MEHMOOD MAQBOOL BAJWA, J.---Ghulam Sarwar Khan Lalwani (appellant) faced trial in Accountability Reference No.17 of 2001 and after its conclusion through judgment handed down on 2nd of December, 2002 by learned Judge, Accountability Court No, IV, Lahore conviction was recorded against him under section 10(a) of The National Accountability Ordinance, 1999 (No,XVIII of 1999) (Hereinafter called Ordinance XVIII of 1999) and was awarded sentence of five years' rigorous imprisonment with fine of Five Hundred Thousand Rupees. Three properties owned by appellant mentioned in pars 17 of the judgment were also forfeited in favour of State.
Penalties mentioned in(section 15 of Ordinance XVIII of 1999 were also imposed.
2. Judgment recording conviction and awarding sentences has been called in question by way of Criminal Appeal No,1999 of 2002 which shall be disposed of through this judgment besides disposal of Criminal Revision No,823 of 2014 for enhancement of sentence.
3. The appellant who was serving as DIG (Prisons) in Prisons Department was served with charge of acquisition of immovable properties mentioned at serial Nos.(i) to (iii) of the charge-sheet which were statedly disproportionate to his known sources of income.
There was also accusation against the appellant that the properties mentioned at serial Nos.(iv) to
(vii) of charge-sheet were purchased by him but in the name of his wife (Talat Gulzar), father, Mehmood Khan and close relative i.e, Rafique Khan.
The appellant was also found involved in huge un-explained transaction amounting to Rs,15 Million between 1989 to 2001 in fifteen different bank accounts operated by him and his dependents.
4. The prosecution in order to prove its case produced 22 witnesses.
The appellant produced 15 witnesses besides his appearance as DW-16 .
Mst. Talat Gulzar, wife of appellant appeared as CW-1 while Muhammad Rafique Khan appeared as AW-1.
5. After conclusion of trial, judgment impugned was delivered.
6. During the course of proceedings in the appeal, notice for enhancement of sentence was issued to the appellant.
7. Assailing the legality and validity of judgment impugned the learned counsel for the appellant contended that prosecution failed to prove its case against the appellant beyond shadow of doubt which fact itself is reflected from the impugned judgment but even then premium was granted to the prosecution.
Dealing with the case of prosecution with reference to properties mentioned at serial Nos.(i) to (iii), banking upon dictum laid down in "Ghani-ur-Rehman v. National Accountability Bureau and others" (PLD 2011 SC 1144), "Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad" (PLD 2005 SC 63), "Farrukh Javed Ghuman v. The State" (PLD 2004 Lahore 155) and "Major (R) Nadir All v. The State" (PLD 2003 Quetta 77), it was argued that it was the duty of prosecution to produce worthy of credit evidence to discharge initial onus but the evidence adduced failed to prove the charge with reference to properties at serial Nos.(i) to (iii).
Making reference to the evidence of Major (R) Muhammad Farooq (PW-1), Shamim Ahmad Khan (PW-20), Syed Khalid Raza (PW-21), Abdul Rauf (PW-2) and Mian Muhammad Amjad Ahmad (PW- 19), it was submitted that though ownership of the appellant cannot be disputed but ownership of the properties by itself is not an offence unless proved by convincing evidence that acquisition of property was from the financial resources which cannot be accounted for. Referring to the evidence of the witnesses, it was argued that it stands proved that all the three properties were purchased with the span of seven to eleven years and that too through payment of installments.
Contended that evidence of above-referred witnesses even does not suggest that sale price of said properties was dis-proportionate to the assets of the appellant.
