' Syed Muhammad Kazim Raza Shamsi, J.--This judgment-shall dispose of Crl. Appeal No, 1598/2003 (Jahan Khan vs. The State etc.) and Writ Petition No, 17173/2003 (Muhammad Khan and others vs. The State etc.), as both matters have arisen out of a common judgment.
2. Instant appeal filed under pection 32 of National Accountability Bureau Ordinance, 1999 is directed against judgment dated 10.9.2003, passed by learned Judge Accountability Court No, 3, Lahore, whereby the appellant Jahan Khan was convicted under Section 10(a) read with Section 9(v) of the National Accountability . Ordinance, 1999 and sentenced to ten years rigorous imprisonment with a fine of Rs, 5 million and in default of payment of fine to suffer further rigorous imprisonment of two and half years. The agricultural land situated in Mouza Khairpur Para, District Muzaf fargarh and in Chak No, 85-D, District Pakpattan, in his own name and in the names of any of his 'Benamidars' other than his ancestral agricultural, land in Chak No, 85-D, District Pakpatan stood forfeited to the State/Government of Pakistan. The benefit of Section 382-B, Cr.P.C. Was also extended to the convict.
Accompanied writ petition filed by Muhammad Khan assails legality of forfeiture order .
3. The appellant was tried in Accountability Court Reference No, 07/2002, in which it was alleged that he being Divisional Superintendent of Police (DSP) in the Police department had acquired the properties disproportionate to his known sources of his income, in his own name and in the names of his family members including his brothers as 'Benamidars'. Another allegation of misusing his authority by illegally occupyin g official accommodation meant for Administrator , Municipal Committee, Burewala, without payment of rent was also levelled against the appellant alongwith the allegation of acquisition of gold ornaments; from income beyond his known sources.
4. Learned Court, seized with the trial of the case, framed two charges against the appellant and Charge No, 1 was further sub divided into 36 items. This charge included acquisition of land by the appellant and purchase of gold ornaments while in the second charge an allegation of depriving the Government from rent of official accommodation, which was in the occupation of the appellant as D.S.P , has been levelled against him. First charge was sub-divided into different portions mentioning that Properties No, 1 to 10 were acquired by the appellant in his own name, Properties No,.1 1 to 23 in the names of his wife and sons and Properti ed No, 24 to 30 in the names of his brother Muhammad Khan and Naseer Khan. Sub-charge 31 to 36 was regarding purchase of gold ornaments.
Learned trial Court had exonerated the appellant from the Charges No, 31 to 36 regarding purchase of gold ornaments as well as from Charge No, 2, thus only one charge regarding purchase of the properties was left to be established by the prosecution.
5. The prosecution had produced 29,witnesses to establish this charge, end to elabor ate this prosecution evidence it can be bifurcated in the following manners:-- i) PWs-1 to 12 were examined in respect of possession of the house by the appellant over the house of Administrator , Municipal Committee, Burewala. ii) PWs-13 to 15 had narrated about the purchase of gold ornaments. iii) PW -16 had given evidence regarding ground levelling assessment of land of the appellant. iv) PW -17 had stated about the recovery of gold ornaments receipts.
PWs-18 to 27 had deposed about acquisition of agricultural lands by the appellant in dif ferent villages. v) PW -27 is Investigation Of ficer of the case. vi) PWs-28 & 29 made statements in respect of disbursement of Zakat to the daughter of Naseer Khan, late brother of the appellant.
' Various documents were also produced by the prosecution witnessing the transactions to show transfer of agricultural land in the name of the appellant and siblings.
6. Similarly the Defence also produced evidence in disprove of the charges, which was consisted upon following categories:- i) DWs-1 to 4 deposed about the memo ry register regarding the receipt of TA/DA and Transfer Grants by the appellant. ii) DW -5 stated about the withdrawal of G.P Fund advance. iii) DWs-6 & 7 produced documents regarding average yielding of the crops. iv) DW -8 deposed about purchase of a house by him (DW) from Lal Din, father-in-law of the appellant. v) DW-9, Ex-Chairman of the Municipal Committee, deposed about possession of Administrator House, Municipal Committee Burewala by DSPs; and ASPs, Burewala. vi) DW -10 narrated about the purchase of buf faloes from Muhammad Khan, brother of the appellant. vii) DW-11 had prepared the schedule of net produce and statements of income of agricultural land of the appellant. viii) DW -12, the appellant, himself deposed on oath under Section 340(2), Cr .P.C.
