TASSADUQ HUSSAIN JILANI, J.~ This Criminal Appeal raises important questions of law which may have a bearing on cases/references where a presumption of guilt is sought to be raised In terms of Section 14(c) of the National Accountability Bureau Ordinance, 1999. These questions are as follow:-
(i) When the prosecution or the Court is justified In raising a presumption of guilt against the accused under Section 14(c) of the National Accountability Bureau Ordinance, 1999?
(ii) , What is meant by expression "known sources of income"? i.e. Known to the prosecution or the accused?
(iii) What is the value of the statement of the Investigating Officer, with particular reference to the "known sources of income"?
(iv) The law creates an exception In shifting the burden of proof on the accused when prosecution succeeds In discharging the initial burden but what is the nature of this shifted burden. Is it as onerous as is the initial burden on the prosecution?
(v) Can the Court consider mere statement of the accused under Section 342, Cr.P.C, as a proof In defence and, if so, under what circumstances?
2. The appellant Farrukh Javed Ghumman is an ex-Member of the Provincial Assembly and a former Chairman Of the District Council, Sargodha. Reference No. 18/2001 was filed against him by the National Accountability Bureau alleging that during his tenure as "holder of a public office" he acquired, In his name, In the name of his wife md his three minor children, assets and properties disproportionate to his "known sources of income". It was further alleged that he purchased certain lands but made it to appear as exchanges, The land purported to have been exchanged allegedly remained In is possession and by avoiding the sale-deed he caused loss to the public exchequer by evading the usual stamp duty on mutations of sale.
3. The Judge Accountability Court No. 4, Lahore, vide judgment dated 19th March, 2002, held that the prosecution had failed to prove the charge of evasion of stamp duty and District Council i.e but proceeded to convict him under Section 9(v) of the National Accountability Bureau Ordinance, 1999 and sentenced to three years' R.1, as also with a i.e of Rs. 1,0, 000/-. Properties mentioned In para 17 of the judgment were directed to be confiscated In favour of the State. The prosecution did not i.e appeal against the acquittal on the charge of evasion of taxes and fees.
4. The Reference filed against the appellant did not contain any allegation that the appellant had evaded District Council i.e or stamp duty and was confined to acquisition of properties only. Yet this allegation was added, while framing the charge, which is as under;- "CHARGE I, Muhammad Saleem Qureshi, Judge Accountability Court No. 4, Lahore hereby charge you:FARRUKH JAVED GHUMMAN SO(N OF DR. NASAR ULLAH fX-MPA/CH AIRMAN ZILA COUNCIL, SARGODHA, R/O 30-A SATELLITE TOWN, SARGODHA.
That during the period 1989 to 1996 when you were MPA/Chairman of Zila Council, Sargodha you indulged In corruption and corrupt practices and acquired/accumulated vast assets and properties In your name and In the name of your dependents, namely, Nargis Sultana (wife), Faisal Javed and Khan Muhammad (sons) and Zulaikha (daughter). The detail of the properties so acquired and accumulated is as follows:--
(a) Agricultural land measuring 2418 Kanals, 8 marlas at Mauza Ghous Muhammad Wala, Tehsil Bhalwal, District Sargodha acquired between 1991-95 In your own name and In the names of your wife Mst. Nargis Sultana, sons Faisal Javaid and Khan Muhammad and daughter Mst. Zulaikha.
However, vide mutation No. 42, dated 5.10.1999 you appear to have sold 581 Kanals from the said land to Mr. Qamaruzzaman Ghumman and others but the land is still In your possession.
(b) Agricultural land measuring 1861 Kanals, 19 Marlas Bekh Lurkha, Tehsil Bhalwal, District Sargodha valued at Rs. 33,28,188/- acquired between 1991-96 In the names of your wife and sons.
(c) Agricultural land measuring 69 kanals at Chak No. 105-NB, Tehsil Sargodha valued at Rs.
1,98,000/- In your own name.
(d) Agricultural land measuring 69 Kanals at Mauza Hayatpur> Tehsil Bhalwal, District Sargodha valued at Rs. 4,66,044/- with house In the name of your wife.
(e) House No. 25, on a plot measuring 3 Kanals known as Kashmir Cottage, Upper Bhikku Gali, Murree of an approximate value of Rs. 44,12,800/- purchase In 1991 In the names of your sons.
(f) Plot measuring 7 Kanals, 16- Marlas at Mauza Kamahan, Tehsil Lahore Cantt. Lahore present value In your own name and In the names of your dependents.
(g) The from able properties acquired by you was found disproportionate to your ."known sources of income" and you could not account for these properties reasonable from your known and reasonable sources of income and thus caused a loss of Rs. 3,54,068/- on account of tax on transfer. of immovable properties against fictitious mutations ta the Zila Council funds and Rs.
5,13,892/- to Government exchequer In . The shape of stamp duty and thereby you committed an offence under Sections 9, 10 of the NAB Ordinance, 1999.
Thus by either dishonest, corrupt and illegal practices committed the offence of corruption . And corrupt practices as envisaged under Section 9 of National Accountability Bureau Ordinance, 1999 and punishable under Section 10 of the same Ordinance which is within the cognizance of this Court.
AND I hereby direct that you be tried by this Court on above charge.
Dated 14.6.2001 JUDGE ACCOUNTABILITY COURT NO. 4, LAHORE.
5. In support of the charge, the prosecution examined fourteen witnesses and 1306 documents were produced. PW1 is Muhammad Abdullah, Patwari, Halqa Chak No. 86 Shimali, Tehsil and District Sargodha. He produced attested copies of the mutations of Khasra Nos. 438 to 436 (Exh. PW-1-9).
The afore-referred mutations were exchanges. The Government, according to him, suffered a loss of Rs, 2,0, 000/- out of these exchanges. PW2 is Muhammad Shafqat, Patwari Halqa Bonga Minhas, Tehsil and District Sargodha. He alleged that lhatas Nos. 32, 33, 34, 37 and 38 were owned by other persons and appellant Farrukh Javed Ghumman had only 2 Kanals, 7 Marlas In these lhatas and his wife and 'children were, however, not the owners. Some transfer of portion of these lands had been shown In the exchange with land In Mauza Ghaus Muhammad Wala but nobody from the said village was In occupation of any Ihata. PW 3 is Muhammad Ashraf, Patwari, Revenue Circle *105- Shimali, Tehsil and District Sargodha. He produced attested copies of Mutations Nos. 155(Exh.PW- 3/1), 156 (Exh.PW3/2), 157 (Exh. PW-3/3) 158 (Exh. PW- 3/4), 159 (Exh.PW3/5), 162 (Exh. PW3/6) 163 (Exh.
