NASIR-UL-MULK, J.--Haji Kabeer Khan, resident of Lakki Marwat, former Member of National Assembly was convicted by Accountability Court No.1, N.-W.F.P., Peshawar on 9-7-2001 under section 10 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as "NAB Ordinance") and sentenced to 7 years' imprisonment and fine of Rs.35,00,00,000 (Rupees thirty-five crore) to be paid within one month, failing which the same was to be realised by the sale of his properties. The benefit of section 382-B, Cr.P.C. Was extended to the convict. Haji Kabir Khan has filed Criminal Appeal No.5 of 2001 against his conviction and sentence. Alongwith Haji Kabir Khan, his five brothers, Haji Inayatullah Khan, Haji Munawar Khan, Haji Mir Muhammad Khan, Haji Rahamdil Khan and Haji Amir Nawaz Khan and his three sons Gulmar Jan, Gul Tiaz Muwtaz Khan were also tried. They were however acquitted against which the State has filed Ehtesab Appeal No.6 of 2001, in which a prayer for the enhancement of sentence of Haji Kabir Khan has also been made. The two appeals are disposed of together.
2. The criminal proceedings in the case were initiated on the direction of Chairman, National Accountability Bureau (hereinafter referred to as "NAB") when he directed the F.I.A. To investigate into the accumulation of wealth and acquisition of movable and immovable property and assets of Haji Kabir Khan. The investigation was entrusted to Inayatullah and Tahir Durrani; Inspectors F.I.A., Peshawar who submitted report to the Chairman in the form of report under section 173, Cr.P.C.
Giving their findings that Haji Kabir Khan had committed acts of corruption and corrupt paractices in terms of section 9 of NAB Ordinance. The Investigating Officers thus placed Haji Kabir Khan in Column No.3 of the report whereas his five brothers and three sons in Column No.2. On the basis of this report, the Chairman, NAB made reference on 4-7-2000 under section 18(g) read with section 24 of the NAB Ordinance to the Accountability Court, Peshawar, in which 16 properties, movable and immovable, and assets were listed to have been owned, controlled and possessed by Haji Kabir Khan in his own name, dependents, brothers and benamidars, the acquisition of which Haji Kabir Khan could not justify on the basis of his source of income.
3. On receipt of reference against Haji Kabir Khan, he was summoned and thereafter charged on 4- 8-2000 under section 9 read with section 10 of the NAB Ordinance. The accused pleaded not guilty and recording of the prosecution evidence commenced. After having examined 10 prosecution witnesses, the prosecutor submitted an application praying for shifting the five brothers and three sons of Haji Kabir Khan from Column No.2 to Column No.3 of the police report under section 173, Cr.P.C. As the documents brought on record revealed that some of the properties/assets were in the names of the brothers and sons. This application made on 19-8-2000 was allowed on the same day and the brothers and sons of Haji Kabir Khan were summoned. Afresh single charge was framed on 30-8-2000 against all the accused. The first as well as second charge included all the properties that were detailed in the reference alleged to have been accumulated/acquired by Haji Kabir Khan. These properties are as under:--
4. To establish its case against the accused, the prosecution examined 32 witnesses and though the accused did not testify on Oath they examined 56 witnesses, mainly for the purpose of explaining that they had sufficient sources of income to justify the acquisition of assets stated in the charge. In his statement recorded under section 342, Cr.P.C. Haji Kabir Khan admitted that out of the sixteen properties, he owned ten. His co accused owned the remaining properties.
5. After examining the evidence the trial Court found that the value of the assets held by Haji Kabir Khan was Rs.23,06,99,000 and those in the name of his sons of Rs.2,21,00,000, which were deemed to be owned by Haji Kabir Khan. Thus the grand total of the total assets were valued Rs.25,27,99,000.