' Documentary evidence was also produced on the file showing that the properties were validly purchased from the known sources of the appellant.
7. Learned trial Court after considering the oral as well as documentary evidence led by the parties held that first charge to the extent of acquisition of property by the appellant in his own name and his sibling was proved while exonerated him from sub-charges No, 11 to 36 and the second charge of illegal occupation of the official residence of Administrator , Municipal Committee, Burewala without payment of rent.
8. The appellant has assailed his conviction and sentence by filing instant appeal while the State has not challenged the exoneration of the appellant from the afore-noted charges, thus the judgment handed down by the learned trial Court to that extent has attained finality . Muhammad Khan etc. writ petitioners have also questioned legality of forfeiture of properties, as directed by trial Court in the impugned judgment.
9. Learned counsel for the appellant has opened the argument with the submission that according to prosecution's own evidence the legal income of the appellant was about Rs, 80 lacs out to which he had acquired the properties and assets including gold ornament to the tune of Rs, 46 lacs thus the appellant has not committed any offence chargeable under NAB Ordinance. 1999. He explained that learned trial Court had duly noted afore-noted figures borne out of evidence but misread the evidence while convicting and sentencing the appellant. Further maintained that the acquisition of the land by the appellant was based upon the documentary evidence consisting, upon attestation of inheritance mutation, exchange mutations and gift mutations, which documents have amply proved the transactions entered into between the parties under a legal cover but learned Court, while ignoring this documentary evidence had drawn an adverse presumption that the appellant had purchased these properties from ill-gotten money . Learned counsel further submitted that the prosecution has mise rably failed to establish that all assets were made by the appellant from ill-gotten money and none of prosecution witness could prove earning of ill-gotten money against appellant. He argued that the Court is required to take the face value of the documents and unless it shows some fraudulent intention or fabrication, till that time those documents has to be accepted as correct under law, which was not done by the Court below while indicting the appellant. Learned counsel argued that the documents did not prove nor it could be smelled therefrom that the properties mentioned in those documents were purchased from ill-gotten money and the witnesses produced by the prosecution in respect of those documents did not utter single word that the transactions made by the appellant were from his illegal money secured by him by misusing his authority . He has made reference to certain transactions in this respect by stating that the properties were purchased in a legal manner from the known legal sources of the appellant thus the Court below has incorrectly assumed that the appellant being the police officer was enjoying the authority , which he had misused and gathered all properties through illegal means. In this backdrop, learned counsel has prayed for accepting the appeal and acquittal of the appellant from the charges.
10. Learned Law Officer while controverting the submissions has not denied the legal income of the appellant to the tune of Rs, 70 lacs as put by the prosecution to the appellant in his statement under Section 342, Cr.P.C. but asserted that in that statement in Question No, 7 the word 'legal' has been mentioned instead of using the word 'illegal'. According the State representative, the appellant had earned that money from illegal means and thereafter he had purchased huge number of properties through that ill-gotten money . He has referred to the statements of the witnesses, who had produced docu ments regarding the transaction of mutations and exchanges with the submission that, they had amply proved that the properties were obtained by the appellant through illegal means.
He has frankly conceded that total value of the assets made by the appellant is more than Rs, 46 lacs. He has also supported the judgment delivered by the learned trial Court with the prayer of dismissal of the appeal.
