NOOR-UL-HAQ vs THE STATE and another

1. TARIQ PARVEZ, J.---Noor-ulHaq (hereinafter referred to as the appellant) was arrested by National Accountability Bureau on 18-10-2000 and Reference No,1 of 2001 was filed on 16-1-2001 under section 18(g) read with section 24 of National Accountability Bureau Ordinance, 1999 (Ordinance XVIII of 1999), (hereinafter referred to as the Ordinance), in the Court of Mr. Said Maroof Khan, Judge Accountability Court No,1 Peshawar (hereinafter referred to as A.C) and the learned Judge vide judgment dated 27-3-2002 answered' the reference in affirmative i.e has found the appellant guilty under sections 9/10 of the Ordinance and sentenced him. to five years' R.I. with a fine of Rs, 01,70,86,000. Such fine was payable within one month from the date of announcement of the judgment or his assets shall stand forfeited to the Government and the amount of fine shall be set off against the forfeited assets in terms of section 1.1 of the Ordinance. Appellant has been given the benefit of section 382-B, Cr.P.C.

2. Appellant joined service in Forest Department in the year 1983 and remained in service until 18- 10-2000 when he was arrested by the National Accountability Bureau Authorities and at that stage of service he was serving as District Forest Officer.

3. Charge against the appellant is under section 9 of the Ordinance that While employed as District Forest Officer he has accumulated wealth by illegal means and with that ill-gotten income has purchased the following assets with market value as assessed. by the National Accountability Bureau Authorities as property:- Plot No,49-J (1-K)

2. (in 1990 at SheikhRs, 6,20,000 Maltoon Town)

3. Worth: Fiat Tractor No, MRC 1809, Model 1993 worthRs,3,00,000 Land 160 K in his own name in the area of Mohabat Abad, Mardan (in1994) worthRs,46,82,347 And also constructed a house with Hujra in 1994-95 worthRs, 71,20,188 Purchased Jeep No,1-BA 8005, Model 1964 worthRs,80,000 Purchased Massy Tractor No,M.Q 8261, Model 1976 worthRs,80,000 Purchased land measuring 659 K-16 M worthRs,1,92,98,565 in the limits of village `Mohabbatabad Mardan in the year 1991 to 2000 in the name of your mother Bunglow No,38-J, 1-K, in the year 1987 worthRs,27,44,970 Plot No,48-J, 6.5 M in the year 1990 worthRs,192,181 Plot No,50-J, 1K , in the year 1990 at Sheikh Maltoon Town, Mardan in the name of your wife, worth Constructed 'Anjuman FlourRs,48,81,380 Mills, Timergara in the year 1999 worth Purchased some shares in Itehad Flour Mills, Timergara in the year 1991 in the name of your wife, worth Rs,10,50,000 You own a Diary Farm worthRs,2,35,000 Fish Farm in the limits of village Mohabatabad Mardan worthRs,90,000 He was charged that such assets are disproportionate to his known sources of income and thus he has committed an offence of corruption and corrupt practices as defined in section 9 of the Ordinance punishable under section 10 thereof.

4. As we have given the detail of property for ownership/possession wereof appellant is charged and because most of such properties are in the name of mother of the appellant and his wife, therefore, it is necessary here that we give names of certain relatives of the appellant as they appeared repeatedly either in the statement of prosecution witnesses or defence witnesses.

4. RELATIONSH IP Mst. bibi Saleha Mother Mst. Anjuman Wife Fasal Rabi Fazal Rabir brothers Siraj-ul-Haq Ghulam Sarwar khanFather (died on)

5. 4-9-1997 Ghulam Jan Father of Mst.

6. Bibi Saleha Haji Zarin Father of Mst.

7. Anjuman i,e, Father-in law of the appellant also his maternal uncle Abdul Ghafoor Uncle of Mst.

8. Bibi Saleha

5. To prove the charge against the appellant prosecution has produced 20 witnesses as against which 37 defence witnesses were examined. Appellant however has not appeared in his own defence under secition 340(2) Cr. P.C. 6.Learned A.C. has exonerated the appellant in respect of assets namely Bungalow on Plot No,38-J Fiat Tractor MRC 1809 a Jeep of 1964 Model and a massey Tractor 1976 Model on the ground that prosecution could not produce evidence to satisfy the A.C. that such assets were neither in the name of appellant or were held benamidars by others on his behalf.

9. Learned A.C. has however found that rest of the assets given in charge framed against the appellant based on reference filed against him are found to be beyond known sources of income of the appellant and that bulk of the property/assets whether in the name of mother Mst. Bibi Saleha or in the name of wife of the appellant Mst. Anjuman are in fact owned by the appellant and are held benamidars by the mother and the wife.

7. Appellant has challenged his conviction and sentence through Ehtesab Criminal Appeal No, 7 of 2002 filed in this court on 4-4-2002. On 10-4-2002 aooeak came up for hearing in motion and was admitted with notice and record. Criminal Miscellaneous No, 27 of 2002 praying for suspension of the judgement of A.C. was temporarily granted but to the extent of forfeiture of the property.

8. Mst. Bibi Saleha, Fazal Kabir, Fazal Rabi, Siraj-ul-Haq and Mst. Anjuman also filed Ehtesab Criminal Revision No,9 of 2002 where they have also impugned judgment of A.C. dated 27-3-2002 but their revision was dismissed on 2-5-2002. The main averment made in the revision and argued before us was that property owned by the petitioners in the revision has been ordered to be forfeited but they were never arrayed as accused and that none of the prosecution witnesses were examined in their presence. Therefore, they have been prejudiced and that the learned A.C. should have allowed the petitioner to adduce evidence in rebuttal.

9. Learned counsel appearing for the appellant has argued that charge as framed by the learned A.C., inter alia, contains that the appellant has accumulated wealth by illegal means and by that ill-gotten income has acquired assets but no evidence regarding corruption has been brought on record. It was argued that it was for the prosecution to have first proved that during the tenure of his service while holding a public office appellant has ever indulged in accepting bribe or illegal gratification nor there is any evidence that appellant was ever subjected to any inquiry regarding corruption charge and even if there was one, the appellant was exonerated and was held to be a civil servant of good repute.

10. 10.It is also argued that under section 14 of the Ordinance it is the boundened duty of the prosecution to make out a prima facie case on the basis of reasonable evidence and such evidence should be of a degree which should satisfy the Court that accused person facing trial under the Ordinance has committed the offence of corruption or corrupt practices. It is also argued that holding that National Accountability Bureau Ordinance is a presumptive law and conviction is to be recorded on conjectures of inferences would be against the fundamental rights guaranteed under the Constitution and such interpretation would be against the norms of Criminal Jurisprudence. It is argued that no presumption adverse to the accused can be drawn in absence of positive evidence.

11. 11.Learned counsel further argued that burden of proof is also on the prosecution and the initial burden has first to be discharged which should be based on cogent evidence and that accused is not to prove his innocence. Contention is raised that the burden on an accused even under the Ordinance is only to an extent that he is to reasonably explain that he is not guilty of the offence charged with.

12. It is also argued that as the impugned judgment is based on inferences and because prosecution has failed to make out a prima facie case, conviction could not have been recorded and that in the instant case even if. there be some faults in the defence evidence, such should not be taken to the advantage of the prosecution as it is not for the accused to prove beyond reasonable doubt that plea taken by him is correct but he is to only show that defence version put forward by him might/probably be true.

13. 12.Learned counsel has formulated the above contentions and has then elaborately argued each point with reference to evidence of the prosecution and the defence version.

14. 13.Main submission of the learned counsel for the appellant is that with regard to agricultural land measuring 659 Kanal and 16 Marlas situated in village 1991 to year 2000, Out of such agricultural land she has gifted land measuring 160 Kanal in favour of the appellant in the year 1994.

14. Learned counsel for the appellant argued that charge was framed against his client, it was so worded that the appellant has accumulated wealth through illegal means and with that ill-gotten income has purchased the assets/properties. It is submitted that when there is a charge of acquiring wealth through illegal means, with reference to person holding public office would necessarily mean that he during his employment has either resorted to mis,appropriation of Government money or has obtained illegal gratification or that he has dismissed such wealth through illegal means. It is argued that not a single witness has appeared lending any support to such charge. Submission is made that before entering into the question whether assets held by an accused person are beyond his known sources of income, there should be first proof that such public servant has been indulging in such practices like acceptance of bribe or demand of illegal gratification. It is submitted that after the charge of taking bribe was reasonably made out only then the assets of the appellant would be open to scrutiny, otherwise, where an accused person has shown sufficient means either through his own income like salary or where he has received land through inheritance or where some property has come to his possession pursuant to some gift and where relatives like mother, wife and brother of the accused and are having their independent sources of income and are not dependent on the appellant then assets and properties held by them cannot be termed to be held on behalf of the appellant.

