TALAAT QAYYUM QURESHI, J.---The Chairman National Accountability Bureau filed Reference No,3 of 2001 against Muhammad Hayat (Food Inspector), and his two brothers Gul Tayaz and Muhammad lqbal sons of Muhammad Ayaz for accumulating and amassing wealth, movable and immovable properties through corruption and corrupt practices under section 18(g) read with section 24 (b) of NAB Ordinance, 1999 for trial of above named appellants under sections 9/10 of the said Ordinance before learned Judge Accountability Court No,3, Peshawar. The learned trial Court indicted the accused on 26-3-2001 but they did not plead guilty and claimed trial.
2. In order to prove its case, the prosecution examined as many as 20 witnesses. The statements of the accused were recorded under section 342, Cr.P.C. And they also produced 44 witnesses in their defence.
The learned Judge Accountability Court No,3, N.-W.F.P. Peshawar vide judgment and order dated 10-8- 2001 convicted and sentenced the appellants. Muhammad Hayat appellant No,1 was sentenced to 5 years' R.I., fine of Rs,3,37,05,307, forfeiture of landed property, Motor Car No,B-1019, Motor Cycle No,LMB-15, profit of wheat carriage amounting to Rs,1,11,41,037, earning of the said business amounting to Rs,2,06,48,270 and Bank Accounts "in the name of Gul Tayaz mentioned in para.3 of the Reference" with direction to pay fine within one month failing which same to be set off against the forfeited property. And in default of payment of fine appellant to further undergo one year R.I. Gul Tayaz appellant No,2 and Muhammad Iqbal appellant No,3 were sentenced to 3 years' R.I. And a fine of Rs,1,00,000 each in default of which one year further R.I. Each. All the three appellants were also disqualified for 10 years from holding any public office in terms of section 15 of the Ordinance. Aggrieved with the judgment/order the appellants have filed appeal in hand.
3. Mr. M. Sardar Khan, learned counsel for the appellants argued that under section 14(d) of the NAB Ordinance it was the bounden duty of the prosecution to make out a reasonable case against the appellants and in case the prosecution succeeded in making out a reasonable case to the satisfaction of Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof would have been shifted to the appellants to rebut the presumption of guilt. In the case in hand the prosecution has utterly failed to discharge the initial burden of proving the case against the appellants. It has also failed in making out any reasonable case against the appellants, to the satisfaction of the Court. Therefore, the impugned judgment is violative of the established principles of criminal jurisprudence. Reliance in this regard was placed on Khan Asfandyar Wali and others v. Federation of Pakistan and others (PLD 2001 SC 607), Mir Abdul Baqi Baluch v. The Government of Pakistan and others (PLD 1968 SC 313) and Syed Saeed Hassan v. Dayar Ali and others (PLD 1976 SC 6).
4. It was also argued that the prosecution has set up a false case against Muhammad Hayat Khan, appellant No,1. It has failed to prove any offence under clause (v) of section 9 of the NAB Ordinance.
1999. There is no evidence to show his involvement in corruption/corrupt practices and there is no evidence available on record to show that he ever misused his authority, acted dishonestly or adopted illegal means in order to accumulate movable and immovable properties, wealth and assets allegedly in the names of his brothers, the other two appellants and ladies (his mother, wife and sister-in-law) alleged as Banamidars.
5. It was also argued that the learned trial Court has misconstrued the meaning of "dependents" and "Benamidars". There is no evidence on record to show that Muhammad Hayat Khan appellant No,1 had acquired assets mentioned in the charge framed by the Court in the names of appellants Nos.2 and 3 and others. The learned trial Court has based its findings on presumptions, assumptions and conjectures, thereby treating appellants Nos.2 and 3 as dependents and Benamidars.
6. It was also argued that the learned trial Court it appears was under the impression that it was the duty of the appellants to prove that they were innocent. The learned trial Court has not treated and appreciated the defence evidence whereby the appellants had given reasonable explanation that the property owned by them were acquired through lawful means. It has failed to note that where there is a reasonable possibility that the accused defence might be true, such possibility re-acts on the whole case entitling the accused to acquittal.
7. Learned trial Court while discarding the strong defence evidence did not give cogent reasons. The appellants had in their statements recorded under section 342, Cr.P.C. Explained their lawful means and had examined as many as 44 witnesses in their defence. There is sufficient documentary and oral evidence to prove the innocence of appellants but the same was not properly considered by the learned Court. Neither the cross-examination of prosecution witnesses not the statements of appellants recorded were given any weight. The learned trial Court has wrongly drawn conclusion against the appellants merely because they did not wish to be examined under Oath. It failed to appreciate the law in this regard. Placed reliance on PLD 1994 SC 679 and PLD 1991 SC 787.
8. On the other hand Mr.Ziaur Rehman, Special Prosecutor argued that the impugned judgment is based on proper appreciation of evidence available on record.
9. It was further argued that the prosecution has discharged its initial burden of proof and then it was the duty of the appellants to show that the properties mentioned in the charge were acquired by them through lawful means, which they failed to prove, hence they were rightly convicted.
10. It was also argued that the learned trial Court has properly appreciated the law quoted by the learned counsel for the parties in arriving at just conclusion.
11. It was further argued that neither the ladies nor Jan Muhammad have challenged the impugned judgment/order though their properties were directed to be confiscated.
12. We have heard the learned counsel for the parties at length and perused the record.
13. Before dilating upon the arguments advanced by the learned counsel for the parties we feel it appropriate to discuss the evidence produced by the parties in this case.
14. Noor Ali Khan Patwari Halqa Mina Khel appeared as P.W.1 He placed on record table of immovable property of appellants in village Mina Khel as Exh.P.W.1/1. He also placed on record copy of Mutation No,951 as Exh.P.W.1/2, vide which the land was purchased in the name of appellant No,3. He also prepared the table of immovable property as Exh.P.W.1/3 belonging to the appellant No,1 and his alleged dependents.
He placed on record certified copy of Mutation No,7278 as Exh.P.W.1/4 and copy of Mutation No,7283 as Exh.P.W.1/5. The report regarding market price of the land of the house belonging to appellant No,1 is P.W.1/6. He also produced copy of the relevant entries in the Jamabandi as Exh.P.W.1/7. This witness also placed on record one year's average table as Exh.P.W.1/D-1 for the period from 30-1-1999 to 30-1-2000.
15. Sanaullah Khan, Patwari Halqa Shahab Khel appeared as P.W.2. He prepared table of immovable property of the appellant No,1 and his "dependents" and placed on record as Exh.P.W.2/1. Certified copy of Mutation No,10225 in Exh.P.W.2/2 and certified copy of Mutation No,10643 is Exh.P.W.2/3. He placed on record certified copies of the relevant Jamabandis as Exh.P.W. 2/4 (10 sheets). He also placed on record Ausat Yaksala commencing from 25-3-1986 as Exh.P.W.2/D-1. He also produced Ausat Yaksala commencing from 20-10-1989 as Exh.P.W.2/D-2. He placed on record Ausat Yaksala commencing from 24-1-2000 as Exh.P.W.2/D-3. He also placed on record copy of Mutation No,10409 as Exh P. W 2/D-4 .
16. Inayatullah Patwari, Halqa Dalu Khel appeared as P.W.3. He placed on record the table of immovable property showing ownership in the name of appellant No,1 and his dependents as Exh.P.W.3/1, certified copy of relevant Mutation No,962 is Exh.P.W.3/2, certified copy of Mutation No,976 is Exh.P.W.3/3, certified copy of Mutation No,1215 is Exh.P.W.3/4, certified copy of Ausat Yaksala commencing from 25-11-1997 as Exh.P.W.3/D-1, and Ausat Yaksala commencing from 19-12-1997 as Exh . P. W .3 /D-2.
17. Gulab Khan, Patwari Halqa Begu Khel appeared as P.W.4. He placed on record the statement showing immovable property of appellant No,1 and his dependents as Exh.P.W.4/1, certified copy of Mutation No,28059 as Exh.P.W.4/2, certified copy of Mutation No,28248 as Exh.P.W.4/3, certified copy of Mutation No,30412 as Exh.P.W.4/4, his report is Exh.P.W.4/5 and copies of Jamabandis as Exh.P.W.4/6.
18. Azizur Rehman, Manager Habib Bank Ltd. Lakki Marwat appeared as P.W.S. He placed on record a letter on demand in response to the Investigating Officer as Exh.P.W.5/1, copy of statement of Account in the name of appellant No,1 is Exh.P.W.5/2 and a certified copy Exh.P.W.5/D-1 regarding the transfer of amount of Rs,58,350 to the Account of appellant No,1 on the basis of prize bond drawn from State Bank of Pakistan.
19. Zulfiqar Ahmad, Officer of the Bank of Khyber, Dera Ismail Khan appeared as P.W.6. He placed on file the Account opening form regarding Current Account No,2929-7 dated 16-11-1999 in the name of Gul Tayaz appellant and the relevant statement of Account which are Exh.P.W.6/1 and Exh.P.W.6/2 and Account opening form regarding Current Account No,119 dated 29-11-2000 in the name of Muhammad Hayat appellant No,1 as Exh.P.W.6/3 and statement of Account is Exh.P.W.6/4. He also produced attested copy of Cheque dated 2-10-2000 in the name Gul Tayaz Khan amounting to Rs,14,65,204 as Exh.P.W.6/D-1, copy of Bank credit voucher dated 5-10-2000 as Exh.P.W.6/D-2, attested copy of Cheque No,652461 dated 1-10-2000, is Exh.P.W.6/D-3, copy of credit voucher dated 11-10-2000, Exh.P.W.6/D-4. This Cheque was also issued by the Food Department in favour of Gul Tayaz appellant, a copy of another Cheque was placed on file as Exh.P.W.6/D-5. Copy of credit voucher dated 22-11-2000 is Exh.P.W.6/D-6. Copy of Cheque produced by defence counsel is Exh.P.W.6/D-7.. Copy of statement of Account of Gul Tayaz is Exh.P.W.6/D-
8. Credit voucher dated 15-1-2001 is Exh.P.W.6/D-9, credit voucher of corresponding entry dated 16-1-2001 is Exh.P.W.6/D-8. Attested copy of Cheque produced by defence counsel is Exh.P.W.6/D-I0, Credit voucher dated 3-2-2001 is Exh.P.W.6/D-11 which correspond to the entry dated 6-2-2001 Exh.P.W.6/D-8, copy of credit voucher dated 27-2-2001 Exh.P.W.6/D-12. This credit voucher is also corresponding entry of Exh.P.W.6/D-8. Another Cheque dated 26-2-2001 was exhibited as Exh.P.W.6/D-13. This voucher was also corresponding entry of Exh.P.W.6/D-8, attested copy of voucher Exh.P.W.6/D-14, Cheque in favour of Gul Tayaz, Exh.P.W.6/D-15, voucher Exh.P.W.6/D-16 and copy of Cheque issued by Food Department in favour of Gul Tayaz is Exh.P. W .6/D-17.
20. Habibullah Khan Officer Grade-II of Bank of Khyber Peshawar was examined on Oath. He exhibited on record loan confirmation in the name of Gul Tayaz, as Exh.P.W.7/1, details of prize bonds given as security for the loan is Exh.P.W.7/2, statement of Account No,CD597 is Exh.P.W.7/3, copy of SDR/call deposit in favour of Director Food is Exh.P.W.7/D-1, copy of Cheque No,764829 dated 17-5-1999 is Exh.P.W.7/D-2.
21. Tahir Khan Accountant National Bank of Pakistan Bannu was examined as P.W.8, who placed on record copy of statement of Account No,4358-2 in the name of Gul Tayaz as Exh.P.W.8/1, copy of credit voucher as Exh.P.W.8/D-1 to 9, copies of Cheque corresponding to the transfer entries issued by Food Department in favour of Gul Tayaz are Exh.P.W..8/D-10 to -18.
22. Rafiullah Khan Clerk Excise and Taxation Balm was examined as P.W.9. He placed on record ET Letter dated 31-1-2001 as Exh.P.W.9/1, original record in respect of Motor Cycle No,LMB-15 as Exh.P.W.9/2, documents in respect of Vehicle No,B-1020 Laki Marwat as Exh.P.W.9/3 and record regarding Vehicle No,B- 1019 Laki Marwat as Exh.P.W.9/4.
23. Muhammad Maqbool Khan, EAC Revenue Laki Marwat wasexamined as. P.W.10. He had granted permission for house search on application submitted by Nafeesul Islam D.S.P., which is Exh.P.W.10/1. He is marginal witness to the recovery memo. Exh.P.W.10/2, vide which a sum of Rs,15,77,240 was taken into possession. He is also marginal witness to Exh.P.W.10/3, through which the Investigating Officer took into possession 8 documents.
24. Muhammad Shu'aib Officer National Bank Laki Marwat appeared as P.W.11. He placed on record copy of statement of Account No,1630 as Exh.P.W.11/1.
25. Ikhsanullah Khan Member Inspection Team State Bank of Pakistan in Indus Bank Branch (under liquidation) was examined as P.W.12. He placed on record copy of covering letter Exh.P.W.12/1. Statement of Account is Exh.P.W.12/2.
