' ABDUL RAUF KHAN LUGHMANI, J.--- The learned Judge of the Accountability Court No,IV, Peshawar while deciding Reference No,1 of 2000 in respect of Mehmood Hussain, accused, has awarded him conviction under section 10 of the National Accountability Ordinance (NAB Ordinance) and sentenced him to suffer 5 years' R.I. And to pay a fine of Rs, 1,36,00,000. The assets attributed to the accused and his Benamidars, namely Sufi Noor Elahi, Mst. Aziz Khanum and Mst. Zubaida Saeed, who are father, mother and sister of the accused respectively, were also ordered to be forfeited to the appropriate Government, with the exception of Rs,15 lacs withdrawn by Mst. Zubaida Saeed during the course of trial. The amount of fine imposed upon Mehmood Hussain, accused, was allowed to be set off against the forfeited assets within the meaning of section 11 of the NAB Ordinance and the benefit of section 382-B, Cr.P.C. Was also extended to the accused.
2. Mehmood Hussain, accused feeling aggrieved has filed Ehtesab Criminal Appeal No,6 of 2002 whereas the alleged Benamidars, whose assets have been forfeited through the impugned judgment have filed Writ Petition No,339 of 2002. We, therefore, propose to dispose of both the matters through this single judgment in Ehtesab Criminal Appeal No,6 of 2002.
3. Brief facts of the case are that the assets allegedly accumulated by Mehmood Hussain, accused, during his service career in the Police Department, were brought under Ehtesab and after investigations by NAB Authorities the property in the names of the writ petitioners were assumed to be Benami transactions, hence Reference No,1 of 2000 was filed against Mehmood Hussain, appellant, in the Accountability Court No,4, Peshawar, in which the following properties of the writ petitioners were treated as Benami:--
(1) 4 Marlas plot purchased in the year 1990 by Sufi Noor Ilahi.
(2) 9 Kanals, 13 Marlas land in Mirpur, Abbottabad purchased in the year 1998 by Sufi Noor Ilahi.
(3) One Kanal, 8 Marlas land purchased in the year 1987 by Sufi Noor Ilahi.
(4) 106 Kanals, 5 Marlas land purchased in the year 1996 by Sufi Noor Ilahi.
(5) 5 Kanals, 10 Marlas land purchased in the year 1996 by Sufi Noor Ilahi.
(6) 19 Marlas land purchased in the year 1991 by Sufi Noor Ilahi.
(7) One shop at Darvesh, Haripur purchased in the year 1991, by Sufi Noor Ilahi.
(8) A bungalow owned by Sufi Noor Ilahi.
(9) 1/2 share in Bungalow measuring 1 Kanal, 16 Marlas by Mst. Aziz Khanum.
(10) Bungalow measuring 1 Kanal, 10 Marlas owned by Mst. Zubaida Saeed.
(11) Bungalow measuring 19 Marlas owned by Mst. Zubaida Saeed.
(12) Bank accounts-
(a) Sufi Noor Ilahi Rs,6,00,000 (b) Mst. Zubaida Saeed, Rs,19,00,000
4. The learned trial Judge vide judgment dated 6-11-2000 found the accused/appellant guilty of the charge and awarded him conviction and sentence under section 9 of the NAB Ordinance against which the appellant had filed Ehtesab Appeal No,9 of 2000 before this Court whereas the writ petitioners had filed Writ Petition No,1315 of 2000 against the confiscation of their assets. This Court vide judgment dated 28-6-2001 had accepted the appeal of the appellant and remanded the case to the trial Court for recording evidence of the prosecution afresh so that the alleged Benamidars may also had a chance of cross-examination and adducing evidence for furnishing reasonable account or to prove payment of lawful consideration for the property entered in their names, as contemplated by section 5(c) of the NAB Ordinance, 1999. The writ petition too was disposed of accordingly.
