was extended the benefit of section 382-B, Cr .
P.0 .
10. The appellant has filed the instant Eh. Cr. Appeal No, 7 of 2010 against his conviction and sentence while Writ Petition No, 555/2010 and Writ Petition No, 736 of 2010 have been filed by the petitioners therein to set aside the impugned judgment dated 20-1-2010 of the Accountability Court No,1, Peshawar to the extent of their properties.
11. In order to prove its case, the prosecution examined as many as 24 witnesses. The statement of appellant-accused was recorded under section 342, Cr.P.C., 1898 and the appellant also produced 15 witnesses in his defence. On remand of case by the Apex Court, petitioner in Writ Petitions Nos.
555/2010 and 736/2010, respectively also recorded their evidence on notice by the learned trial Court on the direction of the Apex Court.
12. Barrister Masroor Shah, learned counsel for the appellant and Syed Arshad Ali, advocate counsel for petitioners in writ petition argued that under section 14(d) of the NAB Ordinance, 1999, it was the legal obligation of the prosecution to make out a reasonable case against the appellant while heavy duty cast upon the prosecution, to prove the allegation levelled against the appellant, beyond any shadow of doubt, through cogent, reliable and confidence inspiring evidence, albeit prosecution had miserably failed to substantiate its case but the learned trial Court erred in law as well as on facts and illegally placed burden on appellant, to rebut the charges levelled against the appellant as such the impugned judgment is against the established principle of dispensation of criminal justice and jurisprudence.
13. That the impugned judgment is not only erroneous but also fallacious in so far as the sentence of fine of Rs,11500000 is concerned, as the appellant had already been undergone not only the substantive punishment of 3 years but also one year R.I, in lieu of fine of Rs,11500000 as per judgment of this Court dated 2-1-2001. The imposition of fine upon the appellant is against the clear mandate of the provisions of the Constitution, 1973 contained in Article 13 and also against the provisions contained in section 403, Cr.P.C., 1898, read with conjunction with the provisions contained in section 26 of the General Clauses Act; 1897.
14. That, no person shall be convicted for any punishment, in view of the clear mandate of the Constitution, 1973, contained in Article 12, which was not substantive one, at the time of commission of offence, while the learned Accountability Court has convicted the appellant for a sentence, which was not substantive, at the time of the commission of the alleged offence, all laws, irrespective of its kind whether general or special shall be considered to be subservient to the Constitution; and any law in derogation of the Constitution shall be void ab initio and could not be implemented, that the provisions contained in section 10 of the NAB Ordinance, 1999, was amended by an amending Ordinance No, XXXIII of 2002, whereby imposition of fine upon the convict was made a substantive punishment apart from the sentence of imprisonment.
15. That the learned trial Court has misconstrued the meaning of Benamidars. There is no evidence on record to show, that appellant had acquired assets mentioned therein the charge framed by the trial Court in the names of petitioners in Writ Petitions Nos. 555 of 2010 and 736 of 2010, respectively, which was illegally held by the learned Court that properties owned by the others petitioners in Writ Petitions Nos. 555 of 2010 and 736/2010, being benami, properties, on behalf of appellant-convict.
16. That the learned trial Court has not treated and appreciated the defence evidence, whereas the appellant and rest of the petitioners have given reasonable explanation that the assets, subject matter of charge had been acquired thereby other petitioners through their own independent, lawful sources/means.
17. It was also argued that the impugned judgment is against the law, facts on record; that the learned trial Court has not appreciated the evidence on record in its correct perspective; that the impugned judgment is the result of misreading and non-reading of evidence. The learned counsel also argued that the appellant has illegally been convicted and sentenced. In the end, the learned counsel prayed that the appeal may be accepted and the judgment of learned Accountability Court No,1, Peshawar be set aside. The learned counsel in support of his submissions placed reliance on:-- ' Chaudhry Aamir All v. State (2002 YLR 1902), ' Pir Mazhar ul Hag v. The State (PLD 2005Supreme Court 63), ' Syed Qasim Shah v. The State (2009 SCMR 790), ' Muhammad Hayat v. The State (PLD 2002 Peshawar 118), ' Khalid Aziz v. The State, (2011 SCMR 136), ' Muhammad Hashim Babar v. The State and another (2010 SCMR 1697), ' Mehmood Hussain v. The State and another (2003 PCr LI 1 (Peshawar)
' Qazi Siraj v. The State (PLD 2004 Quetta 136), ' Hakim All Zardari v. The State (2007 MLD 910), ' Farrukh Javed Ghumman v. The State (PLD 2004 Lahore 155), ' The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), ' Hayat Khan v. The State (2011 YLR 890), ' The State through Prosecutor-General Accountability, National Accountability Bureau, Islamabad v. Misbahuddin Farid (2003 SCMR 150), ' Zulkar Ahmad and another v. The State (2011 SCMR 492), ' Sultan Khan v. Sher Khan and others (PLD 1991 Supreme Court 520), ' Abdul Wahab v. The Crown (PLD 1955 Federal Court 88), ' Shabbir Ahmad v. The State (PLD 1995 Supreme Court 343), ' Din Muhammad v. The Crown (1969 SCMR 777) and ' Khan Muhammad and others v. The State (PLD 1960 (W.P.) Lahore 218).
18. On the other hand, Mr. Khalil Ullah Khalil, Special Prosecutor of NAB supported the impugned judgment of conviction passed against the appellant and contended that the impugned judgment is based on proper appreciation of evidence and correct construction of law and facts on record; that the prosecution successfully had discharged its initial burden of proof, rebuttable had proved through cogent, unshakeable and un-rebutted evidence the charges levelled against the appellant beyond any shadow of doubt as such, according to provisions contained in section 14 it was the duty of the appellant to show that the assets subject matter of charge were acquired either by the appellant or by petitioners in Writ Petition No, 555 of 2010 through lawful means and the forfeited properties, were not benami and petitioners were not benamidars or ostensible owners, but both have failed to prove, hence the appellant was rightly being convicted by the trial Court, thereunder section. 10 of the NAB Ordinance, 1999.
19. We have heard the learned counsel for the parties and anxiously given consideration to their arguments in view of law and evidence on record.
20. Prior to comment upon the merit of the case in light of arguments and points raised by the learned counsel, it would be not out of context to give an over view of the evidence, produce thereby both the parties, in support of their respective allegations and defence during course of trial, which are as under:-- {{TABLE}} P. W.1 Nasir Khan, Excise and Taxation Officer, Peshawar. Provides the record of motor cars No, PRU88, Honda Civil Model 1995 previously owned by Doctor Shahid Mahmood and presently owned by Syed Yasir Shah the son of Syed Zahir Shah.