Referring to the allegations regarding rest of the properties (serial Nos.Iv to vii) statedly in the name of wife, father and maternal nephew of appellant as benamidars, it was argued that prosecution produced Allauddin Kazmi (PW-3), Syed Hasnain Raza (PW-18), Saeed Ullah Khan (PW-5), Allah Nawaz Patwari (PW-6), Saleem Mehmood (PW-7), Syed lrshad Hussain (PW-8), Khurshid Ahmad (PW-4), Muhammad Ikram (PW-17), Mukhtar Ahmad (PW-10), Bashir Ahmad (PW-15) and Ghulam Hussain Patwari (PW-16), but none of the witnesses uttered even a single word that appellant was real owner of the properties and wife, father and maternal nephew of the appellant were ostensible owners.
Placing reliance upon the dictum laid down in "Muhammad Hayat and 2 others v. State" (PLD 2002 Pesh. 118), it was contended that prosecution failed to prove the status of appellant as real owner.
8. Referring to para 14 of the judgment impugned, it was submitted that the learned trial court itself admitted that prosecution did not produce any evidence to prove that payment of sale price was made by the appellant regarding purchase of properties in the name of his wife, father and maternal cousin but while disbelieving the evidence led in defence conviction was recorded against the settled principle of criminal administration of justice.
9. On the other hand, learned Additional Deputy Prosecutor General while repelling the contentions of learned counsel for the appellant submitted that the evidence of the witnesses referred to is sufficient to prove the case of prosecution beyond shadow of doubt.
Referring to paras 14 to 16 of the judgment, it was submitted that in view of the evidence led by prosecution referred to by learned counsel for the appellant the prosecution established its case and the appellant failed to prove that charge against him is groundless. Submitted that Mst. Talat Gulzar and Muhammad Rafique (Benamidars) appeared as CW-1 and AW-1 but their evidence does not inspire confidence and as such was rightly disbelieved.
Drawing our attention to para 17 of the judgment, it was contended with vehemence that learned trial court while examining the facts and circumstances, evidence led by prosecution when put in juxta position with the evidence adduced by appellant rightly reached to the conclusion to which no exception can be taken. Submitted that appellant failed to lead convincing evidence within the meaning of section 14 of Ordinance XVIII of 1999.
10. Learned counsel representing the appellant in criminal revision No,823 of 2014 regarding enhancement of sentence submitted that prosecution miserably failed to prove the charge against the appellant particularly with reference to status of wife, father and maternal cousin of appellant as ostensible owners and as such, the appellant deserves acquittal.
Submitted that learned trial court in para 14 of the judgment impugned admitted that prosecution failed to prove charge of benami transaction.
11. Exercising right of rebuttal in criminal revision, the learned Additional Deputy Prosecutor General submitted that prosecution established its case against the appellant beyond shadow of doubt but sentence awarded does not commensurate with the heads of charges and as such sentence be enhanced.
12. We have consciously considered the arguments advanced by adversaries in the light of evidence produced by prosecution as well as defence.
13. As per charge, appellant was accused of offence of corruption and corrupt practices within the meaning of section 9(a)(iv) of Ordinance XVIII of 1999 and the learned trial court held the appellant guilty under the same provision of law.
However, after going through the accusation i.e, acquisition of immovable properties disproportionate to the appellant's known sources of income, we are of the considered view that charge should have been framed under section 9(a)(v) of Ordinance XVIII of 1999 and conviction should have been recorded accordingly. However, the fact by itself would not be sufficient to hold the judgment assailed as "coram non judice" as no prejudice has been caused to the appellant being well conscious of nature and extent of allegations and evidence led by him.
14. Provisions of section 14 of Ordinance XVIII of 1999 were heavily banked upon by the learned Additional Deputy Prosecutor General and after going through the judgment impugned, it appears that the learned trial court was also influenced by the "presumption" referred to in the said provision, therefore, it is desirable to examine said provision of law.
15. Section 14 of Ordinance XVIII of 1999 is divided into four clauses. Clause (a) deals with offences under clauses (i) to (iv) of subsection (a) of section 9. Clause (b) of said provision deals with offence punishable under Section 165-A of The Pakistan Penal Code, 1860, (Act XLV of 1860).