26. Afzal Khan, Regional, Audit 'Officer Directorate of Food was examined as P. W.13. He brought original record attested copies of which were supplied to Investigating Officer during investigation of the Reference. Copies were placed on record as Exh.P.W.13/1 (35 sheets). He also exhibited copies of the Tender Notice as Exh.P.W.13/D-1. Comparative statement/bid sheet is Exh.P.W.13/D-2, approval letter is Exh.P.W.13/D-3. Agreement executed by Gul Tayaz in favour of Food Department is Exh.P.W.13/D-4. N.O.C. Is Exhs.P.W.13/D-5 to D-7, statement of payments made is Exh.P.W.13/D-8, copy of tender notice is Exh.P.W.13/D-9; bid sheet is Exh.P.W.13/D-10, approval letter is Exh.P.W.13/D-11, agreement is Exh.P.W.13/D-12, statement showing payments of Gul Tayaz is Exh.P.W.13/D-13.
27. Afsar Khan, Assistant Director Establishment Food Directorate, Peshawar appeared as P.W.14. He produced original record, copies whereof were exhibited as Exh.P.W.14/1 (16 sheets).
28. Aziz Ahmad, S.D.O. Building Sub-Division appeared as P.W.15. He placed on record copies of preface of composite schedule of rates of 1999 as Exh.P.W.15/1, general extract of cost of house is Exh.P.W.15/2, detailed cost is Exh.P.W.15/3. Copy of approval order dated 6-12-1999, approved plan deposit and three receipts are Exhs.P.W.15/D-1 to D-5. Copy of rules is Exh.P.W.15/D-6.
29. Akbar Khan, A.S.-I. RAB was examined as P.W.16. He is marginal witness of recovery memo. Exh.P.W.10/2 and Exh.P.W.10/3.
30. Nafeesul Islam, D.S.P. RAB was also examined as P.W.17. He'had arrested the accused and produced him before the Accountability Court alongwith his application Exh.P.W.17/1 for physical custody of 90 days.
Custody granting order is Exh.P.W.17/2, application for further custody is Exh.P.W.17/3. Court order extending the period of custody is Exh.P.W.17/4. Application for extension of remand is Exh.P.W.17/5 and order of the Court extending the remand is Exh.P.W.17/6. Report of Tehsildar is Exh.P.W.17/7. Copies of the statements excepting Mutations Nos.8 and 9 were exhibited as Exh.P.W.17/8 and Exh.P.W.17/9. Statement of emoluments of accused is Exh.P.W.17/C-1. He had recovered during house search of accused Hayat Khan Utility Bills Exh.P.W.17/10 (5 sheets), copy of order of Commandar RAB is Exh.P.W.17/D-1.
31. Muhammad Wasim, Motor Taxation Clerk Office of ETO Rawalpindi brought original record in respect of Motor Car No,RIT 283, copies were placed on tile as EXII.P.W.18/1.
32. Amir Sher, Sadar Qanungo Laki Marwat produced original record regarding mutation which were already placed on file.
33. Inayatullah, Inspector F.I.A., Investigating Officer was examined as P.W.20. He placed on record letter of Director of F.I.A. As Exh.P.W.20/1, copy of RAB letter dated 15-2-2001 is Exh.P.W.20/2. He prepared final report Exh.P.W.20/3. List of documents is Exh.P.W.20/4, list of witnesses is Exh. P. W.20/5.
34. Mr.Ziaur Rehman, Advocate Special Prosecutor RAB closed the prosecution evidence on 19-5-2001 and his statement to this effect was recorded by the learned trial Court.
35. The statements of appellants were recorded under section 342, Cr.P.C. They furnished detailed replies to the questions put to them. They examined 44 witnesses in defence.
36. Inayatullah Khan, Incharge Settlement record appeared as D.W.1 and brought the original record of PTDs Exh.D.W.1/1 to Exh.D.W.1/10 through which various properties were purchased by the father of the appellants and their grandfather, Amir Jam Muharrir Police Station Lakki appeared as D.W. 2 and placed on record copy of F.I.R 191 dated 30-10-1972 Exh.D.W.2/1 regarding the murder of Muhammad Ayaz Khan and Ahmad Ayaz.
37. Noorul Hadi, District Food Controller was examined as D.W.3. He placed on record charge report copy Exh.D.W.3/1.
38. Abdur Rehman, Sub-Registrar Peshawar placed on record copy of power of attorney Exh.D.W.4/1.
39. Wasil Khan, Superintendent Food Branch of Food Directorate, Peshawar was examined as D.W.5, who exhibited copy of letter dated 13-12-2000 Exh . D. W.5/1 .
40. Habib Nawaz, Head Clerk Office of District Food Controller, Bannu placed on record copy of application of Muhammad lqbal Exh.D.W.6/1, Challan Exh.D.W.6/2 and licence Exh.D.W.6/3.
41. Abdul Jamil, Officer State Bank of Pakistan placed on record copies of various prize bonds won by Muhammad Hayat.
42. Firdaus Khan, Store Keeper of M.C. Lakki was examined as D.W.8. He placed on record copies of application Exh.D.W.8/1, approved map Exh.D.W.8/2, approval order Exh.D.W.8/3, intimation Exh.D.W.8/4, receipt Exh.D.W.8/5 and Bank Challan Exh.D.W.8/6.
43. Javed Aziz Qazi was examined as D.W.9, who produced original allotment letter of plot situates at Hayat Abad as Exh.D.W.9/I, transfer order Exh.D.W.9/2, transfer letter of the said plot dated 3-11-1994 as Exh.D.W.9/3.
44. Haibat Khan (D.W.10) stated that he had partnership business with Gul Tayaz and produced copy of partnership deed as Exh.D.W.l0/3.
45. Hasham Khan (D.W.11) was. Deed writer, Haji Kalimullah (D.W.12) and Salim Khan (D.W.13) are the marginal witnesses of the partnership deed.
46. Quezar Khan was examined as D.W.14. He placed on record certificate Exh.D.W.14/1 regarding salary of Gul Tayaz obtained from Qadri Flour Mills Tank as Manager.
47. Arsala Khan D.W.15 was a property dealer, who negotiated sale of the plot situated at Hayat Abad in the name of Muhammad Hayat..
48. Nobat Khan (D.W.16) has purchased shop from Hayat Khan, Gul Tayaz and Muhammad Iqbal Khan.
Similarly Sahib Khan (D.W.29), Mir Badshah (D.W.31) and Ali Marjan (D.W.34) had purchased various properties from the appellants.
49. Muhammad Noor (D.W.19), Jalil Ahmad (D.W.20) Qasim Khan (D.W.21), Mir Aslam (D.W.22), Mujahid Naseer (D.W.23), Sadruddin (D.W.26), Nimatullah Khan (D.W.27) and Muhammad lqbal (D.W.28) had sold properties to appellants Nos.2 and 3 and the ladies.
50. Niaz Muhammad (D.W.24) had purchased gold ornaments.
51. Habibur Rehman, Special Officer Income Tax Department (D.W.25) had placed various documents regarding payment of. Income Tax and Wealth Tax.
52. Muhammad Azim Khan (D.W.13), Badshah Khan (D.W.31) had remained tenants under the appellants.
Muhammad Ayub (D.W:32) stated that Muhammad Iqbal appellant was occupying market as a tenant since 1988.
53. Anwar Khan (D.W.33) remained servant of Muhammad lqbal appellant.
54. Ali Marjan (D.W.34) had purchased half portion of house from L.Rs, of Muhammad Ayaz Khan.
55. Gul Rahman (D.W.) had sold soap Factory to Gul Tayaz.
56. Abdul Qayyum (D.W.36), Muhammad Gul (D.W.37), Din Muhammad (D.W.38) deposed that Gul Tayaz Khan used to sell soap to them.
57. Muhammad Ishaq (D.W.39) stated that Muhammad lqbal appellant had a Poultry Farm.
58. Hamdillah Jan (D.W.40) remained servant in Poultry Farm under Muhammad lqbal.
59. Mian Takrimul Haq Kakakhel (D.W.41) remained tenant under the father of appellants.
60. Muhammad Jan uncle of the appellants was examined as D.W.42. He narrated the facts about the family of the appellants.
61. Now we advert to the arguments advanced by the learned counsel for the parties.
62. The argument of the learned counsel for the appellants that prosecution was to make out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof would have been shifted to the appellants to rebut the presumption of guilt, but the prosecution has utterly failed to discharge the initial burden of proof against the appellants. So far as this argument of the learned counsel is concerned, it has substantial force in it. Section 14 of the National Accountability Bureau Ordinance, 1999 hereinafter referred to as NAB Ordinance deals with the presumption against the accused. Subsections (c) and (d) of section 14 of the said Ordinance are reproduced hereunder for convenience:-- "(c) In any trial of an offence punishable under this Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practice and his conviction therefore, shall not be invalid by reason only that it is based solely on such a presumption.
(d) Where a person is accused of an offence under section 9(a) (vi) and (vii), the burden of proof that he used his authority, or issue any directive, or authorised the issuance of any policy or statutory rule or order (S.R.O.), or made any grant or allowed any concession, in the public interest fairly, justly, and for the advancement of the enactment under which the authority was used directive or policy of rule or order was issued or grant was made or concession was allowed shall lie on him, 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 91."
63. According to this section if a person is charged under clause (vi) or clause (vii) of subsection (a) of section 9 of the NAB Ordinance, it is the prosecution which shall first make out a reasonable case against the accused and the mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of the abovementioned section of NAB Ordinance. In section 14(c) the legislation in its own wisdom has used words "unless the contrary is proved" which means the contrary can only be proved by accused if earlier something has been proved against him, that is the burden shall shift to the accused to prove to the contrary if some case has been made out against him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he willfully failed to exercise his authority to prevent undue benefit of favour. Unless the facts constituting misuse of authority as contemplated under section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In such a case the prosecution would be duty bound to lead evidence against the accused and then he would be called upon to prove his innocence. In the recent judgment titled Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607. In paragraph 230 it was observed:-- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disapprove the presumption. This is also the consistent stand taken by Mr. Abid Hasan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the physiology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational setup, we deem it necessary to issue the following directions for effective operation of section 14(d):--
(1) The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi) and (vii) of the NAB Ordinance.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt.
64. Similarly in Dr. Farooq Sattar v. The State, Criminal Appeal No,1160 of 2000, decided on 20-9-2001 (PLD 2002 Lah. 95) by Lahore High Court it was held:- "There is considerable force in the arguments raised by the learned counsel for the appellant. The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accused could be called upon to make a statement under section 342 of the Cr.P.C. And then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had 'misused' his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or willfully failed to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Unless the basic facts constituting 'misuse' of authority as contemplated under section 9(a)(vi) of the Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In this connection, reliance can be placed on a recent judgment of the Hon'ble Supreme Court of Pakistan in the case of Khan Asfandyar Wall and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 pares. 230 and 231 reproduced."
65. In the proviso to the subsection (d) of section 14 the word "reasonable" has been used which is of significant importance though word "reasonable" has not been defined in the NAB Ordinance, but Black's Law Dictionary defined the word "reasonable" as under:-- "Reasonable. Fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason, Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable."
66. Similarly in New Standard Dictionary (Vol.III) the word "reasonable" has been defined as under:-- "Reasonable. (i) Conformable to reason; such as is rationally fitting or proper; sensible as, a reasonable view. (ii) Endowed with the faculty of reason; as, reasonable beings. (iii) Acting or thinking in conformity with the dictates of reason; as, any reasonable person will admit this. (iv) Characterized by moderation; moderate."
67. In Concise Oxford Dictionary. Seventh Edition the word "reasonable" has been defined as follows:-- "Reasonable (-z-) a. (1) Having sound judgment, sensible, moderate, nor expecting to such, ready to listen to reason. (2) In accordance with reason, not absurd; within the limits or reason, not greatly less or more than might be expected; inexpensive, not extortionate; tolerable, fair. (3) (arch.) endowed with faculty of reason."
68. The august Supreme Court of Pakistan in Messrs Ilahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 also defined the word "reasonable" as under:-- "That the word 'reasonable' is a relative generic term difficult of adequate definition. It inter alia connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the Constitutional bounds."
69 Keeping in view the above definitions of word "reasonable" it was the duty of the prosecution to prove a prima facie case which was in accordance with the reason, not absurd, fair, proper, just, moderate and suitable under the circumstances.
70. The august Supreme Court of Pakistan in Khan Asfandyar Wali's case has held that the prosecution if succeeds in making out a reasonable case, to the "satisfaction" of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shifts to the accused to rebut the presumption of guilt. Similarly in section 14(c) of the Ordinance the language used is "he cannot satisfactorily account". The satisfaction of the Court must be based on proper determination from all facts and circumstances of the case, be real, bona fide and not actuated 1:;), malice. In Syed Saeed Hassan v. Payar Ali and 7 others PLD 1976 SC 6 while examining the connotation and implication of the expression satisfaction, their Lordships laid down:-- 'Satisfaction' is by no means a term of art and appears to have been used in its 'ordinary dictionary sense.
