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Petitioner: FARRUKK JAVED GHUMMAN VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): M. Bilal Khan, Tasaddaq Hussain Jillani Title: FARRUKK JAVED GHUMMAN vs THE STATE Case No.: Criminal Appeal No,432 of 2002 Date of Judgment:2003-11-24 Reported As: PLD 2004 Lahore 155 Result: Appeal allowed
JUDGMENT
JUDGMENT 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 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 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 and 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
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remained in his 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 ,o prove the charge of evasion of stamp duty and District Council fee but proceeded to convict him under section 9(v) of the National Accountability Bureau Ordinance, 1999 and sentenced to three yearsR.I. As also with a fine of Rs,1,00,000. Properties mentioned in para. 17 of the judgment were directed to be confiscated in favour of the State. The prosecution did not file 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 fee 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 SON OF DR.NASAR ULLAH, EX-MPA/CHAIRMAN, ZILA COUNCIL, SARGODHA, R/0.30-A, SATTELLITE 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 betw-een 1991-1996 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 Jhikka Gali, Murree of an approximate value of Rs,44, I 2,800 purchased 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 immovable properties acquired by you were 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 to the "Lila 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,
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LAHORE." 5. In support of the charge, the prosecution examined fourteenwitnesses and 1306 documents were produced. P.W.1 is Muhammad Abdullah, Patwari, Halqa Chak No,85 Shimali, Tehsil and District Sargodha. He produced attested copies of the mutations of Khasra Nos.438 to 436 (Exh.PW-1/1-9). The afore-referred mutations were exchanges. The Government, according to him, suffered a loss of Rs,2,00,000 out of these exchanges. P.W.2 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. P.W.3 is Muhammad Ashraf, Patwari, Revenue Circle 105- Shimali, Tehsil and District Sargodha. He produced attestedcopies of Mutations Nos.155 (Exh.PW3/1),156 (Exh.PW-3/2), 157 (Exh.PW-3/3), 158 (Exh.PW-3/4), 159 (Exh.PW.-3/5), 162 (Exh.PW- 3/6), 163 (Exh.PW-3/7), 164 (Exh.PW-3/8), 165 (Exh.PW-3/9),166 (Exh.PW3/10), 197 (Exh.PW-3/11), 195 (Exh.PW-3/12), 170 (Exh.PW-3/13), 169 (Exh.PW-3/14), 178 (Exh.PW-3/15), 179 (Exh.PW-3/16), 180 (Exh.PW3/17), 182 (Exh.PW-3/18). 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. P.W.4 is Muhammad Nawaz, Patwari Halqa Behr Lurrkan, Tehsil and District Sargodha. He produced copies of Mutations Nos. 490, 491, 494, 495, 505, 671, 672, 673, 701, 702, 713, 509, 496 and 563, Exh.P.W. 4/1 to Exh.P.W.4/14. According to him through these mutations 703 Kanals, 11 Marlas of land in village Ghaus Muhammadwala and Chak No,104 Shimali was acquired in exchange. In these exchanged mutations the District Council fee was not paid and there was a loss of Rs,2,29,000 to the public exchequer. P.W.5 is Mukhtar Hussain, Patwari Halqa Hayatpur, Tehsil and District Sargodha. He produced Mutations Nos.148 and 150 (Exh. P.W.5/I to Exh.P.W.5/2. P.W.6 is Atta Muhammad, Patwari Hdlqa Behk Lurrkan, Tehsil Bhalwal, District Sargodha. He produced copies of Mutations Nos. 510, 692 and 659 (Exh.P.W.6/1 to Exh.P.W.6/3). He admitted in cross-examination that as per the mutations, the fee leviable had been paid and that he did not receive any complaint in this regard. P.W.7 is Malik Nazim Hussain, Tehsil Municipal Officer, Khanpur, District Rahimyar Khan. He produced relevant record in respect of Plot No,25, Ghumman House, Upper Jheeka Gali Road, Murree. P.W.8 is Saadat Haroon Abbasi, Tax Superintendent, Municipal Committee, Murree. He also produced record pertaining to Plot No,25, Upper Jheeka Gali Road, Murree. P.W.9 is Khushi Muhammad, Sub-Engineer, Municipal Committee, Murree. He prepared the evaluation certificate in respect of House No,25, Ghumman House, Upper Jheeka Gali Raod, Murree. Rana Javed lqbal, Teshildar, Tehsil Sargodha appeared as P.W.10. He prepared report Exh.P.W.10/1 in respect of Ihatas Nos. 55, 67, 32, 33(half), 34(half), 37 and 38 of Chak No,104 Shimali. Allah Bakhsh Sub-Engineer, Local Government and Rural Development Department, Sargodha appeared as P.W.11. He tendered in evidence report Exh.P.W.11/1 to Exh.P.W.11/8. P.W.12 is Qaiser Karim, Inspector Excise and TaxationLawrence Road, Lahore. He produced PT1 as Exh.:'.W.12/1. Yaqoob Elahi Joyia, Ex-S.D 0., Building Department, Sargodha appeared as P.W.I3. He reported about the cost of construction raised by Farrukh Javed Ghumman Exh.P.W.13/1. P.W.14 is Muhammad Yasin, Investigating Officer/Judicial Magistrate, Sargodha. According to him, the agricultural income from 1986 to 1991 was Rs,24,I5,845 assessed from "Thar Paidawar" pertaining to the same years. The expenditure incurred by the appellant during this period, according to him, was Rs,8,05,282 andthe net income came to Rs,16,10,563. He gave details of the properties and assets acquired by the appellant. In 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
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the statements of the persons who had exchanged lands 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 Tehsildars 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 Cortical 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 1988 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 as M.P.A. The relevant portion is as under:- " According to the revenue record, the accused got 219 Kanals of agriculture land by his father through "Hiba" in Chak No,104 Shimali. It is incorrect that the land in Chak Nos.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). In 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 illegalmeans). 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 Paidawar" 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 Muhammadwala; that the total net income of the appellant and his son for the years 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 years 1988-94 was Rs,42,00,000.