No, PRR-I 347 Toyota Corolla Model 1988 previously owned by Amir Nawaz and presently Syed Fayaz Ali Shah son of Syed Muzaffar Shah.
P. W.2 Muhammad Produced the record Nisar Khan, Controller of regarding admission of Syed Yasir Shah the son Examination of the accused in the University of Engineering University Engineering Peshawar and stated that and as per record his date of Technology, Peshawar. Birth was 16-2-1976 and he was admitted in 1st Year Electrical Engineering in the said University on 19-1-1995, while the final year Engineering result was declared on 4-2-2000. #TBS governor Secretariat, N. W. F. P . Peshawar. Housing Department N.W.F. P. At that time. On 9-2- 2000 on the request of P. W.24 certain documents regarding the assets of the accused were provided to him which includes the declaration of assets for the year 1993 to 1996 furnished by the Syed Zahir Shah. He further deposed that after 1996 no declaration of assets was filed by the accused. P.W.8 Muhammad Ibrahim, Military Estate Office, Peshawar. Deposed that he also provided the copies of certain documents to the P. W. 24 pertaining to the Bungalow No, 56 Defence Colony Peshawar etc. P.Ws.9 and 10 Muhammad Ihsan and Asad Ullah, tenants. Deposed that they were the occupier of flats of Yasir Shah situated at Abdara Road, Peshawar as tenant on payment of monthly rent of Rs,7000 for the last three years and Rs,7000 for the last 6 months, respectively. P. W.11 Abdul Samad, tenant. Deposed that he was the tenant of Syed Zahir Shah and residing in a house situated at Gharibabad, Peshawar on payment of monthly rent of Rs,2200, which was rented out by Yasir Shah the son of accused. P. W.12 Abdur Rehman, Sub- Registrar, Peshawar. Produced the record pertaining to general power of attorney executed by one Shamsud-Din in favor of the accused Syed Zahir Shah.
P. W.13 Wahid Gul, Driver. Deposed that being the employee in Peshawar Development Authority he performed the duty for a period of three years as Driver with Syed Zahir Shah (appellant). He used to drive vehicle No, PRU-88 Honda Civic.
That Motor Car No, PRR-1347 used to be brought by one Fiaz Ali Shah was also driven by #TBE #TBS P.W.3 Muhammad Arif Deputy Director Estate Management, Peshawar Development Authority. Produced the record pertaining to allotment of plot No, 1-C/N-3-1.
K Phase- IV, Hayatabad, Peshawar and deposed that said plot was allotted to the accused by the Chief Minister NWFP, vide allotment order dated 23-11-1988.
He also produced the original allotment order in respect of additional piece of land measuring 1110 square feet which was allotted to the accused on 11-6-1996.
P. W.4 Adnan Inamullah Khan, Assistant Commissioner Income Tax. Produced the income tax record and stated that Syed Yasir Shah and Masroor Shah sons of Syed Zahir Shah during the Assessm ent year 1997-98 vide which Syed Yasir Shah had paid the income tax amounting to Rs,3020. Copy of computation chart was also produced by him. P.W.5 Khwaja Sardar Ali, Assistant Commissioner, -Income Tax, Peshawar. Deposed that on the request of P. W.24 Shams-ur-Rehman Khan, Inspector F.1.A, copies of Income Tax Returns, Wealth Tax Returns and Assessm ents Forms for the Assessment years 1995-1996, 1996-1997 and 1997-1998 were provided to the Flk He further stated that accused was paying income tax since 1986- 1987, while the Wealth Tax Return was filed by the accused was of 1995- 1996 whereas the last return was filed for the Assessm ent year 1997- 1998.
P. W . 6 Muhammad Qasim Samad Khan, Deputy Commissioner, Income Tax, Peshawar. Provided the copies of certain documents of income tax ,and computation chart relating to the wife of Syed Zahir Shah appellant. P. W.7 Noor Ullah, Section Officer, Deposed that he was posted as Section Officer, Physical Planning and #TBE #TBS the requisite certificate was issued. After that said property was alienated in favor of Mst. Tasneem Begum and Mansoor Ahmad vide Cantonment Board Resolution No, 70 dated 24-5- 1978. Subsequently the vendees submitted site/building plant for construction of four stories commercial building which was approved by the Government and sanction was accorded on the payment of due charges. Later on the said property was mutated on the name of Mst.
Tasneem Begum vide mutation No,545/33(11).
P. W.17 Zafarullah Babar, Executive Engineer Pak P.W.D, Peshawar. In the company of Shams- ur-Rehman Khan, Inspector, Niamatullah, Sub- Inspector and Saadullah Estimator of Pak P. W. D, inspected/visited the Sindbad Hotel, Peshawar and two flats at Abdara Road, Peshawar, Bungalow No,56-Defence Colony Peshawar and U.B.L Building situated at Saddar Road, Peshawar, Quarter situated at Gharib Abad, cum Tehkal Bala, Peshawar for the purpose of valuation and had prepared the assessm ent report. P. W. 18 Dost Muhammad Khan, Assistant Revenue Officer, P. T. C.L, Peshawar. On the request of P.W. 24, provides the copies of telephone bills along with all details in respect of telephone No, 271101 for the period from January, 1999 to January, 2000.
P. W. 19 Abdul Waheed Khan, Regional Director National Savings Organization, Peshawar. Produced the entire record regarding the Special Saving Certificates purchased by Syed Yasir Shah the son and Mst. Tasneem Begum the wife of the accused amounting to Rs,1450000 #TBE #TBS him, Appellant retained this car for about 15/20 days and when no longer required return the same. P. W. 14 Samandar Khan, Road Roller Cleaner in Peshawar Development Authority. Deposed that he got employment in Peshawar Development Authority as Road Roller Cleaner about 19/20 years ago. Thereafter he was promoted as Driver and serving as Driver in Peshawar Development Authority for the last 11/12 years. After performing his official duty he used to come to the house of the accused Syed Zahir Shah and stay there for the night as he belongs to District Mardan and not having any house in Peshawar.
He used to drive, two motor cars of appellant while staying with him. P. W.15 Syed Asghar All Shah, Manager in CNG Luqman Shah Enterprises, G. T. Road, Peshawar Deposed that CNG kit was got fitted by Syed Zahir Shah accused in Toyota Corolla Motor Car No, D-6726 and the invoice were also signed by the accused. P. W. I6 Niq at Shah, Senior Clerk, Cantonment Board, Peshawar. Produced the record pertaining to property bearing Nos. 3-A, 3-B, 3-C, 3A-I, & 3A-2 known as Sindbad Hotel situated at Saddar Road, Peshawar and deposed that initially the said property was in the name of Shams-ud-Din and Ahmad Khan. Through general power of attorney Syed Zahir Shah transferred the said property to Mst. Tasneem Begum daughter of Syed Ahmad Ali Shah and her brother Syed Mansoor Ahmad. Accused being attorney of Shams-ud Din and Ahmed Khan submitted an application to the Cantonment Executive Officer for no demand certificate in respect of the said property and accordingly #TBE #TBS Syed Yasir Shah. On demand of P. W. 24 copies of documents have been provided to the 1.0.
