Mirza Viqas Rauf J.--This single judgment shall decide the instant appeal as well as connected Writ Petition No, 6517 of 2015 as there is similarity and commonality of question of facts and law involved in the instant appeal as well as connected writ petition.
2. This appeal in terms of Section 32 of The National Accountability Ordinance, 1999(hereinafter referred as "NAO, 1999") is directed against the judgment dated 21st of February, 2011, passed by the learned Judge Accountability Court No, 1, Lahore, whereby the appellant was ,convicted under Section 9(a)(v) punishable under Section 10(a) of "NAO, 1999" in Accountability Court Reference No, 27/2006 and sentenced to ten years rigorous imprisonment with a fine of Rs, 1,00,00,000/-(ten million) recoverable as arrear of land revenue as ordained under Section 33-E of "NAO, 1999". Plot No, 146-Block-M Phase-1, DHA, Lahore Plot No, 537-CC DHA Lahore and gold ornaments weighing 69-tolas stand confiscated in favour of Federal Government. In addition to the above, it was also observed that he shall forthwith ceased to hold public office, if any, held by him and further, he shall stand disqualified for a period of 10 years to be reckoned from the date, he is released after serving sentence for seeking or from being elected, chosen, appointed or nominated a member or representative of any public body or any statuary or local authority or any service of Pakistan or any province or any bank. Furthermore, he shall not be allowed to apply for or be granted or allowed any financial facility in the form of any loan or advances by any bank or financial institute for a period of 10 years from the date of conviction. Benefit of Section 382-B of the Code of Criminal Procedure, 1898 was, however, extended to the appellant.
3. The facts in precision necessary for adjudication of instant appeal are that the appellant was arrayed as an accused in Accountability Court Reference No, 27 of 2006 on the allegations that he, while holding public office of Additional Collector Income Tax, Lahore acquired certain assets in the shape of moveable and immovable properties in the name of his dependents and benamidars by misusing his authority and by corruption and corrupt practices, which are disproportionate to his known sources of income. After formal investigation, appellant was sent to face the trial before the learned Judge Accountability Court No, 1, Lahore. On receipt of Reference, the learned Judge Accountability Court framed the charge against the appellant/accused under Section 9(a)(v) punishable under Section 10(a) of "NAO, 1999" to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the appellant, the prosecution examined as many as fifty- three witnesses and also tendered certain documents in addition thereto as documentary evidence. Upon conclusion of prosecution evidence, the statement of the appellant /convict was recorded under Section 342 of The Code of Criminal Procedure, 1898 (hereinafter referred as "Cr.P.C") wherein he denied the allegations levelled against him and submitted that he has wrongly been implicated in the case. The appellant/convict produced certain documents in his defense, however, he did not opt to appear in terms of Section 340(2) of "Cr.P.C". Upon completion of evidence and hearing both the sides, the learned Judge Accountability Court No, 1, Lahore convicted the appellant by way of impugned judgment as mentioned in the preceding paragraph No, 2.
5. Mr. Muhammad Amjad Pervaiz, Advocate representing the appellant submitted that the charge against the appellant was groundless. He added that the prosecution has badly failed to lead any cogent evidence to prove the guilt of the appellant. Learned counsel maintained that the conviction of the appellant has been recorded without adverting to the evidence available on the record. Learned counsel argued that the prosecution evidence was disbelieved to the extent of some of the charges but astonishingly conviction of the appellant was recorded on the basis of same evidence which is neither trustworthy nor confidence inspiring. It is contended that the impugned judgment is the result Of in-application of judicious mind to the facts of the case.
Learned counsel submitted that material pieces of evidence were not put to the appellant in his statement under Section 342 of the Code of Criminal Procedure, 1898, thus basing his guilt on said evidence is highly unwarranted. In support of his contentions, learned counsel has placed reliance on "Khalid Aziz versus The State (Criminal Appeal No, 361 of 2001), The State versus Khalid Aziz (Criminal Appeal No, 362 of 2001)" (2011 SCM R 136), "Ghani-urRehman versus National Accountability Bureau and others" (PLD 2011 Supreme Court 1144) and "Syed Ali Nawaz Shah and 2 others versus The State and others" (PLD 2003 Suprev.e Court 837).
6. Mr. Naeem Raza Hashmi, Advocate appearing on behalf of petitioner in Writ Petition No, 6517 of 2015 submitted that the petitioner has no nexus with the appellant and his property was wrongly confiscated in favour of the Federal Government. He added that no tangible evidence was brought on the record by the prosecution to prove that the property owned by the petitioner was purchased from the crime proceeds and petitioner was benamidar.