PW3/7), 164 (Exh. PW3/8), 165 (Exh. PW3/9, 166 (Exh.PW3/10), 197 (Exh.PW3/11), 195 (Exh. PW3/12), 170 (Exh.PW3/13), 169 (Exh.PW3/14), 178 (Exh.PW3/1 5), 179 (Exh.PW3/16), 180 (Exh.PW3/17), 182 (Exh.PW3/18). These were mutations of exchange of 138 kanals of land In lieu of 69 kanals of land.'
However, he alleged that these mutations were cancelled. The value of the property which the appellant got In exchange was rupees thirteen lac whereas the value of the property that he gave or relinquished was rupees ten lac. He alleged that on account of these transfers the Government loss was of rupees two lac. PW4 is Muhammad Nawaz, Patwari. Halqa Behr Lurrkan, Tehsil & District Sargodha. He produced copies of Mutations Nos. 400' 491, 494, 495, 505, 671, 672, 673, 701, 702, 713, 509, 496 and 563, Exh. PW-4/1 to Exh. PW-4/14. According to him through these mutations 703 kanals, 11 marlas of land In village Ghaus Muhammad wala and Chak No. 104 Shimali was acquired In exchange, ln these exchanged mutations the District Council i.e was not paid and there was a loss of Rs, 2,29,000/- to the public exchequer. PW 5 is Mukhtar Hussain, Patwari Halqa Hayatpur, Tehsil and District Sargodha. He produced Mutations Nos. 148 and 150 (Exh. PW 5/1 to Exh. PW-5/12).
PW6 is Atta Muhammad, Patwari Halqa Behk Lurrkan, Tehsil Bhalwal, District Sargodha. He produced .Copies of Mutations Nos. 510, 692 and 659 (Exh. PW 6/1 to Exh. PW6/3). He admitted In cross- examination that as per the mutations, the i.e leviable had been paid and that he did not receive any complaint In this regard. PW7 is Malik Nazim Hussain, Tehsil Municipal Officer, Khanpur, District Rahfmyar Khan. He produced relevant record In respect of Plot No. 25, Ghumman House, Upper Jheaka Gali Road, Murree. PW8 is Saadat Heroon Abbasi, Tax Superintendent, Municipal Committee, Murree. He also produced record pertaining to Plot No. 25, Upper Jheaka Gali Road, Murree. PW9 is Khushi Muhammad, Sub-engineer, Municipal Committee, Murree. He prepared the evaluation certificate In respect of House No. 25, Ghumman House, Upper Jheaka Gali Road, Murree. Rana Javed Iqbal, Tehsildar, Tehsil Sargodha appeared as PW 10. He prepared report (Exh.
PW-10/1) In respect of lhatas Nos. 55, 67, 32, 33(half), 34 (half), 37 and 38 of Chak No. 104 Shimali.
Allah Bakhsh, Subengineer, Local Government and Rural Development Department, Sargodha appeared as PW11. He tendered In evidence -report (Exh. PW-11/1 to Exh. PW11/8), PW12 is Qaisef Karim, Inspector Excise & Taxation, Lawrence Road, Lahore. He produced PT1 as Exh. PW12/1. Yaqoob Elahi Joyia, ex-SDO, Buildings Department, Sargodha appeared as PW13. He reported about the cost of construction raised by Farrukh Javed Ghumman (Exh. PW 13/1). PW14 is Muhammad Yasin, Investigating Officer/Judicial Magistrate, Sargodha. According to him, the agricultural income from 1 986 to 1991 was Rs. 24,15,845 assessed from "Jhar Paiawar" pertaining to the same years. The expenditure incurred by the appellant during this period, according to him, was Rs. 8,05,282/- and the net income came to Rs. 16,10,563/-. He gave details of the properties and assets acquired by the appellant, ln cross-examination he conceded that he did not record statements of the parties who had exchanged the land with appellant's wife; that he did not record the statements of the persons who had exchanged and with the appellant's son Faisal Javed; that he also did not record the statements of Saadat Pervaiz and Haroon Rashid who were posted as Tahsildars at the relevant time when the mutations of exchange were attested; that he did not record the statement of Khan Muhammad, the minor son of the appellant who had allegedly exchanged the land with some other person; that he did not record statement of any one with regard to the possession of the land which was given In exchange by the appellant or his sons nor did he record statement of the concerned Revenue Officer. He further conceded that "no notice had been issued by the District Council to the accused or his family members for the payment of the alleged loss". He volunteered that the appellant was himself the Chairman of the District Council from 1986 to 1992. He admitted that he did not associate the appellant's wife or his sons with the investigation as, according to him, she was Pardanasheen lady and when he was confronted by the learned defence counsel that she was present during cross-examination which he admitted. He candidly admitted that there were properties inherited and purchased by the appellant prior to the assumption of the office relevant portion is as under:- "..... According to the revenue record, the accused got 210 kanals of agriculture land by his father through "Hiba" In Chak No. 104 Shimali. It is incorrect that the land In Chak No. 104, 105 and Dhareema are the best land. The land owned by the accused are canal irrigated In Chak No. 104 Shimali. The land owned by accused In Village Dhareema are semi-canal irrigated and semi- waterlogged area, It is incorrect to suggest that the accused sold his land In Village Dhareema In 1998. (Volunteers that this land was exchanged with a house), ln the year 1973, the accused purchased 105 kanals In village 104 Shimali. In the year 1977, he purchased 36 kanals of land In 104 Shimali. Similarly about 66 kanals of land was purchased by him In 1984 In Chak No: 104 Shimali. He got 109 kanals of land In inheritance In the year 1989. In the year 1977-78, he purchased about 420 kanals of land In village Dhareema. Perhaps In the year 1979, he purchased 127 kanals of land In village 105 shimali In the name of his son Faisal Javed. He purchased 62 kanals of land In the name of his son Faisal Javed In the year 1975-76. It is not In my knowledge that father ,of the accused also, owned land In District Khushab. It is correct that the accused, his wife, sons and daughter did not purchase any urban or agriculture land from 1980 to 1988. (Volunteers that he was Chairman of District Council, Sargodha In the year 1988 and thereafter he made property through illegal means). He was Member Provincial Assembly Punjab for the first time In the year 1985. It is correct that he did not hold public office before 1985 and did not serve as a Government servant."