5. It appears that the State through Prosecutor-General, NAB had assailed the orders of this Court before the august Supreme Court of Pakistan by filing a Petition for Leave to Appeal, but leave was not granted and the judgment of this Court was upheld with some observations as contained in the judgment.
6. After remand, the learned trial Judge complied with the directions of this Court as well as of the august Supreme Court. The prosecution witnesses were re-summoned and an opportunity of cross-examination was afforded to the writ petitioners. Similarly, the writ petitioners were also given an opportunity of adducing evidence in defence, which they did.
7. The prosecution in support of its case have examined 16 witnesses, out of whom P.W.1 Sheikh Zahoor, District Kanungo appeared for producing the Revenue Record regarding Revenue Circle Pasala and Mirpur. Malak Sajjad, Patwari (P.W.2) produced Revenue Record of Mauza Ali Khan, while Sher Afzal Patwari (P.W.3) produced record of Mauza Hattar. Record pertaining to the properties in the name of Sufi Noor Ilahi, father of the appellant, were produced by P.W.4 while P.W.5 produced the original mutation regarding- the purchase of ' landed property by the father of the appellant in Hattar, Ali Khan Saradeena, Darvaish and Makhnial and also by P.W.6, Tahir Farooq, Patwari. P.W.7 produced documents regarding property purchased by Mst. Aziz Khanum, mother of the appellant.
The amount invested in the saving certificates by the appellant, father, mother and sister was proved through Amjad Ayub (P.W.8). The assessment was proved through P.W.9 and the service record was exhibited through P.W.10 Muhammad Ilyas Patwari (P.W.11) proved the property of the father and sister of the appellant in Muhallah Saeed Abad; The electricity supply to the building owned by the sister was proved through P.W.12, while Arif Haider P. W.13 produced the income-tax return of the father. The recovery memo. Exh.P.W.14/1 to Exh.P.W.14/3 were testified to be true through Sher Alam (P.W.14) while Muhammad Afzal Khan, Assistant Director Crimes, Anti-Corruption Establishment was examined as (P.W.15). The events in the investigation were proved through Muhammad Hashim Khan (P.W.16).
8. After remand of the case, with the consent of the learned counsel for the parties, the examination-in-chief of the prosecution witnesses recorded before remand was adopted and the witnesses were allowed to be cross-examined by the learned counsel of the Benamidars (writ petitioners). The cross-examination of such witnesses either affirms or discloses the following facts:--
(a) That the property mentioned in Exh.P.W.2/1, 2/2 and Exh.P.W.2/3 is possessed by Sufi Noor Ilahi;
(b) that Mehmood Hussain, accused, has not purchased any land in any Halqa and, therefore, no mutation has been attested in his favor;
(c) that in the Revenue Record Sufi Noor Ilahi has been shown in possession of the land covered by Exh.P.W.3/1, Exh.P.W.4/1, Exh. P. W 4/2, Exh. P. W .5/1 to Exh. P. W .5/12, Exh. P. W.6/1;
(d) that Sufi Noor Ilahi has paid the sale consideration for the purchase of the said properties;
(e) that the property in Khasra Nos.1022 and 1078 is the inheritance property of Sufi Noor Ilahi, which was transferred in his name vide Mutation No,4007 attested on 15-10-1980 and Mutation No,2565 attested on 31-7-1971;
(f) that vide Mutation No,4070, the property of Muhammad Saeed was transferred in the name of his wife Mst. Zubaida Saeed;
(g) that Sufi Noor Ilahi is the regular assessee of the income-tax;
(1) that accused Mehmood Hussain and his brothers Shaukat Hussain, Zaheer Hussain and Muhammad Saleem live in a joint house with the parents;
(j) that Mst. Zubaida Saeed lives in a separate independent house; and
(k) that no direct evidence could be found to suggest that the sale consideration was paid by Mehmood Hussain, accused.