15. 15.Learned counsel while highlighting the duty of the prosecution has referred to section 14 of the Ordinance and argued that when a reference is filed against a public servant and the charge against a public servant and the charge against him is regarding assets and property then it is for the prosecution first to prove that the property held by the accused is beyond pecuniary resources and is disproportionate to the known sources of his income. For the above object not only a prima facie case but a reasonable case should be made out which should satisfy the mind of the court regarding the charge and only thereafter there will be some liability on the accused to prove the contrary.

16. 16.It is argued that under Criminal Jurisprudence the burden of proof through in some special Statutes has been lightened on the shoulder of the prosecution and some responsibility is placed on the accused charged with the offence to explain the charge but such liability of the accused cannot be equated to that heavy burden which is always on the prosecution. Submission is made that where laws have put burden of proof on the accused it has been always held by the superior courts that the initial burden of proof remains on the accused is only to make out a reasonable possibility of his defence being true.

17. It is argued that in the instant case as submitted earlier prosecution has produced no evidence regarding ill-reputation of the appellant and they have produced no evidence that in either of the properties held by his mother, his wife or brothers he has got any share and the defence has through cogent defence witnesses including independent witnesses has proved that the allegation against the appellant are untrue and baseless, therefore, the appellant could not have been convicted and is entitled to acquittal.

17. As regards agricultural land measuring 659 Kanal, 16 Marlas situated in village Mohabatabad, it is argued that such land has been purchased by Mst. Bibi Saleha mother of the appellant and her source of income has been sufficiently explained i,e, she received an amount of Rs,15,00,000 when some property situated in the native town of the appellant in Tribal Territory was sold by his father Ghulam Sarwar on 22-3-1992 and in this respect Nazraf (D.W.18) has testified. The second noticeable amount of Rs,50,00,000 was again the sale consideration of 100 Jarib of land sold by Ghulam Sarwar father of the appellant on 27-1-1990 and such transaction has been confirmed by Lal Badshah (D.W.33). It is argued that Mst.Bibi Saleha also received Rs,20,00,000 when she surrendered her share inherited by her from her father in the name of her uncle namely, Abdul Ghafoor through deed dated 5-3-1984 (Exh.D.W.12/1) and that from such amount she has purchased the agricultural land between the year 1991 to year 2000 through different mutations in her favour and out of such agricultural land she has mutated 160 Kanal on 29-6-1994 (Exh.P.W.3/29) in favour of the appellant.

18. Similarly regarding shares of Mst. Anjuman in Anjuman Flour Mills it was argued that wife of the appellant is not dependent and she hail from a rich family, has been gifted a constructed house by her father and that She was involved in "Bardana" business jointly run by Mst. Anjuamn, Fazal Rabi etc. (Bardana business is sale of empty wheat bags). Learned counsel has referred to different statements of the D.Ws. and submitted that Mst. Anjuman has been investing sufficient amount and whatever is held by her is in her own name and to that holds appellant is not a contributory.

19. 18.Learned counsel has also argued that three brothers of the appellant are holding their independent business and are not dependent on the appellant as is proved from the statement of different D.Ws.

20. 19.It has been vehemently argued that learned trial Judge instead of making reference to specific evidence led by the prosecution has mostly relied on presumptions and conjectures and although such presumptions are admissible under the Ordinance and despite the fact that under section 14(c) of the Ordinance a conviction recorded by A.-C. shall not be invalid for reason only that it is based solely on presumption but it is submitted that the presumption can only be drawn from proved fact and not that when there is no foundation laid by the prosecution. It is, therefore, argued that the impugned judgment is illegal and not maintainable.

21. 20.As the learned counsel for the appellant has in detail referred to statements of D.Ws. as against each asset, subject of the reference, and the charge relevant to the facts in issue, therefore, before we analyse the legal aspects of the submissions made by learned counsel and before we make reference to what is argued by learned Special Prosecutor on behalf of the Chairman National Accountability Bureau it is necessary that we here give a resume of the prosecution evidence.

22. 21.Miraj Nabi (P.W.1) is witness to certain recovery memos. which pertain to allotment and transfer orders regarding Plots Nos,38-J, 49-J and 50-J situated in Shiekh Maltoon Town, Mardan. Fazal Subhan Housing Officer (P.W.2) has also deposed in respect of such plots and their: transfer.

23. Suleman (P.W.3) is Patwari Halqa for village Mohabatabad and has produced original Revenue Record and mutations Exh.P.W.3/1 to Exh.P.W.3/30 i.e property in the name of Noor-ul-Haq and his other family members. According to him the property in the name of the appellant has been assessed worth Rs,12,59,027.

24. Saeed Khan (P.W.4) is a sub-Engineer in C & W Department and has prepared the site plan Exh.P.W.4/1 and Exh.P.W.4/2 pertaining to constructed property situated in village Mohabatabad including five houses, a Hujra, a godown and a mosque. Khalid Khan, Assistant Director Fisheries Department Mardan was examined as P.W.5 who has measured the Fish Farm situated in the fields of the appellant and has assessed its value.

25. Shahabuddin (P.W.6) is Veterinary Officer was examined to give the assessed value of Dairy Farm and the mutation kept thereon.

26. Raza Khan (P.W.7) was Manager of a Motor Bargain Center and has determined the value of a jeep Model 1964.

27. Liaqat Ali (P.W.8) is Manager of a firm dealing with the sale and purchase of Tractor and was examined with view to depose regarding value of the two Tractors.

28. Next is Muhammad Shoaib Tehsildar (P. .9) who was examined to prove document Exh.P.W.9/1 a sale-deed.

29. Muhammad Akbar Khan, Assistant Sub-Inspector attached to Regional Accountability Bureau Peshawar is marginal witnessed to recovery memos. Ex. .W 10/2, Exh.P.W. 3/34, Exh.P.W. 10/ , Exh.P.W.

30. 10/3, Exh.P.W. 10/4, Ex.P. .10/5, Exh.P.W. 10/6 and. Ex.P.W.10/7 which pertain to documents regarding ow ership and possession of different asset in the name of relatives of the appellant.

31. P.W.11 is Sheida Muhammad, Inspector Reg onal Accountability Bureau and has witn ssed the recovery memos. Exh.P.W.11/2 to Exh.P.W.11/5, pertaining to value of Tractor, Jeep and the assessm ent of njuman Flour Mills by Sub-Engineer C &W Department.

32. Niama GulSub-Engineer (P. W.12) has prepared the site plan and assessed valu of Anjuman Flour Mills which are Exh.P.W.12/1 and Exh.P.W.12/2.

33. From the office of Registrar of companies NWFP Peshawar Muhammad Musharraf Khan was examined as P.W.13 whose tesimony is relevant to shares held by differentshares in Itehad Flour and General Mills.

34. Shahi aman a Grade-III Officer of United Bank Limited appeared as P.W.14 to prove the maintaining of Bank Account No,217-2 in the name of appellant and Account No, 285-5 in the name of Mst.

35. Anjuman.

36. Fazal Hameed (P.W.15) is co-owner with Mst. Anjuman Flour Mills situated in the limits of Bandagai- Timergara and has deposed that he and his brothers Muhammad Yousaf and Muhammad Ayaz are owners to the extent of 22% shares each while the Mst. Anjuman wife of appellant owns 34% shares in the said Mills.

37. Ashraf Ali Marwat is Income Tax/Wealth Tax Officer Mardan and has appeared as (P.W.16) and has produced Income Tax/Wealth Tax record pertaining to Ghani and Zareen.

38. Abdul Hadi is the next witness of the prosecution who was examined as P.W.17. He alongwith Haji Abdul Ghafoor, Haji Raham Dad, Fazal Rabi, Fazal Kabir and Siraj-ul-Haq (latter three brothers of appellant) has purchased Itihad Flour Mills from one Haji Qadir Gul for an amount of Rs,8 Millions.