He admitted that the produce determined at the time of settlement is mentioned In "Jhar Paidawar Bandobasti". He did not' know that last settlement In District Sargodha was conducted In the year 1916. He admitted that "Jhar Paiawar" of the appellant and his family was prepared In accordance with the "Jhar Paidawar Bandobasti" referred to above. He further admitted that there were kino orchards on appellant's land. He neither admitted nor denied that the income of the appellant from 1990-1996 was Rs. 68,00,000/- from the land In Mauza Ghaus Muhammad wala; that the total net income of the appellant and his son for the year 1980- 1991 from the land situated In Chak Nos. 104 and 105 Shimali and Dhareema was Rs, 82,00,000/- and that of his son Faisal for the period 1992-96 from the land In village 104-Shimali was Rs. 26,00,000/-. He admitted that he did not inquire during investigation about the salary and the allowances which the appellant received as Chairman of the District Council during the period In question as also the salary he received as Member of the Provincial Assembly from 1985-1988 and from 1990-1996. He showed his complete ignorance that the appellant had a Dairy Farm In Chak 104 Shimali and that the appellant obtained a loan of Rs.
2,60,000/- from the Punjab Small Industries Corporation for the said Dairy Farm and that the income of the Dairy Farm for the year 1988-94 was Rs. 42,00,000/-.
6. The appellant when examined under Section 342, Cr.P.C, denied the prosecution case. According to him, he remained as Chairman of the District Council .Sargodha and Member of the Provincial Assembly. He was MPA from 1985 to 1988, was again elected as MPA fr6m 1990-1993 and from 1993- 1996. From 1988 to 1992 he remained as Chairman of the District Council Sargodha. He did not deny the acquisition of properties In the names of his wife, two sons and a daughter. He admitted to have acquired 2418 kanals 8 marlas of land but added that ,2308 kanals was acquired through exchange whereas the remaining 1209 kanals, 10 marlas was purchased by him. He added that vide Mutation No. 42, dated 5.10.1999 he sold 581 kanals to one Qamaruzzaman for a sum of Rs.
7,30,000/-. He denied that the possession of the said land is with him. He admitted that he acquired land measuring 1861 kanals 19 marlas In Mauza Behk Lurrkan valued Rs. 33,28,188/- In the names of the wife and two sons. 1541 kanals, 19 marlas, out of the [Xxxiii said land, was acquired through exchange whereas the remaining 320 kanals was purchased for a sum of Rs. 6,84,000/-. He admitted acquisition of land In Chak No. 105 Shimali, a Plot In Jheaka Gali Murree and the construction of house on the said plot for which he spent Rs. 15,00,000/-. He also admitted to have purchased 7 kanals, 16 marlas of land In his name and In the names of his dependents In Mauza Kamahan Tehsil Lahore for a sum of Rs. 1,56,000/- but denied that he ever evaded any stamp duty.
He further admitted having acquired 1136 kanals, 16 marlas In Mauza Ghaus Muhammad wala In exchange for 4 kanals of land In Chak No. 104 Shimali. He, however, clarified that the land given by him In exchange In Chak 104 Shimali was much superior as compared to the land received In exchange In Mauza Ghaus Muhammad wala and from Chak 104 Shimali. He alleged that the evaluation certificate and the details regarding the plot and house constructed In Jheaka Gali Murree, referred to above (Exh. PW-11/1 to Exh. PW-1/10) are incorrect. He disputed the assessment of agricultural income made by the Investigating Officer as, according to him, the same was based on Jhar Bandobasti which was carried out In Sargodha In the year 1916 which was no longer relevant. He gave details of the income received from the land held by him, his wife, his sons and daughter. He also gave details of the salary received by him as MPA from 1985 to 1988, 1990 to 1993 and from 1993 to 1996 which was not considered by the Investigating Officer. Similarly, he gave a break-up of the salary that he received as Chairman District Council, Sargodha from 1988 to 1992. A gist of the other details of the properties and the assets acquired during the period In question has been given by the learned Trial Court at page 127 of the impugned judgment which is as under:- .... About the land measuring 4517 kanals, 3 marlas worth Rs. 1,07,13,577/- from the period 1989 to 1996, he stated that the land In question was acquired by him but out of it 3849 kanals of land was acquired through exchange whereas 109 kanals, 10 marlas of agricultural land was purchased In village Ghous Muhammad wala, District Sargodha for Rs. 1,35,000/-. He states that 320 kanals of agricultural land was purchased by him In village Behk Lurrkan for Rs. 6,84,000/-. 180 kanals agricultural land was purchased by his wife In village Hayatpur for Rs. 80,000/- 69 kanals of agricultural land was purchased In Chak No. 105-Shimali for Rs. 1,98,000/- and 7 kanals 15 marlas of agricultural land was purchased In village Kamahan, District Lahore for Rs. 1,54,000/-. According to him, the total price of the land purchased by him and his whole family during this period was Rs.