'Satisfaction' is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state, of mind admitting of no doubt or in decision or oscillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the 'Legal satisfaction' which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In Corpus Juris Secundum 'satisfy' has been held to be synonymous with; 'convince beyond a reasonable doubt' and 'satisfaction' has been explained as a state of mind, which connotes a sense of certainty, and conviction or, release from suspense, doubt or uncertainty. According to the Oxford English Dictionary 'to satisfy' means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
71. Similarly in Mir Abdul Baqi Baluch v. The Government of Pakistan and others PLD 1968 SC 313 it was held:-- 'Before parting with this question, I would also like to add that though it is true that there is a difference between 'being satisfied' and '.Suspecting upon reasonable grounds', the difference, in my humble opinion, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion."
72. In the light of the above quoted law now we proceed to examine as to whether the prosecution has succeeded to discharge its initial burden of proof the charge of misuse of authority by Muhammad Hayat Khan, appellant No,1 by corruption and corrupt practices during his Government service in Food Department of Government of N.-W.F.P. Being holder of public office. The answer is in negative.
Muhammad Hayat Khan was charged as under:-- "That you, during the your Government service, in the Government of N.-W.F.P., being holder of public office, misused your authority by corruption and corrupt practices, accumulated movable and immovable properties, wealth and assets, in your name and in the names of your family members, dependents/associates/Benamidars having value disproportionate to your known source of income."
73. Section 9 of the NAB Ordinance speaks of corruption and corrupt practices. It says:-- "Holder of a public office, or any person, is said to commit or to have committed the offence of corruption and corrupt practices.-- (ii)
(iii)
(iv)
(v) if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; or
(vi) misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so or willfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority.
(vii)
(viii) ................
74. The words "corruption" and :corrupt practices" have not been defined in the National Accountability Bureau Ordinance, but according to Black's Law Dictionary (6th Edition) the meaning of these words have been described in the following words:-- "Corruption: An act done with an intent to give some advantage inconsistent with official duty and the rights of others. The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person contrary to duty and the rights of others."
"Practices" are succession of acts of a similar kind and "corrupt" means "spoiled: tainted: vitiated; depraved; debased; morally degenerate." Corrupt practices are thus series of depraved/debased/morally degenerate act."
75. When we examined the record in the light of the abovementioned Section of Law, we failed.To find any piece of evidence produced by the prosecution to show:--
(i) What was the charter of duties assigned to him?
(ii) Muhammad Hayat Khan appellant No,1 was invested with what powers as a Food Supervisor from 1982 to 1997?
(iii) How has he exercised said authority/power he was vested with?
(iv) Any specific instance of misuse of authority, the act omissions committed by him?
(v) Whether he exerted the powers and brought any influence to bear upon someone as to constitute misuse of his authority?" The answers to these questions are not available on record. Not a single witness has been produced to prove the abovementioned facts. Neither any instance of misuse of authority was cited nor "corruption" or "corrupt practices of appellant No,1 were brought on record. There is not an iota of evidence to show that appellant No,1 had while performing his duties had done anything illegal, violated any rule, committed any breach of discipline, gone out of way to favour anyone for pecuniary benefits and thus have ill- gotten earning. What to speak of proving any instance of "corruption" and "corrupt practices", the prosecution witnesses have even admitted in cross-examination that Muhammad Hayat Khan had good reputation and was not living beyond means. It is worth-mentioning here that three persons namely Nasir Khan, Haji Amir Jan Khan and Akhtar Ali, who were inimical towards Muhammad Hayat Khan had submitted application against him, upon which a departmental enquiry was conducted. The prosecution in order to prove its 0 case, examined Afsar Khan, Assistant Director Establishment, Food Directorate Peshawar as P.W.14, who admitted in cross-examination:-- "I have brought the personal service file of the accused Muhammad Hayat Khan. Enquiry report of Damsaz Khan Wazir, Enquiry Officer dated 5-9-1998 is available on my file. It is correct that three crucial points i,e, posting on political pressure, bad reputation and living beyond means were subject-matter of the said Enquiry. It is correct that in that enquiry report, the Enquiry Officer said that there are no signs of bad reputation of Muhammad Hayat Khan and similarly he is not haying beyond his means. There is no adverse entry in the A.C.R. Of accused from the date of his joining the service:"
76. Likewise Nafeesul Islam, D.S.P. Investigating Officer, who was examined as P. W.17 while responding to the question asked by the defence counsel stated:-- "It is correct that in the allegations made in Exh.P.W.14/1 and enquiry was conducted by Damsaz Khan Wazir and after thorough enquiry it was held that the reputation of the official was normal and no sign of bad reputation about these officials have been noticed."
77. It would not be out of place to mention here that the Investigating Officer for reasons best known to him did not record the statement of the abovementioned complainants. A suggestion was made to the Investigating Officer that he did not record the statements of these persons because he was satisfied that their complaint was turned down by the Enquiry Officer, he replied:-- "that he simply took copies from service record and placed them on judicial file."
78. It is thus proved from the record of the Food Directorate itself, of which Muhammad Hayat Khan, appellant No,1 was an employee that he had never indulged in "corruption" and "corrupt practices". He lived a simple life and had good reputation. The Investigating Officer of NAB was also unable to utter a single word about "corruption" or "corrupt practices" of appellant No,
1. The findings of the learned trial Court in this regard are entirely unfounded.
79. The argument of the learned counsel for the appellants that the learned trial Court has misconstrued the meanings of "dependent" and "Benamidars" and there is no evidence on record to show that Muhammad Hayat Khan appellant ,No,l had acquired assets mentioned in the charge framed by the learned Court in the names of appellants Nos.2 and 3 and his family members. This argument also has a force in it.A question arises here as to whether the appellants Nos.2 and 3 and the ladies (mother, wife and sister-in-law of appellant No,1) were "dependent" on appellant No,1 namely Muhammad Hayat Khan and that they were holding properties, vehicles and Bank Accounts mentioned in the charge as "Benamidars". Before going into deep discussion we shall first examine the meaning of the word "dependent" and shall then see as to whether appellants Nos.2 and 3 and the ladies were dependent upon appellant No,1 or not.
80. The word "dependent" though used in the NAB Ordinance, but has not been defined in the said Ordinance. We, therefore, have to resort to the ordinary dictionary meaning of this word. According to Black's Law Dictionary the word "dependent" means:-- " 'dependent' (n) means one who derives his or her main support from another. Means relying on, or subject to, someone else for support, not able to exist or sustain oneself, or to perform anything without the will, power or aid of someone else. "Dependent" (adj.) means deriving existence, support or direction from another, conditioned, in respect to force or obligation, upon an extraneous act or fact." According to Oxford Dictionary, the word "dependent" means asunder:-- "a person who relies on another especially for financial support.'
As per Webster's Comprehensive Dictionary the word' "dependent" means as follows:-- "one who looks to another for support or favour, a retainer." As per New Webster Dictionary the word "dependent" means:- "one who is sustained by another or who relies on another for support or favour. "
According to New Standard Dictionary the word "dependent" means:-- "one who looks to another for support, help or favour, a retainer. Needing support or aid from outside source." As per the Chamber Dictionary, 1999 (Edition) the words "dependent" means as under:- "a person who depends on another for support (esp. Financial); a hanger on. 'Hanger on:- A person who hangs around or sticks to a person or place for personal gain; an importunate acquaintance; a dependent. Importunate"- Troublesomely, persistent or demanding pressing; insistent; annoying; inopportune."
81. If we take into account the Dictionary meaning of the word dependent". It simply means that a persons who is financially "dependent" on someone and who requires financial support from a person upon whom he depends for maintenance.
82. The prosecution has not adduced any evidence to show that appellants Nos.2, 3 and their mother Mst.
Aisha were "dependent" upon Muhammad Hayat Khan appellant No,1. On the contrary the appellants have adduced sufficient evidence to show that they were not "dependent" upon appellant No,
1. The evidence on record shows that the family of the appellants was not a destitute family. Father of the appellants namely Muhammad Ayaz was murdered in the year 1972. In order to prove this fact the appellants examined Amir Jan Muharrir Police Station Lakki (D.W.2), who placed on record copy of F.I.R.
No,191 dated 30-10-1972 as Exh.D.W.2/l. This F.I.R. Was regarding murder of Muhammad Ayaz (father) and Ahmad Ayaz (paternal uncle) of the appellants. Before his death Muhammad Ayaz had a joint Naswar and Tobacco selling business with his father Muhammad Nawaz and two brothers namely Ahmad Ayaz and Muhammad Jan. Muhammad Nawaz grandfather of the appellants had sufficient landed property, the documents of which though are available on file, but have not been exhibited, therefore, the same are not referred here. He had two evacuee houses and one shop purchased in open auction through Exh.D-1, Exh.D-2 and Exh.D-3. Father of the appellants namely Muhammad Ayaz Khan (late) had purchased five houses and two shops in Laki Marwat vide Exh.D-5 to Exh.D-10. A Shop bearing. No,1121 was transferred by way of gift in favour of Muhammad Hayat Khan, Gul Tayaz and Muhammad lqbal vide decree in Civil Suit No,343(Neem) of 1980 dated 31-5-1980, copy of which has been placed on record as Exh.D-11. Similarly land measuring 106 Kanals, 14 Marlas situated in Mauza Begu Khel was gifted in favour of appellant No,1 (Muhammad Hayat) by his real aunt Mst. Faiz Bibi vide Mutation No,2859 attested on 13-10-1983 (not exhibited), out of which he sold 36 Kanals, 15 Marlas and the rest is still owned by him. According to the statement of Gulab Khan, Patwari Halqa Begu Khel (P.W.4) per annum produce of the said land comes to Rs,59,456. It is also on record that the father of the appellants was an International Passport holder copy Exh.D-13 which was issued in his name on 14-1-1969. He had deposited Rs,45,000 as security with Customs Department vide Exh.D-14.
83. After the murder of the father of the appellants and their uncle (Ahmad Ayaz) their grandfather Muhammad Nawaz maintained the families of his deceased sons. All their expenses including educational expenses were met by him. Apart from that he used to give Rs,400 per month to each widow of his sons from the income of the business. The mother of the appellants used to receive rents of the houses and shops left by her husband. It is also on record that they sold three houses for'Rs,64,000, Shop No,1122 was sold for Rs,16,000 and Shop No,1121 was sold for Rs,1,50,000.Documents regarding the sale of the properties have been placed on file as Exh.D-15 to Exh.D-18-A. Mst. Aisha D.W.43 and Muhammad Jan D.W.42 in their statements have given the details of income of the Family of the appellants. These two witnesses were subjected to lengthy cross-examination but nothing in favour of the prosecution could be extracted. Though the learned trial Court has discarded their statements on the ground that they are interested witnesses, but we fail to understand as to who could be the best witness to explain the sources of income of the family of the appellants than the mother of the appellants and the paternal uncle, who after the death of Muhammad Nawaz in the year of 1981, kept on financially supporting the family.
84. Appellant No,1 Muhammad Hayat Khan was a student at the time of murder of his father. He could not have supported the family. After having passed his F.A. Examination he joined Food Department in the year 1982 as Food Supervisor in BPS-5. He was later on promoted as Food Inspector in BPS-7 in the year 1997. How the family survived from 1972 (when Muhammad Ayaz Khan, father of the appellants was murdered) till Muhammad Hayat Khan joined Food Department, who had been supporting them during these long ten years. Answer to these questions have been given in detail by the appellants.
85. Gul Tayaz appellant No 2 in his statement recorded under section 342, Cr.P.C. In answer to question No,4 stated that properties left by Muhammad Nawaz, grandfather of the appellants, who died in the year 1981 were partitioned through private settlement in the year 1987 and L.Rs, of Muhammad Ayaz surrendered their shares out of two houses constructed on one Kanal each in lieu of Rs,3,00,000 in favour of L.Rs, of their paternal uncle Ahmad Ayaz (deceased) and their uncle namely Muhammad Jan (D.W.42).
Muhammad Hayat Khan (appellant No,1) surrendered his share out of the said amount in favour of (appellant No,2). Similarly his mother and sister also surrendered their shares in his favour. In this way he got Rs,2,30,000 in cash. He was gifted Rs,80,000 by his mother in February, 1987. So, he was in possession of Rs,3,10,000. With this amount he purchased property and started his business, the details of which shall be discussed when we come to the properties purchased by him.
86. Similarly appellant No,3 Muhammad Iqbal in his statement recorded under section 342, Cr.P.C. Stated that he had received Rs,70,000 as his share from Rs,3,00,000, for which two houses were surrendered in favour of Muhammad Jan. His mother gifted him Rs,15,000 in the year 1987. As such he was m possession of Rs,85,000 with which he started Poultry business and purchased properties also. Regarding the mother of the appellants, it is on record that on the one hand she was receiving the rents of the properties left by her deceased husband and on the other hand the entire family was being maintained by the father of Ayaz Khan deceased and her father-in-law Muhammad Nawaz would pay her Rs,400 per month for her own use. Keeping in view the abovementioned evidence, it is clear that appellants Nos.2 and 3 and their mother Mst. Aisha Bibi were not "dependent" upon Muhammad Hayat Khan, appellant No,1 .