9. Mehmood Hussain, appellant, in his statement under section 342, Cr.P.C. Denied the charges against him and stated that he has got nothing with the transactions in the names of his father, mother and sister, who have their independent sources of income. With regard to the Saving Certificates worth Rs,1,50,000, he offered explanation to the effect that he had purchased the same after winning a prize bond of Rs,two lacs.
10. The writ petitioners in their defence produced 22 witnesses. Manzoor Ilahi, SOK, Haripur (D.W.1) produced the original registers of mutations and also produced various purchase and inheritance mutations attested in the names of Sufi Noor Ilahi, Mst. Aziz Khanum and Mst. Zubaida Saeed. D.W.2 Hafiz-ur-Rehman, Patwari Halqa, produced Goshwara in respect of the rented property of Mst. Aziz Khanum and Mst. Zubaida Saeed. Tariq Khan, Head Clerk, Girls College No,1, Abbottabad (D.W.3) produced the record of appointment of Mst. Zubaida Saeed as Lecturer in Botany and the salary drawing by her in Grade-19. Muhammad Ajmal Paracha, Head Clerk, Sui Gas (D.W.4) produced the record of lease of house situated in Mohallah Saeed Abad by Sufi Noor Ilahi and payment of rent.
Ijaz Hussain, Assistant Director Building Maintenance Division (D.W.5) produced the assessment carried out by him with regard to the market value of 13 shops and other property including three houses. D.W.6 Abdul Ghafoor, Administrative Officer in his statement before the Court stated that the house of Mst. Zubaida Saeed situated in Mohallah Saeed Abad, Haripur has been leased out to Save Children Foundation. D.W.7 and D.W.8 in their statements deposed that they are tenants in the shops of Sufi Noor Ilahi on monthly rent of Rs,500 and Rs,2,500 respectively for the last 17/18 years.
D.W.7 also named other tenants of Sufi Noor Ilahi in the other shops with similar payments as rent.
D.W.9 Malik Parvez in his statement posed himself to be the tenant of Mst. Zubaida Saeed in two shops @ Rs,400 per month per shop for the last 14/15 years. He also named Abdul Karim and Mujibur Rehman as tenants of Mst. Zubaida Saeed in the two houses on monthly rent of Rs,1,500.
Abdul Waheed (D.W.17) in his statement also affirmed his tenancy under Mst. Zubaida Saeed in a shop for the last 5 years on payment of Rs,6,000 per month. Muhammad Saeed (D.W.11) in his statement deposed that he is tenant in the shop of Sufi Noor Ilahi situated in Private New Sabzi Mandi, Haripur at the rate of Rs,3,000 per month from 1993 to 1998 and thereafter at the rate of Rs,3,500 per month. D.W.12 produced a certificate from the record of Cantonment Board, Abbottabad in respect of a house constructed in Khasra Nos.301 and 302 Haibubullah Colony, Abbottabad. Arshad Mehmood (D.W.13) who is dealing in fruit business affirmed that he had taken the fruit garden of Sufi Noor Ilahi on lease for 2 years at the rate of Rs,3,20,000 per year through a valid lease agreement. Muhammad Sarwar (D.W.14) in his statement deposed that he is mortgagee of a under-constructed house of Mst. Aziz Khanum for Rs,5,00,000 on 9-12-1998 through execution of a deed. Amanullah Saeed (D.W.15) deposed that he is tenant of Sufi Noor Ilahi in a house at the rate of Rs,1,500 per month for the last 10/12 years. D.W.16 and D.W.17 also posed themselves as tenants under Mst. Zubaida Saeed in a house and shop respectively. D.W.18 Muhammad Khalid, Record Keeper, produced the photo copy of Report No,807 dated 26-5-2000 whereby an inquiry was conducted into the alleged assets of accused Mehmood Hussain. D.W.19 stated that he is tenant in the house of Sufi Noor Ilahi. D.W.20 deposed that Mst. Aziz Khanum wife of Sufi Noor Ilahi had sold three jewellery sets on 12-12-1999 to him for a sum of Rs,1,03,500, which fact was entered in his register at S.No,6985. Mst. Zubaida Saeed D.W.21 deposed that she is M.Sc.