12,53,000/-. The acquisition of 2418 kanals, 8 marlas land In village Ghous Muhammad wala has been admitted by him, however, he contends, out of this land 2308 kanals of land was got In exchange whereas the remaining land measuring 109 kanals, 9 marlas was purchased. He states that 581 kanals of land was sold to Qamar-uz-Zaman. About the alleged fictitious exchange mutations, he states that 1541 kanals of land was acquired through exchange from the village Behk Lurrkan was acquired through purchase. He termed it as absolutely incorrect that the land acquired through exchange is In fact sale. He contends that there is no evidence whatsoever to show that the lands In question were actually purchased. About the land mentioned In Mutations Nos. 1, 2 and 6 and that village Ghous Muhammad wala, he stated that no land was received back by them through mutations Nos. 701, 702 and 713. He states that the land from village Ghous Muhammad wala was given In exchange through Mutations Nos. 1, 2 and 6 and In lieu of the land given from village Ghous Muhammad wala, this land was obtained In exchange through Mutations Nos. 701, 702 and 713 from village Bekh lurrkan. He states that the possession of land In village Ghous Muhammad wala is still with those persons to whom it was given In exchange. Regarding the evidence of PWs, he stated that all the witnesses are Government servants who are under the pressure of NAB authorities. He contends that the I.O. Is posted In Sargodha Division for the last 11 years who is being patronized by his political opponents and therefore, he has deposed falsely against him. He states that because of his outstanding political career and strong family background he was a very strong candidate for District Nazim, Sargodha but the authorities In power did not like him to contest the elections. He alleges that the authorities wanted him to support their nominee Ghiyas Ahmad Mela, a close relative of a very senior Army Officer. He alleges that the rival candidate belongs to "Ham Khiyal Group" of Pakistan Muslim League and on his refusal to succumb to the pressure of the authorities, he has been falsely implicated In the instant case with a mala fides intention. He declined to make his statement on oath u/S. 340(2), Cr.P.C. He states that he belongs to an established and well-known family of District Sargodha and that his grandfather late Khan Muhammad was a known landlord of District Sargodha. He states that In the year 1906-7, his grand-father was allotted 4265 kanals agricultural land under "Ghoripal" scheme In village 104-Shimali. He states that his father late Dr. Nasrullah Khan did his MBBS In the year 1940 from the Punjab University and initially he remained In the. Royal Army but after partition of the Sub-continent he started his private practice In Sargodha. He further states that In the year 1955, about 8 kanals of land was allotted to his father In Sargodha Town, whereupon he constructed a house consisting of 20 rooms. According to him, his younger brother Dr. Samar Pervaiz is also an MBBS doctor whose wife too is a doctor and they both are practicing In the clinic established by his late father. According to him, he has kinoo/orange orchards spreading over an area of 880 kanals approximately and the present minimum income from one acre of kinoo orchard is about Rs. 50- 60 thousand. He alleges that the I.O. Did not collect any evidence In this regard with a .Mala i.e intention. He states that he and his brother are residing In a house which was constructed by their father about 40-45 years back and that he has got no other house In Sargodha or any other Town In Pakistan except the house In Jhil^a Gali Murree which is In the name of his sons Faisal and Khan Muhammad. He does on to state that real brother of his father was a Brigadier In Pakistan Army who was posted as Director General, Faisalabad Development Authority after retirement from Army. According to him, his father became Lamberdar of Chak No. 104-Shimali, Sargodha and was allotted 277 kanals of land through Mutation No. 368 In the year 1959. He produced certified copies of Mutation Ex. DD. He states that In the year 1959, his father purchased 123 kanals agricultural land In village 104-Shimali through mutation No. 401 Ex. DE. According to him, his father also purchased 11 kanals agricultural land In Chak No. 104-Shimali through Mutation No. 401 Ex. DF. He contends that his father also purchased agricultural land measuring 400 kanals In Tehsil Khushab through Mutations Nos. 86 and 87 Ex.DG and Ex.DH respectively. He further states that In the year 1961, his father gifted 219 kanals agricultural land to him which is situated In the village 104-Shimali through Mutation No. 414 Ex.DJ. According to him, he purchased 105 kanals of agricultural land In village 104- Shimali through Mutation No. 529 Ex.DK. He states that he and his mother' purchased agricultural land measuring 181 kanals, 10 marlas In village 104-Shimali through Mutations Nos. 581 and 582 Ex.DL and Ex.DM In the year 1976. According to him, he purchased 62 kanals of agricultural land In the name of his son Faisal Javed In the year 1979 In village 104-Shimali, Sargodha through Mutation No. 592 Ex.DN, According to him, he and his younger brother purchased 133 kanals of agricultural land In Chak No. 104-Shimali, Sargodha. He states -that agricultural 'land measuring 100 kanals was allotted to his father under "Mawaish'i Pal" scheme. He states that he purchased 219 kanals of land In village 105-Shimali In the year 1968. He produced certified copy of "Jamabandi" for the year 1970- 71 as Ex.DO. In the year .1979, he purchased about 127 kanals In village 105-Shimali In the name of his son Faisal Javed through Mutation No. 85. He produced the certified copy of Jamabandi for the year 1978-79 Ex.DP. He states that he purchased 420 kanals In village Dhareema In the year 1976 through Mutation No. 417 Ex.DQ and No. 418 Ex.DR. He states that he got 109 kanals, 5 marlas agricultural land through mutations of inheritance No. 779 Ex.DS. According to him, he is also cultivating agricultural land In village 104 Shimali on lease....."
7. In support of the statement made under Section 342, Cr.P.C., the appellant produced 9 witnesses In defence DW1 is Mr. Muhammad Hafeezullah Butt, Accounts Officer, Zila Council, Sargodha, DW2 is Mr. Faiz-ul-Basit, Assistant Secretary, Budget and Accounts, Provincial Assembly Punjab, Lahore DW3 is Mr. Muhammad Zaman, Agricultural Inspector, Chak 104-Shimali, Sargodha DW4 is Tajjamul Hussain Chatha, District Officer, Agricultural Extension, District Sargodha, DW5 is Qaiser Mehmood, Assistant Director, Punjab Small Industries Corporation, Sargodha, DW6 is Dr. Abdul Hameed, Deputy Director/Deputy District Livestock Officer, Sargodha, DW7 is Nasrullah Khan, Office Kanungo, Tehsil Office, Sargodha DW8 is Amir Khalid, Office Kanungo, Tehsil Bhalwal, District Sargodha while DW9 is Muhammad Akram Bajwa, a retired Government servant appeared as.
8. Learned counsel for the appellant, In support of this appeal, made following submissions:-
(i) That the initial burden of proving the case as on the prosecution and it had to prove, firstly, that the appellant had acquired properties and assets In his name and In the names of his dependent family members and, secondly, those properties were beyond appellant's known sources of income. The prosecution did succeed In proving the first part i.e. The acquisition of properties but it has failed to adduce any evidence of appellant's "known sources of income";
(ii) That the appellant does not deny the acquisition of assets and properties In his name, and In the name of his wife, sons and a daughter but the same were acquired through bona i.e transactions and out of the appellant's own income which has duly been explained In statement under Section 342, Cr.P.C, and the evidence led In defence;
(iii) The allegation that the agricultural land had been acquired through fake exchange is incorrect as the mutations remained intact, no transferee of the land appeared either during investigation or In Court to indicate that the transfers were fake;
(iv) That even if the prosecution evidence with regard to the income and expenditure is accepted, even then the acquisition of properties brought on record can be explained reasonably In view of the evidence of income led by the appellant;
(v) That the learned Trial Court has rendered the judgment on conjectures and surmises and the same is not In accord with the weight of evidence led by the prosecution and the defence;
(vi) That the alleged Benamidar, appellant's wife, his two sons and minor daughter, on whose names, some of the properties were listed, were not associated With the investigation at any stage which has led to a Miscarriage of justice.