87. Before determining the question as to whether appellants Nos.2 and 3 and .The ladies (mother, wife and sister-in-law) were holding immovable properties as "Benamidars", we would like to examine the meaning of the word "Benami". The word "Benami" has also not been defined in the NAB Ordinance. The transactions which are termed as "Benami" were dealt with in a case titled Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 in the following words:--- "The word 'benami' is used to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense it signifies a transaction which is real as for example when 'A' sells properties to 'B' but the sale-deed mentions 'X' as the purchasers. Here the sale itself is genuine, but the real purchaser is 13', 'X' being his benamidar. This is the class of transactions which is usually termed as benami. But the word 'benami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when 'A' purports to sell his property to 'B' without intending that his title should cease or pass to 'B'. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferor, in the latter there is none such, the transferor containing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transfer or 'B', to enquire into the question as to who paid the consideration for the transfer, 'X' or 'B'. But in the latter class of cases, when the question is whether the transfer is genuine or sham the point for decision would be not who paid the consideration, but whether any consideration was paid. "(See Sres Meenakshi Mills Ltd., Maduraj v Commissioner of Income-tax, Madras AIR 1957 SC 149)."
88. Likewise the august Supreme Court of Pakistan in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 held:-- "Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:
(i) Source of consideration;
(ii) from whose custody the original title deed and other documents came in evidence;
(iii) who is in possession of the suit property; and
(iv) motive for the Benami transaction."
89. In para 7 of the said judgment their Lordships affirmed:-- "It is also well-settled Law that the initial burden of proof is on the party, who alleges that an ostensible owner is a 'Benamidar' for him and that the weaknesses in defence evidence would not relieve a plaintiff from discharging the above burden of proof."
90. The following judgments can also be safely cited in support:-
(i) Ch. Rehmat Ali v. Abdul Khaliq through his L.Rs, and another 2000 MLD 1948;
(ii) Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806;
(iii) M.D. Abdul Majid and others v. Dr. Zainul Abidin and others PLD 1970 Dacca 414;
(iv) Ismail Dada Adam Soomro v. Shorat Banoo and others PLD 1960 Kar.852. In the light of the criteria laid down by the august Supreme Court of Pakistan and judgments cited above, we now proceed to examine as to whether the properties held in the names of Gul Tayaz, Muhammad lqbal and the ladies are "Banami" or not. The learned trial Court has described the properties in table No,1 in the impugned judgment. Let us examine each property separately.
91.. A plot of land measuring 2 Kanals at Mauza Shahab Khel Laki Marwat was purchased vide Mutation No,10225 attested on 27-6-1987 in the names of Mst. Bibi Aisha and Gul Tayaz. Said mutation has been placed on record as Exh.P.W.2/2. The perusal of the mutation shows that it is in respect of land measuring 4 Kanals purchased by four persons in equal shares namely (1) Mst. Aisha Bibi (2) Gul Tayaz Khan (3) Mst.
Farkhanda Jabeen and (4) Mst.Khushbo for a sale consideration of Rs,70,000. Purchase price of Rs,30,000 has been wrongly mentioned in table No,1. This property was purchased from Mumtaz Khan and Nimatullah Khan sons of Allah Dad Khan of Mian Khel. At the time of attestation of mutation, the possession of the said land was handed over to the purchasers. The prosecution did not produce the vendors but the appellants examined Nimatullah Khan (D.W.27), who stated that the possession was handed over to the vendees after receiving the sale consideration from them.
92. Plot of land measuring 10 Kanals, 4 Marlas .Situated at Mauza Khoidad Khel Laki Marwat was purchased vide Mutation No,7278 (Exh.P.W.1/4) and Mutation No,7283 (Exh.P.W.1/5) for sale consideration .
Of Rs,1,02,000 by Mst. Aisha Bibi and Muhammad Iqbal (40 and 33 shares) - from Munawar Khan, Sarfaraz Khan, and Qasim Khan. These Mutations were attested on 28-6-1989 in 'Jalsa Aam'. The entries in the Jamabandis were also incorporated vide Exh.P.W.1/7. The minute examination on Mutation No,7283 (Exh.P.W.1/5) shows land measuring 6 Kanals, 11 Marlas was purchased by Muhammad Iqbal (7 shares)
Mst. Jan Bibi daughter of Ahmad Ayaz Khan, Mst.Akhtar Jan daughter of Muhammad Usman, Khalil Ahmad son of Ghulam Muhammad (64 hissa in equal share) for Rs,65,000 from Amir Aslam Khan, Mst.
Noor Nama, Mst. Mah Rukh, Said Bibi, Mst. Gul Dana, Mst. Badri Jamala and Mst. Sherina.
93. Vide Mutation No,9 attested on 19-2-1992 land measuring 3 Kanals, 18 Marlas was purchased by Gul Tayaz for a sale consideration of Rs,3,90,000 from Mst. Akhtar Jan and Jalil Ahmad. It is also on record that vide Mutation No,8 attested on 19-2-1992 Mst. Jan Bibi wife of Gul Tayaz transferred land measuring I Kanal, 19 Marlas by way of gift in favour of Mst. Seemab Aslam wife of Muhammad Hayat (appellant No,1).
About the abovementioned sales the prosecution failed to examine any of the vendors. The appellants, however, in defence examined Amanullah Khan (D.W.19) Qasim Khan (D.W.21) and Mir Aslam Khan (D.W.22) who have stated that the sale consideration was paid by the vendees and possession was handed over to them.
94. Plot of land measuring 2 Kanlas situated at Mauza Shahab Khel was purchased vide Mutation 10643 attested on 19-10-1990 by Mst. Aisha Bibi (1/4th share) Gul Tayaz (1/4th share) and Muhammad lqbal (1/2nd share) for a sale consideration of Rs,60,000. This property was purchased by Muhammad Iqbal Khan son of Allah Dad who was examined as D.W.28. He also Stated that the sale consideration was paid by the vendees and possession was handed over to them.
95. Piece and parcel of land measuring 4 Kanals situated at village Dalu. Khel Laki Marwat was purchased vide Mutation No,962 attested on 25-11-1998 for a sale consideration of Rs,1,72,000 in The name of Muhammad Iqbal and Gul Tayaz. This property was purchased from Mujahid Naseer, Advocate, who appeared as D.W.23.
96. A plot of IInd measuring 1 Kanal situted at Main Dalu Khel Lakki Marwat was purchased vide Mutation No,976 attested on 19-12-1998 in the names of Muhammad Iqbal and Gul Tayaz against sale consideration of Rs,43.000.
97. Similarly land measuring 1 Kanal at Mauza Mian Khel was purchased by Muhammad Iqbal vide Mutation No, 951 attested on 30-12-1998 for a sale consideration of Rs,75,000. This property was purchased from Muhammad Noor who appeared as D.W.18 and stated the amount of sale consideration was paid by the vendor and possession was also handed over to him.
98. Plot measuring 2 Kanals in Mauza Dali Khel Liki Marwat was purchased by Gul Tayaz and Muhammad Iqbal for Rs,40,000 vide Mutation No,1215 attested on 21-3-2000. This property was purchased from Sadruddin Lohar, who appeared as D.W.26 and stated that the vendees paid the price and he handed over possession of the sold property to them.
99. Now we take up the case of Mst. Bibi Aisha, the mother of the appellants. She purchased the following properties:-- Description Amount of sale
1. Land measuring 1 Kanals vide Mutation No. 10225 attested on 27-6-1987 (Exh.P.W.2/2)Rs,17,500
2. Land measuring two Kanals vide Mutation No.7278 attested on 26-7-1989 (Exh. P. W. l /5)Rs,20,240
3. Land measuring ten Marlas vide Mutation No. 10643 attested on 20-10-1990 (Exh.P W.2/3)Rs,15,000 Total: Total: Rs,52,740 So far as the income of this lady is concerned, she had received Rs,12,000, rent of houses/shops left by her deceased husband, received Rs,72,000 as pocket money from her father-in-law and Jan Muhammad (D.W.42), Rs,64,000 from sale proceeds of houses/shops she sold Gold ornaments worth Rs,58,090. Out of this amount she had gifted Rs,80,000 to Gul Tayaz and Rs,15,000 to Muhammad Iqbal her sons in the year 1987. The learned trial Court has only taken into account Rs,12,000, income derived from the rents of the property, Rs,32,485 as share of Mst. Bibi Aisha and her three sons out of sale proceeds of properties sold by them. It failed to take into consideration the amount of pocket money Deceived by her at the rate of Rs,400 per month with effect from 1972 to 1987. So far as the payment of pocket money at the rate of Rs,400 per month by her father-in-law and brother-in-law is concerned, this fact stands proved from the statement Muhammad Jan (D.W.42) who stated in clear words that after the murder of his brother, his father used to give Rs,400 per month to each widow of his deceased brothers. This amount was in addition to the amount spent for the maintenance of the Family including their Educational expenses.
After death of Muhammad Nawaz in the.Year 1981 this witness kept on paying pocket money to her sister- in-law Mst. Bibi Aisha at the same rate till 1987. This explanation in absence of any evidence in rebuttal was sufficient to prove that Mst. Bibi Aisha was paid pocket money at the ratael Rs,400 per month. The learned Court below has discarded the statement of this witness on the ground of being interested witness. With regard to the income of Rs,58,090 derived from-sale of gold ornaments, the learned trial Court has taken into consideration that in the same year Mst. Bibi Aisha. Purchased 20 Tolas gold ornaments for Rs,80,000 for the marriage of appellant No,1 . If we add the total income of Mst. Bibi Aisha it comes to:--
(i) Rents Rs,12000
(ii) Sale proceeds of house/shops Rs,32485
(iii) Sale proceeds of Gold ornaments Rs,58090
(iv) Pocket money Rs,72000 Total: Rs,174575 Gold ornaments purchased Rs,80000 Balance: Rs, 94575
100. Out of this amount, she has gifted Rs,80,000 to Gul Tayaz and Rs,15,000 to Muhammad Iqbal. Mst. Bibi Aisha is an old lady of 70 years of age and was examined through local commission. Her statement has an intrinsic worth. She was examined on Oath and stood the test of serious cross-examination. The learned trial Court has brushed aside her statement on the ground that she is an interested witness and has a motive to falsely depose in favour of her accused sons to save them from conviction. We take a pause here to say that who could be more relevant and closely concerned - witness than the mother of the accused because having become widow in the year 1972 she brought up the family with the help of her father-in-law and brother-in-law. She was the best person to depose about the internal family matters which were not known to outsiders. The yardstick for discarding the statement of Mst. Bibi Aisha (D.W.43) and Muhammad Jan (D.W.42) is not proper because if we apply the same formula for all the prosecution witnesses, they can also be considered to be interested witnesses because they have motive to depose falsely against the accused to obtain their conviction. The statement of Mst. Bibi Aisha and Muhammad Jan D.Ws., therefore, could not be ignored because they were the most relevant witnesses, who knew the internal family matter. Mst. Bibi Aisha has given plausible explanation of her income and expenses and her statement has been duly supported by Muhammad Jan D.W.42. There is not an iota of evidence produced by prosecution that the amounts has been spent for purchasing immovable properties were paid to her by Muhammad Hayat Khan, appellant No,1.
101. Now we take up the case of Gul Tayaz Khan appellant No,2. The learned trial Court has taken the pains to mention the income and expenditure of Gul Tayaz from 1987 to June, 1999 in Table No,6. He purchased the following properties:-- Description Amount
1. Land measuring 1 Kanal vide Mutation No. 10225 attested on 27-6-1987 (Exh.P.W.2/2)Rs.17,500
2. Soap manufacturing Factory in the year 1989 Rs.25,000 Rs.15,000
3. Plot measuring 10 Marlas vide Mutation No. 10643 attested on 20-10-1990 (Exh.P.W.2/3)
4. Land measuring 3 Kanals, 18 Marlas vide Mutation No.9 attested on 14-2-1992 Rs.3,90,000
5. Land measuring 2 Kanals vide Mutation No.962 attested on 25-11-1998 (Exh.P.W.3/2)Rs.86,000
6. Land measuring 10 Marlas vide Mutation No.976 attested on 19-12-1998 (Exh.P.W.3/3)Rs.21,500 Total: Rs.5,55,000 In the statement, he explained the sources of his income. Income derived by him from the year 1987 to June, 1999 is also mentioned hereunder:-- Description Amount
1. Out of Rs.3,00,000 received for surrendering their shares in two houses left by grandfather of appellants. (note)(Mother , two sisters and Muhammad Hayat Surrendered an amount in favour of Gul Tayaz Khan)Rs.2,30,000
2. Gift given by Mst. Aisha Bibi (mother). Rs.80,000
3. Profit from so business in the year 1989 Rs.30,000
4. Profit from so business in the year 1990 Rs.33,000
5. Profit from so business in the year 1991 Rs.38,000
6. Profit from so business in the year 1992 Rs.38,000
7. Profit from so business in the year 1993 Rs.35,000
8. Profit from so business in the year 1994 Rs.34,000
9. Profit from so business in the year 1995 Rs.15,000
10. Share out of sale proceeds of shop Rs.5,333
11. Sold so business in the year , 1995 Rs.80,000
12. Salaries earned from Qadri Flour Mills as Manager at the rate of Rs.5,500 per month in the year , 1995.Rs.49,500
13. Salaries earned from Qadri Flour Mills as Manager at the rate of Rs.5,500 per month in the year , 1996.Rs.60,000 Salaries earned from Qadri Flour Mills as Manager at the rate of Rs.5,500 per month in the year , 1997.Rs.60,000 Salaries earned from Qadri Flour Mills as Manager at the rate of Rs.5,500 per month in the year , 1998.Rs.60,000 Salaries earned from Qadri Flour Mills. As Manager at the rate of Rs.5,500 per month up to June. 1999.Rs.60,000 Total Rs.8,77,333
102. The learned trial Court has not accepted the income shown by Gul Tayaz, appellant No,2 with the following observations:-- "39. The figures in these tables Nos.6 and 7 handsomely paint a picture, which superficially floats innocence. But, I bear in mind that those figures have been surfaced in statement of an accused recorded under section 342, Cr.P.C. Who was questioned that would he wish to be examined on oath as his own witness, and his answer was bare refusal, which means that the accused was not able to augment his data on oath."