The Court held that most of these assets were acquired during the period 1993 to 1999 when Haji Kabir Khan was holder of a public office, being member of National Assembly. The Court further -- computed the income of Haji Kabir Khan during the period of 1988-89 to 1999-2000 to be Rs.73,73,200 included Rs.11,88,000 as his salary and allowances as member of Parliament from 1993 to 1999. It was, therefore, concluded that 'the value of Haji Kabir Khan's assets were far more than his income during the relevant period, and that he failed to give reasonable explanation for the acquisition of his assets. Consequently, he was found guilty of corruption and corrupt practices under section 9, apparently under clause (v) thereof, though not so specifically stated. The remaining accused were acquitted, mainly for two reasons: Firstly, that they were not named in the reference sent up by the Chairman, NAB and secondly that the brothers of Haji Kabir Khan were Government Contractors and had their own sources of income and so were in a position to purchase the properties in their own names.
6. Mr. Abid Hassan Minto and Mr. Mirza Mahmood Ahmad, Advocates, appeared for Haji Kabir Khan and the acquitted accused whereas Mian Fasih-ul---Malik, Deputy Prosecutor-General, Regional Accountability Bureau, Peshawar, appeared as Special Prosecutor for the State. As certain substantial legal points were raised regarding the appeal against acquittal filed by the State, these contentions are taken up first. The learned defence counsel questioned the legality of the very trial of the acquitted accused on the ground that the Chairman, NAB had made the reference to the Accountability Court for the trial of Haji Kabir Khan only and therefore the other accused could not have been tried in view of section 18(n) which states that the Accountability Court shall not take cognizance of any offence except on a reference made by the Chairman, NAB or an officer duly authorised by him. The learned counsel in this context also referred to the judgment of the trial Court where one of the reasons for the acquittal of the acquitted accused was the absence of their names in the reference. It was further argued that the application made by the Prosecutor to the trial Court for shifting these accused to Column No.3 of the Police Report did not make reference to any evidence which justified the shifting. The learned counsel pointed out that the application was accepted on the day it was made and without any notice to the accused.
7. The learned Special Prosecutor in response to the above arguments submitted that the two Investigating Officers who had prepared the report under section 173, Cr.P.C. Had submitted the same to the Chairman, NAB alongwith all the material collected by the investigation officers. That the report and the material were sent up to the Accountability Court with the reference, which shall be considered more of a covering letter and therefore the trial Court is not bound to confirm the trial to persons named in the reference and may frame a charge against any person whose name appears in the police report if there is enough material to justify the charge. The learned Prosecutor further submitted that tinder section 18 of NAB Ordinance, the Chairman makes reference of the trial of offence and not of the persons to be tried. That as to who should be tried is left to the Accountability Court to determine. In this context, the learned Special Prosecutor also referred to clause (g) of section 18 which states that the Chairman, NAB, after going through the material, shall refer the matter to the Accountability Court.
8. As regards the offence which the acquitted accused had committed, the learned Prosecutor submitted that they can be convicted under clause (b) of section 10 of the NAB Ordinance for holding property acquired by holder of public office through corrupt act or corrupt practices or being beneficiary of any asset, property or gain obtained through such means. The learned defence counsel however contended that the prosecution must establish mens rea of the accused under section 10(b) of the Ordinance, otherwise innocent persons, who may have no knowledge that the assets held by them were acquired through corrupt practice, may become liable to punishment for the said offence.
9. The question as to whether the acquitted accused could competently have been tried would depend upon the interpretation of clauses (a), (b) and (g) of section 18 of the Ordinance. These clauses read as under:-- "Cognizance of offences
(a) The Accountability Court shall not take cognizance of any offence under this Ordinance except on a reference made by the Chairman, NAB or an officer of the NAB duly authorised by him.
(b) A reference under this Ordinance shall be initiated by the National Accountability Bureau on.
(i) a reference received from the appropriate Government;
(ii) receipt of a complaint; or (i.e) its own accord.
(g) The Chairman, NAB, shall appraise the material and the evidence placed before him during the inquiry and the investigation or by an officer of the NAB duly authorised by him and if hit decides that it would be proper and just to proceed further, he shall refer the matter to an Accountability Court."