Clause (c) of same section deals with the offences punishable under clause (v) of subsection (a) of Section 9 which is applicable to the case of present appellant. While clause (d) will be attracted to the cases under clauses (vi) and (vii) of section 9. Proviso of said section is attracted to clause (d).
Comparison of different clauses of section 14 of Ordinance XVIII of 1999 clearly reveals that presumption of guilt shall be gathered against the accused in cases falling in clauses (a) and (b) after the prosecution has adduced evidence to prove the guilt of appellant in view of use of expression "proved".
Keeping in view the proviso, presumption under clause (d) shall be applied when prosecution has first made out a "reasonable case".
However, the expressions "proved" and "prosecution shall first make out a reasonable case" are missing in clause (c) of section 14 of Ordinance XVIII of 1999.
Probably due to this reasons, much stress was laid down upon the presumption by learned law officer representing the NAB.
We are also conscious of the expression "and his conviction (therefore) shall not be invalid by reason only that it is based statedly on such a presumption" used in section 14(c) of Ordinance XVIII of 1999.
The omissions referred to and the clause in the form of proviso regarding legality of judgment though are conscious but would not advance the plea of prosecution to hold that in such like cases, absolute duty is cast upon the accused to prove his innocence. Such interpretation shall be against the well-established principle of criminal administration of justice.
In the clause under discussion, the word "Fact" has been used which has to be read with latter part of said provision.
The expression has been defined in Article 2 (d) of The Qanune-Shahadat Order, 1984 (President Order No,10 of 1984) as follow: "Fact" includes
(i) Anything, state of things or, relation of things capable of being perceived by the senses, and
(ii) Any mental condition of which any person is conscious".
Keeping in view the definition, rest of the clause when examined, clearly reveals that some tangible material has to be produced by prosecution suggesting disproportionate to the known sources of income and properties possessed by accused or any other person on his behalf. The prosecution in the circumstances has to produce some evidence to suggest nexus of the accused with the properties in order to draw presumption under clause (c) of Ordinance XVIII of 1999 against the accused.
16. Question of presumption under section 14 of Ordinance XVIII of 1999 and the mode and standard of proof was dealt with by Apex Court in "Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad" (PLD 2005 SC 63) and it was held at pages 82 and 83 as follow): "28. In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." In this Regard reference can be made to the cases titled PLD 1956 FC 123, AIR 1956 SC 316, Phipson Evidence 7th Ed. Page 33, Jagdish Ram v. Mukand La!, 1928 L. 763, Hem Chandra De Sarkar V. Amiyabata De Sarkar, 52 C. 121, Muhammad Tahir v.
Raghubar Dayal, 11 IC 761, Pankjammal v. Secretary of State, 40 1. C. 516, Pandurang v. Tukaram, 1934 N. 253, Peddi Reddy Fagi Reddi v. Panem Chinnabbi Reddi 561. A. 6, Chainta Dasya v. Bhalku Das, 1930 C.591, Ganga Ram v. Rulia, 2 L.249, Rangavva Hanmappa Bidri v. Sheshappa Bidri 51 B.258, Bishambar Das v. Telu Ram 1934 L. 1019, Pokhar Day v. Thakar Das, 1930 L.213(2), Jadu Nath v.
Ramun Mal, 1921 L 284, Ruthna Gramany v. Veerabudra Aiyar, 21 IC 96, Sita Ram v. Haidar Khan, 25 1.