7. On the other hand, learned Special Prosecutor NAB, while defending the impugned judgment submitted that the evidence of prosecution was overw helniing and confidence inspiring which has rightly been appreciated by the learned Judge Accountability Court while convicting the appellant.
He added that no illegality is committed by the learned trial Court, while passing the judgment under challenge.
8. We have heard learned counsel for the appellant as well as the petitioner in connected writ petition and learned Special Prosecutor NAB and also perused the record with their assistance.
9. Before dilating upon the credence of the prosecution evidence in order to appreciate the findings of conviction recorded by the learned Judge Accountability Court, it is worthwhile to mention here that the appellant was charge sheeted in terms of Section 9(a)(v) of "NAO, 1999" on account of following moveable and immovable properties.
"(a) Purchased Plot No, 424 Block G-4, Muhammad Ali Johar Town Lahore measuring 420 SQM in 1991 in the name of your father Rai Said Ali as benamidar.
(b) Purchased House No, 5-B Faisal Town Lahore measuring one Kanal on the main boulevard in the yea. 1995 for a consideration of Rs, 3.25 Million in the name of Ghazanfar Ali S/0 Muhammad Fazil as a benamidar.
(c) Purchased House No, SD 168 Askari Housing Scheme Walton Lahore in the year 1997 for a consideration of Rs, 2.96 Millions in the name of Major (R) Amjad Shabbir Bukhari as a benamidar
(d) Purchased Plot No, 149 Block M Phase-I DHA Lahore in the year 1999 in the name of your real brother Mr. Zafar Iqbal for a consideration of Rs, 3.8 Millions as a benamidar.
(e) Purchased Plot No, 537 CC DHA Lahore in the year 2003 for a consideration of Rs, 5.15 Millions in the name of Syed Abid Hussain Shah as a benamidar.
(f) Purchased car Suzuki Margalla bearing registration No, LOW-760 Model 1994 on 19-04-200 for a consideration of Rs, 0 29 Millions.
(g) Purchased car Nissan Sunny (unregistered) in the year 2005 in the name of your first cousin Miss Surnera Aslam for a consideration of Rs, 1.125 millions.
(h) After obtaining search warrant from the Magistrate your house was searched during investigation. Consequently 119 tolas of gold, Pound Sterling 6350 and Rs, 665,000/- were recovered from your house.
' Record is clearly indicative of the fact that the prosecution has failed to prove the charge in respect of properties mentioned against segment (a) to (c), (f) and (g) whereas to the extent of segment (h) evidence of prosecution was believed only in resoect of 69 tolas of gold. These findings were not challenged by the NAB which attained finality for all intents and purposes.
10. The appellant in the first instance challenged his conviction through instant appeal which was initially allowed vide judgment dated 22nd of December, 2014 and the case was remanded to the learned Judge Accountability Court for decision afresh with certain observations, which are mentioned herein below:-- "8. In view of the matter, judgment impugned is legally not sustainable and as such while setting aside the judgment dated 21st of February, 2011 handed down by the learned Judge, ' Accountability Court No, 1, Lahore, Accountability Reference No, 27 of 2006 shall be deemed to be pending before the learned Accountability Court No, 1 with reference to part of charge established against the appellant as per conclusion of learned trial Court and the learned Accountability Court No, 1, Lahore shall re-record the statement of the appellant under Section 342 of the Code of Criminal Procedure, 1898 and shall put all the documents to the appellant being accused in view of conclusion regarding proof of charge though partly, with decision of objections regarding admissibility of relevant documents.
9. Since the Reference was sent to the learned Accountability Court in the year 2006, therefore, the learned trial Court shall conclude the trial up till 20th of February, 2015 even has to proceed on day to day base.
10.. Learned counsel for the appellant has pointed out that during the trial, the Chairman NAB did not issue warrant of arrest against the appellant and the appellant was taken into custody at the time of announcement of the judgment which fact has not been questioned by the learned ADPG.
11. In view of the matter, till the announcement of judgment in the Reference, the present appellant shall be released by the learned Accountability Court."
