' SARMAD JALAL OSMANY, J.--- The brief facts of the matter per Reference, dated 27th of October, 2001 against the applicant are that he was employed as a Store Clerk, Field Store, WAPDA, Larkana, and it was reported that he had accumulated movable and immovable properties as well as other assets which are incompatible with his known and legitimate sources of income. It was, therefore, considered necessary to order an enquiry/investigation to ascertain the real facts. Consequently, the matter was referred to F.I.A. Karachi Zone, Karachi and per the report submitted under section 173, Cr.P.C. By the Investigating Officer it has been revealed that the applicant had accumulated huge wealth and properties which are grossly disproportionate to his legal sources of income and which are in the names of his spouse, dependents and other Benamidars. Consequently, it was opined by the Chairman NAB that sufficient incriminating evidence had been collected to establish that the applicant had committed acts of corruption and corrupt practices as defined in section 9 read with section 10 of the NAB Ordinance and the Schedule thereof, hence the Reference was submitted before the learned NAB Court with a prayer that he may be tried in accordance with law.
2. The applicant was earlier arrested by NAB on 3-1-2000 and the reference was thereafter filed befoie the Accountability Court No,V at Karachi for trial. The charge was framed against the applicant who pleaded not guilty and claimed his trial. Thereafter, the prosecution recorded the deposition of a number cf witnesses.
3. During the course of trial the applicant moved an application under section 265-K, Cr.P.C. Which was dismissed vide order, dated 27-4-2002 on the basis that further investigation was required in the matter and hence the application was not warranted at that time. Thereafter, the learned trial Court passed an order, dated 23-5-2002 under section 17(c) of the NAB Ordinance whereby notices were directed to be issued to the alleged Benamidars/Relations/Associates of the applicant in whose names the properties stood directing them to appear in Court and produce the required evidence in support of the ownership of the said properties as well as to substantiate that they had sources of their own to acquire the said properties. This prompted the applicant to file an application under section 561-A, Cr.P.C. Bearing Criminal Miscellaneous No,184 of 2002 before this Court. So also the alleged Benamidars filed similar applications before this Court bearing Criminal Miscellaneous Nos.112 to 118 of 2002. Criminal Miscellaneous No,184 of 2002 by consent, was disposed of on 19-6-2002 with a direction that the learned trial Court would examine the Investigating Officer within two weeks from the date when the order was communicated to it and thereafter if the learned trial Court considers examination of the alleged Benamidars, it may do so pursuant to notices already issued and then pronounce. Judgment after allowing an opportunity to adduce evidence preferably within three months thereafter. Similarly, Criminal Revision Applications Nos.112 to 118 of 2002 were disposed of in the above terms on the same date.
4. In compliance of the orders aforementioned passed by this Court the Investigating Officer has been examined by the learned trial Court in which he has, inter alia, stated that the properties mentioned in the reference had been acquired by the applicant/accused Qurban Ali Jatoi and in the names of his four sons namely Mushtaq All Jatoi, Moula Bux Jatoi, Zahid Ali and Karim Bux alongwith his daughter-in-law Mst. Shehzadi as well as other relations namely Ghulam Qadir and Ghulam Rasool and Ghulam Hussain all by castes Jatois. He has further stated that the plot comprising of Sapna Hotel in Larkana was purchased in the name of Moula Bux Jatoi on 29-11-1999 for a consideration of Rs,1,20,000 while he was only 18 years of age, which was calculated on the basis of his Identity Card wherein his date of birth is shown as 1992. At that time he was only a student awl did not have any independent source of income. Similarly, while Moula Bux was 20 years of age, agricultural land comprising 21 acres was purchased in his name on 15-1-1992 and so also a plot of 45C0 sq. Yds. Was also purchased in his name at that time. Over the said plot Sapna Ice Factory has been constructed. The Investigating Officer has further stated that per his investigation the other alleged Benamidars of the applicant/accused did not have any independent means of income when the properties mentioned against their names were acquired.
Finally, per the Investigating Officer the applicant basically comes from a very poor family and had joined as a clerk in WAPDA whereafter he became a trade union leader and affiliated himself with political parties and in consequence he became very influential and amassed untold wealth/ properties within a period of 14-15 years of his joining his service. However, during cross- examination, the Investigating Officer had admitted that there was no direct evidence to establish that the accused had himself accumulated the properties in the name of his sons and relatives. He has also "admitted that all the alleged Benamidars had produced copies of ownership certificates and sources of income before him.
