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Petitioner: NOOR-UL-HAQ VS Respondent: THE STATE and another
Court Name: Peshawar High Court Judge(s): Ijaz-ul-Hassan Khan, Tariq Pervez Title: NOOR-UL-HAQ vs THE STATE and another Case No.:Appellate Side Ehitsab Appeal Criminal Case No, 7 and Writ Petition No, 653
JUDGMENT
Reported As: 2002 YLR 2737 Result: Appeal dismissed Judgment JUDGMENT TARIQ PARVEZ, J.---Noor-ulHaq (hereinafter referred to as the appellant) was arrested by National Accountability Bureau on 18-10-2000 and Reference No,1 of 2001 was filed on 16-1-2001 under section 18(g) read with section 24 of National Accountability Bureau Ordinance, 1999 (Ordinance XVIII of 1999), (hereinafter referred to as the Ordinance), in the Court of Mr. Said Maroof Khan, Judge Accountability Court No,1 Peshawar (hereinafter referred to as A.C) and the learned Judge vide judgment dated 27-3-2002 answered' the reference in affirmative i.e has found the appellant guilty under sections 9/10 of the Ordinance and sentenced him. to five years' R.I. with a fine of Rs, 01,70,86,000. Such fine was payable within one month from the date of announcement of the judgment or his assets shall stand forfeited to the Government and the amount of fine shall be set off against the forfeited assets in terms of section 1.1 of the Ordinance. Appellant has been given the benefit of section 382-B, Cr.P.C. 2. Appellant joined service in Forest Department in the year 1983 and remained in service until 18- 10-2000 when he was arrested by the National Accountability Bureau Authorities and at that stage of service he was serving as District Forest Officer. 3. Charge against the appellant is under section 9 of the Ordinance that While employed as District Forest Officer he has accumulated wealth by illegal means and with that ill-gotten income has purchased the following assets with market value as assessed. by the National Accountability Bureau Authorities as property:- Plot No,49-J (1-K) (in 1990 at SheikhRs, 6,20,000
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Maltoon Town) Worth: Fiat Tractor No, MRC 1809, Model 1993 worthRs,3,00,000
Land 160 K in his own name in the area of Mohabat Abad, Mardan (in1994) worthRs,46,82,347
And also constructed a house with Hujra in 1994-95 worthRs, 71,20,188 Purchased Jeep No,1-BA 8005, Model 1964 worthRs,80,000 Purchased Massy Tractor No,M.Q 8261, Model 1976 worthRs,80,000
Purchased land measuring 659 K-16 M worthRs,1,92,98,565 in the limits of village `Mohabbatabad Mardan in the year 1991 to 2000 in the name of your mother Bunglow No,38-J, 1-K, in the year 1987 worthRs,27,44,970
Plot No,48-J, 6.5 M in the year 1990 worthRs,192,181 Plot No,50-J, 1K , in the year 1990 at Sheikh Maltoon Town, Mardan in the name of your wife, worth Constructed 'Anjuman FlourRs,48,81,380
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Mills, Timergara in the year 1999 worth Purchased some shares in Itehad Flour Mills, Timergara in the year 1991 in the name of your wife, worth Rs,10,50,000 You own a Diary Farm worthRs,2,35,000 Fish Farm in the limits of village Mohabatabad Mardan worthRs,90,000 He was charged that such assets are disproportionate to his known sources of income and thus he has committed an offence of corruption and corrupt practices as defined in section 9 of the Ordinance punishable under section 10 thereof. 4. As we have given the detail of property for ownership/possession wereof appellant is charged and because most of such properties are in the name of mother of the appellant and his wife, therefore, it is necessary here that we give names of certain relatives of the appellant as they appeared repeatedly either in the statement of prosecution witnesses or defence witnesses. RELATIONSH IP Mst. bibi Saleha Mother Mst. Anjuman Wife Fasal Rabi Fazal Rabir brothers Siraj-ul-Haq Ghulam Sarwar khanFather (died on) 4-9-1997 Ghulam Jan Father of Mst. Bibi Saleha Haji Zarin Father of Mst. Anjuman i,e, Father-in law of the appellant also his maternal uncle Abdul Ghafoor Uncle of Mst. Bibi Saleha 5. To prove the charge against the appellant prosecution has produced 20 witnesses as against which 37 defence witnesses were examined. Appellant however has not appeared in his own
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defence under secition 340(2) Cr. P.C. 6.Learned A.C. has exonerated the appellant in respect of assets namely Bungalow on Plot No,38-J Fiat Tractor MRC 1809 a Jeep of 1964 Model and a massey Tractor 1976 Model on the ground that prosecution could not produce evidence to satisfy the A.C. that such assets were neither in the name of appellant or were held benamidars by others on his behalf. Learned A.C. has however found that rest of the assets given in charge framed against the appellant based on reference filed against him are found to be beyond known sources of income of the appellant and that bulk of the property/assets whether in the name of mother Mst. Bibi Saleha or in the name of wife of the appellant Mst. Anjuman are in fact owned by the appellant and are held benamidars by the mother and the wife. 7. Appellant has challenged his conviction and sentence through Ehtesab Criminal Appeal No, 7 of 2002 filed in this court on 4-4-2002. On 10-4-2002 aooeak came up for hearing in motion and was admitted with notice and record. Criminal Miscellaneous No, 27 of 2002 praying for suspension of the judgement of A.C. was temporarily granted but to the extent of forfeiture of the property. 