' The above said judgment was challenged by NAB before the Hon'ble Supreme Court of Pakistan by way of civil petition which was converted in Criminal Appeal No, 7Q of 2015 and decided through order dated 14th of September, 2015, with the following observations: "At the outset, both the learned counsel, looking to the substance of the impugned judgment, have suggested that with their consent, the impugned judgment may be set aside and Criminal Appeal No, 317/2011 (Re: Muhammad Iqbal Ahmed v. The State) be remanded to the Lahore High Court for its decision afresh and in accordance with law keeping in view the legal and factual aspects of the case. Further submission of learned ASC for the respondent is that since the respondent has already remained in custody for over three years and ten months, therefore, till the disposal of appeal by the High Court, he may be allowed to remain on bail in terms of the order dated 26.6.2015, admitting him to bail upon furnishing surety in the sum of Rs, 2,500,000/- (two and half million) and PR bound in the like amount to the satisfaction of Additional Registrar (Judicial) of this Court.
2. Having gone .Through the grounds urged in the memo. Of appeal and the contents of the impugned judgment, we are of the opinion that the submissions made by the learned ASCs, as noted above, are just, fair and equitable. We accordingly allow this appeal and set aside the impugned judgment in the above terms. Since it is an old case, we expect that the High Court will, make all possible efforts to dispose of Criminal Appeal No, 317/2011 within six months from the date of communication of this order."
' In view of above, we are now confined and restricted to examine the proprietary of the impugned judgment to the extent of the properties mentioned at segment (d) (e) & (h) of the charge sheet.
11. Before adverting to the evidence in support of charge qua the above mentioned properties, it is necessary and advantageous to examine the necessary ingredients for proving an offence under Section 9(a)(v) of "NAO, 1999". It is by now well settled that the prosecution in order to prove the culpability of an accused in terms of above referred penal clause has to prove the following ingredients:--
(i) the accused is a holder of Public Office,
(ii) he accumulated, owns or possesses title or interest in the properties,
(iii) his known sources of income,
(iv) and the expenditures incurred by the accused on acquisition of properties are disproportionate to his known sources of income.
It is manifest from the above that mere holding of assets in the shape of moveable and immovable property in his own name or in the name of his dependents is not the sole fact to determine the culpability of an accused in terms of Section 9(a)(v) of "NAO, 1999". The prosecution is always burdened with heavy onus to prove that assets so acquired do not commensurate to the known sources of income of the accused. The Hon'ble Supreme Court of Pakistan in the case of "Ghani-ur- Rehman versus National Accountability Bureau and others" (PLD 2011 SC 1144), while dealing with a similar proposition has laid down the following principles: "6. The law now stands settled that in order to prove commission of an offence under Section 9(a)
(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes tne relevant offence. In the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial Court to conclude or to hold that the appellant or his dependants or so-called benamidars owned, or possessed assets or pecuniary resources disproportionate to the appellant's income. It is 'unfortunat that the investigating officer of this case as well as those esponsible for prosecution of this case before the learned trial Court had, probably on account of their sheer incompetence, utterly failed to do the needful in this regard and it is regrettable that even the learned trial Court as well as the learned appellate Court had completely failed to advert to this critical aspect of the present case."
' While analyzing the prosecution evidence on above perspective, we tend to bisect the prosecution evidence led in support of respective charges. First of all, we take the segment (d) of the charge which rolates to Plot No, 149 Block M Phase-I DHA Lahore, the same is in the name of Zafar Iqbal who is brother of the appellant. It is the case of the prosecution that the appellant purchased the said Plot in the name of his brother as benamidar with sale consideration of Rs, 3.8 Million. In order to prove this charge, the prosecution produced Muhammad Saleem, Record Keeper, DHA, Lahore as PW-13 who tendered relevant documents pertaining to the transfer of the said Plot. In addition to this witness, Abdul Ghani, who was the owner of the Plot was also examined as PW-26 whereas Tanveer Ahmed Qazi, Officer Grade-1, HBL, Trust Plaza Branch, Gujranwala was also examined as PW-33 in order to establish that sale consideration was paid by the appellant. Muhammad Saleem (PW-13) tendered an affidavit executed by Abdul Ghani (PW-26) as Exhibit-PW-13/1, the same is clearly indicative of the fact that Plot in question was sold by Abdul Ghani in favour of Muhammad Zafar Iqbal and the appellant figures nowhere in the same. The prosecution though examined Abdul Ghani (PW-26) in order to establish the link of the appellant with the transition of purchase of the plot, however, his evidence is neither trustworthy nor tangible. As per his own statement, he was summoned by the Investigating Officer in the years 1998 and 1999 whereas the investigation was admittedly authorized in Year 2005. This witness did not own his statement recorded by the Investigating Officer in terms of Section 161 of "Cr.P.C." and he attributed the said statement to the Investigating Officer. As per statement of Abdul Ghani, payment was made to him in the Habib Bank Limited, Davis Raod Branch in presence of the appellant in cash, however, his statement stands negated by Taveer Ahmad Qazi (PW-33), which even diminishes the credence of the prosecution evidence. As per his statement, Muhammad Zafar Iqbal presented the certificate of encashment Exhibit-PW-33/DA special US$ bonds which were encahsed. The statement of Abdul Ghani (PW-26) is also belied from the documentary evidence.