9. Learned counsel for the National Accountability Bureau, while defending the impugned judgment, submitted that the prosecution case has been proved beyond doubt; that the prosecution was only to prove the acquisition of properties and once this onus had been discharged, it was upon the appellant to prove that those properties had been purchased through bona i.e means. He added that it is In evidence that the value of the properties and assets acquired by the appellant In his name and through Benami transactions was much more than his "known sources of income". On the "known sources of income" he contended that the evidence of the Investigating Officer would be sufficient and the Court has to rely upon him In absence of any enmity attributed to him. He lastly added that the statement of the appellant recorded under Section 342, Cr.P.C, is not part of the evidence led and is not sufficient to discharge the burden of proof which stood shifted on the appellant; that some of the witnesses produced In defence are government officials and they had been won over by the appellant for dishonest reasons.
10. The learned Trial Court disbelieved the prosecution evidence regarding evasion of stamp duty and while acquitting the appellant of the said charge, it held as .Under:-- "(16) So far as the allegations of evasion of stamp ,duty and District Council i.e is concerned, the prosecution has not been able to' substantiate its contention by any cogent evidence. There is no evidence by the prosecution to show that no sale took place or any attempt was made by the accused to avoid payment of stamp-duty or the District Council i.e. It is pertinent to mention here that neither the Government nor the District Council ever issued any notice to the accused about the evasion of the stamp duty or District Council i.e. Had he been a defaulter, the concerned departments would have certainly taken notice of it and a notice In writing would have also been issued to him requiring to make payment. The failure on , the part of the Government or the District Council tends to prove the contention of the accused that neither any stamp duty nor any District Council i.e is outstanding against him."
11. The 'appellant was convicted on the sole charge of acquisition of assets and properties disproportionate to his "known sources of income" within the meaning of clause (v) of sub-section
(a) of Section 9 of the National ..Accountability Bureau Ordinance, 1999 which reads as under:- "9(a)(v). If he or any of his dependents or Benamidar owns, possesses, or has any right or title In acquired assets or holds irrevocable power-of attorney In respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income."
12. The evidentiary requirement to prove the afore referred charge is couched In Section 14(c) of the said Ordinance which stipulates as follows:- "14(c). In any trial of an offence punishable under clause (v) of sub-section (a) of Section 9 of this Ordinance, the fact that the accused person or any other persons on his behalf, is In possession, for which the accused person cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or assets for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his. Conviction thereof, shall not be invalid by reason only that it is based solely on such a presumption."
13. The afore-referred provision, thought not unknown In special laws, is a deviation from the age old principle of the law of evidence that an accused is presumed to be innocent unless proved otherwise by the prosecution. Here a presumption of guilt has been raised against the accused. But this begs the following three questions raised In para 1 of this judgment:-- QUESTIONS NO. (i) TO (iii):
(i) When the prosecution or the Court is justified In raising a presumption of- guilt against the accused under Section 14(c) of the National Accountability Bureau Ordinance, 1999?
(ii) What is meant by expression "known sources of income"? i.e. Known to the prosecution or the accused?
(iii) What is the value of the' statement of the Investigating Officer, with particular reference to the "known sources of income"?
14. The presumption raised, we-have to bear In mind, is a qualified one i.e. The Trial Court would be justified In raising this presumption only when the prosecution succeeds In proving the basic ingredients of the charge. Thus the initial burden continues to be on the prosecution. To substantiate the charge, the prosecution has to prove the following facts:-
(i) The accused or any of his dependents or Benamidar own, possess or has a right or title In assets or holds irrevocable power-of attorney In respect of assets;
(ii) What are the "known sources of income" of the accused?
(iii That the assets and properties acquired are disproportionate to the "known sources of income" of the accused.
15. The expression "known sources of income" means the sources of income known to the prosecution after thorough investigation of the case. Obviously the prosecution is not expected to know every detail of the income of the accused. But to bring a charge against some one under the law under consideration, the prosecution has to give details of the "known sources of income", compare it objectively with the assets etc., and only In case of the latter being disproportionate, can it i.e the reference. If the accused is holder of a pubic office his salary, his allowances and other privileges like transport etc. Are part of his known sources of real income. If he happens to be a land owner aa well, the agricultural income has to be included In his income, It is the duty of the Investigating Officer to thoroughly inquire into the "known sources of income" of the accused and the latter has to be given full opportunity In this regard. Assessment of agricultural income may not be an easy task for the Investigating Officer for more than one reason. Firstly, In our rural culture book keeping is rarely done, secondly, there is no compulsion either as it is not a taxable income, thirdly, even if some one does it, he is not expected to maintain the record for a decade and, fourthly, when the accused was holder of a public office, it was not an offence and he was not obliged to maintain the account of it for rainy days.
16. The only mode recognized In revenue law to assess the agricultural income of an estate or an individual is provided In rule 3 of the West Pakistan Land Revenue Assessment Rules, 1968 which reads as under:-
3. Estimate of net assets based on rents In kind.- (1) An estimate of net assets as defined In clause
(16) of Section 4 shall be framed on the basis of rent, kind, paid by tenants-at-will, prevailing In the estate of group of estates, under consideration. (2) The accurate calculation of this estimate depends on the following factors:-
(i) the average acreage of each crop, on each class of land, for which it is proposed to frame separate rates;
(ii) the average yield, per acre, of each crop so grown, for which .Rent is taken by division of produce;
(iii) the average price obtainable by agriculturists for each of the crops referred to In item (ii); and
(iv) the actual share of the gross produce, received by land-owners In the case of crops which are divided and the rent payable on zapti crops.
From (i),! (ii) and (iii) above, an estimate shall be made of the value of the annual gross produce of the estate or group of estates, In question.