Botany and is teaching since 5-10-1973; that her husband Muhammad Saeed was Prosecutor- General in Police Department who died on 22-8-1977 leaving two children; that the property at S.Nos.10 and 11 of the Reference are the property inherited by her and her children from late Muhammad Saeed; that her husband had purchased the said property vide 8 mutations in his lifetime and that she is residing with her children at Abbottabad while her parents are residing at Haripur. D.W.22 Sufi Noor Ilahi in his statement deposed that he has four sons i,e, Mehmood Hussain, Shaukat Hussain (Tehsildar), Muhammad Saleem (Advocate) and Zahir-ud-Din (Public Prosecutor) and that he lives with his son in one and the same house; that the Property at S. Nos.1, 3 to 8 have been purchased by him after payment of sale consideration; that his wife is owner of half share in the house at S. No,2 of the Reference; that the property at S.No,9 is inherited by him from his father vide inheritance mutation dated 15-10-1980; that the income of Rs,6 lacs shown at S.No,12 is derived by him from the house, shops and gardens: that his other 3 sons hand over their income to him after retaining the pocket money. He also produced description of properties, Exh.D.W.22/2 in respect of 8 shops inherited by his wife vide Mutation No,2818 attested on 24-8-1968; that he sold one plot on 15-5-1983 on the basis of Exh.D.W.22/6; that after the death of his father on the basis of a registered document, Exh.D.W.22/7, he received his share in cash amount which is Rs,53,000; that his father-in-law gifted one shop in Mochi Bazar, Haripur to his wife vide registered deed dated 7- 7-1965; that two shops 447-C and 448-C were transferred in his favor by his father by a consent decree, dated 12-9-1972 and that 2/3 share of a Plot No,27 in Mochi Bazar, Haripur was decreed in his favor on the basis of a consent decree dated 12-9-1972. He further stated that he had purchased a house of Kunj, Abbottabad on 14-1-1950 on the basis of registered deed, Exh.D.W.22/12.
11. We have heard the learned counsel for the parties and have gone through the record of the case.
12. The whole case of the prosecution is based on the allegations that the properties in the names of Sufi Noor Ilahi. Mst. Aziz Khanum and Mst. Zubaida Saeed, father, mother and sister of the appellant respectively, are in fact properties/assets owned by the appellant but have been surreptitiously shown in the names of his father, mother and sister. The purchase of these properties by the father, mother and sister has been depicted by the prosecution evidence as Benami transaction.
13. So far as the case of the convict/appellant is concerned, he is only having an amount of Rs,1,50,000 in the shape of Saving Certificates, but the learned trial Court has rejected the stand of the appellant in this regard with the observation that these certificates were purchased earlier than the receipt of the amount of prize bond won by the appellant. Anyhow, admittedly the accused/appellant has served for sufficient time and saving of such an amount during the whole service career cannot be successfully questioned by the prosecution in absence of any direct evidence of its earning through any unlawful source.
