1. S.A. RABBANI, J.---On a reference, made by Chairman, National Accountability Bureau, being Reference No,5 of 2001, the Accountability Court No,3, Karachi, framed charge against the appellant for possessing properties disproportionate to his known sources of income, constituting a charge of corruption and corrupt practices under section 9(a)(iv)(v) of the National Accountability Ordinance, 1999, punishable under section 10 of the said Ordinance. The allegation mentioned in the charge was that the appellant was maintaining Account No,15664-4 in Habib Bank Limited, Bahadurabad Branch, Karachi, from 1990 to 1998 in which there was a transaction/deposit of Rs,34,00,000, and that he purchased a Toyota Corolla car in the name of his wife. The appellant pleaded 'not guilty' before the trial Court and, to prove the charge against him, the prosecution placed evidence of four witnesses before the trial Court, who produced documents which they considered relevant for the purpose of proof of the charge. The appellant also examined witnesses in defence and, on the basis of the evidence placed on record, the trial Court convicted the accused/appellant for offence under section 9(a)(iv)(v) of the Ordinance, punishable under section 10 thereof. He was accordingly sentenced to suffer R.I. For 5 years and to pay fine of Rs,50,00,000. The trial Court further ordered forfeiture of the amount deposited in the said bank account and the car, purchased in the name of appellant's wife. The accused/appellant was also declared disqualified, for 21 years, for seeking or being elected to, chosen or nominated, as a member or representative of any public statutory or local body of the Government of Pakistan. This conviction and sentence has been called in question by way of present appeal.
2. Mr. Azizullah K. Shaikh, learned counsel for the appellant referred to the evidence placed on the record of the trial Court and submitted that the amount of Rs,34,00,000, as shown in the charge, was never available in the account on one date and it was the total deposit and transaction during the period from 1990 to 1998, He submitted that the account remained operative till 1998, as shown by the statement of account produced by the prosecution witness Salim Dada, an employee of the concerned bank, and the last balance was only Rs,42.11. About the car, he referred to the evidence of defence witness Sameena Misbah, wife of the accused/appellant, who stated that her brother, Humayun Baig, had gifted her the Toyota Corolla car in 1998. She stated that her brother Humayun Baig had left for Canada. Same is the version of the accused/appellant in his statement before the trial Court, as pointed out by Mr. Azizullah Shaikh. Mr. Shaikh also referred to the observation made by the Supreme Court, regarding burden of proof, in the case of 'Khan Asfandyar Wali v. The Federation of Pakistan (PLD 2001 SC 607), in paragraph 224. He specifically referred to the quotation cited in the judgment from the case of Mir Ahmed v. The State (PLD 1962 SC 849). It was observed therein that if, on examination of the evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case and accused is entitled to the benefit of such doubt on the ground that the prosecution has not proved its case beyond reasonable doubt.
3. ' Mr. Shaikh further referred to the presumption as mentioned in section 14(c) of National Accountability Ordinance, 1999 and submitted that such a presumption can arise from the property etc. In possession of the accused or any other person on his behalf, at present. He submitted that such presumption cannot be drawn about past possession.
4. ' Mr. Amer Raza Naqvi, learned counsel representing National Accountability Bureau, submitted that the Ordinance has been amended in accordance with the observation in the case of 'Khan Asfandyar Wali.' He submitted that the presumption under section 14(c) of the Ordinance covers the properties accumulated as well as disposed of. In respect of the car, he submitted that the person, viz, brother of wife of the appellant, who allegedly gifted the car to his sister, was not examined before the trial Court.
5. ' About the plea That one uncle of the accused/appellant, viz. Fazalur Rehman, a British national, used to help him by providing money on different occasions, Mr. Naqvi submitted that although this Fazalur Rehman was examined but he produced no documentary evidence.
6. ' In his judgment, the learned trial Court framed the following points for determination: "(1) What was the nature and extent of pecuniary resources or property owned by the Accused before 1987?
(2) What is the nature and extent of pecuniary resources or property found in the possession of the accused and in the possession of his wife after joining his service?
(3) Whether the pecuniary resources or property found in the possession of the accused and his wife are disproportionate to his known source of income?
(4) What offences, if any, the accused has committed.
7. ' On the first point, the learned Judge of the trial Court observed that prosecution has not led any evidence to show as to what was the nature and extent of pecuniary resources or property owned by the accused before joining of service nor the accused led any such evidence. From this situation, the learned Judge inferred that the accused did not own any property, or had any pecuniary resources before he joined service. Obviously, the inference is fallacious. Neither it was the logical outcome of absence of evidence on the point nor one can assume that before, joining service, the accused was a destitute.
8. ' On the second point also, the learned Judge observed that in this type of case the burden of proof always lies upon the prosecution but to about the known sources of income of, the accused before he became a public servant or afterwards and then to show that the property presently held by the accused is disproportionate to his known sources of income. Despite this observation, and the fact that the prosecution has failed in its duty, the learned Judge held that he was of the considered view that the deposit of amount in the bank account and acquiring of the car in the name of his wife, are disproportionate to the known sources of income of the accused. The learned Judge has observed that the accused failed to account for the deposit of Rs,33,91,250 in the bank account. But the statements of account, produced by the prosecution witness on the record of the trial Court, show that the account never had a balance of Rs,33,00,000 therein. This was the whole transaction during 9 years and finally the account became inoperative with a balance of Rs,42.11 in the year 1998. For various deposits in the account, in the past, the accused/appellant gave explanation that his uncle, who was a British national, used to provide him money for investment in some business.
9. This uncle of the accused was examined and he supported the version of the accused. Total rejection of their evidence on this point would be arbitrary. There is a possibility of the version being true and this possibility creates a doubt in the prosecution case with reference to presumption against the accused.
10. ' In respect of the car, also, the evidence of wife of the accused is that it was gifted to her by her brother. One Kamal Ahmad was examined as a defence witness who stated that he had purchased the car, involved in this case, in 1997 on an open letter and then he sold it after about one and a half year to Humayun Baig for Rs,500,000. There appears no reason to discard and reject this evidence totally. There remains a possibility that the evidence is true, and this possibility, again, renders the prosecution case doubtful and the benefit of doubt has to go to the accused. The charge mentioned only these two items which could not be proved beyond a reasonable doubt.
11. Appellant was entitled to benefit of doubt and a consequential acquittal. Appeal is allowed accordingly and the conviction and sentence are set aside. The appellant shall be released in this case forthwith.