Under clause (c) of section 18, the Chairman, NAB may initiate proceedings against any person and refer the matter for inquiry or investigation. After receiving the material collected during the inquiry or investigation, the Chairman then decides under clause (g) whether or not to refer the matter to the Accountability Court. Having decided to refer the matter to the Accountability Court, the Chairman makes reference to the Court and it is only on a reference that the Accountability Court can take cognizance of an offence. Section 17 of the Ordinance provides that the Code of Criminal Procedure shall apply to the proceedings under this Ordinance unless there is anything inconsistent in the provisions of the Ordinance. Since the NAB Ordinance has provided its own mode of the taking of cognizance by the Accountability Court in section 18, the corresponding provisions of section 190, Cr.P.C. Would not apply to the proceedings under the Ordinance. Whereas under section 190, the Court may take cognizance upon a police report prepare under section 173, Cr.P.C. The Accountability Court cannot take cognizance of an offence on such report in view of clause (a) of section 18 which makes reference by the Chairman, NAB as sine qua non to the taking of cognizance. The report submitted by the two Investigating Officers to the Chairman, NAB was termed as report under section 173, Cr.P.C. And submitted in that manner. A report under section 173, Cr.P.C. Is prepared for the purpose of its submission to the Magistrate for the taking of cognizance of the offence after investigation had been completed. The report submitted by the Investigating Officer in the present case was not for the purpose of taking cognizance by the Court but only to enable the Chairman, NAB to decide under clause (g) of section 10 whether or not to send the case for trial to the Accountability Court. The cognizance by the Accountability Court was taken on the reference made by the Chairman, NAB under section 18(a) of the Ordinance and not on what has been termed by the Investigating Officers as report under section 173, Cr.P.C. Thus, if the prosecution wanted to prosecute the accused other than Haji Kabeer Khan, the proper course was to re-submit reference against them and not by an application for transferring their names from Column No.2 to Column No.3 of the report under section 173, Cr.P.C. Since the Chairman, NAB had not given his sanction by way of making reference for the prosecution of the acquitted accused, the charge against them could not have been framed on the application of the prosecutor.
9. The reason given by the learned prosecutor in the application made before the trial Court for shifting the names of the acquitted accused to column No.3 was that some evidence had come to light from which it had become evident that some of the properties mentioned in the reference were in the names of the acquitted accused. No reference to such evidence was made and for the reasons stated in the application it was allowed and a fresh charge was framed so as to include the acquitted accused. Interestingly, one of the reasons given by the trial Court for the acquittal of these accused is that no reference was submitted against them. One fails to understand as to why was charge framed against the acquitted accused in the first place.
10. An argument was advanced by the learned Prosecutor that the reference under section 18 of the Ordinance was for the trial of the offence and not the offenders. We are afraid, we cannot agree with this proposition. Cognizance of the offence is taken by the Court for the purpose of trying the offender named in the reference. Only such offender can be tried whom the Chairman, NAB finds liable to be tried and therefore names them in the reference. In the reference, the Chairman, NAB did mention that "The investigation revealed that Haji Kabir, his dependents and brothers had acquired movable and immovable properties which are grossly disproportionate to his/her known sources of income". The Chairman, NAB had before him the report submitted under section 173, Cr.P.C. By the two Investigating Officers in which complete details were given of the properties in the name of Haji Kabir Khan as well as his brothers and sons and all such properties were eventually included in the reference for which Haji Kabir Khan was to be prosecuted.
Notwithstanding the information that some of the properties were in the names of the brothers and sons of Haji Kabir Khan, the Chairman, NAB decided to make the reference against Haji Kabir Khan only. The last sentence of the reference reads. "The reference against Haji Kabir Khan is hereby submitted for trial in accordance with law."
11. In view of the legal position discussed above, the trial Court could not have tried the acquitted accused without there being a reference against them. Thus, no charge could have been framed against them. In this view of the matter the acquitted accused were not to be acquitted but discharged. The appeal against acquittal thus fails. The exoneration of these co-accused is maintained with the modification that the order of acquittal of Haji Inayatullah Khan and 7 others (five brothers and three sons of Haji Kabir Khan) is converted to an order of discharge.
12. Haji Kabir Khan remained a member of the Parliament from 1993 to 1999. Apart from this, he had not held public office in any other period. Though there is a controversy regarding the dates on which some of the properties were acquired but the admitted position is that the list of the properties for which Haji Kabir Khan was Charged, and which were found by the trial Curt to be the assets of Haji Kabir Khans included properties acquired by him prior o the year 1993. The question thus arose as whether such properties would fall within the scope of NAB Ordinance and the 'accused prosecuted for them. The argument of the defend was that since the properties were acquired before Haji Kabir Khan held a public office, he could not be tried for these acquisitions under the Ordinance. The learned Prosecutor however submitted that as the Ordinance has come into force from 1-1-1985, all properties acquired by the appellant since that date shall be treated as the appellant's assets for the purpose of the offence under section 9(a)(v) of the Ordinance.
