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Petitioner: RAJAB ALI VS Respondent: The STATE and others
Court Name: Peshawar High Court Judge(s): Rooh-ul-Amin Khan, Lal Jan Khattak Title: RAJAB ALI vs The STATE and others Case No.: Eh. Criminal Appeals Nos, 02-P and 03-P of 2016 Date of Judgment:2017-04-11 Reported As: 2018 YLR 809 Result: Appeals allowed
JUDGMENT
JUDGMENT ROOH-UL-AMIN KHAN, J:-Through this common judgment, we shall decide the instant Eh. Criminal Appeal, and connected Eh.Cr.A.No,3-P of 2016, filed under section 32 of the National Accountability Ordinance, 1999 (NAO), filed by Rajab Ali and Latif Hussain, respectively, "the appellants", as both arise out from one and the same judgment of the learned Judge Accountability Court No,11, Peshawar, dated 08.02.2016, in Accountability Reference No,07 of 2014, whereby the appellants have been convicted and sentenced as under:- Appellant Rajab Ali: Under 9(a)(v) punishable under section 10 of the National Accountability Ordinance (NAO), 1999:- to undergo 7 years rigorous imprisonment with fine of Rs,1,46,88,056/- and 05 years R.I. for offence at Sr. No, 3(a) of the Schedule to the Ordinance. The assets of appellant Rajab Ali have also been forfeited. Appellant Latif Hussain: Under section 9 (a) (xii) punishable under section 10 of the Ordinance:--To undergo 7 years rigorous imprisonment with fine of Rs,1,40,87,500/- and for offence at Sr. No, 3(a) punishable under the Schedule to the Ordinance to undergo 5 years' R.I. Benefits under section 382-B, Cr.P.C. have been extended to both the appellants. The amount of fine has been directed to be recovered as arrears of land revenue within the meaning of 33(E) of the Ordinance. 2. Facts in brief forming the background of the instant appeals are that appellant Rajab Ali joined police Department as a Constable in District Kohat, since 03.07.1994. During his service till 13.08.2013, he was promoted up to DSP. He was posted as SHO Police Station Hayatabad, Peshawar,
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when complaints were made against him to this Court qua misuse of his official authority i,e, detaining innocent citizens in his torture cells for the purpose of grabbing money from them. Similarly, W.P. No,432-P of 2012, was filed before this Court by Mst. Mamala Bibi for release of her son Sadam Khan, allegedly kept in illegal confinement by appellant Rajab Ali. Prior to the aforesaid writ petition, Mst. Mamala Bibi, had also filed W.P. No,119/2012, for release of her minor son Iqbal Hussain, illegally detained by appellant-SHO Rajab Ali. This Court while issuing release order of her son, simultaneously directed the learned Sessions Judge, Peshawar, to conduct thorough inquiry into the matter. In this view of the matter, appellant Rajab Ali allegedly abducted another son of the petitioner, namely, Saddam so as to pressurized her for settlement in the aforesaid W.P. No,119/2012. Taking the above circumstances, on 20.03.2012, this Court passed the following order in Writ Petition No,432-P/2012:-- "Two separate enquiry reports have been received. In both, it has been concluded that Rajab Ali SHO Police Station Hayatabad is consistently indulging in unlawful and illegal activities by abusing and misusing his official position, getting ransom from innocent people arrested in false case, is running and maintaining three private torture cells where such people, illegally arrested and detained, are kept and are put to torture and in lieu thereof gets handsome ransom amount. The present case is a testimony to this fact where as pre-teenager was tortured with extreme brutalities. He has made his fortune through ill gotten gains, as reported in the enquiry reports and accumulated unmatchable and disproportionate assets both moveable and immovable in this Province, in Rawalpindi and Islamabad and is also involved in immoral activities. To give fair chance of defence to the SHO, he is directed to file written reply to the enquiry reports and the allegations made against him within seven days, positively. In the meanwhile, Director Genearl NAB is directed to constitute a team of experts who shall investigate into the allegations contained in these reports and shall submit periodical report to the Court. The experts tea shall chase the moveable and immovable assets of the SHO and shall detect all his hidden assets as well and in case he is found involved in accumulation of weal through illegal means or ill gotten gains then proper reference will be prepared against him in due course." 3. In pursuance of this Court order, the Director General National Accountability Bureau (NAB) Khyber Pakhtunkhwa, took cognizance in the matter and ordered inquiry/investigation. During investigation it was unearth that appellant Rajab Ali while serving in Police Department, since 1994 to 2013, has accumulated moveable and immovable assets/properties through illegal means/ modes at his own name, value of which comes to Rs,1,46,88,056/-, which is disproportionate to his legal known sources of income. Detail of those proprieties are under:-- S. No,Description of Assets Purchase value in rupeesIII-gotten amount in rupees 1. 15 Marlas land in Mouza Lala and its construction cost. (Years 2009)9,52,285 861,818 2. 04 Kanal land in Mouza Thatta Khalil (Year 2009)13,36,795 1209609 3. Partial construction of bungalow in moza Thatta Khalil (cost of65,60,360 62,27,963