C. 138, Makund v. Bahori La!, 3 A. 824, Hajee Lin v. Maung Ba 5 R. 822. Jadu Nath v. Ramun Mal 1921 L. 284. Uttam Chand Ishwar v. Hakim Muhammad Sharlf 1932 I. 417, Phipson, Ev., 7th Edn. 33, Taylor and 371, Over v. Harwood (1900) 1 QB 803, Bindra v. 1934 0. 485, Deputy Legal Remembrancer, Behar and Orisa v. Mathukdhari Singh 32 IC 137. Shahzad Khan v. E, 1933 p.513, 515, Robert Strari Wanchoe v. E. 161 C. 168, Wolminton v. The Director of Public Prosecution 1935 AC 462, Nannhum v. E 165 IC 458, Muhammad Raft v. E 1933 P. 598, Mohidin Karim v. E 551 IC 849, Gendan Lal v. E. 1930 0. 460, Basudeb Mandar v. E 1929 P. 112, Lila Ram v. E 1927 L. 862 (2), Surat Singh v. Crown 1923 L. 42, Mst.
Jahura Bibi v. E 1931 C.11, Rannum v. E 7 L. 84, Ghauns v. E 7 L.561, Dinamani Udaipal Ram Twary v. E 98 IC 241, Noor Khan v. E. 1927 0. 611, Muzaffar v. E 99 IC 322, Bishambar Nath Batjpai v. E 1925 0. 676, Robert Stuart Wanchope v. E 61 C. 168, Woolmington v. The Director of Public Prosecution 1935 AC 462, E. V. Damapala 14 R. 666, Nannhum v. E 165 IC 458, Bai Mani v. Usafali Bhudar 1931 B. 229, Muhammad Lugman v. State PLD 1970 SC 10, Shamoon v. State 1995 SCMR 1377, Wali Muhammad v. The State 1969 SCMR 612, Khushi Muhammad v. Muhammad Hantf 1980 SCMR 616, Ali Sher v.
State PLD 1980 SC 317, Hakim Ali v. State 1971 SCMR 432, Rab Nawaz v. The State PLD 1994 SC 858.
29. We are not persuaded to agree with learned Deputy Prosecutor General NAB that conviction could have been awarded in view of the provision as contained in section 14 of NAB Ordinance, 1999 for the simple reason that "the section cannot be used to undermine the well established rule of law that save in very exceptional class of cases, the burden to prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of providing the guilt of an accused which always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty". The above view finds support from the authorities mentioned herein below.
Shambu Nath Mehara v. State (1956 SC 404), E v, Santa Singh (1944 L 339), State v. Pranjivan Gandalal (1952 Sau. 35), J. A. Humphrey v. Crown (PLD 1952 L 632), E V. Damapla (1937 R 83), Kanakasabai Pillai v. E. 1940 M I, Senerviratue v. R 1936 PC 289, Attygalie v. R 1936 PC 169, Raghunath Cope v. E 1941 P 175, Mattial Chakravarty v. The King 1949 C 586, Lachman Singh v. The King 1949 C 235".
Relying upon the dictum laid down in the case of "Pir Mazharul Hag" (supra), it was reiterated by the Apex Court in "Syed Qasim Shah v. The State" (2009 SCMR 790) that Section 14 of Ordinance XVIII of 1999 cannot be used to undermine the well-established rule of law that burden to prove guilt of accused initially is on the prosecution and it never shifts to the accused unless discharged through cogent and reliable evidence.
Same rule of law was expounded in "Muhammad Hashim Babar v. The State and another" (2010 SCMR 1697) and "Khalid Aziz v. The State" (2011 SCMR 136) while dealing with presumption under section 14(c) of Ordinance XVIII of 1999.
Indian Supreme Court in "H. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad"
(AIR 1993 SC 313) while dealing with the provision of The Prevention of Corruption Act, 1947 held that failure of prosecution to establish criminality of accused will result in acquittal.
17. Pursuant to above discussion, there can be no cavil to the proposition that even in the case falling under section 9(a)(v), in order to draw presumption under section 14(c) of Ordinance XVIII of 1999 the prosecution has to produce evidence to discharge initial onus.