P. W. 22 Saad Salman Haider, Ex.
Manager Grindlays Bank, Peshawar. Deposed that from October 1988 till 15th May, 2000 he was posted as Manager in Grindlays Bank, Pesha- war and on the request of P.W.24 copies of statements of accounts No, 1131332015201, 11314/5352251 and account No,1131524461035 were delivered to the 1.0.
P. W.23 Zarsher, Copyist Office of Deputy Commissioner, Peshawar. Produ ed original mutes )ti register relating to I station No, 1853 attes ed on 29-3-1978 and mutation No,. 4292 ant ed on 5-3-1994.
P. W.24 Shams-ur- Rehman, Inspector, F.I.A., Peshawar. Deposed that investigation of the case of accused was entrusted to him by the Director F.I.A. During the inquiry/investigation he collected the copies of entire record pertaining to Plot/Bungalow No, 56, Defence Colony, Peshawar, U.B.L Building and Sindbad Hotel, Peshawar Cantt, two flats situated at Abdara Road, University Town, Peshawar, one quarter situated at Gharib Abad, Peshawar, two motor cars No, 8800-B, Peshawar and No,6726-D, Peshawar, Bank Accounts on the name of Syed Yasir Shah (son) and Mst. Tasneem Begum (wife) of the accused Syed Zahir Shah, and have also recorded the statements of the prosecution witnesses and occupants of flats. He also obtained the record of utility bills (Electric and Telephone).
All the copies were obtained from P. Ws.
Nos. 5, 7, 8, 18, 21 and 22 and were placed on #TBE #TBS from National Saving Centre-11, Namak Mandi Branch, Peshawar on 21-10-1998. Subsequently one certificate of rupees five lacs (Rs, 500000 was encashed by Syed Yasir Shah on 2-11-1999. After that again Syed Yasir Shah applied for purchase of Special Saving Certificates for Rs,650000 in the National Saving Centre- III Dabgari, Peshawar which were issued to him on 5-8-1999. Special Saving Certificates for an amount of Rs,150000 were also purchased by Mst. Tasneem Begum on 21-2-2000. That on 17-7-1998 Mst. Tasneem Begum wife of Syed Zahir Shah also applied for purchase of Special Saving Certificate for Rs,I5000 which were issued to her after having deposited the said amount. These certificates were however, en-chased on 21-2-2000. He further deposed that he prepared the list in respect of the Special Saving Certificates of Mst.
Tasneem Begum and her son Syed Yasir Shah. He also stated that in the document dated 25-2- 2000 the amount has been inadvertently written as Rs,150000 instead of Rs,15000.
P. W.20 Naimat Ullah, Sub-Inspector, F.I.A., Peshawar Marginal witnesses of the recovery memo vide which the 1.0. Took into possession Motor Car No,D-6726 (Old No,1347-PRR) along with accessories. P. W.21 Inam Ullah, Senior Deposed that Syed Yasir Shah, opened an account Officer, Islamic in the Cash Management Scheme and deposited Investment rupees One Million in the Bank, Peshawar. Bank and two certificates amounting to Rs,500000
(each) were issued to #TBE #TBS amount of Rs,88601 was paid to her. DW-4 Gul Manzar, Patwari Halqa Tordher, District Swabi.
Produced the Revenue Record of landed property of the accused and deposed that on the death of his father the accused inherited landed property measuring 33 kanals, 14 marlas vide Mutation No, 8482 attested on 8-7-1979. He further deposed that on the same quantum Syed Mehboob Shah (brother of the accused) also inherited the land. He produced the revenue record of both the brothers. DW-5 Ghulam Mustafa, Director Finance, Peshawar Development Authority, Peshawar.
Deposed that salary and allowances record/statement was prepared by him from 1-10-1975 to 31-12-1999.
DW-6 Mian Naeem Ullah Kaka Khel, Contractor. States that he had constructed the quarter for the accused Syed Zahir Shah on his plot measuring 3 marlas situated at Gharib Abad, Peshawar vide agreement dated 7-1-1994 at the cost of Rs,84000.
DW-7 Qadir Ali, Consultant architect Shalimar Plaza, G.T.
Road, Peshawar. Deposed that he had prepared the location plan for the accused Syed Zahir Shah for the construction of flat at Gharib Abad, Peshawar after visiting the site. DW-8 Adnan Mom Ullah, Assistant Commissioner, Income Tax/ Wealth Tax, Peshawar. Produced the copy of assessment year for the year 1996-1997 relating to Syed Yasir Shah son of the accused and deposed that according to the assessment record the gross income of Syed Yasir Shah during the said period was Rs,84000 whereas his net taxable income was Rs,67200.
He also produced the assessm ent record for the year 1997-98 and #TBE #TBS Defence Witnesses examined by the appellant-convict.
DW-1 Ishan Ullah, Accounts Officer, Prize Bond Section, State Bank of Pakistan, Peshawar. Produced the record pertaining to Prize Bond No, AY-024118 of denomination of Rs,500 vide which Syed Yasir Shah won the prize of Rs, 500000. After deduction of Rs,37,500 as income tax an amount of Rs,462500 was paid to Syed Yasir Shah.
DW-2 Abdur Produced the record Rehman, Sub- containing registered Registrar, Peshawar. Documents Nos. 606 to 655 executed between the perioas from 16-10-1978 to 23-10-1978 and deposed that sale deed executed by Mst.
Tasneem Begum daughter of Syed Ahmad Ali Shah in favor of Haji Muhammad Jan and Haji Muhammad Younas Jan are recorded. Vendor Mst Tasneem Begum sold a bungalow known as Shah:Vella situated in Gulberg, Peshawar for sale consideration of Rs,415000.
DW-3 Adnan Malik, Deputy Deposed the accused Syed Zahir Shah was Manager, State Life insured for a sum of Rs,50000 vide policy Insurance No, 505007179-1 on Corporation 28-6-1978, which matured Peshawar. On 28-6-1998 and in consequence thereof a sum of Rs,118800 was paid to the accused on 7-8-1998. He further deposed that Mst Tasneem Begum was also insured on 22-12-1976 for an amount of Rs,50000 which was matured on 22-12.1996 and accordingly an #TBE record. On completion of investigation prepared the final report which was submitted to Chairman NAB, Islamabad along with entire record. #TBS Tordher, as his tenant on payment of annual 'Ijara' of Rs,5000 per Jrib' for the last 10/12 years..