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construction (Years 2011) 4. Partial construction of bungalow in moza Thatta Khalil (cost of construction (Years 2012)65,60,360 63,88,666 Total ill gotten money Rs, 1,46,88,056 4. Appellant Rajab Ali was arrested by the NAB authorities on 18.04.2014. During interrogation, he, in order to justify his alleged illegal assets, produced agreement/affidavit Nos,2551 and 2552 dated 05.09.2011 (Exh.PW.30/1) to the Investigation Team of the NAB in respect of sale of his ancestral property measuring 80 Kanals and 10 Marlas land in Moza Tezana Kurram Agency in favour of co- appellant Latif Hussain in lieu of Rs,1,40,00,000/-. Since, the said affidavit was apparently attested by Muhammad Yousaf Kareem, the then Tehsildar Mahal Kurram Agency (PW.30), therefore, he was associated with the investigation, who on confrontation with said document Exh.PW.30/1, denied his signature as attesting Officer over it. His statement to this effect was recorded and he was also produced for recording his statement under section 164, Cr .P.C. Similarly, his Specimen Signatures were obtained and sent to the FSL along with Exh.PW.30/1, which as per FSL report, were found to be fake and forged. It is further alleged by the prosecution that the stance of the appellant was also denied by the revenue hierarchy of Kurram Agency and was also in contrast with of his reply filed by him in W.P. No,432/2012, as in his reply the appellant Rajb Ali has categorically stated that he and his family has got 120 Kanals ancestral cultivable property in Parachinar and he had not stated a single word about impugned sale of 80 Kanals land to co-appellant Latif Hussain. The NAB authorities allegedly found the appellant failed to provide any cogent proof of money trail from co-appellant Latif Hussain viz Bank. 5. Co-appellant Latif Hussain was initially associated by the inquiry/ investigation officer as witness, but subsequently was arrayed as an accused on the accusations that he being the close friend of appellant Rajab Ali introduced himself as purchaser of 80 Kanals land i,e, the ancestral property of the Rajab Ali vide Exh.PW.30/1 in Moza Tezana Kurram Agency, so as to save his skin. In this way abetted appellant Rajab Ali in preparation of fake/fabricated affidavit/sale-deed Exh.PW.30/1, owned/stood by the contents of the said deed and thereby misguided the Investigating Team of the NAB. 6. Appellant Latif Hussain was arrested and on completion of investigation, supplementary challan was submitted against him in Accountability Reference No,7 of 2012. Both the appellants were charge sheeted by the learned Trial Court, to which they pleaded not guilty and claimed Trial. In order to prove its case, prosecution/NAB examined as many as 34 witnesses. After closure of the prosecution evidence, statements of the appellants were recorded under section 342, Cr.P.C., wherein they denied the prosecution allegations and professed their innocence. Appellant Rajab Ali denied to be examined on oath under section 340(2), Cr.P.C., however, opted to produce evidence in defence. Same was the option of co-appellant Latif Hussain. 7. Arif Hussain, Gulfam Hussain, Muhammad Ashraf Malik (Rtd. DIG Police Services of Pakistan), Safar Ali and, Muhammad Nazar, were produced as DW.1 to DW.5, respectively. Later on, appellant Rajab Ali did wish to be examined on oath. Accordingly, his statement under section 340(2). Cr.P.C., was recorded on 4.01.2016 and 8.01.2016. On closure of the defence evidence, learned Trial Court, after hearing both the sides, convicted and sentenced the appellants as mentioned above, hence, these appeals. 8. Learned counsel for the appellant at the begin of occupying the rostrum and addressing his arguments, delineated the family background and social status of the appellant Rajab Ali. By