8. Mst. Bibi Saleha, Fazal Kabir, Fazal Rabi, Siraj-ul-Haq and Mst. Anjuman also filed Ehtesab Criminal Revision No,9 of 2002 where they have also impugned judgment of A.C. dated 27-3-2002 but their revision was dismissed on 2-5-2002. The main averment made in the revision and argued before us was that property owned by the petitioners in the revision has been ordered to be forfeited but they were never arrayed as accused and that none of the prosecution witnesses were examined in their presence. Therefore, they have been prejudiced and that the learned A.C. should have allowed the petitioner to adduce evidence in rebuttal. 9. Learned counsel appearing for the appellant has argued that charge as framed by the learned A.C., inter alia, contains that the appellant has accumulated wealth by illegal means and by that ill-gotten income has acquired assets but no evidence regarding corruption has been brought on record. It was argued that it was for the prosecution to have first proved that during the tenure of his service while holding a public office appellant has ever indulged in accepting bribe or illegal gratification nor there is any evidence that appellant was ever subjected to any inquiry regarding corruption charge and even if there was one, the appellant was exonerated and was held to be a civil servant of good repute. 10.It is also argued that under section 14 of the Ordinance it is the boundened duty of the prosecution to make out a prima facie case on the basis of reasonable evidence and such evidence should be of a degree which should satisfy the Court that accused person facing trial under the Ordinance has committed the offence of corruption or corrupt practices. It is also argued that holding that National Accountability Bureau Ordinance is a presumptive law and conviction is to be recorded on conjectures of inferences would be against the fundamental rights guaranteed under the Constitution and such interpretation would be against the norms of Criminal Jurisprudence. It is argued that no presumption adverse to the accused can be drawn in absence of positive evidence. 11.Learned counsel further argued that burden of proof is also on the prosecution and the initial burden has first to be discharged which should be based on cogent evidence and that accused is not to prove his innocence. Contention is raised that the burden on an accused even under the Ordinance is only to an extent that he is to reasonably explain that he is not guilty of the offence charged with. It is also argued that as the impugned judgment is based on inferences and because prosecution has failed to make out a prima facie case, conviction could not have been recorded and that in the instant case even if. there be some faults in the defence evidence, such should not be taken to the advantage of the prosecution as it is not for the accused to prove beyond reasonable doubt that plea taken by him is correct but he is to only show that defence version put forward by him
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might/probably be true. 12.Learned counsel has formulated the above contentions and has then elaborately argued each point with reference to evidence of the prosecution and the defence version. 13.Main submission of the learned counsel for the appellant is that with regard to agricultural land measuring 659 Kanal and 16 Marlas situated in village 1991 to year 2000, Out of such agricultural land she has gifted land measuring 160 Kanal in favour of the appellant in the year 1994. 14. Learned counsel for the appellant argued that charge was framed against his client, it was so worded that the appellant has accumulated wealth through illegal means and with that ill-gotten income has purchased the assets/properties. It is submitted that when there is a charge of acquiring wealth through illegal means, with reference to person holding public office would necessarily mean that he during his employment has either resorted to mis,appropriation of Government money or has obtained illegal gratification or that he has dismissed such wealth through illegal means. It is argued that not a single witness has appeared lending any support to such charge. Submission is made that before entering into the question whether assets held by an accused person are beyond his known sources of income, there should be first proof that such public servant has been indulging in such practices like acceptance of bribe or demand of illegal gratification. It is submitted that after the charge of taking bribe was reasonably made out only then the assets of the appellant would be open to scrutiny, otherwise, where an accused person has shown sufficient means either through his own income like salary or where he has received land through inheritance or where some property has come to his possession pursuant to some gift and where relatives like mother, wife and brother of the accused and are having their independent sources of income and are not dependent on the appellant then assets and properties held by them cannot be termed to be held on behalf of the appellant. 