From that estimate and (iv) above, an estimate shall be made of the annual value of the land- owner's share of that produce or not assets."
17. The prosecution never bothered to undertake the afore-referred exercise either during investigation or trial and when this Court confronted the learned Special Prosecutor for NAB with the afore-referred rules, he was In no position to deny its relevance and, to our utter regret, the rules came as a surprise to him.
18. The prosecution did, however, succeed In establishing the first limb of the charge .i.e. Acquisition of assets and properties. The appellant admitted having acquired those assets. To prove the second limb of the charge i.e. "known sources of income", the only witness produced by the prosecution, and it was conceded by the learned Special Prosecutor for NAB, as PW14 Muhammad Yasin, the Investigating Officer. According to this witness the agricultural income of the accused from 1986 to 1991 was Rs. 24,15;845/-, the expenditure, incurred during this period was Rs. 8,05,282/- and not income was Rs. 16,10,563/-. This was seriously objected to by the learned defence counsel during trial because, the documents/material on the basis of which the Investigating Officer made that assessm ent were not proved by the prosecution. The Investigating Officer sought to defend this assessm ent on the basis of "Jhar Paiawar" from 1986 to 1991. The document with regard to "Jhar Paiawar", was never brought on record. He conceded that it was a document prepared, at the time of settlement to determine the produce of the land, ln answer to a question, he failed to tell the year In which the settlement was carried out In Sargodha and when the "Jhar Paiawar" was prepared.
19. This lacuna In the prosecution case could not be filed by the statement of the Investigating Officer. His testimony was of no avail for proving the "known sources of income". Rather it further exposed the infirmities of the prosecution case In the following ways:-
(i) He admitted that there were kino orchards on the land of the appellant but, he made no efforts to assess its income and conceded that he did not record the statement of any lease holder who obtained the said "kino" orchard on lease, nor of any official of the Agricultural Department about that;
(ii) He admitted that the appellant remained Chairman of District Council, Sargodha from 1989 to 1992 but he made no efforts to know how much salary or honoraria and allowances were paid and what facilities he enjoyed In the said capacity. Similarly, he conceded that he did not enquire into how much salary, honoraria and allowances were paid to the appellant during the period he remained an MPA i.e. From 1985 to 1990 and 1990 to 1996;
(iii) He showed his ignorance that the appellant had a dairy farm In Chak No. 104 and that the appellant obtained a loan of Rs. 2,60,000/- for the said farm from Punjab Small Industries Corporation;
(iv) He did not record the statements of the appellant's wife, his two sons and daughter, qua the properties In their names which are part of the charge-sheet and their respective incomes;
(v) The statement of the Investigating Office his admissible and is relevant only In so far as he collect the material which is to be produced as evidence during trial and records statements of those witnesses who ultimately depose In Court. However, during trial he cannot be a substitute for any of the above piece of evidence. He cannot prove a document of which he is not the author, nor play proxy to the witnesses who are not produced during trial without any cogent reason. His statement, In the afore-referred circumstances, is merely an' opinion, -which is both irrelevant and inadmissible. This is In line with the law laid down by the august Supreme Court In Moonda and others v. The State (PLD 1958 SC Pak. 275) and Farman Ali and 2 others v. The State (1992 SCM R 2055).
20. Although the prosecution failed to discharge the initial burden of proof yet the learned Trial Court convicted the appellant not on the basis of any piece of evidence indicating that the appellant had properties which were not commensurate with the "known Sources of income" brought on record but on an inference drawn by the Trial Court from mutations of exchange, ln para. 15 of the judgment, it held as under:- ..... No implicit reliance can be placed on the statements of the DWs as they are nothing more than self-serving statements. No doubt it is established that the accused belongs to a feudal-lords family of Sargodha but this fact by itself is not sufficient to absolve him of his responsibility to discharge the onus placed upon him. If it is conceded for the sake of arguments that he was possessed of sufficient means to purchase the agricultural land In his name and In the names of his dependents but there is no plausible explanation with him about the shady transactions of exchange, It is pertinent to note that there are no corresponding mutations of "exchange In respect of certain lands and In some cases, the corresponding mutations of exchange were either rejected or cancelled, It is not out of place to mention here that the possessions of lands which are shown to have been transferred In exchange are still with the accused. This shows that these transactions of exchange are of dubious character and are mere sham transactions "
21. In absence of any evidence on record to indicate that mutations of exchange were actually sales and the lands shown to have been given In exchange remained with the appellant, the finding that those were "shady transactions" was rather conjectural. Even if those were actually sales, the object to show them as exchanges could be different i.e. It could be to avoid the pre- emption suits, and In any case the conclusion drawn that the acquisition of those properties was.
Disproportionate to income is not borne out from the evidence led by the prosecution. The accused did explain In detail about the sources of his income and led oral and documentary evidence to prove that. The evaluation of the evidence led by him would bring us to the remaining two questions [(iv & (v)J formulated In the first paragraph of this judgment.
QUESTIONS fice) & (v):
(iv) The law creates an exception In shifting the burden of proof on the accused when prosecution succeeds In discharging the initial burden but what is the nature of this shifted burden. Is it as onerous as is the initial burden on the prosecution?
(v) Can the Court consider mere, statement of the accused under Section 342, Cr.P.C, as a proof In defence and, if so, under what circumstances?
22. When the prosecution has succeeded In discharging its initial burden of proof and the accused has failed to "satisfactorily account" for the same-, then the Court has to raise a presumption "unless contrary is proved" that the accused is guilty of the offence with which he has been charged. The expression "proved" is defined In Article 2(4) of the Qanun-e-Shahadat Order, 1984 which reads as under:- "2(4). A fact is said to be proved when, after considering the matter before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists".
23. A mere denial by the accused In a statement under Section 342, Cr.P.C, or even a plausible explanation may not be enough to prove "the contrary" within the meaning of Section 14(c) of the National Accountability Bureau Ordinance, 1999 or to discharge the onus which stands shifted on the accused under the provision under consideration In C.S.D. Swami v. The State (AIR 1960 S.C. 7), the Supreme Court of India was called upon to decide a case under the Prevention of Corruption Act and an analogous provision In the said Act was commented upon by the said Court, at page 10, which reads as under:- "Reference was also made to cases In which Court had held that if plausible explanation had been offered by an accused person for being In possession of property which was the subject- matter of the charge, the Court could exonerate the accused from criminal responsibility for possessing incriminating property, ln our opinion, those cases have no bearing upon the charge against the appellant In this case, because the section requires the accused to "satisfactorily account" for the possession of pecuniary resources or property disproportionate to his known sources of income.