39. According to him Rs,3 Millions were paid in cash and as the vendor had an outstanding liability of Rs,5 Millions, as per sale agreement said amount was paid to Habib Bank Ltd. Peshawar. In the Mills he owned 25% shares while the remaining were owned by other partners.

40. Muhammad Naeem (P.W.18) is a property dealer at Nowshera Road, Mardan and was examined to state about the market value of plots situated within the limits of Sheikh Maltoon Town Mardan.

41. Habibullah Khan Deputy Superintendent of Police (P.W.19) is the star witness of the prosecution attached to RAB NWFP. Peshawar. On arrest of appellant on 18-10-2000 by the Bureau he was entrusted with the investigation of the case on the following day. He obtained the custody of the accused from the A.C-II Peshawar and when the original remand expired on 23-12-2000 he produced the accused before A.C. for further remand and because of his application Exh.P.W.19/3 was granted further 14 days custody and after the expiry of such period appellant was sent to Judicial Lock-up on 6-1-2001.

42. We may here refer that strong exception was taken to application (Exh.P.W.19/3) by learned counsel appearing for the appellant on the ground that such application contained therein that further custody is required because the Investigating Agency wants to probe further to find out and to collect evidence regarding receipt of bribery and illegal gratification by the appellant while holding public office. It was argued that despite specific purpose for obtaining further remand and despite specific investigation made in that direction, no evidence whatsoever could be collected or brought on record that appellant has ever indulged in receiving bribe or illegal gratification and therefore, the very charge framed by the A.C. against the appellant could not be proved. Here we may make reference to the submissions of learned counsel made and referred to in earlier part of our this judgment where it was argued that while framing the charge learned Trial Judge has used the terms that the wealth accumulated through illegal means by the appellant and through such ill-gotten wealth he has purchased the assets either in his name or in the name of his relatives.

43. Last witness of the prosecution is Sher Bahadur Arbab posted as Director Budget and Accounts in Forest Department and was examined as P.W.20. He has produced the service record of the appellant according to which appellant joined Forests Department as Divisional Forests Officer in the year 1983 and remained posted as such till his arrest in this case. According to his record appellant has received a total amount of Rs,13,55,773 towards his pay and allowances commencing from 13-10-1983 to month of October 2000. He also stated that during his service appellant has never drawn any House Building Advance except he was granted Motor-Car Adv acne amounting to Rs,50,000 in the year 1993-94.

22. We have so far given the brief narration of prosecution evidence and it was in the background of such evidence that learned counsel for the appellant had made submissions referred to in the preceding paras. and his contention throughout is that none of such witnesses examined by the prosecution as regards the charge of corruption or corrupt practices by appellant.

44. It is in view of prosecution evidence that argument was advanced that none of the prosecution witnesses have uttered single word that during his service appellant has misused his official position or there was any stage when he was proceeded against departmentally for misconduct except once where because of an application filed by the personal enemies of the appellant an inquiry was conducted and he was exonerated of the charge.

45. It is also argued that keeping in view the above prosecution evidence there is no iota of evidence on the basis of which one can infer least to say charge proved, that any of the property regarding which charge is framed against the appellant is either owned, possessed, purchased or under the control of the appellant.

46. It was argued that for the purpose of proof of benamidars transaction rules has been laid by the august Supreme Court of Pakistan in a judgment reported in 1991 SCMR 703 (Muhammad Sajjad Hussain v. Muhammad Anwar Hussain) and it , inter the following dictum laid.

47. Some of criteria for determining the question whether a transaction is a Benami Transaction or not inter alia the following factors are to be take into consideration:

(i) Source of consideration;

(ii) From whose custody the origianl title deed and other documents came in evidence; iii) Who is in possession of the suit property and iv) Motive for the Benami transaction.

48. The initial burden of proof is on the party who alleges that an ostensible owner is a benmamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him the plaintiff shall succed.

49. In view of the above legal position it is argued that there is no evidence that the source of consideration i,e, amount used by Mst. Bibi Saleha for the purchase of agricultural land or money invested by Mst. Anjuman either for purchase of shares in Itihad Flour Mills or purchase of proprietory rights in Anjuman Flour Mills appellant has in any manner monetary assisted them.

50. It was also argued that none of the titled documents were recovered from the custody of the appellant rather most of the documents exhibited during the trial regarding the ownership are coming from the official source i,e, in case of agricultural land and it is the Patwari Halqa who has produced the original Revenue Record and in case of shares in Ithad Flour Mills, Registrar Joint Stock Company has produced the record of shares and no title deed qua 34% shares in Anjuman Flour Mills were recovered from the person of the appellant so to infer that appellant had any personal interest either in agricultural land or in the ownership of Anjuman Flour Mills.

51. It is argued that according to Revenue Record the possession of agricultural land is that of Mst.Bibi Saleha to the exclusion of 160 Kanal of land gifted by her to appellant and rest of the ancestoral property is jointly owned and possessed by all the brothers. The brothers namely, Fazal Rabi, Fazal Kabir and Sirajul-Haq are running their independent business in their own names and no witness of any locality where such business is being run has been examined to state that appellant has got any participation even as a sleeping-partner muchless as an active partner in their respective business.

52. With regard to benamidars transactions it was vehemently argued that there should be some motive with the appellant to transact through someone else to his exclusion and there should be some reason i,e, where a person wants to conceal or suppress his direct ownership which can be in the instant case to avoid his culpability for possessing property/assets of the value which are beyond his known sources of income and that would have been only required if there was proof of charge that appellant has received illegal gratification, has accepted bribe or has misappropriated Government funds entrusted to him and through such ill-gotten amount was to purchase the property.

23. We have extensively reproduced the submissions of learned counsel appearing for the appellant touching upon legal points as well as facts of the case and would here refer that in support of his submissions he has relied on number of precedents cited at the bar.

53. Learned counsel while making first submission that it is for the prosecution to make out a reasonable case to the satisfaction of the Court reliance is placed on PLD 2001 SC 607 at page 921 and 922 (Khan Asfandyar Wali and others v. Federation of Pakistan and others). He has also relied on PLD 2002 Lahore 95 (page 105) (Dr.Farooq Sattar's case). Reference is also made to the case of Abdul Baqi Balouch in PLD 1968 SC 313(325). Also to Elahi Cotton Mills (1997 SC 582) (678).

54. On the point of burden of proof reliance is placed on 1993 MLD 2061, 1997 MLD 1632, 1995 PCr.LJ 2052 (2057) and page 2093 with submission that burden of proof would not stand shifted on the accused until such time that first the prosecution shall make out a reasonable case against him.

55. PLD 1984 Lahore 315 (c) is relied on in support of the argument that when there is equal and inconsistent evidence, it would not permit to raise presumption and presumption can only be drawn when there is cogent, strong and adequate evidence on record.

56. 24.Learned counsel has relied on PLD 1973 Karachi 659, PLD 1971 Karachi 78, PLD 1962 SC 489 and number of other judgments on the proposition that defence is not required to prove its innocence but the liability of the accused is to the extent that he shall make out a reasonable and probable case showing that defence version might be true as against prosecution which is always duty bound to prove the charge beyond all reasonable doubts.

57. 1975 SCMR 337 (B) 'Miran Bux v. Niaz and others was relied upon its support of the prosecution that it was not necessary for the accused to set up any definite case and it will be sufficient if he .manages to cast doubt on prosecution case and that will entitle him to acquittal.

58. The emphasis of the learned counsel for the appellant throughout remained that prosecution must first make out a reasonable case which should satisfy the trial Court regarding guilt of the accused, learned counsel, has relied on PLD 1952 Lahore 624 Abdul Ghafoor v. Crown where the word "satisfaction" and its scope was considered and it was held that satisfaction must be real and not sham. It should be bona fide and it should be on facts and not a pretext. Reference was also made to Black's Law Dictionary and New Standard Dictionary.

59. 25.After the evidenceof the prosecution was recorded of which we had already given summary, appellant was examined under section 342, Cr.P.C. on 28-6-2001 and for the purpose of convenience we would like to reproduce the most relevant answers questions and recorded thereon because this in fact is his defence and would also be relevant when we will be analysing the statements of the defence witnesses:- "Q.3. It is in evidence that during your service in Forest Department you had purchased 659 Kanals, 7 Marlas land at village Mohabatahad in the years 1991 to 2000 in the name of your mother, Mst.