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presenting the summery of accumulation of assets coupled with his family tree, the worthy counsel argued that appellant Rajab Ali has four brothers and four sisters; that appellant along with his brothers are still residing jointly bearing the expenses and saving together; that father of the appellant was owner of 120 Kanals land since 1909 in Kurram Agency. The appellant inducted in Police department as Constable in the year 1994 and on the basis of his excellent and brilliant performance, was not only awarded medals but was also bestowed with accelerated promotion. In the year 2001 the appellant was promoted as Head Constable, in the year 2005 as Assistant Sub- inspector, in the year 2007, as Deputy Sub-Inspector, in the year 2011, as Inspector and finally in the year 2014, as Deputy Superintendent of Police; that during his service tenure, he remained posted in different districts of the province including Hangu, Kohat, Pehsawar, Charsadda, Bannu, Nowshera, Swabi and Marndan and by virtue of his bravery he was always given the hard tasks, that too, in the hard areas having worst law and order situations; that the appellant as a Police Officer fought against the terrorists and anti-state elements on front line, therefore, his enemies/Anti state elements in order to malign and restrained him from his obligation submitted frivolous and baseless complaints against him to his superiors as well as Court of law; that in the year 2001, Shaban Ali, the elder brother of the appellant, went to Saudi Arabi for earning livelihood, hence, the responsibility of looking after the agriculture property and other business came on the shoulders of his other younger brother Safar Ali; that after demise of father of the appellant in the year 2006, his other younger brother Liaqat Ali also proceeded to Saudia Arabia for earning livelihood; that in the year 2008 when the law and order situation became worst in the entire tribal belt, including the native village of the appellant, the inhabitants of the area started migrating to settled areas, hence, the appellant and his brothers also decided to shift to Peshawar along with families for peaceful and better life. In this view of the matter, they purchased 15 Marais land in village Lala Kale in lieu of sale consideration of Rs,1,50,000/-, which amount was given to the appellant by his brother Safar Ali. A house was constructed on the said land by the appellant from the joint kitty of all the brothers. Due to threats to the life of the appellant, he and his brothers decided to find out a place for construction of house in some peaceful area, consequently, their relative Haji Muhammad Nazar, who was dealing in the property business at Islamabad, found a place on reasonable price for them in village Thatta Khalil, Taxila. The sale transaction of 4 Kanlas land was finalized by brother of the appellant with Nazar Hussain from joint kitty of the brothers in the year 2008, however, the mutation was attested in the name of the appellant. The appellant and his brothers decided to sell their ancestral land for getting amount to construct house on land in the Taxila. A sale transaction of 80 Kanals land in this regard was struck with co-appellant Latif Hussain against sale consideration of Rs,1,40,00,000/- vide sale deed Exh.PW.301/1. Since, inheritance mutation of the aforesaid ancestral land of the appellant and his brothers was not yet attested therefore, as a precautionary measures the aforesaid agreement to sell was executed; that out of total sale consideration, Latif Hussain paid rupees one coror to Arif Hussain vide deed Exh.PW.30/1. The deed was also singed by Latif Hussain vendee, as well as marginal witnesses, namely, Arif Hussain and Gulfam Hussain, (examined as DWs); that the aforesaid deed was attested by Muhammad Youaf Kareem the then Tehsildar Mahal Kurram after verifying the land from the revenue record, but the mutation could not be attested due to restraint of the NAB authorites, which is still "Zair-e-Tajweez"; that Safar Ali completed partial construction of the house on the land at Thatta Khalil in the year 2011 while NAB authorities started digging in the matter through inquiry/investigation against the appellant Rajab Ali, in 2012, qua alleged misuse of his powers while serving in police department, but could not collect any evidence against him, hence, started investigation into acquisition of the house at Thatta Khalil and by then only roof (lunter) on the basement was completed. The learned counsel for the appellant went on to say that construction and acquisition was not on the basis of ill gotten money and had it been so, the appellant would not have proceeded with the onward