15.Learned counsel while highlighting the duty of the prosecution has referred to section 14 of the Ordinance and argued that when a reference is filed against a public servant and the charge against a public servant and the charge against him is regarding assets and property then it is for the prosecution first to prove that the property held by the accused is beyond pecuniary resources and is disproportionate to the known sources of his income. For the above object not only a prima facie case but a reasonable case should be made out which should satisfy the mind of the court regarding the charge and only thereafter there will be some liability on the accused to prove the contrary. 16.It is argued that under Criminal Jurisprudence the burden of proof through in some special Statutes has been lightened on the shoulder of the prosecution and some responsibility is placed on the accused charged with the offence to explain the charge but such liability of the accused cannot be equated to that heavy burden which is always on the prosecution. Submission is made that where laws have put burden of proof on the accused it has been always held by the superior courts that the initial burden of proof remains on the accused is only to make out a reasonable possibility of his defence being true. It is argued that in the instant case as submitted earlier prosecution has produced no evidence regarding ill-reputation of the appellant and they have produced no evidence that in either of the properties held by his mother, his wife or brothers he has got any share and the defence has through cogent defence witnesses including independent witnesses has proved that the allegation against the appellant are untrue and baseless, therefore, the appellant could not have been convicted and is entitled to acquittal. 17. As regards agricultural land measuring 659 Kanal, 16 Marlas situated in village Mohabatabad, it is argued that such land has been purchased by Mst. Bibi Saleha mother of the appellant and her source of income has been sufficiently explained i,e, she received an amount of Rs,15,00,000 when
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some property situated in the native town of the appellant in Tribal Territory was sold by his father Ghulam Sarwar on 22-3-1992 and in this respect Nazraf (D.W.18) has testified. The second noticeable amount of Rs,50,00,000 was again the sale consideration of 100 Jarib of land sold by Ghulam Sarwar father of the appellant on 27-1-1990 and such transaction has been confirmed by Lal Badshah (D.W.33). It is argued that Mst.Bibi Saleha also received Rs,20,00,000 when she surrendered her share inherited by her from her father in the name of her uncle namely, Abdul Ghafoor through deed dated 5-3-1984 (Exh.D.W.12/1) and that from such amount she has purchased the agricultural land between the year 1991 to year 2000 through different mutations in her favour and out of such agricultural land she has mutated 160 Kanal on 29-6-1994 (Exh.P.W.3/29) in favour of the appellant. Similarly regarding shares of Mst. Anjuman in Anjuman Flour Mills it was argued that wife of the appellant is not dependent and she hail from a rich family, has been gifted a constructed house by her father and that She was involved in "Bardana" business jointly run by Mst. Anjuamn, Fazal Rabi etc. (Bardana business is sale of empty wheat bags). Learned counsel has referred to different statements of the D.Ws. and submitted that Mst. Anjuman has been investing sufficient amount and whatever is held by her is in her own name and to that holds appellant is not a contributory. 18.Learned counsel has also argued that three brothers of the appellant are holding their independent business and are not dependent on the appellant as is proved from the statement of different D.Ws. 19.It has been vehemently argued that learned trial Judge instead of making reference to specific evidence led by the prosecution has mostly relied on presumptions and conjectures and although such presumptions are admissible under the Ordinance and despite the fact that under section 14(c) of the Ordinance a conviction recorded by A.-C. shall not be invalid for reason only that it is based solely on presumption but it is submitted that the presumption can only be drawn from proved fact and not that when there is no foundation laid by the prosecution. It is, therefore, argued that the impugned judgment is illegal and not maintainable. 