18. Keeping in view the settled proposition of law, now evidence led by prosecution has to be examined.
19. As referred earlier, there are three heads of charge against the appellant.
First head of charge (clauses (i) to (iii) deals with properties i.e, (Plot) No,E-287, measuring one kanal in Punjab Government Employees Co-Operative Housing Society Lahore, Plot No,109, measuring one kanal situated in Institute of Engineering Pakistan Members Co-operative Housing Society and plot No,82-B, measuring one kanal in Superior Courts Employees Co-operative Housing Society.
20. Following necessary ingredients to prove such type of charge were highlighted by a learned Division Bench of the High Court of Sindh in the case of "Hakim All Zardari v. State" (2007 MLD 9/0) which were endorsed by the apex Court in the case of "Muhammad Hashim Babar v. The State and another" (2010 SCMR 1697), "Khalid Aziz v. The State" (2011 SCMR 136) and "Ghani-ur-Rehman v. National Accountability Bureau and others"(PLD 2011 SC 1144).
1) That the accused was holder of a public office.
2) The nature and extent of pecuniary resources of property which were found in his possession.
3) Known sources of income of the accused after thorough investigation, and 4) Such resources or property found in possession of accused were disproportionate to his known sources of income.
21. It is an admitted fact that appellant joined Prisons Department in the year 1974 as Superintendent Jail and in the year 1997, he was promoted as DIG (Prisons).
22. Plot No,E-287, measuring one kanal was acquired by appellant in the year 1989. Its price was Rs,1,33,150/-. To prove the same fact, prosecution produced Syed Khalid Raza (PW-21) who produced application form (Ex.PW-21-1), allotment order (Ex.PW-21-2) and payment of schedule (Ex.PW-21-3). The appellant made payment of plot in installments over a period of about seven years as admitted by the witness and proved through documents. This plot was situated in Punjab Government Employees Co-operative Housing Society. The witness admitted that all the members of society (2700 in number) are government servants.
Second plot bearing No,109, measuring one kanal is situated in Institute of Engineers Pakistan Members Co-operative Housing Society, Lahore. Its paid price is Rs,2,60,500/-. To prove this aspect prosecution produced Major (R) Muhammad Farooq (PW-1) and Shamim Ahmad Khan (PW-20).
PW-1 produced documents i.e, application form (Ex. PW- 1/2), allotment letter (Ex. PW-1-1), Transaction (Ex. PW-1-3) and appellant's account (Ex.PW1-4). PW-20 prepared these documents. It is also an admitted fact that price of this plot was also paid by way of installments.
Third plot in the name of appellant is situated in Superior Courts Employees Co-operative Housing Society having the area of one kanal, acquired in the year 1986 for a sum of Rs,1,21,500/-. To prove this fact, prosecution banked upon the evidence of Abdur Rauf (PW-2) and Mian Muhammad Amjad Ameen (PW-19). It is an admitted fact that price of this plot was also made in installments.
From the evidence of witnesses and documents, it stands established that price of all the three plots was paid in installments within 7 to 11 years.
Though the prosecution produced 22-witnesses but none of them except Muhammad Abdul Latif, Inspector, FIA (Investigating Officer) uttered even a single word regarding known resources and expenditure of appellant.
The Investigating Officer in cross-examination stated that value of properties acquired by appellant is more than 10-Million (one crore) whereas his known sources are salary and agricultural land but without giving any detail.
Evidence of this witness suggesting value of plots and sources of income would not advance the plea of prosecution to prove known resources of appellant, value of the plots in order to suggest disproportion for the simple reason that plots were acquired by the appellant in the years 1986 to 1989 and payments were made in installments within the period of 7 to 11 years.
The prosecution was obliged and required to collect and produce evidence regarding known resources of income of appellant for the period during which plots were purchased and installments were paid. Admittedly no such evidence was collected.
The learned trial court while examining the evidence led by appellant formulated the view that the evidence, oral as well as documentary, adduced by the appellant is not worthy of credit.