14. The other aspect of the case concerns with the writ petitioners, who have been treated as the alleged Benamidars. They in their defence have brought the following facts on record through oral as well as documentary evidence:-- (a). That Sufi Noor Ilahi has inherited certain properties and so is the case with Mst. Zubaida Saeed, who also inherited the property of her husband purchased vide various mutations placed on record in the years 1948 and 1949;
(b) that Mst. Zubaida Saeed received an amount of Rs,16,26,219.65 as her basic pay without allowances for the period from December, 1986 to July, 2001;
(c) that a house situated in Mohallah Saeed Abad, Haripur is on lease with the Sui Gas Department and the agreement is executed between Sufi Noor Ilahi and the Department concerned, the rent of which was later on enhanced to Rs,10,625 per month;
(d) that the house of Mst. Zubaida Saeed situated in Mohallah Saeed Abad, Haripur is on lease with Save Children Federation on the basis of a lease agreement signed by her with the said organization;
(e) that the fruit garden of Sufi Noor Ilahi is on lease with Arshad Mehmood, D.W., for 2 years @ Rs,3,20,000 per year through a lease deed executed between the witness and Sufi Noor Ilahi countersigned by a Magistrate 1st Class, Haripur;
(f) that an under-constructed house of Aziz Khanum was mortgaged in favor of Muhammad Sarwar. D.W. For Rs,5,00,000 on 9- 12- 1998 ; and
(g) that the writ petitioners receive a handsome amount of rent from the tenants produced in defence.
' The learned trial Judge has not taken into consideration the above evidence in favor of the Benamidars either for want of non-production of the original deeds or non-registration of the lease agreements. The learned trial Judge has, however, ignored that the lease agreements were produced in original by the executants personally and they in their statements also deposed orally in support of it. Similarly certified copies of most of the deeds were produced through officials of the concerned Departments and orally too the said witnesses supported the execution of the said documents.
15. The word "Benamidar" denotes a person who has nominal title to the property. The person who purchases the same in the name of Benamidar has the real title to the property. For determining the Benami nature of a transaction, the august Supreme Court of Pakistan has laid down the following four tests, in the case of Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCM R 703:--
(i) Source of considerations,
(ii) from whose custody the original title deed and other documents came in evidence,
(iii) who is in possession of the suit property; and
(iv) motive for Benami transaction.
16. The system of acquiring and holding property in the names of other than those of the real owner is and has been a common practice. A Benami transaction finds mention in section 66 of the Civil Procedure Code from two angles as described in subsections (1) and (2). Section 53 of the Transfer of Property Act, 1882 deals with prohibition of Benami transaction to defeat or delay the creditors of the transfer but protects the rights of a transferee in good faith and for consideration. Section 41 of the Transfer of Property Act enables the real owner to avoid alienation by a Benamidar in case the transfer from the latter was in the knowledge of the real owner. One thing which is significant to note in Benami transaction is that the Benamidar is hardly aware of transfer of property in his favor, as the whole transaction is concluded in his absence. The Benami transaction has been made punishable under section 14(c) of the NAB Ordinance to the effect that in case of failure on part of an accused person to satisfactorily account for the property or pecuniary resources disproportionate to his known sources of income, the Court shall presume. Unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices.
17. Keeping in view the evidence produced by the prosecution, it cannot be said that the prosecution has been able to make out a case under section 9(v) of the NAB Ordinance muchless to the satisfaction of the Court within the meanings of section 14(c) of the Ordinance. There is no direct or indirect evidence to show that the appellant was a corrupt official and he was holding such responsible position by misuse of which, he amassed huge wealth. Not a single witness has deposed that he was a dishonest/corrupt person and was living beyond his means.
18. There is also nothing on record to prove that the writ petitioners (Benamidars) were holding the properties mentioned in the charge/reference as Benamidars and that they were dependent upon Mehmood Hussain. The learned trial Judge has not at all adjudged the case against them on the touchstones provided by the august Supreme Court of Pakistan for determining a Benami nature of transaction. The properties mentioned in the reference are admittedly entered in the names of the writ petitioners in the Revenue papers and it was the duty of the prosecution to show the source of consideration. The prosecution evidence does not show that the sale consideration was paid by Mehmood Hussain. Appellant, or any other person than the vendees. The writ petitioners, on the contrary, have produced sufficient oral as well as documentary evidence to prove that they were having legal sources for the purchase of the disputed property or keeping cash amount in the alleged Saving Certificates. The writ petitioners have brought on record various documents which show that beside the properties mentioned in the Reference, they were also holding other agricultural as well as commercial properties in their names, yielding sufficient amount of income for them per month and per annum. It is also not the case of the prosecution that all the properties mentioned in the Reference were purchased by them (Benamidars) at one time or within a short span of time, hence it was, out of reach of the Benamidars to purchase the said property through lawful means. It has also come in evidence that the writ petitioners were in possession of some of the properties even before the induction of Mehmood Hussain, appellant, into service. Sufi Noor Ilahi remained a Government servant and is now retired. In respect of Sufi Noor Ilahi, it has come on record even from the mouth of P.W.1, a witness of the prosecution that Sufi Noor Ilahi is a man of means and possesses landed as well as commercial property. Mst. Zubaida Saeed is an Assistant Professor getting her salary in Grade-19 having only two children. She also inherited valuable property from her late husband hence she was also having the occasion and means of promoting her economic status through saving from her salary and income from the inherited property. Mst.