60. Bibi Saleha. What do you say about it?

61. Ans: It is incorrect. The real fact is that my father, namely, Ghulam Sarwar originally belonged to Koda Khel, Mehmand Agency, where he had 300 Jiribs of agricultural land ' having some abadi over it. Because of enmity and feud with the local inhabitants my father migrated to Mohabatabad, Mardan and got settled there. With the passage of time, the enmity subsided and income from that land started to my father in the year 1973. Subsequently, my father made 2 transactions of sale one relating to 40 Jiribs of land at Garang Kalli, Koda Khel for a total sale consideration of Rs,15,00,000. ,As no Revenue Record is existing in Mehamand Agency which is a tribal area, normally a certificate of sale is issued by the Political Agent in respect of sale transactions. Muhammad Naeem Khan witnessed the above sale transaction and issued a sale certificate dated 28-5-1990.

62. Similarly a few months prior to it my father Ghulam Sarwar had sold '100 Jiribs of land to the local inbhabitant, namely, Lal Badshah - son of Haji Jan Dad Koda Khel. The sale certificate was duly signed by political Tehsildar, namely, Abdul Qayum Khan and it was countersigned by Assistant Political Agent Akbar Mehmand Ghalani on 25-3-1990. My mother Bibi Saleha and her father Ghulam Jan originally belonged to lower Dhok Dara, District Dir. On the death of Ghulam Jan my mother inherited 100 Kanals Of land out of his property. Subsequently as per family settlement dated 5-3-1984 she transferred that same to her uncle in lieu of sale consideration of Rs,20,00,000.

63. In Koda Khel Mehmand Agency my father still owns about 150 Jiribs land which is furtile and yields best crops. On the death of my father that property devolved on me and other legal heirs. I have duly mentioned these facts at the time of joining my service in my initial declaration form as well as in the subsequent declarations submitted from year to year during my entire service. On receipt of sale consideration by my father and mother as mentioned above the property at Mohabatabad was purchased from time to time by my father in the name of my mother. ' Out of the purchased property only 160 Kanals agricultural land has been gifted to me by my mother while the remaining land is owned and possessed by my mother and brothers and they are also living in the houses constructed by them over the land which is owned and possessed by my brothers. I have got no concern with the remaining land. From the date of the gift in my favour as per Mutation No,219 dated 29-6-1994 I am receiving the usufructs of the land gifted to me. All these facts were duly mentioned to Habib Ullah Khan Deputy Superintendent of Police/Investigation Officer but he refrained to investigate and bring the true facts before the Court. I have never purchased any land in village Mohanbatabad either during my service or prior to joining.

64. Q.4. It is in evidence that you had purchased a Bungalow No,38-J measuring one Kanal at Sheikh Maltoon Town Mardan in the year 1987 in the name of your wife Mst. Anjuman. What do you say about it?

65. Ans: This is incorrect. My wife Mst. Anjuman is the daughter of Haji Zareen who is also my maternal uncle. The Plot bearing No,38-J was purchased by Haji Zareen over which a house was constructed and later on he transferred the same by way of gift in the name of his daughter, namely, Mst.

66. Anjuman. The permission for construction and payment of the construction charges, fees for the approval of map and the other allied charges have been paid by Haji Zareen. Haji Zareen my father-in-law is a business man dealing in bags and Flour Mills in a millionair. My brothers were also engaged in Bardana business since 1978 and even prior to my marriage my wife Mst.Anjuman had a share in the business with them, as they were the paternal aunt's sons of Mst. Anjuman. Out to the income of Bardana business shares were purchased in Itehad Mills which subsequently included in the shape of floating shares in Anjuman Flour Mills. Both these Mills are Private Limited having legal entity. So, my wife had her own sources also. She is having 34% floating shares in Anjuman Flour Mills being the Director of the Flour Mills.

67. Q.6. It is in evidence that you had purchased a Plot No,49-J measuring one Kanal at Sheikh Maltoon Town, Mardan in your own name in the year 1990. What do you say about it?

68. Ans: It is correct. I have put in 1$/19 years service as Grade-17 Officer of the Forest Department. I have received salary, TA/DA and Motor Car Advance. Besides, I being the eldest son of my father used to manage and collect the usufructs of 300 Jiribs of agricultural land in Garang Koda Khel, Mehmand Agency. Out of which 150 Jiribs has been sold by my father while the remaining 150 Jiribs is still in my possession and in possession of my brothers as legal heirs of Ghulam Sarwar deceased. I had purchased the above mentioned plot on a total sale consideration of Rs,70.000 which was allotted to me by Mardan Development Authority. During my service I had also purchased Prize Bonds and won prize of 1,10,000 as per certificate of the State Bak of Pakistan dated 12-6-1989. Similarly another Prize Bond was encashed from the State Bank of Pakistan which I had won in a draw and payment of Rs,5,00,000 was made to me by the State Bank of Pakistan as per certificate dated 17-11-1997. Similarly I had purchased a Prize Bond of denomination of Rs,25,000 and in a draw I won a prize of Rs,1,50,000 and alongwith price of the bond a total amount of Rs, 1,75,000 was paid to me by the State Bank of Pakistan as per certificate dated 28-8-1997.

69. Furthermore, my father was not a destitute person as alleged by the prosecution. He was the Malik and Khan of the Koda Khel tribe but being a religious minded and pious man was inclined to teach the Holy Qur'an to the Muslim students and that is why the prosecution has with a bad intention described him to be Mulla. My father was a rich man and he got me educated in the best educational institutions. I got Master Degree in Chemistry and also clic, M.Phil in the said subject and thereafter I got Master Degree in Forestry. My educational qualification is self-speaking that how much money was spent by my father on my education. It is further submitted that when my mother gifted me 160 Kanals agricultural land as per Mutation No,219 dated 29-6-1994 since then I am getting usufructs of that land also.

70. Q.13. It is in evidence that you had also constructed a Flour Mills known as Anjuman Flour Mills at Timergara and installed machinery in the said Mills in the year 1999. What do you say about it?

71. Ans: It is incorrect. As earlier stated my brothers had a vast business of Bardana (Empty Sacs) which they used to supply to Ranizai Flour Mills and on this profit they purchased shares in Itehad Flour Mills. Similarly on further sale the floating shares were purchased in Anjuman Flour Mills out of that sale consideration. My wife even prior to my marriage was a copartner with my brothers in Bardana business and she has now the major shareholder in the Anjuman Flour Mills which is Private Limited Company. Her share is managed by my brothers and I have got no concern with their business.

72. From the tenor of replies given by the accused it appears that he does not deny that assets referred to in the reference and the charge are fictitious, non-existent or false.He accepts their existence but disowns that such properties are held as "Benamidars" on his behalf by others.

73. For agricultural land owned by the mother his stand is that two transactions of sale were made by his father regarding landed property situated at Garang Kalli Koda. Khel (Tribal Terriotory) and a total sum of Rs,65,00,000 was the sale consideration of such property. Rs,20,00,000 were received by Mst. Anjuman from her uncle pursuant to a family settlement and that his wife Mst. Anjuman daughter of Haji Zareen got house at Plot No,38-J when it was purchased by Haji Zareen and later by way of gift transferred in the name of Mst. Anjuman. It is his case that Mst. Anjuman now his wife and a daughter of his maternal uncle being his cousin even before her marriage was engaged in Bardana business with the brother of the appellant and out of the Bardana business she purchased shares in Itihad Flour Mills which subsequently were included in the shape of floating shares in Anjuman Flour Mills.

74. He has also taken the stand that he was a Grade-17 Officer and has purchased Plot No,-49-J in Sheikh Maltoon Town Mardan for sale consideration of Rs,70,000 only and that he has purchased Prize Bonds and on more than one occasion was lucky enough to win prize of Rs,1,10,000 then a prize of Rs, 5 Million, again a prize of Rs,1,50,000. With regard to ownership in Anjuman Flour Mills at Timergara his stance is that his wife and brothers had Bardana business supplying empty bags to Ranizai Flour Mills and with their profit in the business had purchased shares in Itihad Flour Mills and that thereafter they sold the shares and purchased floating shares of Anjuman Flour Mills.

75. 26.In support of stand taken by the accused in his 342, Cr.P.C. statement though he did not appear as his own witnesses under section 340 (2), Cr.P.C. but defence has examined as many as 37 witnesses.