20.As the learned counsel for the appellant has in detail referred to statements of D.Ws. as against each asset, subject of the reference, and the charge relevant to the facts in issue, therefore, before we analyse the legal aspects of the submissions made by learned counsel and before we make reference to what is argued by learned Special Prosecutor on behalf of the Chairman National Accountability Bureau it is necessary that we here give a resume of the prosecution evidence. 21.Miraj Nabi (P.W.1) is witness to certain recovery memos. which pertain to allotment and transfer orders regarding Plots Nos,38-J, 49-J and 50-J situated in Shiekh Maltoon Town, Mardan. Fazal Subhan Housing Officer (P.W.2) has also deposed in respect of such plots and their: transfer. Suleman (P.W.3) is Patwari Halqa for village Mohabatabad and has produced original Revenue Record and mutations Exh.P.W.3/1 to Exh.P.W.3/30 i.e property in the name of Noor-ul-Haq and his other family members. According to him the property in the name of the appellant has been assessed worth Rs,12,59,027. Saeed Khan (P.W.4) is a sub-Engineer in C & W Department and has prepared the site plan Exh.P.W.4/1 and Exh.P.W.4/2 pertaining to constructed property situated in village Mohabatabad including five houses, a Hujra, a godown and a mosque. Khalid Khan, Assistant Director Fisheries Department Mardan was examined as P.W.5 who has measured the Fish Farm situated in the fields of the appellant and has assessed its value. Shahabuddin (P.W.6) is Veterinary Officer was examined to give the assessed value of Dairy Farm and the mutation kept thereon. Raza Khan (P.W.7) was Manager of a Motor Bargain Center and has determined the value of a jeep Model 1964.
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Liaqat Ali (P.W.8) is Manager of a firm dealing with the sale and purchase of Tractor and was examined with view to depose regarding value of the two Tractors. Next is Muhammad Shoaib Tehsildar (P. .9) who was examined to prove document Exh.P.W.9/1 a sale-deed. Muhammad Akbar Khan, Assistant Sub-Inspector attached to Regional Accountability Bureau Peshawar is marginal witnessed to recovery memos. Ex. .W 10/2, Exh.P.W. 3/34, Exh.P.W. 10/ , Exh.P.W. 10/3, Exh.P.W. 10/4, Ex.P. .10/5, Exh.P.W. 10/6 and. Ex.P.W.10/7 which pertain to documents regarding ow ership and possession of different asset in the name of relatives of the appellant. P.W.11 is Sheida Muhammad, Inspector Reg onal Accountability Bureau and has witn ssed the recovery memos. Exh.P.W.11/2 to Exh.P.W.11/5, pertaining to value of Tractor, Jeep and the assessm ent of njuman Flour Mills by Sub-Engineer C &W Department. Niama GulSub-Engineer (P. W.12) has prepared the site plan and assessed valu of Anjuman Flour Mills which are Exh.P.W.12/1 and Exh.P.W.12/2. From the office of Registrar of companies NWFP Peshawar Muhammad Musharraf Khan was examined as P.W.13 whose tesimony is relevant to shares held by differentshares in Itehad Flour and General Mills. Shahi aman a Grade-III Officer of United Bank Limited appeared as P.W.14 to prove the maintaining of Bank Account No,217-2 in the name of appellant and Account No, 285-5 in the name of Mst. Anjuman. Fazal Hameed (P.W.15) is co-owner with Mst. Anjuman Flour Mills situated in the limits of Bandagai- Timergara and has deposed that he and his brothers Muhammad Yousaf and Muhammad Ayaz are owners to the extent of 22% shares each while the Mst. Anjuman wife of appellant owns 34% shares in the said Mills. Ashraf Ali Marwat is Income Tax/Wealth Tax Officer Mardan and has appeared as (P.W.16) and has produced Income Tax/Wealth Tax record pertaining to Ghani and Zareen. Abdul Hadi is the next witness of the prosecution who was examined as P.W.17. He alongwith Haji Abdul Ghafoor, Haji Raham Dad, Fazal Rabi, Fazal Kabir and Siraj-ul-Haq (latter three brothers of appellant) has purchased Itihad Flour Mills from one Haji Qadir Gul for an amount of Rs,8 Millions. According to him Rs,3 Millions were paid in cash and as the vendor had an outstanding liability of Rs,5 Millions, as per sale agreement said amount was paid to Habib Bank Ltd. Peshawar. In the Mills he owned 25% shares while the remaining were owned by other partners. Muhammad Naeem (P.W.18) is a property dealer at Nowshera Road, Mardan and was examined to state about the market value of plots situated within the limits of Sheikh Maltoon Town Mardan. Habibullah Khan Deputy Superintendent of Police (P.W.19) is the star witness of the prosecution attached to RAB NWFP. Peshawar. On arrest of appellant on 18-10-2000 by the Bureau he was entrusted with the investigation of the case on the following day. He obtained the custody of the accused from the A.C-II Peshawar and when the original remand expired on 23-12-2000 he produced the accused before A.C. for further remand and because of his application Exh.P.W.19/3 was granted further 14 days custody and after the expiry of such period appellant was sent to Judicial Lock-up