DW-13 Syed Yasir Deposed that he is an Shah son of assessee of the Income Syed Zahir Tax/Wealth Tax since Shah. 1995-96.His income was stated from 1995 from the rent of his flat, situated at Abdara Road, Peshawar. Rs,7000 he had shown in the Income Tax Return of the assessm ent year 1995-96.
After payment of Income Tax and. The amount of personal expenses an amount of Rs,72,280 left with him at the end of the year 1995. In the year 1996 he received the rent of the flat amounting to Rs,84000 (@ Rs,7000 per month). He also won a prize of Rs,500000 on his prize bond of Rs,500 denomination whereupon he paid Rs,37,500 as income tax. He also paid the Income Tax of Rs,3,020 on the rental income. His personal expenses in the years 1996-97 were Rs,6000 and at the end of the year the cash in hand was Rs,609760. During the years 1997-98 his rental income of flat was Rs,84000 whereupon he paid income tax amounting to Rs,I796.
His personal expenses during the year were Rs,2600. In addition he paid Rs,360000 to one Dr. Shahid from whom he purchased a Motor Car, Honda Civic, after this payment Rs,322364 left with him as cash. In the years 1998-99 he received Rs,84000 as rent of his quarter and an amount of Rs,310494/ as rent of the quarter of his brother Syed Masroor Shah for the period from 1995 onwards which was gifted to him by his brother. During the year #TBE #TBS 1998-1999 pertaining to Syed Masroor Shah the brother of Syed Yasir Shah and stated that the total income of Syed Masroor Shah during the above mentioned period was Rs,84000 per annum, while his taxable income according to the assessment orders was Rs,67,200 per year. DW- 9/OW- 8. Muhammad Qasim Samad Khan, Deputy Commissioner Income Tax/Wealth Tax, Peshawar. Produced the record pertaining to Mst.
Tasneem Begum wife of accused Syed Zahir Shah and deposed that according to the record Mst. Tasneem Begum is the assessee of Income Tax of Income Tax since assessm ent year 1997-98 and prior to that she was assessee in an other circle. He also deposed that Mst. Tasneem Begum is the assessee of Wealth Tax sipce 1978-79.
DW-10 Mohisn Khan, Assistant Commissioner, Income Tax/ Wealth Tax Companies Circle No,06, Peshawar. Produced the copies of assessment orders for the assessment years 1978- 79, 1982-83 and 1984- 85, respectively relating to Wealth Tax of Syed Mansoor Ahmad, the brother-in-law of the accused. DW-11 Mir Salam Khan son of Mira Khan. Deposed that Mehboob Shah the brother of accused Syed Zahir Shah is the owner of land measuring 40-kanals, situated in the limits of Farooq Banda (Tordher) and that he is in its possession as tenant of Mehboob Shah on. payment of yearly Tara"
Rs,5000 per 'Jrib'.
Further deposed that he is paying the 'Ijara' to the accused as per instructions of the owner of the land for the last . 10/12 years. DW-12 Abdul Salam son of Muhammad Saeed. Deposed that he is in possession of the land owned by Syed Zahir Shah accused, situated in Farooq Banda cum #TBE #TBS Development Bank and that the remaining amount was owned by his son Yasir Shah. He further deposed that his wife had purchased the Saving Certificates for Rs,165000 with her own income. Foreign currency was sent by his nephew Syed Fayyaz Ali Shah and cousin Sardar Hussain who are citizens of United States. He also admitted the sale consideration for the land measuring 200 square yards adjacent to House No, 56 was paid by him.
He further deposed that he had paid Rs,119000 as price of plot and additional and situated in Phase IV Hayatabad which was allotted to him out of the quota of employees of Peshawar Development Authority. Construction of double storey quarters at the cost of Rs,84000 at Gharibabad and receiving its rent was also admitted by him. He also ousted that five shops situated at Saddar Road, Peshawar were purchased by him and his father-in-law and its sale consideration was given to him by his father-in-law and that he in turn paid it to Shams ud Din who executed a Power of Attorney in his favor for alienation of the shops. Later on the same were alienated in the name of wife and brother-in-law Syed Mansoor Ahmad for Rs,60000 which were already paid to Shams ud Din. Those shops were demolished and the Hotel building was constructed which also included a restaurant and three shops, at a cost of Rs,300000 in the year 1979. Half of the construction cost was paid by his wife while the remaining half was paid #TBE receiving the rental income of U.B.L.
Building since 1974. Het' parents had also been providing financial assistance to her. That the land at Abdara Road was gifted by his wife to his sons Syed Yasir Shah and Syed Masroor Shah and they constructed two flats on the said land with the amount given to them by his nephew Syed Masroor Shah. That his son Syed Yasir Shah also won a prize of Rs,500000 on his prize bond of Rs,500. He purchased motor car No, PRU-88 Honda Civic Model 1995. That his father-in-law had also given financial assistance to his son Masroor Shah for education and other personal expenses as he was adopted by him. His sons receiving rental income from their flats since 1995 while his income also consist of salary and agricultural income. The agricultural income of his land is being received since 1975. That he is also receiving the income of land of his brother for the last 10/12 years. He owned a house in Liaqat Bazar, which was gifted to him by his father which was sold in the year 1976. Before joining service he also owned some other property in Peshawar which was also sold prior to the year 1980.About Toyota Motor Car No, PRR-1347 deposed that it was owned by Fayyaz Ali Shah the son in law of his brother. That his son purchased Saving Certificates for Rs,1450000 and out of this amount he had contributed Rs,400000 only. He also paid him Rs,500000 for investment in the Islamic #TBS On notice the petitioners examined as much as 16 witnesses in support of their plea in: regard to the assets, allegedly held by the NAB, to be benami one. #TBE #TBS by his brother-in-law. That the U.B.L building was also purchased jointly by his wife and her brother Syed Mansoor Ahmad for Rs,70000 through a registered deed and they paid the sale consideration in equal shares. #TBE #TBS in the ownership of his father. OW-4 Shaukat Ali, UDC, Cantonment Board, Peshawar. Produced the entire documents relating to property No, 91/27 comprising ' Survey No, 587. The extracts of G.I.Rs of the said property dated 4-10-1999 and 24-7-2003. Also produced the original mutation letter of the said property dated 10-2-1996 and original admission deed of Syed Mansoor Ahmad. Sanction letter of Government of Pakistan, Ministry of Defence Rawalpindi dated 30-9-2003 allowing the said property to be converted from old grant to commercial use on payment of certain charges was also produced.