Ordinarily, an accused person is entitled to acquittal if he can account for honest possession of property which has been proved to have been recently stolen. The rule of law is that if there is a prima facie explanation of the accused that he came by the stolen goods In an honest way, the inference of guilty knowledge is displaced. This is based upon the well-established principle that if there is a doubt In the mind of the Court as to a necessary ingredient of an offence, the benefit of that doubt must go to the accused. But the Legislature has advisedly used the expression "satisfactorily account". The emphasis must be on the word "satisfactorily account" and the Legislature has, thus, deliberately case a burden on the accused not only to offer a plausible explanation as to how he came by his large wealth, but also to satisfy the Court that his explanation was worthy of acceptance." ln Rameswa r Prasad Upadhya v. State of Bihar (AIR 1971 SC 2474)while considering the analogous provision of Section 5(3) of the Prevention of Corruption Act, the Indian Supreme Court held as under:-- '
"Upon proof of the disproportion mentioned In sub-section (3) the onus falls upon accused to ' account satisfactorily the acquisition of property's and pecuniary sources held of possessed by him. That onus is not as strides the initial onus on the prosecution which has first to establish the disproportion between the properties held by accused and the known sources of his income. But where from the facts the disproportion was not satisfactorily explained by the accused it could not be said that excessive burden was thrown on him to explain the disproportion."
24. The statement of the accused, nevertheless, cannot be brushed aside. The combined effect of Sections 9($(v), 14(c) and Article 2(4) of the Qanun-e- Shahadat Order would be that the statement/plea of the accused may be considered and treated as evidence for rebutting the presumption raised. However, that by itself would not be sufficient to rebut the presumption raised.
The presumption can only be rebutted if the statement of the accused is considered along with other circumstances/evidence brought on record provide sufficient proof within the meaning of Article 2(4) of the Qanun-e-Shahadat Order.
25. The learned Trial. Court gave a gist of the statement of the appellant recorded under Section 342, Cr.P.C., made a reference to the evidence led In defence but did not consider the same and without any cogent reason refused to extend any credence to the same by holding "that no implicit reliance can be placed on the statement of the DWs as they are nothing more than self-serving statements". The approach adopted by the learned Trial Judge was neither In accord with the mandate of law nor with the well-established principles of appreciation of evidence.
26. The appellant In his statement under Section 342, Cr.P.C, gave an explanation that he acquired these properties out of his own income, ln this connection he referred to his agricultural income for which purpose he produced "Takhmeena Aaman" prepared by the Revenue Officers under the West Pakistan Land Revenue Assessment Rules, 1968, the income from his "kino" orchards, the salary and honoraria that he received as Member of the Provincial Assembly and as Chairman of the District Council from 1985 to 1996 and 1989 to 1992 respectively. The oral and documentary evidence led to prove income, beside appellant's own statement, was as under:- Sr.# Names of Witnesses Source of Income
1. DW1 is Mr. Muhammad Hafiz Ullah Butt, Accounts Officer, Zila Council, Sargodha. Rs. 2,77,500/- as honoraria and house rent as Chairman Zila Council Sargodha from 1986 to 1992.
2. DW2 is Mr. Fazul Basit, Assistant Secretary, Budget and Accounts, Provincial Assembly Punjab, Lahore. Rs. 15,72,525/- as salary and allowances during the period 1985 to 1988, 1990 to 1993 and 1993 to 1996.
3. DW3 is Mr. Muhammad Zaman, Agricultural Inspector, Chak 104-Shimali, Sargodha. The "kino" orchards of the appellant as an average lease money per acre from Rs. 40,000/- to Rs. 80,000/- and twenty years back it was from Rs. 10,000/- to Rs. 15,000/- per acre.
4. DW4 is Tajjamul Hussain Chatha, District Officer, Agriculture. Extension, District Sargodha. The appellant stood first In the "Grow More Wheat Contest" as he had yielded per acre average as 67.37 mounds during the year 1992.
5. DW5 is Qasir Mehmood, Assistant Director Punjab Small Industries Corporation, Sargodha. The appellant had obtained a loan facility amounting to Rs. 2,60,000/- for the establishment of Ghumman Dairy Farm .In Chak 104 Shimali, Sargodha.
6. DW6 is Dr. Abdul Hameed, Deputy Director/Deputy District Livestock Officer, Sargodha. He prepared the feasibility report for the year 1996 regarding Ghumman Dairy Farm.
7. DW7 is Nasrullah Khan, Office Kanungo, Tehsil Office, Sargodha.
(i) * The income of the appellant and his family from Rabi 1980 to Kharif 1992 from land situated In Chak No.104 Shimali Sargodha was Rs.76,49,840/-.
(ii) From Rabi 1980 to Rabi 1991 from land situated In Chak No. 105 Shimali net income was Rs.
2,13,216/-.
(iii) From Kharif 1984 to Rabi 1988 net income from the land situated In Chak Dliereema was Rs.
6,57,552/-.
(iv) From Rabi 1993 to Kharif 1996 from the land situated In Chak No. 104 Shimali was Rs. 22,08,632/- ln support of the afore-referred figures the DW produced Exh. DOO, DTT, DZZ, DLL, DYY, DRRR, DUUU, DRR, DXX, DCCC, DJJJ, DOO, DBBBB, DKKKK, DOOOO, DV, DX to DHH and DSSSS.
(i)
8. DW8 is Amir Khalid, Office Kanungo, Tehsil Bhalwal, District Sargodha. Net income from Rabi 1991 to Rabi 1996 from the land situated In Chak Behk Lurka was Rs. 12,38,652/-.
(ii) Net income from Rabi 1991 to Rabi 1996 from Chak Ghous Muhammad wala was Rs. 55,59,961/-.
9. DW9 is Muhammad Net income Akram Bajwa, a retired assessed from Government Ghumman Dairy Servant/Veterinary Farm from 1988 to Graduate from 1994 was Veterinary College, Rs.40,84,165/-.