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construction. Indeed the house was held by the appellant and his brothers, jointly and the construction was being raised from the joint kitty, therefore, the appellant and his brothers did not stop the construction; that during investigation, the NAB authorities pressurized Yousaf Karim Tehsildar to disown his signature on Exh. PW .30/1 . While summarizing his arguments, worthy counsel for the appellants contended that NAB authorities has conducted dishonest investigation in the case as the I.O. has intentionally not recorded the statements of marginal witnesses of the alleged disputed deed while the appellant Rajab Ali has squarely proved his and his brothers' legal sources on the basis of which they have jointly constructed the questioned house. The sale transaction regarding 80 Kanals land i,e, the ancestral property of the appellant Rajab Ali has been proved from the prosecution evidence and the sale consideration received by the appellant his brothers are sufficient to meet with the construction expenses of the house. The co-appellant Latif Hussain has not denied the stance of the appellant Rajab Ali rather from the very inception till date he is stuck to his stance that he has purchased 80 Kanals ancestral property of the appellant and his brothers vide deed Exh.PW.301/1; that the financial position of Latif Hussain has not been disputed by the prosecution, who on the day of execution of the dispute agreement to sell has also entered into sale transactions with other people and has made payment in cash, therefore, question of the money trail via bank etc, would not advance the prosecution case, particularly, when the witnesses of the deed admit payment to the appellant and his brothers in cash by Latif Hussain; that on the basis of the disputed agreement to sell, mutation has been entered in the revenue record and this fact is proved from the prosecution evidence. That it could not be attested due to restraint by the NAB authorities due to present proceedings. He argued with vehemence that if the impugned sale is taken out from consideration, even then, the income of the appellant and his brothers from their ancestral cultivable property till 2012, as per' assessment of the NAB authorities coupled with their monthly salaries, are sufficient to prove the expenses of purchase and construction of the houses in question. He added that sufficient evidence has been brought by the prosecution itself which proves that appellant and his brothers are residing jointly and their saving and expenses are joint; that it is proved from the available evidence that two brothers of the appellant are serving in Saudi Arabia and getting handsome salary upto 6000 Saudi Riyals each. He closed his submissions by stating that the learned Trial Court while ignoring material evidence placed on file, particularly, the evidence produced by the appellant in defence, has arrived at an erroneous conclusion by holding the appellants guilty of the offence, hence, the same is liable to be set aside and the appellants be acquitted of the charges. 9. Conversely, learned Special Prosecutor for the NAB while controverting the submissions of learned counsel for the appellants contended that sufficient documentary and oral evidence has been brought on record by the prosecution to prove the illegal assets of the appellants and the sale deed Exh.PW.30/1 to be a fake document, hence, the learned Trial Court was justified by holding the appellants guilty of the offence, to which no exception can be taken. He, thus, sought dismissal of the appeals. 10.We have considered the respective submissions advanced from both the sides and perused the record with their able assistance. 11.Accusation against appellant Rajab Ali is that he being a public servant accumulated various immovable properties which are disproportionate to his salary, emoluments and other known legal sources. The properties allegedly accumulated by the appellant are (1) purchase of 15 Marlas land in Moza Lala, Peshawar, and construction of a house thereon. The NAB authorities have assessed the purchased value of the said property and construction thereon as Rs,9,52,285/- out of which Rs,86181/- has been declared as ill gotten gain of the appellant (2) purchase of 04 Kanals land in Moza Thatta Khalil, purchased value of which has been assessed as Rs, 13,36,795/-, out of which
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Rs,12,09609/- has been declared as ill gotten money of the appellant (3) Partial construction of bungalow in Moza Thatta Khalil on the aforesaid area on Rs, 65,60,360/-, out of which Rs, 62,27,963/-, has been assessed as ill-gotten money of the appellant and (4) Remaining construction of the said bungalow at a cost of Rs,65,60,360/-, out of which Rs,63,88,666/-, has been assessed and declared as ill-gotten money of the appellant. In this way Rs,1,46,88,056/-, has been assessed as the total ill gotten/unjustified money on the part of the appellant by the NAB authorities. 