5. Based on the foregoing facts and circumstances learned counsel for the applicant,, has argued that once the Investigating Officer had admitted during the course of cross-examination that no evidence existed to connect the accused/applicant with the crimes with which he is alleged viz. Corruption etc., then there was hardly any point in letting the case drag on as it was a case of no evidence at all. This, per the learned counsel, was a violation of section 18(g) of the NAB Ordinance, which provides that only where enough material is placed before the Chairman NAB during the course of an enquiry, the filing of a reference would be justified. Learned counsel has also criticised The order of the learned NAB Court, dated 24-5-2002 whereby notices have been issued to the Benamidars who have been directed to establish that the properties, which were standing in their names were purchased from their own legitimate sources of income. Learned counsel has further submitted that such an order could only be passed once the properties had been frozen, which was not the case in the present matter. For this proposition learned counsel has relied upon: NAB v.
Zahida Sattar PLD 2001 Kar. 256 as well as Zahida Sattar v. The Federation of Pakistan PLD 2002 SC
408. Per the learned counsel the issuance of the notices to the Benamidars amounted to a suo motu reference by the learned trial Court, which was totally unlawful as only the Chairman of the NAB had the power and the authority to do so under section 18(g) of the Ordinance.
6. On the other hand, Mr. Muhammad Anwar Tarique, learned D.P.G. Appearing for Nab has submitted that in Criminal Miscellaneous No, 184 of 2002 vide the consent order, it was directed that the Investigating Officer would be examined and if necessary the Benamidars. The present application has been filed without the Benamidars having been examined, which in fact amounts to a review of the said order. In these circumstances, the present application is not maintainable without exhausting the remedy available before the learned trial Court viz an application under section 265-K, which should appropriately be filed after the Benamidars had been examined who have already been issued notices under section 12 of the NAB Ordinance and they have filed reply thereto. Consequently, per the learned D.P.G. The trial cannot be stifled at this stage, without such examination which, in fact, has been ordered by this Court in Criminal Miscellaneous No, 184 of 2002. Learned counsel has also referred to the cases of NAB v. Zahida Sattar and Zahida Sattar v.
The Federation of Pakistan (supra) wherein this Court and the Hon'ble Supreme Court respectively have observed that the Benamidars should be summoned and examined by the trial Court since otherwise they would be condemned unheard.
7. As far as the provisions of section 561-A, Cr.P.C. Are concerned, learned D.P.G. Has firstly submitted that these are to be invoked where normally no other remedy is available which is not the case since the same has not been exhausted before the trial Court. Secondly, the said section can only be pressed into service either whereas a matter of law the applicant could never be convicted or per the evidence on the record nothing had been established by the prosecution to warrant such conviction. Again, this was not the case in the present matter because the trial has yet not concluded inasmuch as the Benamidars have yet to be examined. For this proposition, learned D.P.G. Has relied upon Ghulam Muhammad v. Muzammil Khan PLD 1967 SC 317, Raja Khushbakhtoor v. The State 1985 SCM R 1314, Khushi Muhammad v. State 1979 SCM R 94, Yasin Siddiqui v. State 2001 PCr.LJ 1331 and Shaikh Majibur Rehman v. State PLD 1967 Dacca 484. Learned D.P.G. Has referred to the statement of the Investigating Officer which gives the details of the properties owned by the Benamidars and also the fact that some of these properties were acquired when at least one of the Benamidars was only 18-20 years of age and was at that time a college student. Per the learned D.P.G. This amounts to the establishment of a prima facie case against the applicant viz. In terms of section 14(c) of the NAB Ordinance viz. His dependents and Benamidars own properties which are disproportionate to their known sources of income whereafter the burden was upon the applicant/his Benamidars to establish the opposite/contrary.
If the Benamidars failed to do so then a presumption of guilt would necessarily follow in terms of the aforementioned section of NAB Ordinance. As far as the admission of the Investigating Officer in cross-examination is concerned, this was only to the effect that he could not unearth any evidence to show that the accused had vide corrupt means acquired the funds to purchase the properties in question, which is not to say that the properties in question were not acquired from 'unlawful means but only an admission to show that there was no evidence to establish the actual receipt of the funds from which such properties were purchased by the applicant in the names of his Benamidars/dependants. Per the learned D.P.G. In terms of section 14(c)of-the NAB Ordinance; the prosecution only had to establish a prima facie case that the accused/his Benamidars have property disappropriate to their known sources of income whereafter as aforementioned the burden of proof was upon the latter to establish otherwise. Consequently, the admission by the Investigating Officer under cross-examination by no means can be interpreted to discharge the burden of proof. Cast upon the applicant/Benamidars. For all the foregoing reasons, learned D.P.G.