on 6-1-2001. We may here refer that strong exception was taken to application (Exh.P.W.19/3) by learned counsel appearing for the appellant on the ground that such application contained therein that further custody is required because the Investigating Agency wants to probe further to find out and to collect evidence regarding receipt of bribery and illegal gratification by the appellant while holding public office. It was argued that despite specific purpose for obtaining further remand and despite specific investigation made in that direction, no evidence whatsoever could be collected or brought on record that appellant has ever indulged in receiving bribe or illegal gratification and therefore, the very charge framed by the A.C. against the appellant could not be proved. Here we
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may make reference to the submissions of learned counsel made and referred to in earlier part of our this judgment where it was argued that while framing the charge learned Trial Judge has used the terms that the wealth accumulated through illegal means by the appellant and through such ill-gotten wealth he has purchased the assets either in his name or in the name of his relatives. Last witness of the prosecution is Sher Bahadur Arbab posted as Director Budget and Accounts in Forest Department and was examined as P.W.20. He has produced the service record of the appellant according to which appellant joined Forests Department as Divisional Forests Officer in the year 1983 and remained posted as such till his arrest in this case. According to his record appellant has received a total amount of Rs,13,55,773 towards his pay and allowances commencing from 13-10-1983 to month of October 2000. He also stated that during his service appellant has never drawn any House Building Advance except he was granted Motor-Car Adv acne amounting to Rs,50,000 in the year 1993-94. 22. We have so far given the brief narration of prosecution evidence and it was in the background of such evidence that learned counsel for the appellant had made submissions referred to in the preceding paras. and his contention throughout is that none of such witnesses examined by the prosecution as regards the charge of corruption or corrupt practices by appellant. It is in view of prosecution evidence that argument was advanced that none of the prosecution witnesses have uttered single word that during his service appellant has misused his official position or there was any stage when he was proceeded against departmentally for misconduct except once where because of an application filed by the personal enemies of the appellant an inquiry was conducted and he was exonerated of the charge. It is also argued that keeping in view the above prosecution evidence there is no iota of evidence on the basis of which one can infer least to say charge proved, that any of the property regarding which charge is framed against the appellant is either owned, possessed, purchased or under the control of the appellant. It was argued that for the purpose of proof of benamidars transaction rules has been laid by the august Supreme Court of Pakistan in a judgment reported in 1991 SCMR 703 (Muhammad Sajjad Hussain v. Muhammad Anwar Hussain) and it , inter the following dictum laid. Some of criteria for determining the question whether a transaction is a Benami Transaction or not inter alia the following factors are to be take into consideration: (i) Source of consideration; (ii) From whose custody the origianl title deed and other documents came in evidence; iii) Who is in possession of the suit property and iv) Motive for the Benami transaction. The initial burden of proof is on the party who alleges that an ostensible owner is a benmamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him the plaintiff shall succed. In view of the above legal position it is argued that there is no evidence that the source of consideration i,e, amount used by Mst. Bibi Saleha for the purchase of agricultural land or money invested by Mst. Anjuman either for purchase of shares in Itihad Flour Mills or purchase of proprietory rights in Anjuman Flour Mills appellant has in any manner monetary assisted them. It was also argued that none of the titled documents were recovered from the custody of the appellant rather most of the documents exhibited during the trial regarding the ownership are coming from the official source i,e, in case of agricultural land and it is the Patwari Halqa who has produced the original Revenue Record and in case of shares in Ithad Flour Mills, Registrar Joint Stock Company has produced the record of shares and no title deed qua 34% shares in Anjuman
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Flour Mills were recovered from the person of the appellant so to infer that appellant had any personal interest either in agricultural land or in the ownership of Anjuman Flour Mills. It is argued that…
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