Copy of original lease deed dated 15-12-2003 executed between Syed ' Mansoor Ahmad Shah, and the Cantonment Board, Peshawar whereby the said property was allowed for commercial purposes was also placed on record. Certain rent receipts were also made part of the case. OW-5 Syed Zuffigar Ali, Sales Executive, A YS Electronics, 27-Saddar Road. Peshaivar. Deposed that AYS being tenant paying the rent of premises to Syed Mansoor Ahmad since September 2000.
OW-6 Sajjad Hassan, K, P.O. Office of Sub- Rgistrar, Peshawar. Produced the register Additional Volume No,1 196 dated 16-12-2003 to 26.12-2003 wherein the lease deed dated 15-12-2003 execu- ted by Syed Mansoor Ahmad Shah for lease of a building for commercial purposes was registered, which was registered on 16-12-2003 as deed No,3992/I . He also produced additional volume No, 985 dated 7- 5-1995 to 14-6-1995 #TBE #TBS OW-I Syed Mansoor Shah son of Syed Mehboob Shah. Deposed that he is a businessman by profession and had paid Rs,300000 to Syed Yasir Shah and Syed Masroor Shah for construction of flats in Abdara, Peshawar.
OW-2 Muhammad Deposed that he is a Khurshid son Union Nazim Khunda and of Dilawar Chairman District ,Public Shah. Safety Commission Swabi. Accused Syed Zahir Shah is the younger brother of his brother-in-law. Mst Tasneem Begum is the owner of Bungalow situated at Gulberg No, 2, Peshawar. He remained tenant in that house .;(1) Rs,800 per month w,e,f, March 1974 till March, 1976. Later on amount of rent was enhanced to Rs,1000 per month. He remained in the house as tenant till 1978 and after that said house had been sold out by the owner. OW-3 Syed Shah Deposed that his father Abbas son of was running business of Syed Fayyaz Ali Shah. Car Bargaining Centre, namely Shahjee Motors, University Road, Tehkal Bala, Peshawar. He remained indulged in this business for more than 20-years. Further deposed that vehicle Toyota Corolla Model 1988 (White Colour) was #TBE the admission deed of Syed Mansoor Ahmed son of Ahmad Ali Shah has been registered on 25-5-1995 as deed No, 1336/1. Produced the book No, 1512. Bhai No,1, wherein the exchange deed No, 1806 has been registered on 14-5-1990.
OW-7 Bahadar Sher Afridi, Assistant Commissioner, Income Tax Regional Tax Office, Peshawar.
Produced the entire original record of Wealth Tax pertaining to Syed Mansoor Ahmad son of Syed Ahmad Ali Shah.
Deposed that some certain documents were not found in the assessment record of Syed Mansoor Ahmed.
The fact relating to gift tax has been reflected in the assessment order for the assessment year 1975-76 of Syed Mansoor Ahmad.
OW-9 Javed lqbal son of Muhammad Shabbir. Appeared as witness on behalf of Mr. Aurangzeb A .
V. P. , 1.D. B. P. And testified the. Signatures of the then Chief Manager.
OW-10 Parvez Akhtar, Assistant Vice President, UBL Peshawar Cantt. Deposed that shop No, 27 Saddar Road, Peshawar Cantt; was obtained by UBL on rental basis and in said property the branch of UBL was opened. The said rent was enhanced from time to time. OW-I I Saleem Ahmed, Registration Muharrir, Office of Sub- Registrar, Peshawar. Produced the register of registration pertaining to the period from 16-1- 1974 to 6-3-1974, Bhai No, 1, Jild Nos. 1216 and documents Nos. 100 to
368. Produced the registered deed No, 100 dated 16-1-1974 vide which Syed Zahir Shah through Kabeen Nama transferred the house situated at Gulberg Colony Peshawar to Mst.
Tasneem Ahmed as dower. Produced register No, 1373 of registration pertaining to the period from 5-1-1983 to 16-2-1983 and in the same at Serial No,2193 Syed Zahir Shah transferred House located in Mochi Centre Peshawar Cann; bearing survey No, 578 (109) in the hands . Of Syed Gul Badshah 2-Islamia Road Peshawar Cantt. He also produced the register No,1278 for the period 1-3- 1977 to 11-4-1977, wherein at Serial No, 1838 Syed Zahir Shah transferred house built on plot No, 38, Zaryab Colony Peshawar which he got through judgment/ decree dated 4-3-1976 in the name of Shaheen d/o Imdad Ali for Rs,90000 Produced register No, 1231 for the period from 25-9-1974 to 5- 11-1974 vide registered deed No, 1755 dated 15-10-1974 Syed Zahir Shah sold house located at Mochi Centre Peshawar Cantt for Rs,48000 in the hands of Naseer Ahmad son of Abdul Rashid. Produced register No, 1269 for the period from 30-9-1976 to 2-11-1976 and from this register vide registered deed No, 2182 dated 6-10-1976 Syed Zahir Shah sold house constructed on plot No, 38 which he got through Court order for Rs,60000 in the hands of Mst.
Yasmeen Ahmad d/o Syed Ahmad All Shah. He also produced register No, 1269 for the period from 30-9-1976 to 2-11-1976 and produced registered deed No, 2249 dated 12-10-1976 vide which Syed Zahir Shah sold house located at Zaryab Colony for Rs,144000 in the hands of Mst. Musarrat Shaheen. Produced register No, 1267 for the period from 19-8-1976 to 30-9-1976 vide registered deed No, 1931 dated 24-8-1976 Syed Zahir #TBS Syed Yasir Shah both an amount of Rs,300000 (each). We constructed flats on the gifted plots and the construction of the flats completed in December 1994, which were leased out later on.
Further deposed that he along-with his brother are regular tax payers.
His brother Syed Yasir Shah has appointed him as his attorney. The deed of the attorney signed by his brother and attested by the Consulate General of Pakistan in Toronto Canada. Similarly Syed Fayyaz Ali Shah, Sardar Hussain Shah, Syeda Mazaiba Mumtaz, Afsar Badshah and Fayyaz ur Rehman appointed him as their attorney. All the deeds except the one of his brother Syed Yasir Shah were executed, in his presence at Los Angeles were attested by the Consulate General of Pakistan in Los Angeles USA. His share of rent was used to be collected by his brother Syed Yasir Shah.
OW-15 Syed Mansoor Deposed that his father Ahmed son of was a very old Syed Ahmad businessm an from All Shah. Peshawar and he was the first businessman to establish a firm in Peshawar under the name and style of Fazal and Company in the year 1925. His father Syed Ahmed All Shah after completing his education in year 1948 joined his family business and established Abaseen Flour Mills, Fazal Flour Mills Kohat, purchased Pakistan Flour Mills, Peshawar, constructed Al-Mansoor Hotel and Mansoor Mansion in Peshawar. His father also owned other immoveable properties in Peshawar. His grandmother Mst. Pirzadi #TBE #TBS Shah sold house for Rs,I44000 in the hands of Mst. Musarrat Shaheen, Syed Zahir Shah had become the owner of this property on the strength of judgment/decree. He also produced additional volume register No, 306 for the period from 29-8-1979 to 9-10-1979 vide registered deed No, 422 dated 12-9-1979 Syed Mansoor Ahmad and Mst. Tasneem Begum mortgaged the property known as Sindbad Hotel Peshawar Gantt; in favor of I.D.B.P. For an amount of Rs,500000.