12.Before to reappraise the evidence available on record, we, would first refer to section 5 of the NAO, 1999, wherein word "Assets" has been defined under subsection (c ), which read as under:-- "Assets" means any property owned, controlled by or belonging to any accused, whether directly or indirectly, or held benami in the name of his spouse or relatives or associates, whether within or outside Pakistan which he cannot reasonably account for, or for which he cannot prove payment of full and lawful consideration." Section 9(a) subsection (v), of NAO, 1999, enumerates that a holder of a public Office or any other person, is said to commit or to have committed the offence of corruption and corrupt practices, if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any 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. No doubt, under section 14(c) of the NAO, 1999, in any trial of an offence punishable under clause (v) of subsection (a) of section 9 of the Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of 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 property 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 therefore shall not be invalid by reason only that it is based solely on such a presumption. However, every accused who faces trial in the Accountability Court or against whom a Reference has been sent, the presumption as envisaged in section 14 of NAO, 1999, cannot be convicted for the simple reason that section 14 NAO, 1999, cannot be used to undermine the rule of law that save in every, exceptional class of cases the burden to prove the guilt of an accused always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed by him by proving facts specifically within his knowledge nor does it warrant the conclusion that if anything is unexplained which the Court thinks the accused could explain he ought therefore to be found guilty. Ordinary rule that applies to criminal trials viz that the onus lies on the prosecution to prove the guilt of the accused is not in any way modified by the rule of evidence contained in section 14 of NAO 1999 which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted that such inference can be negative by proof of some fact which in its nature can only be within the special knowledge of the accused. If the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence. Presumption under section 14 of NAO, 1999 is that Court is required to presume if prosecution proves that accused is guilty of offence of corruption and corrupt practices on the condition that prosecution proves the ingredients of clause (a)(v) of section 9 of NAO 1999. 13. Taking the case in hand, at the touch stone of the principles referred above, we would evaluate the prosecution evidence so as to determine whether it has successfully performed its primary duty, if, yes, whether the appellants by rebutting the prosecution evidence, have proved their
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innocence. For this purpose, a precise resume of evidence of parties would be necessary, which run as below: Danishwar Khan SSP, Special Branch, Head Quarter, Peshawar (PW.1), Lal Zada SHO Traffic Police Peshawar (PW.2), Hameed Khan Assistant Pay Officer, District Police Office Kohat (PW.3), Muhammad Shafiq, Inspector Legal Office of *DPO, Mardan (PW.4), Wajid Ali, Senior Clerk, Office of CCPO Peshawar (PW.5), and Israel Khan Pay Officer, Office of DPO, Hangu (PW.6), have furnished the salaries record of appellant Rajab Ali for the period served by him on various disciplines in different districts of the province. Bashir Ahmaed, DSP (Legal) Capital City Police Peshawar, while appearing as PW.7 deposed that in compliance of letter No,1/25/IWI/Notices/ NAB (KP)/215 dated 28.03.2012 marked to him by SP Head quarter Exh.PW.7/1, he submitted report Exh.PW.7/2, wherein he has mentioned that W.P. No,1059/2012, filed by Mst. Jamila, W.P. No,1716- P/2012 filed by Mst. Jamila, W.P. No,1293/2012 filed by Awal Khan and W.P. No,1856-P/2012 filed by Feroz Shah in this Court, appellant Rajab Ali was one of the respondents therein. Farhad Ali appeared as PW.8, who also produced salaries record of the appellant Rajab Ali, in consequence of direction of the NAB authorities along with record of departmental inquires against the appellant. Muhammad Javed Khan District Police Officer. Upper Dir while appearing as PW.9, produced salaries record of the appellant since 2006 to 2011 available at pages 44 and 45 of the Reference Exh.PW.9/5 (2 sheets). He also produced record of the posting and transfers of the appellant Rajab Ali. In cross-examination this witness deposed that appellant Rajab Ali remained posted as SHO PS Hayatabad, Peshawar for two times i,e, once for 07 days w,e,f, from 13.08.2011 to 20.08.2011 and then from 01.12.2011 to 22.03.2012 i,e, for a total period of 02 months and 22 days and that too in two different postings. Arshad Khan, S.I. appeared as PW.10. He has furnished detail report of inquires conducted against appellant Rajab Ali on different occasions Exh.PW.10/1. In cross-examination he admitted that inquires mentioned at S.Nos,1, 5 and 6 of Exh.PW.10/1 have been filed. Mir Afzal…
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