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6. The appellant when examined under section 342, Cr.P.C. Deniedthe 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 from 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 109 Kanals, 10 Marlas was purchased by him. Ffe 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 inthe said a Plot in Jheeka Gali, Murree and the construction of house on 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 havingMauza Behk Lurrkan valued Rs,33,28,188 in the names of his wife and two sons. 1541 Kanals, 19 Marlas, out of the, 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,105acquired 1136 Kanals, 16 Marlas in Mauza Ghaus Muhammadwala in exchange for 4 Kansls of land in Chak No,I04 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 Muhammadwala and from Chak 104 Shimali. He alleged that the evaluation certificate and the details regarding the plot and house constructed in Jheeka Gali, Murree, referred to above, Exh.P.W11/1 to Exh.P.W.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 abreak-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, Ma;rlas 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 Kanais of land was acquired through exchange whereas 109 Kanals, 10 Marlas of agricultural land was purchased in Village Ghous Muhaminadwala, 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 Kim and his whole family during this period was Rs,I2,53,000. The acquisition of 2418 Kanals, 8 Marlas land in Village Ghous Muhammadwalal 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 Mohammadwala, he stated that no land was received back
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by them through Mutations Nos. 701, 702 and 713. He states that the land from village Ghous Mohammadwala was given in exchange through Mutations Nos. 1, 2 and 6 and in lieu of the land given from village Ghous Mohammadwala, this land was obtained in exchange through Mutations Nos. 701, 702 and 713 from village Behk Lurrkan. He states that the possession of land in village Ghous Mohammadwala is still with those persons to whom it was given in exchange. Regarding the evidence of P.Ws. He stated that all the witnesses are Government servants who are under the pressure of NAB authorities. He contends that the investigating Officer 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, Sagodha 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 Groupof 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 under section 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 grandfather was allotted 4265 Kanals agricultural land under "Ghoripal" Scheme in village 104 Shimali. He states that his father late Dr.Nasrullah Khan did his M.B.,B.S. 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 M.B.,B.S. Doctor whose wife too is a Doctor and they both are practising in the clinic established by his late father. According to him, he has Kino/orange orchards spreading over an area of 880 Kanals approximately and the present minimum income from one acre of Kino orchard is about Rs,50-60 thousand. He alleges that the Investigating Officer did not collect any evidence in this regard with a mala fide 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 Jhika Gali,Murree which is in the name of his sons Faisal and Khan Muhammad. He goes 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 Exh.DD. He states that in the year 1959, his father purchased 23 Kanals agricultural land in village 104 Shimali through Mutation No,393 Exh.bE. According to him, his father also purchased 11 Kanals agricultural land in Chak No,104 Shimali through Mutation No,401 Exh.DF. He contends that his father also purchased agricultural land measuring 400 Kanals in Tehsil Khushab through Mutations Nos.86 and 87 Exh.DG and Exh.DH respectively. He further states that in the year 1961,his father gifted 219 Kanals agricultural land to him which is situated-in the illage 104 Shimali through Mutation No,414 Exh.DJ. According to him, he purchased 105 Kanals of agricultural land in village '104 Shimali through Mutation No,529 Exh.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 Exh.DL and Exh.DM in the year 1976. According to him, he purchased 62 Kanals of agricultural land in the name of his son Fiaisal Javed in the year 1979 in village 104 Shimali, Sargodha through Mutation No,592 Exh/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
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"Mawaishi 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 Exh.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 ofJarnabandi for the year 1978-79 Exh.DP. He states that he purchased 420 Kanals in village Dhareema in the year 1976 through Mutation No,417 Exh.DQ and No,418 Exh.DR. He states that he got 109 Kanals, 5 Marlas agricultural land through Mutations of Inheritance No,779 Exh.DS. According to him, he is also cultivatingagricultural lani in village 1C4 Shimali on lease. 7. In support of the statement made under section 342, Cr.P.C., theappellant produced 9 witnesses in defence D.W.1 is Mr. Muhammad Hafeez U-llah Butt, Accounts Officer, "ila Council, Sargodha, D.W2 is Mr. Faiz-ul-Basit, Assistant Secretary, Budget and Accounts, Provincial Assembly Punjab, Lahore, D.W.3 is Mr. Muhammad Zaman, Agriculture Inspector, Chak :04-Shimali, Sargodha, D.W.4 is Tajjamul HussainChatha,…
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