OW-12 Shoaib Khan, Proprietor Al Zahid Jewelers, Andershehar Bazar Peshawar.
Deposed that on 18-10-1998 Mst.
Tasneem Begum sold gold ornaments weighing 65 rola 1 masha 6 rathi amounting to Rs,3,16,090 and payment was made to her on receipt. OW-13 Sajid Ali Abbasi, Chief Executive, Afghan United Bank Kabul, Afghanistan. Deposed that he served U.B.L till the end of year 1979 in Pakistan, whereafter he was posted abroad. Testified the lease agreement dated 24-8-1978, executed between Mst. Tasneem Begum, Syed Mansoor Ahmad on one side and the United Bank on the other side. OW-14 Syed Masroor Shah son of Syed Zahir Shah. Deposed that he and Syed Yasir Shah are twins. His mother Mst. Tasneem Begum owned with possession a plot of 7 maria in Abdara Road, University Town, Peshawar and in March, 1994 she gifted half of said plot to him and the rest half to his brother Syed Yasir Shah.
Immediately thereafter i,e, in April/May, 1994 his cousin Syed Mansoor Shah son of Syed Mehboob Shah who in those days was residing in Kuwait gifted him and #TBE Controller, Peshawar which went upto the august Supreme Court of Pakistan, whereafter the possession of the said property was finally handed over to him. After the eviction of UN.. He rented out the said property to Messrs A YS Electronics, Peshawar, which is still with them as tenants. He further deposed that he is man of means hailing from a very respectable and wealthy family, there was no need for him to become a Benamidar for any person, more so for Syed Zahir Shah. {{TABLE}} {{TABLE}}
21. Now adverting to the merit of the case and the arguments advanced by the learned counsel for the appellants and petitioners that prosecution was bound to prove its case for all intend and purposes, in the same analogy as others criminal cases and prosecution would be nevertheless absolved therefrom its primarily burden of proof in regard to the allegation levelled against the appellant. This contention of learned counsel has no force at all, in view of the provisions contained in subsection (a) & (d) of section 14 of the NAB Ordinance, 1999, which is read as;-
14. Presumption against accused accepting illegal gratification:-
(a) Wherein any trial of [an offence under clauses (i), (iii) and (iv) of subsection (a) of section 9] it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or any pecuniary advantage from a person or any agent of a person, for any favor shown or promised to be shown by the accused, it shall be presumed, unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or a reward such as is specified in sections 161 to 163 of the Pakistan Penal Code, 1860 (Act XLV of 1860), or, as the case may be, without consideration, or for a consideration which he believed to be inadequate.
[(d) [In any trial] of an offence under [clauses (vi) and (vii) of section 9], the burden of proof that he used his authority, or issued any directive, or authorized the issuance of any policy or statutory rule or order (SRO), or made any grant or allowed any concession, in the public interest, fairly justly, and for the advancement of the purpose of the enactment under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on [the accused], and in the absence of such proof the accused shall be guilty of the offence, and his conviction shall not be invalid by the reason that it is based solely on such presumption .
[Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of subsection (a) of section 9.]
22. No doubt, the initial burden always lies on the shoulder of the prosecution, to prove the charges levelled against an accused and thereafter successfully discharging its legal obligation, it invariably shifted to the accused to bring on record reasonable evidence to rebut the presumption of guilt, placed on him by the special provisions contained in the above mentioned section of NAB Ordinance, 1999.
23. In the case in hand, the appellant had at all not denied therefrom the partial ownership or proprietorship of the assets, which were brought on record, allegedly acquired by the appellant, through means, beyond its known sources of income, but the appellant had taken, the defence plea, that part of these properties were acquired by him through lawful means while rest were owned by others petitioners, being acquired by them through their own independent sources.
24. The provisions contained in Article 117 of the Qanun-e-Shahadat Order, 1984, contemplate as:-- ' Article 117. Burden of proof---(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
25. It is settled principle ' of law particularly, in dispensation of criminal justice, that the primarily and initial burden always cast upon the prosecution or in other words, as per the provisions of Article 117 of the Qanun-e-Shahadat Order, 1984, "he who asserts must prove the same. The prosecution in case in hand in support of its assertions, allegation, fully explained therein the charges framed against the appellant examined, 24 witnesses.
26. The evidence, brought on record, which had also, to some extent had not been denied by the appellant too as such prosecution had sufficiently been able bringing on record confidence inspiring evidence, that appellant had owned the properties, subject matter of charge, and as such reasonably had discharged its legal obligation.
27. The NAB Ordinance, 1999, is a special law, and when the prosecution successfully discharged its burden then the accused shall be bound to rebut this legal presumption, even otherwise too, the provisions of Qanun-e-Shahadat Order, 1984, contained thereunder. Article 119, which is reads as:-- "Article 119. Burden of proof as to particular fact. ---The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on an particular person."
28. The burden of proof as to any particular fact lies on that person who wishes to believe the Court in its existence unless it is provided by law that proof of that fact lies on another person.
29. It had been proved by the prosecution that all the assets, subject matter of the charges, levelled against the appellant were handled, supervised and managed by the appellant, then the presumption would be that appellant had owned the afore-stated assets, otherwise, it would be the appellant to rebut this presumption, as the Court may presume the existence of any fact, which it think likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, which is the principle of law of evidence, envisaged thereunder Article 129 of the Qanun-e-Shahadat Order, 1984.
30. The appellant had joined the government department as a Public Servant as S.D.O in month of October, 1975. DW-5 had exhibited the record of Peshawar Development Authority in regard to the salaries, received by the appellant since 1975, till last pay of December, 1999. The salary started therefrom Rs,1275 and ended on Rs,15825, respectively.
31. The second source, as shown by DW-3 in regard to the income of the appellant was Rs,118800 received therefrom the insurance company on 7-8-1998, but, while his wife (petitioner in Writ Petition No, 736/2010) received insurance amount of Rs,88,601 on 14-11-1997. The first premium paid by appellant and his wife in the year 1978 was Rs,2537 and Rs,2487, respectively.
32. The third source of income as shown by the appellant, was income from quarters at Ghareeb Abad Rs,4400 per month since 1994.