76. 27.As in respect of certain assets i,e, Velley Jeep, two Tractors and Plot No,38-J even the trial Court has disbelieved that evidence of the prosecution, therefore, for brevity we will only refer to statements of such defence witnesses who are relevant to the remaining defence plea.

77. D.W.15, Tariq Hussain Akhtar, has produced record regarding Prize Bonds proving that on different occasions the appellant has encashed the Prize Bonds with prizes thereon.

78. Umbaras Khan, Assistant Officer Kanoongo Mardan was examined as D.W.8 who has produced original Revenue Record of property of Mst.Bibi Saleha and the appellant, Jamabandies for the year 1971-72, for the year .1980-81 and according to him out of total property held by Mst. Bibi Saleha and Noor-ul-Haq there is "Abadi" on an area of 158 Kanal and 5 Marla. The value of the property in the name of appellant is assessed as Rs,12,59,027 and that all mutations were always attested in the name of Mst. Bibi Saleha mother of the appellant and that according to "Goshwara Malkiyat" such properties were purchased and the 'total worth comes to Rs,51,85,618. Documents Exh. P. W .3/1 to.

79. Ex.h.P W .3/30 are mutations attested on different dates regarding different measurement of the land from different vendors for different amount/consideration but purchased by Mst. Bibi Saleha.

80. Faqir Muhammad, Patwari Halqa Mohabatabad was examined as D.W.4 who exhibited Jamabandies and through Exh.D.W.4/1 has given "Ausat Yaksala" from years 1992 to 2000.

81. Muhammad Ali Khan (D.W.5) produced document Exh.D.W.5/1 an agreement to sell executed between Nawabzada Saifullah Khan Mst. Bibi Saleha on 22-3-1992 where 50 Jiribs of land.was agreed to be sold by Nawabzada Saifullah Khan Mst. Bibi Saleha and her husband Ghulam Sarwar paid Rs,12,00,000 with remaining amount to be paid subsequently. Possession of land delivered through her husband to Mst. Bibi Saleha.

82. Mian Abdul Jalil (D.W.14) is petition-writer who has scribed the deed, copy Exh.D.W. 5/1.

83. Nazraf (D.W.18) has deposed that he and his brother Fazal has purchased 40 Jirib of land in Koda Khel from Ghulam Sarwar (father of the appellant) for 1.5 Million through sale-deed dated 30-3- 1990 (Exh.D.W.18/1) and that a certificate of Political Authorities Mohmand Agency was exhibited as Exh.D.W.18/2.

84. Lal Badshah (D.W.33) has testified that on 27-1-1990 through a sale-deed land measuring 100 Jirib situated in Koda Khel was sold by Haji Ghulam Sarwar father of appellant for sale consideration of Rs,5 Million, copies of the sale-deed Exh.D.W.33/1 and certificate of political authorities dated 25-3- 1990 as D.W.33/2 were exhibited.

85. For Bardana business run by Fazal Rabi, Fazal Kabir and others (D.W.6) Shah Bacha appeared to prove that a building situated at Shamsi Road Mardan was rented out to Fazal Kabir who used to run Bardana business in the building and that such building was rented in the year 1985.

86. Imtiaz Khan (D.W.7) is marginal witness to the rent deed, referred above, while Anwar Baig (D.W.10) had scribed the rent deed.

87. Muhammad Ali (D.W.20) is a Food Grain Dealer running his business at Rashakai and has purchased 500 bags of wheat each for Rs,840 from Fazal Rabi and Fazal Kabir while Ajoon Khan Record Keeper of Ranizai Flour Mills appeared as D.W.23 in proof that Fazal Rabi and brothers would supply Bardana to the Mills since year 1977 and they would receive cash payment of such supply.

88. Najibullah (D.W.34) being a clerk with Fazal Rabi, Fazl Kabir and Mst. Anjuman would maintain the record of Bardana business. According to him 15% shares in such business were owned by Mst.

89. Anjuman. Fazal Qadir (D.W.37) brother of the appellant is a co-partner in the Bardana business and deposed that initially he would supply Bardan to Ranizai Flour Mills, then to Itihad Flour Mills. He also deposed that even before marriage of Mst. Anjuman his sister-in-law had 15% shares in their business and when Malik Abdul Hadi purchased Itihad Flour Mills and because this D.W. and his co-partner were supplying Bardana to Ranizai Flour Mills, therefore, they Qurchased 35% shares in Itihad Flour Mills from Malik Abdul Hadi. Nothing in cash was paid to be him but sale consideration was adjusted in the amount of Bardana supplied to Ranizai Flour Mills. Musharraf Shah of Nisatta (D.W.11) has purchased various items and sold the above to Siraj-ul-Haq for Anjuman Flour Mills. He was examined to prove the involvement of Siraj-ul-Haq brother of the appellant in the business and not of the appellant himself.

90. Hazrat Yousaf appeared as D.W.35 a Record Keeper of Anjuman Flour Mills to prove that land underneath Mills was purchased and that Mst. Anjuman has got 34% shares in the ownership of the Mills.

28. Learned counsel appearing for Chairman National Accountability Bureau has argued that there is no defect in charge and same stands framed under section 9 of the Ordinance inclusive of subsection (v) and even if for sake of argument there is any detect in charge that defect would be curable under section 225 read with section 537 of the Cr.P.C. and that defect in charge never vitiate the trials unless it is proved that such defect has caused prejudice to the accused. Learned counsel has taken us through the body of the charge and argued that charge is specific by stating that:- "You committed an offence of corrupt and corrupt practices as defined in section 9 of National Accountability Bureau Ordinance punishable under section 10 of the aforesaid Ordinance and within my cognizance."

91. Submission is made that reference of illegal means and ill-gotten money had no nexus when there is charge of holding assets beyond known sources of income and when assets are disproportionate to the income of the accused as such would be a specific charge under section 9(v) of the Ordinacne.

92. Learned counsel also submitted that had there been a charge specifying allegations under section 9(i) or 9(ii) of the Ordinance that would require evidence by the prosecution of acceptance of bribery, illegal gratification or misappropriation of Government money and for that some witnesses were necessary. But, in case of assets prosecution is to show a reasonable case and accused is to then rebut the charges by such evidence which shall disprove and to the satisfaction of the trial Court that assets held by him are not beyond his means.

29. As for burden of proof on the accused, learned counsel referred to PLJ 1980 Cr.Cases 12 and submitted that where a special Statute provides that there is some burden on the accused then it becomes a statutory duty to dislodge facts proved against him and this can only be done if he produces such evidence which is reasonable and which satisfied a prudent mind.

93. It is submitted that prosecution has made out a prima facie case and they have discharged their burden by producing official witnesses, in particular P.W.20 Sher Bahader Arbab, Director Budget and Accounts and according to his statement the total salary received during the course of total service by the appellant comes to Rs,13,55,773 whereas the property assessed held as "Benamidars" in the name of mother, wife and brothers. of the appellant is worth Rs,4,19,94,631.

94. It is submitted that mother of the appellant, his wife they both are house wives, they are not educated and so are his three brothers. They will thus be dependent on the appellant who is the only bread earner and huge assets held by the family could safely be presumed to be held "Benamidars" purchased by the appellant.

95. 30.Learned counsel has referred to section 14(c) of the Ordinance and submitted that trial Court shall presume unless contrary is proved that an accused person is guilty of offence of corruption and corrupt, practices and when convicted, his conviction shall not be invalid for the reason that it has been solely recorded on presumptions. It is argued that there is no statutory bar on A.C. to draw presumption from evidence led by the prosecution. Learned counsel argued that there is marked distinction between a presumption under the law and a conjecture made by a Judge on his personal whims.

96. 31.Learned counsel has tried to distinguish the cited judgment reported as 1991 SCMR 703 where some tests for holding of property as "Benamidar" have been specified. His submission is that it was a case where there were two claimants in respect of same property but in the instant case when the litigation is not civil in nature but there is charge of corruption and corrupt practices and where the accused and his relatives holding "Benamidars" title are having common interest, there cannot be direct evidence to prove the "Benamidars" transactions.

97. 32.After we have reproduced the submissions made by learned counsel for the appellant, a resume of the prosecution evidence as well as defence evidence relevant for the purpose of disposal of this appeal and the contentions raised by learned Special Prosecutor, we now here would refer to certain provisions of the Ordinance as appellant is prosecuted under the special law where offence of corruption and corrupt practiceshas been made punishable and where A.C. have been established and where under the Ordinance A.Cs. are entitled to draw presumptions.