11. We have given our conscious consideration to the submissions made by the learned counsel for the parties and have also gone through the record with their able assistance. In the first charge acquisition of various properties by the appellant has been mentioned, which according to the prosecution the appellant had obtained through ill-gotten money . In this respect, we have examined the documentary evidence produced on the file, which shows that certain mutations were entered into the record and those mutations only show existence of the transfer of the properties in the name of the appellant and does not show that the transactions were entered through ill-gotten money earned by the appellant. In-fact PWs 18 to 23 are. Patwaris, who had produced copies of mutations and schedule of the net produce, which in any cast, does not indicate the earning of the appellant through illegal means. On the other hand, statement of net produce, produced by the witnesses and the schedule of net produce submitted by PWs 21 to 25 shows the income, which the appellant had earned from agricultural land inherited from his father , exchange made with brother and through a gift mutation from his sister. It was not denied by the prosecution that on the death of father of the appellant a big piece of lend came into the hand of the appellant and it is also not denied on the record that prior to the death of the father of the appella nt, the appellant was managing the affairs of agricultural land and was receiving sufficient money from there. As put by the prosecution to the appellant as Question No, 7, that he had earned about Rs, 10 lacs as salary and other allowances, which is an admitted fact, and has contributed toward s the income of the appellant visa-e vis the income, which he has earned from his agricultural land. In next question i.e Question No, 8, it was put to the appellant that he had earned total legal income from the agricultural land and lands standing in the name of the 'Benamidars' was Rs, 70,84,531/-. If both these amounts are calculated together , it comes to Rs, 80,81,042/, According to the prosecution itself this was the legal income of the appellant. As per the prosecution, the total value of the assets made by the appellant was Rs, 46,31,745/-, thus value of the assets clearly indicates that the appellant had obtained his assets in his own name and in the names of his family members including the 'Benamidars' from his legal income of Rs, 80 lacs, so what charge has left to be proved against the appellant, is a big question, which was not answered by the learned trial Court in the judgment although both these figures are reflected it in the impug ned judgment. The prosecution could not come out of this shock, which apparently establishes innocence of the appellant. At this stage it will not be out of place to point out another fatal lacuna in the prosecution case that no notice to 'Benamidars' was issued as held by Hon'ble Supreme Court of Pakistan in the case of Syed Zahid Shah and another vs. National Accountability Bureau and others (2010 SCMR 713 ), Para 18 is reproduced as under: "18. It is an admitted feature of the case that the stated Benamidars and the depen dents of the appellant, in view of the acquisition and the allegations, as well as contained in the Reference and the report filed in the trial Court under Section 173, Cr.P.C., supported by the incriminating material; notice was not directed to be issued to the alleged Benamidars by the trial Court nor they were heard obviously before passing of the final judgment in the case although, it was evident that they were fully aware and in the knowledge of the proceedings before the trial Court, which related to the assets and properties in which right and interests have been claimed by the petitioners before us in these two civil petitions for leave to appeal, as well as; interesting to note that, out of the alleged Benamidars Mst. Tasneem Begum and Yasir Shah wife and son respectively of the appellant had appeared as D.Ws before the trial Court yet, their appearance as D.Ws for the accused would not by itself be a valid substitute of notice to Benamidars, affording them opportunity of hearing and leading evidence if so deemed proper by them in support of their claims to be the legitimate owners as having rightful interests in such properties. Besides these petitioners, the other petitioner , Mansoor Ahmed in C.P.No, 751-P/2003 has claimed rights and interests in the properties forfeited to the Government was admittedly not issued any notice by the trial Court nor opportunity of hearing was afforded to them by the learned trial Court, as well as; by the learned Special Bench of the Peshawar High Court before pessing the final judgments. In the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408), in which somewhat identical questions of law and facts were involved, this Court in Paragraph No, 16 of the judgment, reproduced here in below as held: "The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice or hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or implicitly done away with. In the absence of any express provision to exclude the applicability of the principles of natural justice of hearing of a person adversely affected by on order or judgment of the Court under NAB Ordinance, we would hold that he (Benamid ar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as Benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case. As regards remedy of appeal, it being a substantive right cannot be availed by a person unless confe rred by the statute. Under the relevant provisions of NAB Ordinance as regards appeal against final judgment of the Accountability Court, it can only be maintained by the State or the accused person. This being so, the ostensible owners or Benamidars if heard by the Accountability Court and findings recorded against them, may invoke any other remedy in such situation including remedy under Article 199 of the Constitution."
12. As observed above, the prosecution could not establish the source of ill-gotten money by producing any tangible and convincing evidence and has merely relied upon different documentary proof of the transactions of the agricultural land made in favour of the appellant in different villages, which documents themselves did not speak about the source of income of the appellant, so on that score the prosecution is not having any case against the appellant.
13. The upshot.of above discussion is that in view of shaky and incredible evidence, the prosecution has miserably failed to establish the guilt of the appellan t in so many words, thus the appellant has earned his acquittal from the charge.
14. For the foregoing reasons, Crl. Appeal No, 1598/2003 filed by the appellant Jahan Khan is accepted and impugned judgment of learned Accountability Court No III Lahore dated 10.9.2 003 is set aside, resulting into acquittal of the appellant from the charges. The appellant is on bail, his bail bonds are cancelled and the sureties are relieved of their liability .
15. In view of the acceptance of Crl. Appeal No, 1598/2003 filed by Jahan Khan and his acquittal from the charges, W.P. No, 17173/2003 file by Muhammad Khan etc has rendered infructuous, which is disposed of accordingly .