33. The forth source, shown by appellant of his income there from his ancestral landed property situated at Swabi, Mardan since 1976 and some other income derived therefrom agriculture property owned by a appellant at the rate of Rs,50000 per annum. That the property comprised in Khata No, 646 measuring 8 kanals and 15 marlas, had been purchased by the appellant, while rest of the land out of 33 kanals was devolved upon the appellant vide inheritance mutation No, 8482 dated 8-7-1979.
34. The appellant had shown to be owner of a plot, on which he constructed a house, situated at Ghareeb Abad, Peshawar, though a sum of Rs,84000 had been shown to be given to a contractor namely Naseem; in the year 1984, but failed to prove that this was devolved upon him as legacy, which fact itself shrouded in mystery.
35. The income as shown by the appellant, does not commensurately to his assets assessed thereby the NAB Authorities. No doubt that source of income except his ancestral property, which on record is not irrigated one but un-irrigated, mostly barren, the income shown in this regard is exaggerated one and even not proved by any documentary confidence inspiring reliable source, while rest of the source of income had been created through purchase of valuable properties, by means, obtained not through lawful means.
36. The appellant had accumulated not immoveable property but also moveable assets too far beyond its known sources of income, which is not commensuratable to its legal sources of income.
Most of the assets had been acquired much before the year 1998, whereas, the appellants had shown its major source of assets, as he acquired through various means as mentioned by him in his defence evidence, in the year 1998.
37. The big chunk of properties, in question, being claimed by petitioners (wife of appellant) to be owned and purchased by her through money, given to her by her late father, as according to her, he was owner of three industrial concern, but neither, her brother when he appeared as a defence witness/OW-15 had deposed a single word that his father had given her any cash for purchase of properties and even kept mum in regard to other gifts and amounts allegedly received by the wife of appellant therefrom her late father.
38. No evidence had been brought even tentatively on record in order to prima facie prove that father-in-law of the appellant was owner of any valuable property or a businessman, or wealthy person as alleged by the appellant and his wife DW-14.
39. There is no an iota of evidence, that on death of the father-in-law of the appellant, a single penny was devolved upon the wife of the appellant as legacy, even, it is also shrouded in mystery that father-in-law and the appellant were ever owners of their own residential houses. Even the OW-15 brother-in-law of the appellant had not been succeeded to substantiate his plea that he was owners of their own means, nothing had been appreciated on record, that on demise of his father, what property passed to him or his others sisters, including the wife of the appellant.
40. Insofar, as the cash amount deposited in various accounts in U.S Dollars and various income certificate acquired in the name of sons of the appellant, and the amount spent on construction of flats at Abdara Road, Peshawar, as asserted by the appellant and his other legal heirs (the petitioners) could not be proved by cogent, reliable, independent means, that such assets were acquired by them, through any independent source of their own.
41. In view of the result of over all assessment and evidence procured on record by both the parties, we are confirmed in our finding that the assets acquired by the appellants are too far beyond his legal and known sources of income since 1975 to 1999.
42. The 2nd contention of the learned counsel, that the learned trial Court had misconstrued the meaning of Benamidar and illegally held the others petitioner, being Benamidar of the forfeited properties, it would be appropriate to reproduce, the provisions contained therein clause (da) of section 5 of the NAB Ordinance, 1999, which is reads as:-- ' (DA) "Benamidar" means any person who ostensibly holds or is in possession or custody of any property of an accused on his behalf for the benefit and enjoyment of the accused;
43. Afore-stated provisions of law very clearly and in unambiguous words have given useful meaning to the proposition, "Benamidar" whereas all the holding, when used for the benefit or enjoyment of the accused would be deemed to be a benami property on behalf of the accused, though that actually entered in any official record in the name of accused or remain in possession of any other person.
44. The petitioners, in Writ Petitions Nos. 555/2010 and 736/2010, had miserably failed to prove their independent, genuine source of income, which would have enabled them to acquire so much valuable properties/under consideration herein. The evidence, brought on record by them, could not said to be satisfactory and confidence inspiring, which may even remotely give an inference of genuine and original ownership of the petitioners in regard to the properties in question as claimed by them, had been acquired through their own independent source. On the other hand, it had been proved on record that the whole assets subject matter of charges, were exclusively owned, possessed by the appellant and he had used and enjoyed it for his own benefit. All the petitioners squarely falls within the meaning of associates as assigned to them there under clause (d) of section 5 of the NAB Ordinance, 1999.
45. The appellant failed to show any prior approval of competent authority for the purchase and expenditures of construction over the property, even for the part, which the appellant had himself admitted.
46. It is not a case of misreading or nonreading of evidence, as the learned counsel has failed to point out any piece of evidence either misread or not-read or any piece of admissible evidence brought by appellant which had been excluded therefrom consideration, by the learned trial Court, or has given consideration to any inadmissible evidence on behalf of prosecution.
47. The 3rd contention of the learned counsel for appellant was that the property acquired there before the promulgation and enforcement of the NAB Ordinance could not be taken into task and could not be forfeited, The said contention was also misconstrued, admittedly the NAB Ordinance, 1999 had been given effect therefrom 1-1-1985 but it does not exclude such assets accumulated through illegal means by a public servant prior to 1-1-1985, therefrom accountability, however, no person could be charged under the provisions of NAB Ordinance, 1999, if he seized to be a public servant before or on 1-1- 1985.
48. The 4th contention of the learned counsel was that, as the sentence of fine was not substantive prior to the amendment introduced in the Ordinance, vide amending Ordinance XXXIII, 2002, and the learned Accountability Court could not pass a sentence, of fine, on retrial of the appellant as appellant had already serve out not only the substantive sentence of 3 years' R.I. But had also undergone for one year in lieu of non payment of fine of Rs,11500000 as per judgment of this Court, dated 2-1-2001, as also been misinterpreted by the learned counsel for appellant.
49. Insofar as this contention is concerned, it has no any nexus with the proposition that an accused shall not be convicted for a sentence, not applicable on the date of commission of an offence, it is true but the case in hand has some different, peculiar circumstances, propositions of law alleged herein, could not applied to the circumstances of the instant case as under the provision contain in section 10 of NAB Ordinance, 1999, the sentence of fine was though not mandatory but was discretionary one prior to the amendment and the Accountability Court was fully authorized to inflict sentence of fine, exercising its judicial discretion, keeping in view the peculiar circumstances of each and every case, and as such the appellant was accordingly convicted therefor a fine of Rs,21500000 which was reduced in appeal to the tune of Rs,11500000 and also, the appellant was ordered to undergo further one year imprisonment in default of payment of fine. The question would be, that whether the Court, could inflict a sentence, in default of fine, as did by this Court vide its judgment passed in appeal dated 2-1-2001. Every trial Court or Appellate or revisional Court may pass order for realization of the fine with its discretion in accordance with the provisions contained in section, 386 Cr.P.C., 1898, which if reproduced, would be as:-- "Warrant for levy of fine. (1) Whenever an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may;
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender;
(b) issue a warrant to the [District Officer (Revenue)] authorizing him to realize the amount by execution according to civil process against the movable or immovable property, or both, of the defaulter; Provided that, if the sentence directs that in default of paym ent of the fine the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in " default, no Court shall issue such warrant.