Lahore. According to DW9 the net income of the appellant from his Dairy Farm (for the period 1988 to 1994) was Rs. 40,84,165/- but In his cross-examination, he conceded that he based his information not on any document but on the information supplied to him by the appellant. This assessm ent made by him is not worthy of any credit and the same is excluded. The total net income after this deduction would be Rs. 1,93,77,889/- (Rs. 2,34,62,054/-Rs. 40,84,165/-, Rs.
1,93,77,889).
The break-up of the total value of assets and properties owned by the appellant, as per the prosecution case, is as under:-- S. No DESC.
OF PROP. Mut'
NO. DATE OF PUR. EXHIBITS .MAUZA OR CITY OWNER OF PROPERTY VALUE 1 55 K-5M 572 11.12.90 PW.1 4/4 Ghaus Muhammad wala (Bhalwal) Faisal Javaid & Khan Muhammad (sons) Rs. 50,000,00 2 21 Kanals 572 0 10.2,91 PW.1 4/5 Ghaus Muhammad wala (Bhalwal) Faisal Javaid & Khan Muhammad (sons) Rs. 30.000.0C 3 10K-5M 574 10.2.91 PW.1 4/6 Ghaus Muhammad wala (Bhalwal) Faisal Javaid & Khan Muhammad (sons) Rs. 50,000.0C 4 23K 808 22.6.94 PW.1 4/7 Ghaus Muhammad wala (Bhalwal) - Faisal Javaid & Khan Muhammad (sons) Rs. 50,000.0C 5 32K-18M 510 29.10.91 PW.6/1 Behk Lurka (Bhawal) Khan Muhammad (son) Rs. 1,35.000.0C 6 32K-9M 692 22.8.96 PW.6/2 Behk Lurka (Bhawal) Khan Muhammad (son) Rs. 80,000,00
7. 66 Kanals 659 8.4.96 PW.6/3 Behk Lurka (Bhawal) Nargis Bibi (wife) Rs. 2,20,000,00 8 160 Kanals 148 & 150 20.12.90 28.2.91 PW.5/1 & 5/2 Hayatpur (Bhalwal) Nargis Bibi (wife) Rs. 80,000,00 9 Cost Sr No. 8 Hayatpur (Bhalwal) Nargis Bibi (wife) Rs. 3,86,044.00 #tbs |Xxxiii Farrukh Javed Ghuman V. The State Cr.C. 185 (Tassaduq Hussain Jilani, J.I #the #tbs 10 69 Kanals 178, 180 & 182 25.7.92 PW./15, 3/16, 3/1 7 & ' 3/18 Chak No. 105 NB Sargodha Farrukh Javaid (appellant) Rs. 1,98,000.00 11 7 K-17M 2818 24.10.89 PW.1 4/54 Kamahan Farrukh Javaid (appellant^ Rs. 1,56,000.0C
12. 3 Kanals 6.691 PW.7/1 to PW.7/6 Murree Faisal Javaid & Khan Muhammad (sons) Rs. 9,60,000.00 13 Cost of Const. Sr. 12. 27.4.92 PW.9/1 , Murree House Faisal Javaid & Khan Muhammad (sons) Rs. 34,04,800.00 14 Portion of lhatas. 462 8.8.92 PW.2/2 104-Chak Shimali (Sgd). Farrukh Javed (appellant) Rs.
20.000.0C 15 Portion of lhatas. 463 8.8.92 PW.2/3 104-Chak Shimali (Sgd). Farrukh Javed (appellant) Rs.
30.000.0C Total value as per prosecution: Rs.5.6,74,844.OC Factual value (after cross-examination) Rs.33,84,000.0C #the {{ TABLE }} Note- So far as Item No. 13 referred to In the afore referred break-up is concerned the prosecution produced PW9 Khushi Muhammad, Sub- Engineer, Municipal Committee In proof of the value of the house. According to him the value 'of the house at Murree is Rs. 34,04,800/-. But In cross- examination, he admitted that the value of the house In the year 1992, when it was completed, is not more than rupees ten lacs to rupees fifteen lacs. If the said amount is deducted, the total value as per the prosecution evidence of the assets acquired, comes to Rs. 33,84-,000/- whereas the total income, as per evidence led by the appellant is Rs. 1,93,77,889/- 27, Learned Special Prosecutor for NAB tired to argue that -the witnesses produced In defence were interested and they made false statements. We note that all the Defence Witnesses, except DW9 (this has been disbelieved by this Court) are Government servants. They prepared- documents and made statements either In the light of Revenue Record or regarding matters which are part of their normal official business, It is not believable that they would make false statements against the record and that too In a NAB case. If they had done that, they would have been proceeded against departmentally and they would have faced criminal action as well. Their evidence, therefore, inspires confidence. The defence plea corroborated by the evidence led In defence are sufficient to persuade this Court to hold that the appellant has given a satisfactory account of his sources of income with which he acquired the assets and properties held by him.
28. Before parting with this judgment we may observe that accountability of holders of public office and eradication of corruption are laudable goals and are issues of concern, worldwide. However, no country and no system can effectively address these issues unless it has a proper legal framework within which can function independent judicial and prosecutorial institutions. An independent and efficient anti-corruption agency is also imperative for detection, investigation and bringing the corrupt In the dock. Without such institutional arrangements, the Courts may not be In an ideal position to bring the accused to justice and even the most corrupt may get away with whatever they do. This crucial aspect has been brought into focus In the instant case and we can appreciate how the missing links and omissions In the prosecution case could prove fatal. For instance, the best evidence available with regard to the sources of income of the appellant was not brought on record by the Investigating Office, no revenue official was examined by. The prosecution and no document was exhibited with regard to sources of income either. Similarly, the charge with regard to evasion of stamp duty and taxes was not seriously pursued and against the acquittal of the such charge no appeal was filed. We would not like to comment on the merits of this aspect lest it reflects a bias, ln absence of evidence on record. Courts cannot paint some one black or white on conjectures or rhetoric alone. We are Courts of law and are not suppose to render moral judgments.
29. For what has been discussed In the preceding paragraphs, the prosecution has failed to discharge the onus of proof,- the presumption of guilt raised against the appellant and his conviction are, therefore, not warranted In law. Resultantly, the appeal is allowed, the impugned judgment is set-aside and the appellant is acquitted of the charges.