When the prosecution failed to prove the charge by producing reasonable evidence to suggest dis-proportionate, then there was neither any occasion nor justification to examine the evidence led by appellant. In fact, the learned trial court, while brushing aside the evidence led by appellant recorded conviction against the appellant without keeping in mind settled proposition of law that initially it was for the prosecution to adduce evidence to establish culpability of appellant. Mode of appraisal of evidence by the learned trial court is against the well-settled principle of criminal administration of justice.
Purchase of the property by itself is not an offence. The prosecution failed to produce evidence that appellant purchased the property from resources beyond his domain and as such it failed to prove this aspect of the case.
23. Another allegation against the appellant is that he purchased the property in the name of his wife Talat Gulzar (CW-1), maternal nephew Muhammad Rafique Khan (AW-1) and father Mehmood Khan (since dead).
24. Apartment No,15, situated in Land Mark Plaza, Jail Road, Lahore is admittedly in the name of his wife, Talat Gulzar.
House No,92-93, measuring one kanal and 12 marlas in Mehrban Colony, Multan and House No,234- 235 (one plot) measuring one kanal in Hunza Block, Allama lqbal Town, Lahore is in the name of Mehmood Khan, father of the appellant.
There was also a share of wife, father and maternal cousin of the appellant in Falcon Public High School at Fateh Town, Okara, measuring 11 kanals and 10 marlas.
25. In order to prove the nature of transaction as benami, the prosecution was obliged to prove following ingredients highlighted by a learned Division Bench of Peshawar High Court in "Muhammad Hayat and 2 others v. The State" (PLD 2002 Pesh. 118).
(1) Source of consideration (2) Holder of title document (3) person in possession of the property and (4) Intention and object of Benami transaction.
26. Though the prosecution produced Allauddin Kazmi (PW-3), Syed Hasnain Raza (PW-18), Saeed Ullah Khan (PW-5), Allah Nawaz Patwari (PW-6), Saleem Mehmood (PW-7), Syed Irshad Hussain (PW8), Khurshid Ahmad (PW-4), Muhammad Ikram (PW-17), Mukhtar Ahmad, Naib-Tehsildar (PW- 10), Bashir Ahmed (PW-15) and Ghulam Hussain (PW-16) but their evidence just proves the ownership and possession of ostensible owners.
We just make reference to the opinion of learned trial court on this aspect contained in para 14 of the judgment which reads as follow: "It is true that the prosecution has not adduced any evidence to prove that the payments were actually made by the accused for the purchase of the properties in the name of his father, in the name of his wife or in the name of Rafique Khan but he is under obligation to discharge his onus effectively under the prevalent law". (underlining is ours)
The learned Additional Deputy Prosecutor General was unable to controvert the conclusion with reference to failure of prosecution to prove the status of appellant as real owner but stated that evidence led by him is neither convincing nor worthy of credit and as such was rightly brushed aside.
We cannot endorse the view point of learned law officer for the simple reason that when the prosecution failed to prove its case against the appellant, then evidence in defence, may be sketchy or unworthy of credit was not required to be scanned and by itself was not sufficient to record conviction.
The learned trial court dealt with the evidence led by appellant in the mode and manner as he has to establish his innocence irrespective of the evidence led by prosecution.
27. Similar is the position with reference to head of charge at serial No.viii.
28. Since the prosecution remained unable to produce convincing evidence to discharge initial onus, therefore, there is no legal compulsion to deal with the evidence led by appellant.
29. Viewed from whichever angle, the prosecution failed to prove ' its case against the appellant beyond shadow of doubt, therefore, while extending benefit of doubt, "setting aside the judgment impugned, appellant is acquitted of the charge.
30. Sentence of the appellant was suspended by this Court who is present in the Court. He and his surety stands discharged of their respective bonds.
31. In view of conclusion drawn by us recording acquittal in favour of appellant, Criminal Revision No,823 of 2014 is dismissed.