13. The charge framed in this c e stated that the accused was being tried for the properties acquired during the period 1988 to 1999, which included his tenure as holder of public office at National Assembly". Thus, the trial of the accused was also for the assets acquired by him during the period of five years in which he did not hold any public office. The learned Prosecutor relied upon the definition of "holder of public office" given in section 5(1)(ii) of the Ordinance which not only includes a person who is, but who has been, a member of Parliament. By this definition the present as well as past member of Parliament have been termed as holders of public office.
Though past members of Parliament can be tried under the Ordinance, the definition by no means can be stretched retrospectively so as to make an accused accountable for acts done by him prior to tits becoming a member of Parliament. Again by section 2 the Ordinance has been given retrospective effect from 1-1-1985. By this retrospectively no doubt persons who have held public office since the commencing date of the Ordinance can be tried thereunder. It does not however mean that the holder of public office can be tried under the Ordinance for acts, though committed after 1-1-1985, but during the period when he did not hold any public office. To hold otherwise would be going against the very object of the Ordinance as stated in the preamble, that is, "to provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kick- backs, commissions and for matters connected and ancillary or incidental thereto". The corruption, corrupt practices and misuse of power obviously must relate to the periods during which a person is in a position as a holder of public office to misuse this office for, private gains. If wealth is acquired by illegal means at a time when the accused did not hold a public office, it may constitute an offence under some other law but not under the NAB Ordinance.
14. The principle laid down in the unreported judgment of this Court in Syed Zahir Shah v. The State (Ehtesab Appeal No.5 of 2000, decided on 2-1-2001) is not relevant for resolving the present controversy. In that case the question was, whether the appellant, who was a civil servant, could be charged and tried for properties and assets acquired by him prior to 1-1-1985, the date on which the NAB Ordinance came into force. The question was answered in the positive and it was held that the appellant could be made accountable under the Ordinance for accumulation of wealth illegally prior to the commencing date during his tenure as civil servant. The question before the Court there was not whether the appellant could be tried for properties or assets acquired by him before he was inducted in the civil services but whether he could be tried for assets acquired by him prior to 1-1-1985, but during his holding of public office.
15. We therefore hold that Haji Kabir Khan could not have been tried for properties or assets acquired by him before he was, elected member of Parliament. Such properties were therefore wrongfully includes in the charge framed by the trial Court. The, charge was therefore defective.
16. It is now to be seen whether notwithstanding the error in the charge the present appeal can be decided on the basis of the evidence already recorded by excluding the period between 1988 and 1993 from the period 1988-1999, mentioned in the charge framed by the trial Court, or whether the case be sent for re-trial.
17. When an Appellate Court finds that there is material error in the charge framed by the trial Court on which the accused was tried, it may under section 232 of the Code of Criminal Procedure direct a re-trial upon the new charge if it is of the opinion that the accused was misled in his defence by the error in the charge. The Courts are generally slow to order re-trial on account of defect in the charge if the determination of the appeal on the available evidence would not prejudice the accused.
18. It may be re-stated that in all criminal cases the burden is always on the prosecution to prove its case against the accused, failing which the accused earns an acquittal. The accused, though entitled, is not obliged to produce evidence in defence. Some penal statutes, like the NAB Ordinance, however does place some burden on the accused. The appellant was tried for the offence of accumulation of properties and assets disproportionate to his known source of income.
The accused tried on such a charge is obliged under clause (c) of section 14 of the Ordinance to satisfactorily account for the properties and assets owned and possessed by him, failing which the Court shall presume that the accused has committed the offence charged with. It is in the light of this burden on the accused that it is to be examined whether the appellant was misled on account of error in the charge.