98. National Accountability Bureau Ordinance XVIII of 1999 was promulgated and very preamble contains that its object is to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto.

99. Under section 5(c) the word "assets" has been defined which means "any property owned, controlled by or belonging to any accused. Whether directly or indirectly, or held Benami in the name of his spouse or relatives or associates, whether within or out side Pakistan, or for which they cannot reasonably account, or for which they cannot prove payment of full and lawful consideration."

100. Section 5(m) defines "Holder of Public Office" and under its subsection (iv) a person holding post in the service of Pakistan, or any service in connection with the affairs of the . Federation, or of a Province is included in the definition of holder of Public Office.The word "offence" has been defined in section 5(n) means "the offences of corruption and corrupt practices as defined in the Ordinance."

101. 33.Section 9 of the Ordinance defines the various kinds of corruption and corrupt practices and a person holding public office is charged for having assets- whether moveable or immovable which are beyond his known resources of income and for which he cannot reasonably account for, such would' be an offence punishable under section 10 of the Ordinance. Under section 14(c) of the Ordinance any trial of an offence punishable under the Ordinance, the fact that an 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 property beyond his pecuniary resources for which he cannot satisfactorily account for, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices.

102. 34.The above statutory provisions, therefore, provide that whenever an offence of corrupt and corrupt practices is alleged to have been committed and where any person holding public office is found to have property/assets either in his name or in the name of his spouse or relatives or associates, it is for that person i,e, the accused or person holding property on his behalf to satisfactorily account for the means through which the property was acquired.

103. 35.Despite the statutory provisions as prima facie they appear to have shifted the burden of proof on the shoulder of the accused but the superior Courts of the country have time and again and with reference to laws parameteria to the Ordinance have held that notwithstanding burden of proof placed on accused still the initial burden to make out a case remains on the prosecution.

104. 36.Very recently Division Bench of Lahore High Court while deciding 'case of Dr. Farooq Sattar v.

105. The State (PLD 2002 Lahore 95) it was held that mere fact that a person stands charged for trial before A.C. does not give rise to a presumption of guilt in respect of offences under the Ordinance.

106. It was held that 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 in defence and to prove his innocence but such an interpretation would lead to absurdity and make a mockery of criminal justice. It was held that prosecution has initial duty to discharge his burden of establishing necessary facts to show that the accused had "misused" his authority.

107. 37.In case of Khan Asfandyar Wali (PLD 2001 SC 607) the Honourable Supreme Court in para. 2.50 held as under:- "230. Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguthents. This interpretation appears to be reasonable in the context of the background of the National Accountability Bureau Ordinance and the rationale of promulgating the same notwithstanding the phraseology 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 set up, we deem it necessary to issue the following directicns 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 National Accountability Bureau Ordinance.

108. (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 the proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."

109. Back in 1968 in case of Abdul Baqi Baluch (PLD 1968 SC 313) his Lordship Justice Hamood-ur- Rehman made the following observation:- "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 `suspectingupon 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."

38. As we have referred in some preceding paras. that under section 14(c) of the Ordinance burden is shifted on the accused to "satisfactorily account for we take the privilage to refer to PLD 1976 SC 6 (Syed Saeed Hassan v. Payar Ali and 7 others) and would reproduce that was held by the Supreme Court while interpreting the word "satisfaction":- `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 provisions 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 indecision or oscillation. To be "satisfied" with a state of things is to be honesty convinced in one's own mind. According to Black's Law Dictonary 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 of information or to assure or set free from doubt or uncertainty to convince."

110. 39.While dilating upon burden of proof even this Court while hearing Ehtesab Criminal Appeal No,5 of 2000 (Syed Zahir Shah v. The State) decided on 2-1-2002 was held that burden of proof shifts to the accused to prove the contrary would only be applicable where something is proved against him. We with advantage would reproduce para. 38 from the said judgment as was concluded'- "38. Thus there is no cavil with the cardinal principle that though the special law has laid burden on the shoulder of the accused to prove the contrary but that would be only where the prosecution succeeds in making out a case. Otherwise too, it is the basic principle of criminal law applied from time immemorial in all the civilised societies and all the judicial systems.

111. Similarly under the Islamic jurisprudence an accused person is presumed be guilty unless he proves his innocence."

112. 40.Similar view was taken by another Honourable Division Bench of this Court in case of Ehtesab Criminal Appeal No,9 of 2001 decided on 15-5-2002 (Muhammad Hayat v. The State).

113. 41.Seeking guidance from the above case law and conscious of the fact that person accused of corrupt and corrupt practices under the Ordinance, is facing a criminal charge, therefore, the basic concept of Criminal Jurisprudence would remain in force i,e, an accused person is presumed to be innocent unless proved guilty and that burden of proof initially lies on the prosecution to prove the charge. But in view of provisions of section 14(c) of the Ordinance where prosecution has brought on record certain facts alleging charges of corruption and corrupt practices it is required under the Statute i,e, Ordinance that the accused should prove to the contrary. We have also taken serious note of the submission made by learned counsel, for the appellant that judgment of conviction based on inference and, conjectures would not be a valid judgment. Such argument on the face of it appears to be weighty but seen in the light of provisions of the Ordinance it looses its significance. We have referred to the object of promulgation of the Ordinance and the very language used therein which is to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices. "To hold accountable" would demonstrate that from the very inception of the Ordinance the object of law maker was to ask for the explanation of the accused person charged with the offence and it is for him to account for as to how he has acquired property subject of the reference.

114. Under section 5(c) of the Ordinance where assets have been defined, the very definition suggests that where any property is owned, controlled' or is belonging to an accused whether directly or indirectly or held benami and for which they cannot reasonably account (underlining is by us) would also place the liability on the person accused for the offence to account for as to how such 'assets and property were acquired. In fact it also includes the spouse or the relatives or the associates that they are to reasonably account regarding means of such acquisition.

115. Section 9(v) which makes certain acts to the corruption and corrupt practices also places burden on the accused to reasonably account for such assets and property which are disproportionate to his known sources of income and finally section 14(c) of the Ordinance where liability of the accused or person holding property is to satisfy the mind of the trial Judge that the property/assets held are not disproportionate to his known sources of income. We therefore, conclude that because of the provisions of the Ordinance there is a slight deviation from the general rule but with an object i,e, to eradicate corruption where even the august Supreme Court of Pakistan while deciding the case of Asfandyar Wali as ruled:- "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."

42. Charge against the appellant is squarely regarding assets and not that of either acceptance of illegal gratification or misuse of authority. Therefore , the case of the appellant would fall within the mischief of section 9(v) of 'the Ordinance. When this be the case, then in view of section 5, definition of word "assets" and in view of section 9(v) read with section 14(c) of the Ordinance, we have to see if in view of the dictum laid by august Supreme Court of Pakistan in Khan Asfandyar Wali case (Supra) if the prosecution has succeeded in making out a reasonable case and if it has discharged the prima facie burden of proof i,e, whether accused has satisfactorily rebutted the case of the prosecution and if so then whether the trial Court could have drawn presumptions against him and for this we will analyse the prosecution as well as defence evidence at an appropriate stage.

43. In this case the learned trial Judge has already held that prosecution has wrongly included the following assets in the reference, namely:-

(1) Fiat Tractor.

(2) A Valley Jeep Model 1964.

(3) Massey Tractor

(4) Bunglow No,38-J

(5) Share purchased in Itihad Flour Mills Therefore, the remaining assets would be comprising Plots in Sheikh Mattoon Township Mardan bearing No,48-J, 49-J, 50-J, a Diary Farm, a Fish Farm, agricultural land measuring 659 Kanal 16 Marla comprising houses, a Hujra, and a mosque and the construction/ownership of Anjuman Flour Mills. Out of these assets the agricultural land is in the name of Mst. Bibi Saleha the mother, Anjuman Flour Mills in the name of Mst. Anjuman wife of the appellant, Plot No,49-.1 and 48-J in his name while Plot No,50-J in the name of wife.

116. Because in statement under section 342, Cr.P.C. the appellant has admitted the existence of all such assets but in the name of his mother and wife and some property purchased- by him through his own sources while the assets in the namer of mother and wife are stated to have been purchased by them through their own income and means, we have also to see if such properties held by mother and wife are a benami and infact those are the ownership of the appellant.