103. The learned trial Court did not give any importance to the statement of accused (appellant No,2) recorded under section 342, Cr.P.C. Merely because he did not wish to be examined on oath as his own witness under section 340(2), Cr.P.C. A question arises here as to whether it was the duty of the defence to prove everything beyond any shadow of doubt and whether the defence must prove mathematically, with precision and exactitude, answer to this question would be given in the following paragraphs.
104. Learned trial Court did not account for Rs,80,000, the amount of gift by. Mst. Bibi Aisha, his mother towards the income of appellant No,2. We have while discussing the income and expenses of Mst. Bibi Aisha in the above paragraphs held that she has validly given gift of Rs,80,000 to Gul Tayaz.
105. So far as the amount of Rs,2,30,000 is concerned, the accused has given plausible explanation that two houses were left by Muhammad Nawaz, his grandfather, purchased by him in open auction vide Exhs.P.D-3 and D-4. The family of the appellants surrendered their shares of the two houses in favour of L.Rs, of Ahmad Ayaz and Muhammad Jan each paid them Rs,1.50,000. The mother (Mst. Bibi Aisha, two sisters and Muhammad Hayat Khan) further surrendered their shares in favour of Gul Tayaz. It was only Muhammad Iqbal, who received his share of Rs,70,000. This explanation was further corroborated by the statement of Muhammad Jan D,W.42, who admitted to have paid Rs,1,50,000 and also stated that L.Rs, of Ahamd Ayaz also paid'Rs,1,50,000 to this family. There appears to be no justification for not believing this amount as genuinely earned amount. The learned trial Court did not account for this amount towards the income of Gul Tayaz for the reasons that no receipt about payment was obtained by Muhammad Jan and L.Rs, of Ahmad Ayaz, the settlement was not reduced into writing etc., but the learned trial Court failed to appreciate that this was entirely a family affair and one transaction was between Muhammad Jan and L.Rs, of Muhammad Ayaz, who were brought up and looked after for years by Muhammad Jan D.W.42 as his own children,. So how could he demand any receipt from them or ask them to reduce the transaction in writing. Mores, there was absolutely no fear that the accused/their successors would ever re-demand their share because this fact has been admitted by D.Ws. And appellants in their statements recorded in a Court of law (trial Court). The parties to the settlement admit the transaction and the value paid.
106. The learned trial Court has also found fault with the transfer of one shop. The appellants by their grandfather and not the L.Rs, of Ahmad Ayaz. What was probably in the mind of the learned trial Court was that the L.Rs, of both the murdered deceased namely Muhammad Ayaz, and Ahmad Ayaz were orphans, why to choose one and deprive the other. It was for Muhammad Nawaz deceased to deal with his property as he liked. He gave a shop to the L.Rs, of Muhammad Ayaz, one house to L.Rs, of Ahmad Ayaz and second house to his son Muhammad Jan. The appellants had no share in the two houses, therefore, they did not receive any sum of money. The abovementioned distribution was not reduced into writing.
Had it been necessary to reduce the same in writing then the grandfather of appellants should have executed three deeds and got them registered, which was not done.
107. The learned trial Court has also disbelieved the purchase of Soap Factory and profits earned by Gul Tayaz. Gul Tayaz Khan. In order to prove that he purchased a Soap Manufacturing Factory, examined, Gul Rehrnan (D.W.35), who stated that he had sold Soap Manufacturing Factory to Gul Tayaz in the year 1989 for Rs,25,000 because he was allergic from Soap Chemicals. This witness was also subjected to lengthy cross-examination. Despite this. Fact that he had sold his business more than ten years ago, the prosecution has failed to create any doubt: He has given approximately increase of Rs,6 to 7-1/2 per kilo as production cost and, sale price that does not include rent of the premises, the wages of the two labourers, fuel charges and electricity etc. This. Witness used, to manufacture Soap himself, with the help of two laborers. He gave up the Soap business because of marketing and other problems. He was allergic from Soap chemicals. This is the matter .Of common knowledge that now-a-days business cannot be left in the hands of laboureres unless one sweats and toils himself, he cannot expect, profits. He found it difficult for the reasons which has been mentioned above. To continue his manufacturing business and therefore, sold it for a little less amount than that invested by him and immediately started Karyana business, which her was still doing.
108. The statement of Gul Tayaz in this regard has also been corroborated by statement of Abdul Qayyum (D.W.36), Muhammad Gul (D.W.37) and Din Muhammad (D.W.38). These D.Ws. Used to purchase Soap from him on wholesale basis. Why these persons who are ordinary shop-keepers should depose falsely in favour of appellant No,2. They are straight, simple and honest and have made their statements which in case can be doubted. The amount of annual income from the Soap manufacturing business for the years 1993 to 1995 shown by the appellant No,2' is not exorbitant and we have not, been able to find any reason as to why it should not be accepted as correct. Gul Tayaz in the year 1995 sold the soap manufacturing business for Rs,80,000. This amount is also reasonable.'
109. He (Gut Tayaz) joined service in Qadri Flour Mills as Manager. The amount of salaries earned=by him was mentioned and in order to prove it Haibat Khan (D.W.10)'corroborated this fact, therefore, there is no reason for us to disbelieve that he had not received the amount of salaries mentioned by him from Qadri Flour Mills.
110. The total income derived Gul Tayaz came to Rs,8,77,333. Out of, which he purchased the properties worth Rs,5,55,000. He was left with 'RS.3,27,333 in the year 1999.
111, In the year 1999 he started Wheat carriage business. He contributed and invested Rs,2,00,000, whereas Haibat Khan (D.W.I0) contributed/invested Rs,45,00,000. The learned Accountability Court has considered this "episode of Haibat Khan's investment" as fictional work purposely fancied by cosmetic endeavour of Chartered Accountant as well as payment of income tax with penalty to artistically present a convincing story". The learned trial Court declared the partnership deed P-IV Exh.D.W.10/3 as a sham document but the learned Court failed to properly appreciate that defence had examined Haibat Khan (D.W.10), one of the executants of the deed. Hasham Khan (D.W.11) scribe of the deed and Kalimullah (D.W.12) and Salim Khan (D.W.13), the marginal witnesses of the deed. It is worth-mentioning that the said partnership deed Exh.P-IV (Exh.D.W.10/3) was recovered from the newly-constructed house of Gul Tayaz and not from the house of Muhammad Hayat Khan, appellant No,1 who was at the relevant time residing in his quarter at D.I. Khan, where he was posted during those days. Now the question as to whether the recovery per se of agreement from the house of Gul Tayaz would make a sham document. The answer is in negative. The perusal of this document reveals that there are two partners of this business. The partnership deed could either be with Haji Haibat Khan (D.W.10) or with Gul Tayaz. It is on record that Haji Haibat Khan is a blind man having lost his eye sight 5/6 years ago. Gul Tayaz Khan remained in his employment in Qadri Flour Mills Ltd. As Manager from 1995 to 1999, worked hard, looked after his interest properly and therefore, earned his trust. The blind man was possessed of money. He contributed/invested Rs,45,00,000, whereas Gul Tayaz only contributed Rs,2,00,000. It was Gul Tayaz who had to contribute all his time and energies in order to control the entire business from Karachi to Sarai Naurang, Karachi to Hangu and Karachi to Tank which of course was not an easy job. Haji Haibat Khan D.W.10 being blind was unable to see and read, the custody of document (partnership deed) with a trusted partner was, therefore, unusual. There is no valid reason to dub this document.As a sham document. The observation of the learned trial Court that this document was manipulated and kept in hand by Gul Tayaz and Muhammad Hayat for ready defence against accountability is purely based on presumption. The perusal of partnership deed Exh.P-IV (Exh.D.W.10/3) shows that the tame was executed on 9-5-1999 when NAB Ordinance was not in existence.
How could Gul Tayaz and Muhammad Hayat foresee that they shall be subjected to accountability, therefore, they should keep the document which could be produced in defence . So far as the admissibility in evidence of this document is concerned, the defence has proved this document. The learned trial Court has not relied upon this document in the light of ruling reported in 1998 MLD 837, wherein it has been held:-- "There is a visible line of distinction in between proof of execution of a document and the proof of contents of a document. It is said that burden to prove contents of documents, in addition to proof of execution lies on beneficiary of that document. Mere production of scribe and marginal witnesses of the document in Court does not prove the truth of the contents of the document." The judgment relied upon, has no relevance to the case in hand. It was the case of a lady against her ex- husband who had got transferred through two forged registered sale-deeds, two houses and agricultural land (the land had already been transferred to her deceased father) which deeds were fictitiously got registered by him purporting to be the evidence of sale to him by her father. The only evidence in support of his claim by the ex-husband was his solitary statement.
112. The lady produced consistent and convincing evidence that her father had been seriously ill for a pretty long time before his death, that he was even unable to move about; that he was not in his proper senses; that nobody to her knowledge and to the knowledge of the P. Ws. Produced by her came to the village for registering any document and that the defendant had been living with them i,e, (with the plaintiff and her father in the same house) having no independent house to live in till such time that they separated.
113. As against this the ex-husband admitted that his father-in-law happened to be his real maternal uncle; that he died 4/5 months after the impugned registered document; that a case was pending against him having been brought by the plaintiff in respect of the agricultural land; that his father-in-law had no other issue except the plaintiff: that he died in this very house; that he (the defendant) also lived in the same house because his parents were dead and he was all alone; and that after the dispute arose with regard to the ownership of the house about 5/6 years back, he started living with his sister in her house. He also failed to give any good reason for the Tehsildar to come to the village but it was he who brought him to the village without making any application in this behalf. It is thus, abundantly clear, that the Tehsildar/Sub-Registrar visited the village, if at all he did, in extremely suspicious circumstances.
114. Here not only the execution of the agreement but also its contents have been proved. The scribe (Mr. Hashim Khan) has appeared as D.W.11. He is aged about 70 years. He has made a statement on Oath, he produced his Register as well where the said agreement is duly entered. The register was produced by him for perusal of the Court. The payment of money was admitted before him by the parties. D.W.12, Haji Kalimullah is a marginal witness to Exh.D.W.19/3. He has also made a statement on Oath. The deed was scribed in his presence. Haibat Khan and Gul Tayaz signed the same in his presence after it was read over to them. He had signed the Deed writer's Register in this respect. He like other witnesses was subjected to searching cross-examination. His testimony is consistent and convincing. Next is D.W.13, Mr. Saleem Khan. Second marginal witness. On Oath he made a Statement Consistent with the defence evidence; There is no contradiction in the testimony of the scribe, the marginal witnesses and Haji Haibat Khan.
115. Haibat Khan's statement which was recorded on Oath has been discarded because "he was the only person on earth who justified about this Aisaytitent", but he has stated "that the money was paid before writing of the ' -deed Exh.D.W.10/3". The future tense has been used in the deed in respect ''Otis investment.
It was also observed by the teamed trial Court that it has been stipulated in the deed that Haibat Khan shall invest Rs,45,00,000 in the partnership, i,e,' to say sometimes in future, after the execution of the deed". A. Minute examination of Exh:D.W110/3 shows that the amount was to be paid in future. Had it been so Haibat Khan could have easily deposed that amount was paid by him matter the execution of deed: The scribe-and witnesses of the deed fully supported this document. They were unanimous that the amount was admitted by both the parties to have been paid earlier. There is no reason as to why consistent and Unanimous statesmen of The abovementioned persons should not be accepted, more particularly when none of the prosecution witnesses have ever stated that this amount Was-paid by Muhammad Hayat to Gul Tayaz for investment in their presence.