Aziz Khanum is also mother of four sons, all earning hands, besides her husband. She also got a house in her name through inheritance. It is also admitted that the four sons live jointly in the same house with their parents, No presumption thus could legally be drawn that she became owner of moveable or immovable property only on the wealth of one son or that she was dependent upon the appellant alone.
19. The income accruing to the writ petitioners from the properties in question, if is taken at the minimum rate, leaving aside the Goshwaras prepared by the petitioners, even then it would be sufficient for presuming that the property purchased by them were through lawful sources of income and they were in a position to pay sale consideration for the same.
20. The only consideration which influenced the mind of the learned trial Judge for not accepting the sources of income declared by the writ petitioners as lawful source of income is that neither any rent agreement was produced nor the original documents came from the possession of the writ petitioners. It may, however, be stated that it was not a case between the real as well as ostensible owner so as to give much preference as to from whose custody the original documents came. Certified copies of all the documents were placed on record. The accused/appellant has clearly denied to have any concern with those properties. The prosecution, on the other hand, has failed to bring on record a single stance that out of various properties at least one of it was/is not in the actual ownership of the petitioners. The writ petitioners have strongly asserted their ownership over the same to the exclusion of any other person, hence requires to be treated as reasonable account furnished by them to the satisfaction of the trial Court for not drawing an adverse inference within the meanings of section 14(c) of the NAB Ordinance.
21. The prosecutions as well as the defence witnesses have categorically stated that the properties in dispute are in the physical possession of the writ petitioners; hence this fact has properly been established on record.
22. The charge against the accused that the properties in question were purchased by Mehmood Hussain, appellant, in the names of father, mother and sister (writ petitioners) in order to conceal his ill-gotten wealth has also not been successfully established by the prosecution, as the prosecution has failed to connect Mehmood Hussain, appellant, even remotely with the properties purchased by the writ petitioners, hence the question of 'motive' also goes against the prosecution.
It is well-settled that the onus probandi to prove the Benami character of transaction lies upon him, who alleges it.
23. A careful look at the prosecution evidence would clearly suggest that the prosecution though has alleged the properties mentioned in the Reference as Benami transaction, yet has miserably failed to prove any of the determining factors of Benami as laid down by the august Supreme Court of Pakistan. Neither the source of consideration, nor possession, nor motive was proved. As against this, the writ petitioners (Benamidars) have furnished reasonable account for the purchase and holding of such properties through lawful means. We are thus of the considered view that the impugned judgment of the learned trial Court is liable to be set aside for the reasons stated above.
24. Consequently, the appeal in hand is accepted, the conviction and sentences passed by the learned Accountability Court No, IV, Peshawar, vide impugned judgment, dated 20-3-2002 are hereby set aside and Mehmood Hussain, appellant is acquitted of the charges levelled against him. Similarly, Writ Petition No,339 of 2002, filed by the petitioners, is also accepted and it is ordered that the properties, assets and the amount lying in the Saving Certificates, which have been forfeited to the appropriate Government vide impugned judgment, shall be released to the petitioners.