117. 44.Term "Benami" has not been defined in the Ordinance but in case of Muhammad Sajjad Hussain (Supra) august Supreme Court has laid rules describing factors to be taken into consideration but with reference to burden of proof which includes as to who and wherefrom consideration were paid, who is in custody of the original title deed, who is in fact in possession of the properties/assets and motive for the benami transactions. It is also ruled that initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him. The burden of proof may shift from one party to another during the trial and once it is shifted from the plaintiff on the defendant and if the defendant fails to discharge the burden so shifted on him, the plaintiff shall succeed.

118. 45.After we have referred to the arguments advanced by counsel for the appellant, the arguments submitted by Special Prosecutor and we have sought valuable guidance from precedent case law regarding burden of proof and the consideration for holding a transaction to be Benami and after we have made elaborate discussion on different provisions of the Ordinance we have a clear picture of the legal position and on the basis of such parameter we will now draw our conclusion.

119. 46.Appellant was inducted in service in the year 1983 and till year 2000 as per statement of P.W.20 the total pay and allowances received by the appellant amounts to Rs,13,55,773. He has also drawn.

120. Rs,50,000 as motor car advance. Though the testimony of Tariq Hussain Akhtar (D.W.14) it is proved that appellant had received though on different occasions but the prize money from Prize Bonds as Rs,7,85,000 thus total income would come to Rs,21,90,773.Trial Court has calculated after deducting such properties and assets which should not have found mention in the reference that the assets held by the appellant either in his name or in the name of his mother and wife amounts to Rs,1,92,76,688 would mean that for assets worth Rs,17 Millions appellant is to account for.

121. 47.We first take up the agricultural land in the name of Mst.Bibi Saleha the mother of the appellant. It is the case of defence that such property was purchased in her name but by her husband i,e, father of the appellant namely, Ghulam Sarwar who died somewhere in the year 1997.

122. The property so acquires is consequent upon attestation of 29 mutations commencing from the year 1991 to year 2000. As laid by august Supreme Court of Pakistan that the first consideration for holding a transaction as Benami one is to find out the source of consideration. Defence has tried to prove the source through sale of land by Ghulam Sarwar allegedly inherited by him in his native village namely Koda Khel Mohmand Agency where he had 300 Jiribs of agricultural land. Evidence in defence is produced that one transaction was for Rs,1.5 Million when 40 Jiribs of land was sold and the other transaction was for 100 Jiribs of land for an amount of Rs,5 Millions.

123. Before dilating upon if such huge property was owned and possessed through inheritance by Ghulam Sarwar, the first question which strikes ones mind is that why Ghulam Sarwar should have purchased the agricultural land in the name of his wife and why not in his own name. He belongs to Mohmand Agency which is part of the Tribal Terriotory and one cannot ignore the custom and tradition prevailing in Tribal Territory where land belongs to the males and not females. The question would be ,what were justifications with Ghulam Sarwar for not purchasing the property in his own name. The second question arises that Ghulam Sarwar sold 100 Jiribs in the year 1990 and 40 Jirib in the year 1992. Mst. Bibi Saleha allegedly got cash amount of . Rs,20,00,000 pursuant to a family settlement which took place on 5-3-1984. If this be so then father of the appellant and mother were possessed of 85,00,000 rupees till year 1992 but 29 mutations referred to above i,e, Exh.P.W.3/1 to Exh.P.W.3/30 were entered in a spane of ten years and not immediately after year 1992.

48. Nbt only the acquisition of property in the name of wife by Ghulam Sarwar but the second unnatural and unreasonable transaction is when Mst. ,Bibi Saleha would gift 160 Kanal of agricultural land on 29-6-1994 in favour of appellant. In 1994 father of the appellant was alive who was in fact ostensible owner because as per evidence even the possession of agricultural land was delivered to Mst. Bibi Saleha but through her husband Ghulam Sarwar. Why out of four sons the father or mother would gift out 160 Kanal to a son who is rather well-off as compared to his other brothers. He was already a Grade-17 Officer and till 1.994 i,e, the year of gift he has put in eleven years' of service. According to the defence evidence Mst. Anjuman wife of the appellant is daughter of a millionaire namely, Zarin who is also maternal uncle of the appellant. Zarin has also gifted bunglow No,38-J to his daughter Mst. Anjuman on 22-4-1991. All blessings are bestowed on the couple to the exclusion of Fazal Kabir, Fazal Rabi and Siraj-ul-Haq.

124. Whether or not prosecution has discharged its initial burden of making out a prima facie reasonable case but fact is admitted by the appellant that 659 Kanal of land with five houses, a Hujra, Fishing Farm and Dairy Farm is the ownership but in the name of Mst.Bibi Saleha his mother.

125. He has also attempted to prove the source of consideration through which such property was purcahsed.

126. Though there are suggestions not directly admitted but indirectly admitted that Ghulam Sarwar father of the appellant was "Paish Imam" and the financial position of a "paish Imam" of a village can be well-imagined. Fazal Qadir a brother of the appellant has appeared as D.W.37 and has admitted that his father prior to 1977 was a Kiryana Marchant. He has not explained where he was running such business but in a village like Takht Bhai it cannot be a super store but a small grossary shop.

127. It is categorically stated by the appellant in his 342, Cr.P.C. statement that his father Ghulam Sarwar was a Malik and Khan of the area while his' own brother namely, Fazal Qadir appeared as D.W.37 is unaware if his father was Khan and a Malik or not. Except two certificates issued by Political Authorities there is no evidence that Ghulam Sarwar was owner of 300 Jirib of land in Tribal Territory. Two private witnesses have appeared namely, Lal Badshah and Nazraf as defence witnesses but no official witness from the political administration of the Tribal Area was produced to confirm that the certificates. produced by the defence were genuine and were issued after physical verification and that even presently there, is more than 150 Jirib of land owned by Ghulam Sarwar who is now dead and such property should have been either now partitioned between the legal heirs of Ghulam Sarwar or entered in some record of the political, administration even if there is no Revenue Record maintained.

49. An attempt is made to ward-off argument as to why a mother would gift 160 Kanal of land to his well-off son namely, the appellant, a "Tamleek Nama" dated 26-6-1999 has been introduced. It is in the statement of Akhtar Ali (D.W.3) that Mst. Bibi Saleha was present at the time of scribing such "Tamleek Nama" and where she could go to the Courts for recording of "Tamleek Nama" she should have better appeared in defence of his son before A.C.

128. In view of judgment of the august Supreme Court of Pakistan regarding Benami transactions one of the consideration is to see what were the motives behind the transactions. It will be obvious that where a public servant would indulge in corruption and corrupt practices and makes assets through money earned illegally, he will never purchase the property in his own name to avoid the charges of corruption.

129. 50.We once again would refer to statement of the appellant recorded under section 342, Cr.P.C. where he has not denied that there is property measuring 659 Kanal in village Moh.abatabad but in the name of his, mother. The prime source for purchase of such huge property is as a result of money received through three transactions out of which two were sale of 140 Jirib of land in Koda Khel Mohmand Agency amounting to Rs,65,00,000 and the other a receipt of Rs,20,00,000 by Mst.

130. Bibi Saleha from Ghulam Sarwar Jan uncle because of relinquishness of her share inherited by her in Dhook Dara (Dir) which was in the year 1984. It is also in the statement of the appellant that 300 Jirib of land in Koda Khel also included Abadi thereon. Appellant is silent as to. what was the nature of enmity under which his father or grand-father was compelled to migrate to Mardan leaving behind valuable property and from the date of their so-called migration untill the two alleged transactions one for 40 Jirib and the other for 100 Jirib there is total absence of any communication through any evidence that father of the appellant had any nexus with the tribal territory where he had property measuring 300 Jirib i,e, .1200 Kanala. No witness from the native village was examined to prove that father of the appellant had property in-Koda Khel and that because of enmity they had left the village. There is also absence of evidence as to who was managing the property left behind and who and how much usufruct was received by the father of the appellant out of such property.

131. 51.Learned A.C. had already discarded two certificates purportedly issued by political authorities of Mohmand Agency and reason given are quite cogent because no official from the office of political hierarchy from Mohmand Agency has appeared to testify in respect of two documents i,e, certificates which are in fact coming from some official source, in absence whereof such certificates would not be helping the appellant to establish ownership of his father in the tribal territory. Mere fact that one Nazraf and Lal Badshah (D.W.18) and (D.W.33) respectively have accepted the transactions, such would be oral evidence and would not be sufficient to accept the plea of the defence.