116. Another reason given by the learned Court below that the blind man in reply to the question "who had counted currency notes of this huge amount" stated that currency notes were lying with.Him in the shape of packets, and he made- payment after counting the packets: This was disbelieved by the learned trial Court on the ground that a man with eyes would not pay the currency notes" in packets without - counting. It Haibat Khanhad kept currency notes in packets, it was for his convenience because being, blind it was difficult for him to count the notes: He could count the packets and since Gul Tayaz was his trusted man, therefore, he paid him by counting packets of currency notes which by no means is an unbelievable phenomenon.
117.The learned Court below has also found "the terms of Partnership extremely, astonishing and not inspiring confidence and conclude that it was a sham partnership. This reason for discarding 'the partnership is also not valid. It, is common knowledge that in many businesses two' Partners agree to with the business, one invests the enter amount and the other agrees to start with the business, one invests the entire amount and the other agrees to work. The working partners always get more share than the sleeping/dormant partner. In the case in hand Haibat Khan being blind was a sleeping partner,therefore, the learned Accountability Court should not have been astonished with the terms of partnership. The observations of the teamed trial Court that the blind man was mysteriously driven miles and miles away from Tank to Lakki Marwat was also based on imagination only '.
118. It is on record that-Haibat Khan had .Gone.To Laki Marwat himself, on his own. He had his own car and driver and there is nothing on file toshow that he was taken by Gul Tayaz to Lakki Nlarwat. He himself explained in the following words:- "Since I am disable I could not get the deed written at D.I. Khan And I needed help which was provided by Gul Tayaz at Lakki Marwat. I have my own car and a driver and Gul Tayaz did not bring me to Lakki Marwat."
119. Even otherwise there is no legal bar on execution of partnership deed at Lakki Marwat. This document could be executed by the parties anywhere.
120. The learned trial Court has also remarked that Gul Tayaz has not satisfactorily proved the "truth of payment of Rs,45,00,000 to him". It was also observed that the Mills is a Private Limited Company" "no proof of profit of previous years have been brought on record to satisfy the Court that Mills had earned that profit in the previous years'
121. Haibat Khan had appeared as D.W.10. He was subjected to lengthy. Cross-examination. Not a single question was aksed that the dividend over Rs,45,00,000 had not been declared under section 248(1) of the Companies Ordinance, 1984. 'The learned trial Court has rejected the balance-sheet Exh.D.W.10/4 on the ground that it was signed only by Chartered Accountant. 'The learned Court, however, accepted that the Mills earned Rs,22,23,590 profits in the year 1999. If the Mills could earn the above profit in the year 1999, then why could not earn more profits i,e, 24,00,000, in previous years, when there was shortage of Atta in N:-W.F.P.
122. Another reason for not accepting the payment of Rs,45,00,000 by Haibat Khan to Gul Tayaz that Gul Tayaz stated that having paid the said amount after payment of income tax. There appears to be a typographical mistake here. Probably the word "not' could not be typed. It has been proved by the defence by examining sufficient evidence that 'an amount of Rs,45,00.000 was invested by Haibat Khan.
Partnership deed Exh.D.W.10/3 also stands proved. The Wheat Carriage Contracts from' Karachi to various Cities. All payments made by the Food Department and sums deposited have been proved by authentic official record. The defence has offered reasonable explanation. We may mention here that there is absolutely no evidence on record to show that the amount of Rs,45,00,000 v -as paid by Muhammad Hayat Khan. The findings of the Accountability Court in this respect are incorrect as the same are based on mere presumption.
123. So far as the recovery of Rs,15,'77,240 during the house search of the "accused on 10-12-2000 is concerned, the' learned counsel for the appellants argued that the said recovery was made in, violation of section:103, Cr.P.C., therefore, .The same be ignored. This argument we are afraid has not force at all.
Gul Tayaz in his statement recorded under section 342, Cr.P.C. Has accepted that this amount was recovered from Almirah of his residential room. He had provided key of the lock to the Investigating Officer, who recovered documents related to his transactions. He explained that the recovered amount belonged to him. Rs,10,00,000 were withdrawn by him from Bank of Khyber on 13-12-2000 vide Exh.P.W.6/2 Rs,5,00,000 were withdrawn by him from National Bank Lakki vide Exh.P.W.11/1..The said amounts were withdrawn, he explained, to meet the expenses of transportation of wheat. When the appellant No,2 Gul Tayaz has himself admitted the recovery of the said amount from Almirah of his room, then it cannot be presumed that the said amount was recovered from the room of Muhammad Hayat. It is even otherwise on record that Muhammad Hayat was residing at D.1. Khan in those days in Government accommodation as stated by Noorul Hadi, District Food Controller, D.I. Khan (D.W.3).
124. Nov. We come to the properties purchased by Gul Tayaz Khan. Detail of these properties has been given in paragraph No,103. After discussing the income he earned from 1987 till June.
1999. We have in paragraph No,112 come to the conclusion that he had derived income of Rs,8,77,333. Out of which he purchased properties worth Rs,5,55,000. He has given plausible explanation about the amount earned by him and there appears to be no doubt as to why his statement which is corroborated by the statements of D.Ws. Should not be admitted correct. We, therefore, hold that he had means to purchase the properties mentioned above and the amount with which he purchased the properties was not given to him by Muhammad Hayat Khan because there is not an iota of evidence available on record to prove this fact.
125. Much stress has been laid upon "Palatial House". The worth of which has been assessed at Rs,27,62,549. In order to prove the value of the "Palatial House" the prosecution examined Aziz Ahmad S.D.O. Building Sub-Division as'P.W.15, who stated that the present value of the structure of the house was Rs,41.48,760. The learned Accountability Court has stated that Gul Tayaz was left with Rs,54,000 for construction of house. The learned trial Court failed to take into consideration documents produced by defence in this regard. Exh.P.W.15/D- I was approval dated 16-12-1999 from the Commissioner Bannu Division, Exh.P.W.15/D-2 is the site plan of the said house which is in the name of Haji Gul Tayaz.
Exh.P.W.15/D-3 is the receipt of Rs,7,125 for payment of fee for construction. Exh.P.W.15/D-4 is also receipt of Rs,7,125 in the same of Gul Tayaz, Exh.P.W./D-5 is receipt of payment of Rs,100 towards copies of the map of the house approved by the Commissioner Bannu, Exh.P.W.15/D-6 is relevant extracts from Public Works Department Code. The learned trial Court also failed to appreciate that Exh.P.W.15/3 was not prepared by Aziz Ahmad (P. W.15) but by Sub-Engineer who was not produced as a witness. This witness had never assessed the value of the private house, he was askedby Maj. Saeed Investigating Officer for assessing the value of the said house, who had pointed out the house to him a day prior to the assessment, the report was not sent under covering letter, it does not bear any date. It is also not clear as to when it was prepared and as to when he visited the house, it bears the signature of his Sub-Engineer. Though he admitted that beside site plan of the Building drawing specifications are also prepared before the construction of the Building, from which the age of Building, life of Building and material used in the construction can be ascertained, but he did not demand the drawing specifications and approved plan of the Building from Gul Tayaz. He was not even aware as to whether the house which he had assessed was constructed in year 1999. He evaluated the fixtures mentioned at serial No,7 of Exh.P.W.15/2 on the basis of his own presumptions, did not verify the rates of these structures from any Company or any person dealing in such pictures. He did not give details of Kitchen fittings. He did not confirm from any quarter the rates of Air-Conditioners and even did not know that the house the worth of which was allegedly assessed by him was situated in the limits of M.C. Lakki. How could the said report Exh.P.W. 15/3 be accepted. The learned Court has failed to appreciate the above infirmities in the report Exh.P.W.15/3.
Keeping in view of the abovementioned facts we hold that report Exh.P.W.15/3 was not admissible at all.
126. Let us now take the case of vehicles. It was alleged that with the ill-gotton money Muhammad Hayat had purchased the following vehicles in the name of his brothers as Benamidars.
(i) Motor Car Toyota Corolla Model 1987 bearing Registration No,1019 Lakki Marwat, valuing Rs,3,00,000, registered at the name of Gul. Tayaz since 7-1-2001.
(ii) Motor Car Toyota Corolla Model 1990 having Registration No,RIT-283 purchased on 19-12-1999 at Rs,2,55,000 by Muhammad Iqbal: but not transferred in his name so far.
(iii) Motor Cycle Yamaha having Registration No,LMB-15 in the name of Muhammad Iqbal appellant No,3 since 15-6-1998.
127. Muhammad Hayat Khan, appellant No,1 denied this accusation, but Gul Tayaz appellant No,2 in his statement recorded under section 342, Cr.P.C. In reply to Question No,7 admitted having purchased Motor Car Toyota Corolla Model 1987 bearing Registration No,1019 for Rs,3,00,000. He placed on record copy of Registration as Exh.D.20 and explained that he purchased the said vehicle from his lawful income in January, 2001, which he had earned due to Carriage Contract awarded to him from 2001. He stated that he would declare this vehicle in his Wealth Tax and Income Tax return which would be filed in the coming year. He showed no concern with Motor Car No,RIT 283. He also admitted that his brother Muhammad Iqbal and purchased Motor Cycle Yamaha No,LMB-15 from his lawful income. Gul Tayaz Khan has stated that he had earned profit of Rs,3,17,89,307 from the Wheat Carriage Contract awarded to him till December, 2000 which was corroborated by the statement of Afzal Khan Regional Audit Officer Directorate of Food, Peshawar (P.W.13), who placed on record copy of the Tender Notice for ,transportation of Wheat from Karachi to Serai Naurant. Karachi to Hangu and Karachi to Tank, copy EXh.P.W.13/D-1, comparative statement Exh.P.W.13/D-2, copy of approval letter Exh.P.W.13/D-3, copy of agreement Exh.P.W.13/D-4 and stated that the said contract was completed by Gul Tayaz. NOCs issued by the Food Department were also placed on record as Exh P.W.13/D-5, Exh.P.W.13/D-6 and Exh.P.W.13/D-7. This witness further confirmed that he (Gul Tayaz) was paid Rs,77,31,025 in connection with Carriage of Wheat after deduction of 2% Income Tax which come to Rs,1.,57,776. Copy of these statements was placed on record as Exh.p.W.13/D-8. It was also admitted by this witness that with regard to the carriage of Wheat to Hangu an amount of Rs,3,93.27,248 was paid to Gul Tayaz after deduction of income tax of Rs,8.02,596. Similarly in respect of carriage of Wheat to Serai Naurang an amount of Rs,1,02,81,826 was paid to Gul Tayaz after deduction of Income Tax of Rs,209,833. The abovementioned figures were for the Contracts awarded during the year 1999-2000.
128. For the year 2000-2001 for Contract of Transportation of Wheat from Punjab to D.L Khan, Serai Naurang and Tank, this witness placed on record Tender Notice Exh.P.W.13/D-9 bid sheet/comparative statement Exh.P.W.13/D-10, approval letter Exh.P.W.13/D-11, copy of agreement Exh.P.W.13/D-12 and statement showing month-wise payment made to Gul Tayaz lExh.P.W.13/D-13. He further stated that in connection with carriage of indigenous Wheat to D.I. Khan an amount of Rs,1,47,15,399 was paid to Gul Tayaz after deducting Income Tax of Rs,3,00,314 up to December, 2000. Similarly for transporting of wheat to Tank he was paid Rs,31,02.454 after deduction of Rs,63,315 as Income Tax. For Serai Naurang he was paid Rs,28,30,427, after deduction of Income Tax of Rs,57,763. These figures which have come out, from the month of an official witness show that. Gul Tayaz, had paid Rs,15,51,597 towards income tax only during the years 1999-2000 and 2000-2001. Keeping in view these figures it does not appeal to our mind as to why a man who could afford to pay Rs,15,51,597 towards Income Tax only, could not purchase a Motor Car with Rs,3.00,000 only for himself. The figures mentioned above fully justify that Gul Tayaz had purchased Motor Car No,B-1019 'from his own resources and; the said amount was not given to him by Muhammad Hayat. Since he has disowned Motor Car No,RIT 283, therefore, we do not discuss the same here.
129. Solar far as the Motor Cycle No,LMB-15 Model 1988 is, concerned it has not been assessed at very, exorbitant rate, but Muhammad Iqbal has also given explanation regarding his earning. We hold here that Motor Cycle was also purchased by Muhammad Iqbal from his hard earned money and he was not holding the same with him as Benamidar.
130. Now we discuss the Bank Account mentioned in Tables Nos.3 and 4 of the Judgment. First of all we take up Accountant No,7838-60 of Indus Bank Peshawar in the name of Muhammad Hayat appellant No,
1. This Account was opened on 25-9-1995 with an amount of Rs,500 which ,was withdrawn on the next day leaving Nil balance. It is a matter of common knowledge that an Account with Zero balance automatically stands closed but this Account was not closed and a sum of Rs,5,00,000 was transferred in this Account. Appellant No,1 has explained that this amount of Rs,5,00,000 was deposited fraudulently in his Account and he was not aware of the said deposit. In order to prove this entry of Rs,5,00,000 dated 13- 4-1996 the prosecution examined Ikramullah, Member Inspection Team State Bank of Pakistan in Indus Bank Peshawar as P.W.12 This witness was confronted with the statement Exh.P.W.12/D-1. He stated that two officials of Computer Section namely Raheem Ahmad and Amir Zeb Khan connived and fraudulently used this Account for their fraud up to 18-4-1996. He admitted:- "It is correct to suggest that this fraud has taken place by Computer device." He further admitted:-- "It is correct to suggest that somebody other than the Bank Staff has no access to the Computer Section." There is nothing in record to show that this amount of Rs,5,00,000 was deposited by Muhammad Hayat Khan in his Account.