Prayed that this application be dismissed.
8. We have heard both Mr. Azizullah K. Shaikh, learned counsel for the applicant and Mr. Muhammad Anwar Tarique, learned D.P.G. For NAB.
9. The law is fairly well-settled that before exercising the powers under section 561-A, Cr.P.C. Are concerned, this Court should come to a conclusion that allowing the impugned judicial proceedings to continue would defeat the ends of justice or in other words would either operate or perpetuate an injustice viz. It would be an abuse of the process of law and a perversion of the performance of the law so as to cause harassment to an innocent party. In other words it should be established that as a matter of law even if the allegations against the accused were accepted he could never be convicted or there was no sufficient evidence before the learned trial Court to ever convict the accused of the charges levelled against him. It is also fairly well-settled that the powers enshrined in section 561-A, Cr.P.C. Should not be resorted to readily but only in the circumstances delineated above as the said section is not meant to stifle the prosecution but is intended to prevent the abuse of the process of Court. For the foregoing propositions of law reference can be made to Mian Muneer Ahmed v. The State 1985 SCM R 257, Mairaj Khan v. Gull Ahmed 2000 SCM R 122, The State v. Gulzar Muhammad 1998 SCM R 873, Muhammad Latif v.
Sharifan Bibi 1998 SCMR 660, Shahnaz Begum v. Hon'ble Judges of the High Court PLD 1971 SC 677, Anwar Ahmed Khan v. The State 1986 SCM R 292 and Yasin Siddiqui v. The State 2001 PCr.LJ 1331.
10. Applying the foregoing propositions to the facts of the present matter, it would be seen that the prosecution has examined a number of witnesses who have all deposed against the applicant. As far as the Investigating Officer is concerned, he has stated that he had issued notices to Benamidars/dependants of the applicant and upon enquiry it was revealed that they could not establish any known' sources of income from which they had purchased the properties in question.
In fact, at least one of them viz. Moula Bux was only a student in between the age of 18-20 years when he had acquired agricultural land as well as urban property in and around Larkana. Similarly, Mst. Badshahzadi, wife of the applicant, contributed 50% of the amount of the sale consideration for Naveed Rice Mills whereas she was only a house-wife having no source of income of her own.
However, during the cross-examination, the Investigating Officer has admitted that none of the prosecution witnesses had made any direct allegation of corruption and corrupt practices against the accused Qurban All Jatoi. So also no direct evidence was available to establish that the accused had himself accumulated the properties in the names of his sons and relatives.
11. In the circumstances of the case we are of the view that having regard to the provisions of section 14(c) of the NAB Ordinance, it cannot be said that this is a case of no evidence at all, and could never result in the conviction of the accused. Per the said section where it has been factually established that the accused or any other person on his behalf is in possession of property or pecuniary resources disproportionate to his known sources of income, which cannot be accounted for satisfactorily then the Court shall presume unless the contrary is proved that the accused person is guilty of offence of corruption and corrupt practices and his conviction, therefore, shall not be invalid solely based on such a presumption. In effect this means that the prosecution only has to establish before the Court that the accused or any other person on his behalf possesses properties beyond his known sources of income whereafter the burden of proof would shift upon the accused to prove otherwise. In our view this has been satisfactorily done by the prosecution as is readily apparent from the examination-in-chief of the Investigating Officer. Now, it is for the accused to prove that such properties, which stand in the names of his dependants/associates and other Benamidars have been acquired from legitimate resources. In this respect, reference can be made to the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 where, inter alia, the Hon'ble Supreme Court has upheld the provision of section 14(d) of the NAB Ordinance as not being in violation of the Constitution. In the said section the burden of proof has been placed on the person accused of an offence under section 9(a)(vi) and (vii) of the Ordinance viz. Misuse of authority by a holder of public office or any other person in order to gain any benefit or favor for himself or any other person or to render, or attempt to do so or wilfully fail to exercise his authority to prevent the grant, rendition of any, undue benefit or favor which could have prevented by exercising such authority. While interpreting the provisions of section 14(d) of the Ordinance, the Hon'ble Supreme Court directed that in the interest of safe administration of justice and good governance the prosecution shall first make under section 9(a)(vi) and (vii) and where such case is made to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then this would shift to the accused to rebut the presumption of guilt. In view of the foregoing observations of the Hon'ble Supreme Court as far as the interpretation of section 14(c) of the Ordinance is concerned, we see no compelling reason to give any other interpretation to section 14(c) other than what has been observed by us previously.