12. To the extent of Plot at Serial No, (e) of the charge sheet, the prosecution banked upon the statement of Muhammad Saleem (PW-13) and Brig. (R) Safdar Ali Shah (PW-27), who was vendor of Plot No, 537-CC DHA Lahore and Syed Abid Hussain Shah (vendee) who appeared as PW-28. As already observed that Muhammad Saleem (PW-13) was examined as a prosecution witness, who only produced the relevant documents in the evidence. We, while examining the statement of Brig.
(R) Safdar Ali Shah (PW-27) observed that as per his stance, Plot was purchased by Syed Abid Hussain Shah (PW-28). He though mentioned in his examination-in-Chief that some other persons were also accompanied Syed Abid Hussain Shah at the relevant time but when he was confronted with his previous statement, this portion of statement was clearly negated. Syed Abid Hussain Shah, while appearing as PW-28 though tried to provide a cushion to the prosecution case by implicating the, appellant in the purchase of Plot, however, his statement is full of improvement and contradictory to his statement under Section 161 of Cr.P.C. He was duly confronted by the learned defense counsel in the cross-examination with his previous statement. His statement cannot be termed as worth of credence, however, he himself even admitted that Plot in question figures in his wealth statement for the relevant year. The prosecution has failed to lead any cogent evidence to prove that Syed Abid Hussain Shah (PW-28) is a benamidar or associate of the accused. The statement of Syed Abid Hussain Shah (PW-28) was completely shattered with the appearance of Suleman Adam Shah as AW-1. It is duly established from the statement of AW-1 that Plot was purchased by Syed Abid Hussain Shah (PW-28) with the help of Suleman Alam Shah, who is his nephew.
13. So far charge relating to segment (h) is concerned, the appellant was held guilty on the basis that he failed to account for 69 tolas of gold as he failed to declare the same in his tax return and wealth statement. Suffice to observe that mere none mentioning of detail of jewelry in the relevant tax document does not constitute any offence under Section 9(a)(v) of "NAO, 1999", unless other necessary ingredients for the constitution of said offence were proved by leading cogent and convincing evidence. Reliance in this respect can be placed on "Khalid Aziz versus The State (Criminal Appeal No, 361 or 2001), The State versus Khalid Aziz (Criminal Appeal No, 362 of 2001)"
(2011 SCM R 136) and "Hakim Ali Zardari versus The State" (2007 M LD 910).
14. Though learned Prosecutor strengthened his contentions by submitting that the appellant at some stage opted for voluntary return of the assets but the same never matured. The appellant was sent to face the trial instead of accepting his plea of voluntary return in terms of Section 25 of "NAO, 1999". The conviction cannot be recorded on the basis of presumptions and suppositions.
When once an accused has faced the regular trial then his guilt or innocence is to be determined from the evidence adduced in this regard. Mere fact that some offer was made by the accused at early stage of his prosecution to enter into voluntary return, is not sufficient to hold him guilty of the offence. The Hon'ble Supreme Court of Pakistan in somewhat similar circumstances in the case of "Syed Ali Nawaz Shah and 2 others versus The State and others" (PLD 2003 Supreme Court 837) held as under: "12. The examination of the statutory provision on the subject in the, light of the verdict given by this Court would reveal that policy of law, is that plea bargain must be executed in writing in plain and express words showing the intention to avail the benefit of Section 25 of the Ordinance which must be voluntary and free of an element of threat, pressure, compulsion and duress. The Court may direct the discharge or release of an accused person during the investigation/inquiry or at any subsequent stage before or after the commencement of the trial if he enters into a plea bargain which is a compromise in the nature of compounding the offence. The plea of bargaining being a guilty plea, the agreement of the accused with prosecution must contain the essential elements of offer and acceptance in express words and, the Court must pass a speaking and proper order; of its approval. The general law is that if an accused pleads guilty to the Charge at the trial, he can be straightaway convicted and sentenced but the conviction and sentence on the basis of an admission made by an accused in an ancillary proceedings before commencement of the trial would not be sustainable. However, the concept of plea bargain in the Ordinance is slightly different as an accused can negotiate such plea during the course of inquiry/investigation or at any subsequent stage before or after the commencement of the trial or in appeal. The plea bargain is not like a civil contract between the parties rather it contains the elements of culpability of crime as result of Which a person facing accusation under the Ordinance, on entering such plea saves himself from conviction and substantive sentence but entails the penalties provided in Section 15 of the Ordinance and this is well-known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence. It is the fundamental rule of criminal administration of justice that basic onus always rests on the prosecution to prove the guilt of the accused and the special provision can neither be construed to mean that the onus of the prosecution to prove the guilt is shifted to the accused to prove his innocence or a presumption of guilt can be raised against an accused without discharge of initial burden by the prosecution. The only exception to the above rule in special law can be that on the discharge of the initial burden or proving guilt by the prosecution through the evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, as presumption of guilt can be raised against him.