131. Next is Account No,1119 of Bank of Khyber D.I. Khan Branch. This Account was opened on 29-11-2000 and the highest entry in this Account as on 29-11-2000 was Rs,500.
132. Another Account No,2590 in Habib Bank Ltd. Lakki was opened on 1-10-1987 in the name of Muhammad Hayat which showed highest entry of Rs,58,304 as on 21-8-1999. This amount was received from prize bonds as admitted by P.W.5. The present balance in this Account was Nil.
133. The above figures show that only Rs,500 stands as credit balance in all the three Accounts which were opened in the name of Muhammad Hayat Khan.
134. Now we take up the Bank Account of Haji Gul Tayaz Khan appellant No,
2. Account No, 597 was opened on 7-5-1999 in Bank of Khyber. This Account showed highest entry of Rs,30,40,000 as on 17-5-1999.
The present balance in this Account was Rs,8,610. In order to prove this Account, prosecution examined Habibullah P.W.7, who placed onrecord copy of documents regarding loan confirmation in the name of Gul Tayaz as Exh.P.W.7/1. Copies of details of prize bond kept as amount for loan facility Exh.P.W.7/2, copy of statement of Account Exh.P.W.7/3. In cross-examination he admitted that on 17-5-1999 a loan facility of Rs,18,00,000 was provided to Gul Tayaz which was credited on 17-5-1999 in his Account. With the deposit of this amount the total amount in the said Account was raised to Rs,30,00,000. In lieu of this amount of Rs,30,00,000 three SDR pay order were prepared in the name of Director Food N.-W.F.P. At the request of Gul Tayaz. Copies of the same were placed on record as Exh.P.W.7/D-1, copy of Cheque No,764829 dated 17-5-1999 were exhibited as Exh.P.W.7/D-2. The appellant No,2 in his statement recorded under section 342, Cr.P.C. While answering question No,8 stated that he was granted loan facility of Rs,18,00,000 on 17-5- 1999. There is nothing on record to show that any amount was ever deposited or withdrawn by Muhammad Hayat Khan from this Account.
135. Account No,2927-7 was opened in Khyber Bank D.I. Khan Branch on 16-1-1999. In this Account highest balance of Rs,22,82,305 as on 12-10-2000. Present balance in this Account was Rs,13,750. The prosecution in order to prove this Account examined Zulfiqar Ahmad Khan Officer, P.W.6, who stated that the said Account was in the name of Gul Tayaz. He placed a copy of statement of Account Exh.P.W.6/1 and Exh.P.W.6/2. In cross-examination the witness admitted:-- "In the entry dated 18-11-1999 a term 'clearing outwards' have been used which has been repeated subsequently in other entries. By this terms we mean a bill was submitted against a Department of the Government which was got cleared from Department and the money was transferred in the Account. The record in respect of all 'clearing outwards' is available, in our Branch, which can be produced, if needed."
136. The learned trial Court directed this witness to produce the record which was produced. He admitted that a sum of Rs,14,65,204 was collected through Cheque Exh.P.W.6/D-1 issued by Food Department in favour of Gul Tayaz. He produced copy of credit voucher Exh.P.W.6/D-2. He also produced attested copy of Cheque No,A-652461 dated 2-10-2000 issued by Food Department Exh.P.W.6/D-3, credit voucher Exh.P.W.6/D-5 showing that these Cheques were issued by Food Department. Other vouchers Exh.P.W.6/D- 6 and Exh.P.W.6/D-7 showing that the Cheques were issued in the name of Gul Tayaz were also placed on record. Copy of statement of Account Exh.P.W.6/D-8 was also placed on record. Similarly through Vouchers Exh . P. W .6/D-9,Exh P. W 6/D-8 Exh . P. W .6/D-11, Exh.P.W.6/D-12, Exh.P.W.6/D-13, Exh.P.W.6/D-14, Exh.P.W.6/D-15, Exh . P. W.6/D-16 and Exh. P. W .6/D-17 showed that through various Cheques issued by Food Department in favour of Gul Tayaz various amounts were deposited. All the credit entries in this Account have been made through clearing i,e, various Cheques issued by Food Department were deposited and the proceeds of the said Cheques were collected.
137. Account No,4358-2 was opened in National Bank of Pakistan Bannu Branch on 13-12-1999. This Account showed highest balance of Rs,28,07,177 as on 13-3-1996. Present balance in this Account was Rs,4,61,217.57. In order to prove this, the prosecution examined Tahir Khan (P.W.8), who placed on record copy of statement of Account Exh.P.W.8/ 1. This witness in cross-examination admitted:-- "There was only one deposit of cash of Rs,1,000 on 3-12-1999 when the account was opened. Thereafter, all the deposits were through Cheques from Government Department." He also produced credit vouchers with respect to all the transfer entries mentioned in statement of Account Exh.P.W.8/1. The said vouchers were exhibited on record as Exh.P.W.8/D-1 to Exh.P.W.8/D-9.
Cheques issued by Food Department in favour of Gul Tayaz were also produced by this witness, copies whereof were retained on record as Exh.P.W.8/D-10 to Exh. P. W .8/D-18 .
138. Another Account No,1630 was opened on 27-3-2000 in National Bank of Pakistan Lakki Marwat Branch.
In order to prove this Account; the prosecution examined Muhammad Shuaib Bank Officer Grade-III National Bank of Pakistan (P.W.11) who placed on record statement of Account Exh.P.W.11/1. In cross- examination this witness admitted that Gul Tayaz had withdrawn Rs,5,00,000 on 11-12-2000. We may mention here that this sum of Rs,5,00,000 has been explained by Gul Tayaz when he stated that this amount was withdrawn and kept in cash alongwith Rs,10,77,240, which was to be spent for transportation charges. This amount of Rs,15,77,240 was recovered by the Investigating Officer on 19-12-2000 from the almirah lying in his residential room.
139. From the statements of Azizur Rehman P.W.5 Zulfiqar Ahmad P.W.6. Habibullah P.W.7 and Tahir Khan P.W.8 it is clear that the four Accounts discussed above were opened by Gul Tayaz and were operated by him except cash deposits made at the time of opening of Accounts, the other amounts were deposited through credit entries and these witnesses have admitted that the various cheques issued by Food Department in the name of Gul Tayaz were deposited and proceeds of the said Cheques were collected.
The copes of the Cheques were collected. The copies of the Cheques and credit vouchers have been placed on record during the cross-examination, therefore, no doubt is left that the said Accounts belonged to Haji Gul Tayaz and Muhammad Hayat appellant No,1 had nothing to do either with the Accounts or with the amounts deposited therein.
140. Now we take up the case of Muhammad Iqbal appellant No,3. He had purchased the following properties:- He had earned the following amounts:- Description Amount
(i) Purchased Land measuring 2 Kanals, 7 Marlas vide Mutation No.7278 attested on 26-7-1989 (Exh. P. W. 1/4) and Mutation No. 7283 dated attested on 26-7-1989 Exh.P.W.1/5.Rs.23,312
(ii) Land measuring 1 Kanal vide Mutation No. 10643 attested on 20-10-1990 Exh.P.W.2/3. Rs.30,000
(iii) Land measuring 2. Kanals vide Mutation No.962 attested on 25-11-1998 Exh. P. W.3/2.Rs.86,000
(iv) Plot of land measuring 10 Marlas vide Mutation No. 976 attested on 19-124998 Exh.P.W.3/3.Rs.21,500
(v) Land measuring 1 Kanal vide Mutation No.951 attested on 30-12-1998 EXh. P. W . l /2.Rs.75,000
(vi) 1 Kanal land vide Mutation No. 1215 attested on 29-3-2000 Exh.P.W.3/4. Rs.20,000
(vii) Purchase Yamaha Motor Cycle No.1MB-15. Rs.45,000 Total Rs.3,00,812 Description. Amount
(i) Earned by surrendering of share in grandfather's two houses in 1987.Rs.70,000
(ii) Gifted by mother in the year 1987. Rs.15,000
(iii) Profit from Poultry business in 1992 Rs.50,000
(iv) Profit from Poultry business in 1993 Rs.60,000
(v) Profit from Poultry business in the year 1994. Rs.55,000
(vi) Profit from Poultry business in the year of 1995: Rs.60,000
(vii) Profit from Poultry business in the year of 1996. Rs.60,000
(viii) Profit from Poultry business in the year of 1997. Rs.40,000
(ix) Profit from Poultry business in the year of 1998. Rs.65,000
(x) Share from sale of ancestral shop in 1992. Rs.5,333
(xi) Profits earned through Food Grain business in the year 1999. Rs.30,000
(xii) Profits earned through Food Grain business in the year of 2000. Rs.33,000 Total: Rs.5,43,333
141. The explanation of the income derived by him through various businesses etc., shows that he had earned Rs,5,43,333 from 1987 till 2000. Out of which he purchased properties worth Rs,3,00,812. We have while discussing the properties and income derived by Gul Tayaz held that this family had earned Rs,3,00,000 for surrendering their share in two houses left by grandfather of the appellants. We had also accepted that Mst. Bibi Aisha had sufficient amount to give gift of Rs,80,000 to Gul Tayaz and Rs,15,000 to Muhammad Iqbal, therefore, we do not feel it appropriate to repeat our observations again, so far as the amount of share of Rs,70,000 and the amount of gift of Rs,15,000 is concerned. We therefore, declare that these two amounts were validly received amounts.
142. So far as the business of Poultry is concerned, this business was started in the year 1990 by investing Rs,50,000. In order to show that he was running the poultry business, appellant No,3 had examined Muhammad Ishaq D.W.39. This witness stated that Muhammad Iqbal was running Poultry business and he used to purchase Poultry products from him. Hamidullah Khan was examined as D.W.40. He remained in service with Muhammad Iqbal on payment of Rs,1,200 per month. In order to prove the business of Food Grain, Muhammad Ayub was examined as D.W.32. This witness stated that Muhammad Iqbal was occupying market owned by him a tenant at the rate of Rs,1,600 per month since 1998, where he was running his Food Grain business. Anwar Khan was 'also examined as D.W.33. He stated that he remained servant of Muhammad Iqbal on payment of Rs,1,200 per month. The examination of the discussed evidence shows that Muhammad Iqbal had given reasonable explanation of his income and we do not find any reason to disbelieve him.
143. When we examined the entire evidence on the touchstone of judgment of august Supreme Court of Pakistan reported in Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703).
144. The august Supreme Court of Pakistan in the above cited judgment had given the questions to be considered in deciding whether the transaction was "Benami". The first of such questions is the "source of consideration". When we examined the entire evidence, we find out that the prosecution has failed to produce a single witness, who could state that the sale consideration of the said properties was paid by appellant No,1 or any other person than the vendees. Mst. Bibi Aisha and appellants Nos.2 and 3 had explained that they had sufficient amount to purchase the said properties and they had paid the sale considerations to the vendors. The money spent for purchasing various properties by appellants Nos.2 and 3 and their mother was not given to them by appellant No,1 (Muhammad Hayat Khan). All the vendors examined by defence in their support have unequivocally stated that the sale consideration was paid by the vendees and possession was delivered to *them. The other question as to from whose custody original title deeds of properties were produced we fail to find out answer to this question from the prosecution evidence. It is on record that appellants Nos.2 and 3 produced the documents of ownership of their properties. No doubt Patwari Halqas placed attested copies of various mutations on record but these witnesses (Patwaries) had only produced the original record. The third question as to who is in possession of the property, it is on record that the vendees were in possession of the said properties, as mentioned above, the vendors stated that the possession was delivered to the vendees and there is not an iota of evidence on record to indicate that Muhammad Hayat had anything to do with the possession of the properties purchased by appellants Nos.2 and 3 and their mother. The next question is as to what was the motive for the 'Benarni' transaction. The case of the prosecution is that these properties were purchased by appellant No,1 in the names of appellants Nos.2 and 3 and their mother in order to conceal his ill-gotten wealth. In the case in hand, the prosecution has failed to connect appellant No,1 even remotedly with the properties purchased by appellants Nos.2 and 3 and their mother. It is well- settled that the onus probandi to prove the 'Benami' character of transaction lies upon him, who alleges it, as held in (AIR 1938 Madras 8).