(2) The Provincial Government may make rules regulating the manner in which warrants under sub section (1), clause (a) are to be executed, and for the summary determination of any claim made by any person other than the offender in respect of any property attached in execution of such warrant.
(3)Where the Court issues a warrant to the [District Officer (Revenue)] under sub section (1) clause (b), such warrant shall be deemed to be a decree, and the [District Officer (Revenue)] to be the decree-holder, within the meaning of the C.P.C., 1908, and the nearest Civil Court by which any decree for a like amount could be executed shall, for the purposes of the said Code, be deemed to be the Court which passed the decree, and all the provisions of that Code as to execution of decree shall apply accordingly; ' Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.] ' And the proviso, annexed thereto, clearly bars, the issuance of a warrant by any Court in case, such an offender had undergone the whole of such imprisonment in default, but in case in hand, the appellant was committed to judicial custody on 25-3-2000 and was sentenced for the first time on 17-7-2000, for 3 years' substantive R.I with benefit of section 382, Cr.P.C., 1898, who had released there from the prison on 21-3-2001, thereafter earning some remissions, provided thereunder the jail, manual. But when, its undergone imprisonment is simply calculated he had never spent any imprisonment in default of fine as ordered by this Court vide its judgment dated 2- 1-2001 as the said judgment was never communicated to the jail authorities and soon after that was suspended by the Apex Court and consequently ' set aside, with direction for retrial of the appellant.
50. So on retrial, the appellant was convicted, once again but as he had already released therefrom the prison due to extending him remissions for which though he had not entitled but was extended to him inadvertently by the jail authority so keeping in view, the prolong agonies of trial, the appellant be deemed to have served out his substantial sentence of 3 years, and not to be recommitted to prison to serve out its remaining 200 day out of his substantive sentence of 3 years.
51. The contention of the learned counsel that the conviction and sentence of fine imposed on appellant is double jeopardy in view of Article 13 of the Constitution or provision of section 403, Cr.P.C., 1898, is misconstrued.
52. Had the appellant served its sentence apart from the substantive one in lieu of default in fine, no sentence of fine would have been inflicted upon him, but as already stated, he had been given undue concession by the jail authorities, for reasons best known to them, and had released him prior to complete even his substantive sentence of 3 years and had never undergone for a single day in lieu of default in fine, so the doctrine of double jeopardy could not be attracted to the case of appellant.
53. The provisions contained in section 403, Cr.P.C., 1898 is read as:-- "403. Persons once convicted or acquitted not to be tried for the same offence.
(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
(2) A person acquitted or convicted for any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial under section 235, subsection (1).
(3) A person convicted of any offence constituted by any act causing consequences which together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequence had not happened, or were not happened, or were not known to the Court to have happened, at the time when he was convicted.
(4), A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provision of section 26 of the General Clauses Act, 1897, or section 188 of this Code.
'Explanation. The dismissal of a complaint, the stopping of proceedings under section 249 or the discharge of the accused is not acquittal for the purposes of this section.
54. Neither the aforesaid provisions of Cr.P.C., 1898 nor the provisions of Article 13 is being attracting towards the case of appellants on the reasons mentioned hereinabove.
' The provisions of section 386, Cr.P.C., 1898, although confer discretion upon a Court to adopt either means or both as contemplated therein, but the NAB Ordinance, 1999 is a special law, which has super imposing status over the general law, whereas the provisions of section 33-E of NAB Ordinance, 1999, provide a special procedure therefor the realization of the sentence of fine which is read as,--- ' 33-E. Recovery of amount of fines, etc, as arrears of land revenue. Any fine or other sum due under this Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue.]
55. The provisions contained in section 17 of the NAB Ordinance, 1999 has given overriding effect to the provision of the Ordinance over any other law, which is reads as:-- Section 17. [Provisions] of the Code to apply:--
(a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions to this Ordinance, the provisions of the Cr.P.C., 1898 (Act V of 1898), shall mutatis mutandis apply to the proceedings under this [Ordinance].
(b) Subject to sub section (a), the provisions for Chapter XXIIA of the Code shall apply to trials under this Ordinance.
(c) Notwithstanding anything contained in subsection (a) or subsection (b) or in any law for the time being in force, the Court may, for reasons to be recorded, dispense with any provision of the Code and follow such procedure as it may deem fit in the circumstances of the case.
(d) [Notwithstanding anything in section 234 of the Code, a person accused of more offences than one of the same kind committed during the space of any number of years, from the first to the last of such offences, may be charged with the tried at one trial for any number of such offences.]
56. As, the Accountability Court being invested with jurisdiction, by the provisions contained in section 17(c) of the NAB Ordinance, 1999, to dispense with any provision of the code and follow such procedure as it may deem fit in the circumstances of the case and as a special procedure has been provided thereunder the provisions of section 33-E of the NAB Ordinance, 1999, the Accountability Court or any Appellate Court has got no jurisdiction to direct that in case of default in payment the offender/convict may further undergo imprisonment in lieu of default in payment of fine. Though this Court, on 2-1-2001, while disposing of the appeal, preferred by the appellant in the first round, against his conviction, directed that in case of default of fine of. Rs,11500000, the appellant had to further undergo for one year R.I, but as discussed herein before, the appellant had never undergo the said one year.
57. Therefore, keeping in view the special provisions of sections 17 and 33-E of the NAB Ordinance, 1999, the. Imposition of fine upon the appellant and the procedure for its realization, has correctly been dealt with by the learned Accountability Court. The appellant could not be dispensed with, the liability of paying the required amount of fine.
58. The upshot of the reasons given hereinbefore, we are confirmed in our finding that the trial Court while following the mandatory provisions of NAB Ordinance, 1999 law and the principle laid down by the Apex Court, had rightly been held that appellants had accumulated, amassed assets disproportionate to his known sources and had rightly been convicted and sentenced and the properties mentioned therein the impugned judgment forfeited to State would stand intact too; however, the sentence of (3) years inflicted upon the appellant has already been served out so he shall not be recommitted to the prison, accordingly this Appeal No, 7 of 2010 and the connected Writ Petitions Nos. 555/2010 and 736 of 2010 stand dismissed. The learned Accountability Court is directed to proceed against the appellant for realization of the fine and properties forfeited to State, further in accordance with law and rules on the subject.