132. We are mindful that it is for the prosecution to first make out a prima facie case on the reasonable evidence. In this case prosecution alleged that agricultural land measuring 659 Kanals is in the name of mother of the appellant which appellant has not denied and has volunteered to adduce evidence justifying the purchase of such property, therefore, we are bound to analyse the defence evidence for reaching a conlusion.

133. It is also in the statement of the appellant that after the death of their father they have inherited the remaining 150 Jirib of land in Koda Khel for which again there is no evidence. If the Revenue Record is not maintained, some co-villager if not any official from the political authorities could have been produced to testify that there is still 150 Jirib of land belonging to the appellant or his brother in the Tribal Area. It must not be left unattended and if it is in existence someone might be tenanting it.

134. It is also in the statement of the appellant that his father used to teach Qur'an to the children of the village which was because he was very religious minded. It has come in evidence of the prosecution that village Mohabat Abad consists of about 2000 Kanals of land out of which about 1/3rd is in the name of the mother of the appellant Not a single witness from such village has appeared to state about the monetary status of Ghulam Sarwar father of the appellant.

135. The nexus of the appellant with the property of Mst. Bibi Saleha could be proved from the statement of D.W.1 Muhammad Ayaz where she was sanctioned an agricultural loan but on the basis of a special attorney executed by her in favour of Noor-ul-Haq the appellant through Exh.D.W.1/3. The question would be why such son who is serving in some official department and why not any other son available in the village.

52. We now take up the assets in the name of Mst. Anjuman wife of appellant. It is the case of the defence that Mst.Anjuman even before her marriage with the, appellant was having a joint business of Bardana with the brothers of the appellant. Mst. Anjuman is an illiterate woman.

136. Wherever any document is alleged to have been executed by her including Memorandum and Article of Association of Anjuman Flour Mills (Exh.P.W.13/18) they all carry her thumb-impression.

137. Interestingly in the said document she has given her address as Garang Killi Koda Khel Post Office Yousaf Khel Ghallani Mohmand Agency which has never been the address of the appellant for any correspondence.

138. Although there is no cogent evidence to convince the mind of the Court that Mst. Anjuman was partner in any Bardana Business except Muhmmad Saeed a clerk employed by brothers of the appellant and even if certain shares were purchased in Itihad Flour Mills not by making cash' payment but by adjusting the sale price of Bardana and because such shares were sold and even excluded by the A.C. we will leave such transaction untouched but we will refer to the statement of P.W.13 Musharraf Khan Joint Registrar of Companies according to which Anjuman Flour Mills was registered in August 1999 by Mst.Anjuman and Muhammad Yousaf with a face value of Rs,100 per share and Mst. Anjuman issued 13600 shares, the face value of her shares was calculated as Rs,13,60,000.

139. Faza. Hameed (P.W.15) stated that Mst. Anjuman is owner of 34% shares in Anjuman Flour Mills. It is in his statement that 60% of cost of building and machinery was invested by them i,e, he and his brothers and the remaining 34% was paid by Mst. Anjuman. This witness has been cross-examined by the defence and in the cross-examination he has stated that at the time of registration of sale- deed (sale of plot for construction) "Mst. Anjuman had not paid me sale consideration". In fact one Siraj brother of her husband had paid the sale consideration. He further stated that he is not in a position to explain as to why Mst. Anjuman was entered as vendee in the sale-deed but it was on the insistence of Siraj brother of the appellant. He also stated that they have been paying profit from the Mills to Siraj and that Siraj used to work in the Mills who is even now working there as Hisadar'. What else could be the evidence of Benami transaction where except the name of Mst.

140. Anjuman mentioned in the document as partner she has no physical participation either directly or indirectly and the person who is actively involved is Siraj brother of appellant. Mst. Anjuman is alive but she did not appear in the witness box to depose that she is owning shares in Anjuman Flour Mills in her own right. It is again very strange that although 66% shares are apparently not owned by her still the Flour Mills is titled and is run under the name and style of Anjuman Flour Mills i,e, name of wife of the appellant. Even Siraj has not appeared in the witness-box to state that he is running the Mills but on behalf of his sister-in-law- namely, Mst. Anjuman.

141. Musharraf Khan (D.W.11) has also stated that he has purchased and sold different items for Anjuman Flour Mills but to Siraj-ul-Haq. All such evidence would lead us to an inescapable conclusion that name of Mst. Anjuman in the purchase of soil underneath Anjuman Flour Mills, the machinery and business is used by the. appellant though the entire business is being run by his brother Siraj who has got no source of his own income to make such huge investment and who has not appeared in support of defence plea.

53. We have referred in the preceding paras. as to why Mst. Bibi Saleha has not appeared and so Mst. Anjuman and Sirajul-Haq in support of defence version and whether it will be legitimate for us to draw an inference against the appellant because of their non-appearance, our reply would be in affirmative. The reason is that when challan under section173, Cr.P.C. was filed it is only appellant who was sent up for trial but in column No,2 of the challan names of Mst. Bibi Saleha, Mst.

142. Anjuman, Fazal Rabi, Fazal Kabir and Siraj-ul-Haq are mentioned as accused but not sent up for trial nor arrested not declared abscondered.

143. Reference was filed before A.C. on 16-1-2001 and appellant was summoned for 20-1-2001 on which date provisions of section 265(c), Cr.P.C. complied with charge was framed on 29-1-2001 and trial commenced.

144. On 4-7-2001 on the application of Special Prosecutor notice was issued to the aforesaid five persons for appearance on 12-7-2001 because it has come in evidence of the prosecution that properties/assets were in the name of Mst. Bibi Saleha, Mst. Anjuman, Fazal Rabi, Fazal Kabir and Siraj-ul-Haq. On 12-7-2001 they all personally appeared and requested that they be given time to file their written reply, which they did on 23-7-2001 where after they dis-associated themselves with further proceedings. However, on 14-2-2002 Mr. Ghulam Ali Advocate appeared on their behalf and requested for adjournment and said learned counsel on 21-2-2002 stated before A.C. that his clients are not willing to produce any evidence and to this effect his statement was recorded. Their counsel was allowed to argue the case who finally argued the case on 2-3-2002 on their behalf.

145. Once they were given notice and they only filed their written reply and they were represented by a counsel who made a statement before the Court that his clients do not want to produce any evidence in their defence, such would be conduct from which one can infer that they avoided to appear in the witness-box, not to face the cross-examination by the prosecution and that they had nothing in their defence to support the defence version.

146. There are two properties namely, Plots Nos,48 and 50-J purchased in the name of Mst. Anjuman and evidence of the defence is that she has purchased them through her own sources but in view of our above discussion we are firm to hold that she had no business at all, she is an illiterate lady, a house wife having no independent source of income and whatever assets are in her name are purchased Benami and since their existence is not denied they are held to be purchased in her name but by the appellant.

147. In view of section 9(v) of the Ordinance a holder of public office is said to have committed the offence of corruption and corrupt practices where he or any of his dependents are Benamidars owns, possesses or has acquired right or title in any moveable or immovable property disproportionate to his known source of income if he cannot reasonable account for it.

148. Under section 14(c) of the Ordinance is to satisfactorily account for such assets and the Court is entitled to prosecution unless the contrary is proved that an accused person is guilty of the offence of corruption and corrupt practices.

55. In view of above statutory provision where appellant has not denied the existence of agricultural land in the name of his mother, two Plots bearing Nos, 48-J and 50-J in the name of his wife Mst. Anjuman and where he has not denied that Anjuman Flour Mills is the partnership of his wife but it has not led satisfactory evidence that such assets were in fact purchased by them through their own resources, there will be sufficient evidence to conclude that accused-appellant is guilty of offence under section 9 of the Ordinance punishable under section 10 of the Ordinance and the learned A.C. was right in his conclusion in view of section 14 of the Ordinance to record the conviction and sentence. We therefore, dismiss this appeal. The order of learned A.C. Court passed on 2/-3-2002 is maintained in totality with direction that steps be taken to implement the judgment of A.C.

149. For the above stated reasons Writ Petition No,653 of 2002 also stands dismissed.