145. In the case in hand as mentioned above, the prosecution has failed to bring on record as to whether appellant No,1 had ever negotiated the sales/purchase of either of the properties, whether he was present at the time of sale or attestation of mutations, whether; the possession of any of the properties was handed over to him by any of the vendors, whether; appellant No,1 had received the usufruct of the properties. Whether the documents of ownership ever remained in his possession. There is no evidence produced by the prosecution to give answer to these questions. The prosecution could produce Patwari Halqa or Tehsildar or Numberdar in whose presence the sale mutations were attested in order to prove that the sale consideration was paid by appellant No,1 and the possession was handed over to him, but they failed to do so. On the other hand the appellants have produced all the vendors in their defence and have successfully proved that it were the vendees who have paid the sale consideration and possession was delivered to them and they are still enjoying possession. In absence of any proof, it cannot be presumed that appellants Nos.2 and 3 and their mother were holding the properties and Bank Accounts as "Benamidars"
146. In paragraph No,105 we had left the question as to whether it was the duty of the defence to prove anything beyond any shadow of doubt and whether the defence must prove mathematically, with precision and exactitude?. The answer to this question is in negative. As discussed above, it is the duty of the prosecution to prove a prima facie case reasonably to the satisfaction of the Court. In case the prosecution succeeds in proving prima facie case, then the burden shifts to the accused. This burden can be discharged by him by producing evidence oral or documentary, by examining a witness or through his statement recorded under section 342, Cr.P.C. If the accused succeeds in offering reasonable explanation or by circumstances a doubt is created in the case of prosecution, then presumption of guilt cannot be drawn against the accused. In such a case he is entitled for acquittal.In Ikramuddin v. The State (PLD 1958 (W.P.) Karachi 21) it was held:-- "The presumption against the accused under section 4 of the Prevention of, Corruption Act, 1947 is not to be drawn until the explanation offered by the accused is considered and found unsatisfactory. Where the accused offers a reasonable explanation which is acceptable and which raises a doubt as to the truth of the presumption cannot be drawn. But if the Court feels justified in drawing a presumption against the accused after due consideration of the explanation then the burden is on the, accused to displace the presumption of criminal misconduct. The burden of proof on the accused in such cases is less than that on the prosecution in that it is sufficient for the accused to make out the truth of his defence in all reasonable probability though not clearly beyond doubt." Similarly in Sultan Ali v. The State (PLD 1971 Karachi 78) it was observed:-- "It would be an outrage on common sense and reason to infer that under section 4 of the Prevention of Corruption Act, 1947 the presumption has itself been displaced and that the offence of bribery must be held to be established the moment money is passed into the possession of the accused without further proof that it was accepted as an illegal gratification. When the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary can be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution. The proof of the contrary need not necessarily be by evidence, oral or documentary; but it may be furnished by the statement of the accused himself or by the circumstances of the case." Likewise in Allahadino Khan v. The State (1992 MLD 564) it was observed:-- "The burden of proof in a Criminal case always remains upon the prosecution. However, in a case of this nature the accused has to account for such possession; but that burden can be discharged by showing preponderance of probabilities and unlike the prosecution the defence is not obliged to prove its case beyond any shadow of doubt. If from the evidence given in support of the defence plea a reasonable doubt is created in the mind of the Court about the guilt of accused, he is entitled to an acquittal." The following judgments can also be cited in support of this proposition:- "(i) Jeoomal Tikamdas v. Emperor (AIR 1939 Sindh 208),
(ii) Syed Muhammad Khalilullah v. State (PLD 1962 Dacca 270),
(iii) Barkat Ali and another v. The State (PLD 1973 Karachi 659), and
(iv) Lutf Ali v. The State (1977 PCr.LJ 627)
147. The august Supreme Court of Pakistan has even held that plausible explanation tendered by accused should be given weight and preference over prosecution version. In this regard reliance can be safely placed on Muhammad Hanif v. The State (1992 SCMR 2272).
148. Likewise in Mir Ahmad v. The State (PLD 1962 SC 639) their Lordships held:-- "The case raises a familiar question namely, the question of the correct treatment of a plea in defence which is of factual nature and is supported by evidence and circumstances. This matter received careful consideration by the Federal Court in the case of Safdar Ali v. The State (PLD 1953 F.C. 93) where it was held that the decision in such cases must not be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence, and if thereafter, "the Court is of the opinion that there is reasonable possibility that the defence put forward by the accused might be true, this opinion reacts of such doubt, on the ground that the prosecution has not proved its case beyond reasonable doubt."
149. In Malik Waris Khan v. Ishtiaq and raga and others (PLD 1986 SC 335) the august Supreme Court of Pakistan held that:-- "The Accused's statement is to be accepted substantially if not entirely and only that part is to be rejected which is against proved facts or is intrinsically untenable. In case when there are no proved facts and there exists no inconsistency of facts, accused's statement cannot be rejected by adopting a process of appraisement, analysis and probability as if it was statement) of a witness."
150. Reliance in this regard can also be safely placed on AIR 1953 SC 468. 210
151. So, keeping in view the above mentioned dicta laid down by the august Supreme Court of Pakistan it can be safely said that the burden can be discharged by defence by showing preponderance of probabilities and unlike the prosecution the defence is not liable to prove its case beyond any shadow of doubt.
152. The learned trial Court has discarded the statement of the appellant recorded under section 342, Cr.P.C. On the ground that they did not wish to be examined on Oath and adverse inference was drawn. It is also well-settled principle of law that the accused cannot ) be compelled to make a statement on Oath. Subsection (2) of section 340, Cr.P.C. Only confers a power on the Court to inform the accused that he has a right under the law to make a statement on Oath and it is his option to make a statement on Oath or not. This question came up before the august Supreme Court of Pakistan in Javed v. The State (PLD 1994 SC 679) and it was held:-- "If accused persons declined to be examined on Oath, that does not leave it open to presume that they are guilty for it is the duty of prosecution to prove the case against accused beyond doubt and burden is not reduced by the amended provision of section 340, Cr.P.C. Which gives option to the accused to appear for himself as witness and given statement on Oath or not."
153. Similarly in Mst. Amir Khatun v. Faiz Ahmad and others (PLD 1991 SC 787) it was held:-- "The Criminal Procedure Code, of which section 340(2) forms a part, has two indicators of importance to the case, The first indicator is found in subsection (4) of section 342, Cr.P.C. To the effect that "except as provided by subsection (2) of section 340, no Oath shall be administered to the accused". The other indicator is in the subsequent section which says "except as provided in sections 337 and 338, no influence by means of any premise or threat or otherwise shall be used to any accused person to induce him to disclose or withhold any matter within his knowledge". If an accused is mandated to make a statement on oath under section 340(2), Cr.P.C. Or if he is told that if he does not make that statement the inference will be drawn against him, he will come under a pressure which will violate requirements of section 343, ,Cr.P.C. Therefore, the interpretation of section 340(2), Cr.P.C. Has to be that it has no compulsive effect on the accused. All that the Court can do is to ask him whether he will like to make a statement on oath. It is his option and without prejudice to his case to make a statement or not to make a statement on oath. No adverse inference can be drawn if he does not opt to make a statement." The same principle was adopted in a very recent judgment delivered by the august Supreme Court of Pakistan in Rashid Ahmad v. The State (2001 SCMR 41), Lal Khokhar v.The State (1990 PCr.L.I. 1073) and in Anwar Khattak v.The State (1993 PCr.LJ 1976).
154.It is well-established principle of criminal jurisprudence that nobody can be compelled to be witness against him i,e, a person cannot be compelled to give evidence in the very matter in which he is accused or is liable to be accused and then to base charge on such evidence, and at the trial of the accused, to use such evidence given as his statement tending to prove his guilt. Article 13(b) of the Constitution of Islamic Republic of Pakistan (1973) guarantees this right to an accused by way of fundamental right.
155.On the strength of case-law cited above the evidence available on record which has been fully discussed by us, we tend to accept the appeal in hand for the following reasons:-- Firstly, the prosecution has failed to prove reasonable case much less to the satisfaction of the Court. It has failed to bring home the charges leveled against the appellants. There is no direct or indirect evidence to show that Muhammad Hayat appellant No,1 was a corrupt official and he was holding such responsible position by misuse of which, he amassed huge wealth. Not a single witness has deposed that he was a dishonest/corrupt person and was living beyond his means. There is also no evidence on record to show his such acts or omissions or the powers he exerted, the influence he brought to bear upon someone as to constitute misuse of that authority. There is also nothing on record to prove that appellants Nos.2 and 3 and their mother were holding the properties (mentioned in the charge), vehicles and Bank Accounts as "Benamidars" and that they were "dependent" on Muhammad Hayat Khan. Secondly, even if it is presumed for the sake of arguments that the prosecution had discharged its initial burden, then in that case, the appellant shave given satisfactory explanation about sources of their income. They have adduced sufficient documentary and oral evidence in their support and not only all the D.Ws.44 in number have supported their case, but the prosecution witnesses i,e, all the Bank Officials produced by the prosecution, officials of the Food Department and particularly the Investigating Officer have supported their case. The Investigating Officer had in the cross-examination admitted to the extent that there may not be available direct evidence because this was the white colour crime and he had just collected evidence for drawing conclusion. Thirdly, the learned trial Court has discarded the entire evidence produced by defence on wrong premises. The statements of accused recorded under section 342, Cr.P.C. Were discarded on the reason that they (accused) did not wish to be examined on Oath and adverse inference was drawn which was not only against law quoted above, but was also violative of Article 13(b) of the Constitution of the Islamic Republic of Pakistan, 1973. The statements of Mst. Bibi Aisha (D.W.43) and Muhammad Jan (D.W.42) were not taken into consideration on the ground that they were "interested witness". This approach of the learned trial Court was also not proper because these two witnesses were the most concerned witnesses, who had furnished the explanation as to how this family survived after the murder of the father of the appellants in the year 1972. The statements of the vendors of the properties were rejected being negative evidence. The learned trial Court failed to appreciate that it was duty of the prosecution to have produced vendors to prove that the transactions of sales were "Benami", but they failed to produce them because they did not support the prosecution's case. It were appellants who took upon themselves to produce them, who stated in clear words that the properties mentioned in the charge were purchased by the vendees and the possession was also handed over to them, therefore, their evidence would not be declared as negative evidence. The statements of the other D. Ws. Were also not given any importance because they were not -truthful witnesses. The defence had produced Haibat Khan (D.W.10) who not only proved through documentary evidence but through his oral testimony also that he had invested Rs,45.00,000. The scribe of deed Exh.D.W.10/3 and its marginal witnesses also proved the execution as well as the contents of this document but their statements were ignored under the wrong impression of law. Fourthly, the documents which were not admissible were relied upon and those documents which favoured the appellants were conveniently ignored, for instance the report of Aziz Ahmad, S.D.O.
Exh.P.W.15/3 was not admissible for the detailed reasons given in paragraph No,125, but the same was taken into consideration, whereas the approved site plan, three receipts Exh.P.W.15/D-1 to Exh.P.W.15/D-5 were ignored. LikeWise partnership deed Exh.P.W.10/3 stood proved but the same was also discarded. As mentioned above, under the wrong impression of law.Similarly balance-sheet for the year 1999-2000 Exh.D.W.10/4 was also discarded on the ground that it was only signed by the Chartered Accountant.
There is no requirement of law that the balance-sheet be also signed by the Managing Director as well as by the Director of the Company. Fifthly, the lead Court below has failed to appreciate the law applicable to the case properly in that the interpretation of the judgment of the august Supreme Court of Pakistan reported as Muhammad Sajjad Hussain v. Muhammad Anwar Hussain (1991 SCMR 703) was squeezed. Likewise the learned Court failed to appreciate that no adverse inference could be drawn on failure of the accused to examine him on Oath under section 340(2), Cr.P.C. In this regard provision of Article 13(b) of the Constitution of the Islamic Republic of Pakistan was also not kept in mind. The judgments of the superior Courts which were applicable to the case were disregarded. Sixthly, the learned trial Court has based the conviction on presumptions only. It failed to appreciate that in order to draw the presumption of guilt against the accused there must be cogent, convincing and adequate evidence on record, which was lacking in this case. Feeble and inconsistent evidence would not permit to raise such presumption and act would thereon. Seventhly, that learned trial Court accepted the Market value mentioned in the Reference though the properties have not been evalued properly. The present market value of the properties were assessed by the three Patwaries I e. IMV.1 to P.W.3, but they failed to mention the grounds on the basis of which' they fixed the market price. Sanaullah Khan P.W.2, produced one year's average commencing from 20-10-1989 and one year average commencing from 24-1-2000, but he did not base the market value of the land on the basis of said one year's average. Similarly Inayatullah Khan, Patwari Halqa (P.W.3) also admitted that he had given the market value of the land neither on the basis of the five years average nor on the basis of one year's average, nor prices were fixed by the Deputy Commissioner. MI this show that the market value of the properties were assessed at very exhorbitant rates, though there was no basis for the same. We, therefore, accept the appeal in hand (Ehtesab Criminal Appeal No,9 of 2002), set aside the conviction and sentences passed by the learned Accountability Court No,3, Peshawar dated 10-8-2001 and acquit the appellants of the charges levelled against them. The properties, assets and Bank Accounts which were forfeited vide impugned judgment/order shall be released. The amount of Rs,15,77,240 recovered from the house of appellant No,2 on 191-12-2000 shall also be returned to him.