19. The charge included properties acquired by the appellant prior to the year 1993. Two such properties, namely, the Cold Storage on the plot at Saadat Colony, Lahore and the Bungalow at Gulshan-e-Ravi, Lahore, were conceded by the learned Prosecutor to have been purchased in the years 1991 and 1992 respectively. As regards the other properties, there is a serious controversy between the prosecution and the defence regarding the dates on which they were acquired. The learned Prosecutor submitted that apart from the said two properties, the remaining were acquired after 1993 whereas the learned defence counsel submitted that all the properties and assets in the name of Haji Kabir Khan mentioned in the charge were acquired before he became a member of Parliament in the year 1993. At the hearing of the appeal, both the learned counsel in support of their respective stands prepared charts mentioning the dates of acquisition of the properties. From the references to the evidence made in these charts, the dates of acquisition of only some of the properties are determinable with certainty.
20. Since the charge framed by the trial Court related to the period 1988-1999, the prosecution as well as the defence proceeded to adduce their respective evidence on the basis of the charge, without focusing on the point that the accused could not have been tried for properties acquired by him before 1993. Had the charge been for the period 1993-1999, the defence would have been on notice to show through evidence that all or some of the properties were not acquired during the said period. On account of this error in the charge the trial Court also did not determine as to when each of the property was acquired, though he did mention the dates of acquisition of the properties in the charge.
21. Furthermore, on account of the charge so framed the defence had to lead evidence to explain accumulation of properties during the entire period of 1988---1999. The appellant may now bring about changes in his defence after the period in the charge is reduced and some of the properties are excluded.
22. We therefore find that the appellant was misled in his defence on account of error in the charge. A re-trial must therefore be ordered on a new charge to be confined to properties and assets acquired by the appellant after he became member of Parliament in the year 1993.
Ordinarily when a case is sent to the trial Court for a re-trial on account of error in the charge, the Appellate Court frames the new charge on which the accused is to be tried. We would however in the present case refrain from framing the charge as the order of acquittal of the acquitted accused has been altered to one of discharge, which would now entitle the prosecution to submit reference against them, who will then be charged alongwith Haji Kabir Khan.
23. We would therefore allow Ehtesab Appeal No.5 of 2001 in the terms that the conviction and sentence of the appellant are set aside. The case is remanded to the trial Court for a re-trial after framing of a new charge in accordance with the directions made above. Both the parties may recall witnesses already examined and adduce further evidence. Ehtesab Appeal No.6 of 2001 is partially allowed to the extent that the order of acquittal of the accused-respondents Nos.2 to 9 is altered to that of discharge, with the result that the prosecution is at liberty to file reference against them.
Description of propertiesYear of purchase/AccumulationValue
1. Agricultural land to village Keen measuring 1922 Kanals, 19 Marlas and Muqeem Shah measuring 1273 Kanals, 11 Marlas. District D.I.K.1,53,83,600
2. A plot and a house in D.I. Khan Cantonment. 1994 0,23,08,0524
3. Hotel Amhassador, Lahore. 1994 17,82,48,204
4. Flour Mills at D.I. Khan (Excluding Machinery) installed therein.1994 02,16,53,700
5. Bannu Sugar Mills 1998 25,00,00,000
6. Cold Storagte. Badami Bagh 1998 0,48,78,880
7. Bungalows at Gulshan-e---Ravi. Lahore bearing Plots Nos.14-G. 16-G. 17-G, 356, 57-H.1988 to 1992 2,10,33,526
8. Commercial Building Civic Centre. Gulshan-e---Ravi.
Lahore.1996 1,42,24,000
9. One Petrol Pump at Liberty Market Lahore. 1997 2,02,30,000
10. One Petrol Pump at Civic Centre. Gulshan-e-Ravi.
Lahore.1999 0,84,32,894
11. Plot Saadat Colony, Lahore. 1991 0,31,50,000
12. M/s. Pakistan Switch Gear Co., Niaz Baig. Lahore. 1996-97 5,18,08,000
13. M/s. Paramid Builders (Pvt.) Ltd. At a plot on Davis Road. Lahore (under litigation).1995-96 10,02,60,000
14. 10 Kanals Plot General Bus Stand, Lahore. 1998 13,60,00,000
15. Market Bungalows and land at Lakki Marwat. 1994-99 10,44,99,157
16. Vehicles. 01,43,62,495