12. As far as Mr. Azizullah's criticism regarding the issuance of notices to the Benamidars is concerned, we find that this is not based upon the correct appreciation of the law laid down by this Court in NAB v. Zahida Sattar and Honourable Supreme Court in Zaida Sattar v. Federation of Pakistan (supra). The facts in these cases were that the Benamidars whose property had been frozen under section 12 by the Chairman, NAB, had approached this Court via civil suits praying for declaration etc. To the effect that they were the lawful owners of such properties. A learned Single Judge had entertained the suits and also framed issues as regards the ownership of these properties and had ordered evidence thereon. The NAB filed appeals against such orders of the learned Single Judge, which was allowed by a learned Division Bench of this Court on the basis that the civil suits which were filed in order to legitimize the alleged Benamidars' title over such properties were misconceived since no declaration or injunction could be given under the Specific Relief Act to stay criminal proceedings. It was also observed by the learned Division Bench that as far as the Benamidars were concerned since they were neither witnesses or accused before the learned trial Court they would be issued notices so that a proper hearing is given to them. The Benamidars went into appeal before the Honourable Supreme Court, which upheld the conclusions reached by the learned Division Bench of this Court further adding that where the accused was being tried for accumulation of wealth acquired by him by misusing of his official capacity and which was in the names of his spouse and relatives, the dispute was not of a civil nature between two private parties as there was none between the accused and his other relations/spouse, which should be adjudicated as a dispute of a civil nature by Civil Court. Hence, the trial of issues framed in such a suit by a Civil Court would amount to a trial of a criminal charge by the said Court which was the subject-matter of criminal proceedings, the cognizance of which had already been taken by the Court of exclusive jurisdiction created by the special law. Consequently, the jurisdiction of the Civil Court thus stood expressly or impliedly barred. The Honourable Supreme Court also observed that in such circumstances where no right of hearing had been given to the person at this stage affected by an order or judgment of the Accountability Court then the Benamidars would have a right to approach the Court during the trial and before passing of final judgment they would be heard. Consequently, the Court would itself summon those Benamidars and give them an opportunity to produce evidence in respect of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the said properties. In these circumstances, we cannot find any legal defect in the impugned notices, which were sent to the Benamidars by the learned trial Court. The long and the short of the matter is very simple; the accused stands charged of offences under sections 9 and 10 of the NAB Ordinance viz, that he had accumulated huge wealth and properties which were grossly disproportionate to his known and legal sources of income and these are in the names of his spouse, dependants and other Benamidars. Consequently, the accused and the Benamidars in whose name the properties stand now have to appear before the learned trial Court and establish otherwise. Such Benamidars should have no compunction or hesitancy to do so if their hands are clean and their sources of income are lawful.
13. Mr. Azizullah's next contention was that notices could only be issued to the Benamidars once the properties in question had been frozen either by the NAB Court or by the Chairman of NAB and since this has not been done to that extent also said notices were unlawful and should be struck down in view of Zahida Sattar v. Federation of Pakistan and NAB v. Zahida Sattar (supra). We have considered this argument but cannot agree with it for the simple reason that the decision of each criminal case depends upon the particular facts and circumstances thereof. In the aforementioned cases, it was the Benamidars themselves who came forward to challenge the freezing of their properties in question on the basis that they were the sole and exclusive owners thereof and the accused had nothing to do with them. Both this Court and the Honourable Supreme Court held that such enquiry could only be carried out by the NAB Court and not by a Civil Court. In the present case, the learned NAB Court itself has issued notices to the accused and directed them to come forward and establish that the properties in question were paid for from their own lawful means and not by moneys accumulated by the accused through corruption and corrupt practices. In this respect, the learned NAB Court was only following the directions issued by the Honourable Supreme Court in Zahida Sattar v. Federation of Pakistan as is readily apparent from the impugned order. As observed above the Benamidars should not have any hesitancy to approach the learned trial Court if their hands are clean which opportunity is being given to them. Consequently, we cannot subscribe to the view that such notices can only be issued once the property of the alleged Benamidars is frozen.
14. The above are the reasons for the short order passed earlier whereby this application was dismissed.