We may point out that the plea bargain being a sort of guilty plea cannot be presumed without an express offer of accused and its acceptance in clear words by the prosecution and the mere refund of alleged ill-gotten money as consideration for grant of bail would not amount to admit the criminal liability and enter into plea bargain. In the present case, we find that the essential elements of offer of accused to enter into the plea bargain and acceptance of the same by the competent authority was missing but the trial Court while passing the order of discharge of accused in pursuance of the order of the High Court treated it a case of plea bargain under Section 25 of the Ordinance. There is no cavil to the proposition that a person who is involved in a case under the Ordinance, if enters into plea bargain before the commencement of trial and framing the formal charge, can be discharged by the Court and notwithstanding an express order of the Court he shall face the consequence as provided in Section 15 of the Ordinance by operation of law. In the present case, the perusal of record would show that the appellant did not enter into an express agreement with the prosecution for disposal of case against them in terms of Section 25 of the Ordinance and the essential element of plea bargain of offer and acceptance being missing, the transaction would not be given the status of plea bargain in term of Section 25 of the Ordinance. We thus conclude that plea bargain must be made part of the judicial record in the form of offer and acceptance through an express agreement containing the term of the settlement.
15. Leaving aside the above discussions, it is an admitted position on the record that evidence on the basis of which the conviction of the appellant was recorded under the above mentioned charges was never put to him neither he was confronted with the same in his statement under Section 342 of Cr.P.C. It is well settled principle of law by now that no incriminating material can be used against the accused unless it is put to him during his statement under Section 342 of Cr.P.C.
The purpose behind this principle is that the accused must be aware of all the material evidence which is to be used against him. When the accused is not confronted with the allegations leveled against him and he is not put in a position to refute the same properly he cannot be saddled with the criminal liability on the basis of such incriminating material. This lapse on the part of prosecution is fatal and it goes to the root of the prosecution.' The recording of statement under Section 342 of Cr.P.C. Is not a mere formality rather its primary object is to afford him opportunity of explaining the circumstances which are tending to incriminate and likely to influence the mind of the Judge in arriving at a conclusion adverse to him. Reliance in this regard can be placed on "Muhammad Nawaz and others versus The State and others (2016 SCM R 267) and "Muhammad Shah versus The State" (Criminal Appeal No, 48/Q of 2009) (2010 SCM R 1009).
16. In view of above discussions, we are of the considered view that conviction of the appellant cannot sustain in the presence of material discrepancies and deficiencies in the prosecution evidence as already noted above. It is well recognized principle of criminal administration of justice that even a single circumstance creating a doubt qua the guilt of the accused is sufficient to extend him the benefit of the same in the shape of acquittal. We thus, while considering the prosecution evidence insufficient and sketchy allow this appeal and set aside the judgment dated 21st of February, 2011, consequently the appellant is acquitted from the charge and the properties confiscated in favor of Federal Government shall stand released. He is on bail, so his surety shall stand discharged.
17. So far connection writ petition is concerned, the same questions the order dated 02nd of March, 2015, whereby application filed by the petitioner for exclusion of property No, 537-CC DHA Lahore from the reference is dismissed by the learned Judge Accountability Court No, III, Lahore. In the light of detailed discussion hereinabove and decision of appeal, Writ Petition No, 6517 of 2015 is accepted and Property No, 537-CC DHA Lahore stands released.