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Petitioner: IKRAM SHAH VS Respondent: THE STATE and another
Court Name: Peshawar High Court Judge(s): Talaat Qayyum Qureshi, Ijaz-ul-Hassan Khan Title: IKRAM SHAH vs THE STATE and another Case No.:Criminal Appeal No,5 and Writ Petition No,448 of 2002 Criminal Appeal
JUDGMENT
Reported As: 2002 YLR 1400 Result: Order accordingly Judgment JUDGMENT ' TALAAT QAYUM QURESHI, J.---Through this single judgment we shall decide Ehtesab Appeal No,5 of 2002 and Writ Petition No,448 of 2002 (Mst. Nasim Akhtar and others v. Judge, Accountability Court No,III, Peshawar and others) as both emanate from the judgment/order, dated 9-3-2002 passed by the learned Judge, Accountability Court No,III, Peshawar. 2. The Chairman, National Accountability Bureau filed Reference No,4 of 2001 against Ikram Shah, Executive Engineer C&W Department for accumulating and amassing Wealth, movable and immovable properties and assets worth Rs,4,29,70,609 through corruption and corrupt practices for trial of the above-named appellant under sections 9/10 of NAB Ordinance, 1999 (hereinafter referred to as the Ordinance) before the learned Judge, Accountability Court No,III, Peshawar. 3. The learned trial Court framed charge against the accused on 9-4-2001. He pleaded not guilty and claimed trial. 4. In order to prove its case the prosecution examined as many as 23 witnesses. The statement of accused was recorded under section 342, Cr.P.C. And he also examined 9 witnesses in his defence. In order to collect reliable data about the approximate income of the accused and his family members from agriculture property, the learned trial Court examined three Court-witnesses. The appellant was re-examined under section 342, Cr.P.C, after examination of three Court-witnesses. The learned Judge, Accountability Court No,III, N.-W.F.P. Vide his judgment and order, dated 9-3- 2002 convicted and sentenced the appellant, to undergo:-- (a) Rigorous imprisonment for a term of 7 years and (b) Fine of Rs,3,00,00,000 (Rupees three crore).
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(c) The properties mentioned in tables Nos.2 to 14 which are still in the names of accused Ikram Shah, his wife Mst. Nasim Begum, sons Haroon and Imran, as well as daughters Marukh and Gulsanga, were forfeited to appropriate Government under section 10(a), NABO. (d) The amount of Rs,9,63,000 in PLS Account No,3819-0 in National Bank of Pakistan, Maneri Branch, Swabi admittedly earned through sale of plot in Habibullah Colony, Abbottabad was also forfeited to appropriate Government under section 10(a) NABO. (e) The fine mentioned above would be paid within one month to State failing which it would be set off against the forfeited property in terms of section 11, NABO. (f) The accused, from this date, shall be disqualified for ten years for holding any public office in terms of section 15 of NABO. (g) The benefit of section 382-B,Cr.P.C. Was extended to accused Being aggrieved with the said judgment/order, the appellant has filed appeal in hand. 5. Qazi Muhammad Anwar, Advocate the learned counsel representing the appellant argued that the prosecution has failed to make out a reasonable case against the appellant, in that it has failed to discharge its initial burden to prove prima facie case against the appellant, therefore, the burden of proof, did not shift to the appellant to rebut the presumption of guilt. 6. It was also argued that three properties i,e, (i) Plot of land measuring 2 Kanals No,90-D, Street No,37, Phase-I, Hayat Abad, Peshawar in the name of wife of the appellant was allotted to her on 24-6-1979 against total price of Rs,74,000 which she paid in four monthly equal instalments. (ii) Plot of land measuring 2 Kanals bearing No,3-G/4, Phase II, Hayat Abad was allotted in the name of Mst. Zakia Begum against total price of Rs,1,15,000 in the year 1982 the price of which was paid by her. (iii) A plot of land measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad was purchased by Abdul Sattar father-in-law of appellant in the year 1973, The amount of sale consideration was paid by him and he remained in possession thereof till he died in the year 1980, ' These properties were allotted/purchased much prior to 1-1-1985 on which date NAB Ordinance, 1999 was made applicable, therefore, the abovementioned properties do not come under the purview of the Ordinance and if at all it was considered that the said properties fall under the purview of the Ordinance, then in that case, the prosecution has failed to prove that the said properties were purchased by the appellant and the two ladies and Abdul Sattar were holding those properties as "Benamidars". 7. It was also argued that Mst. Nasim Akhtar, wife of appellant and his children were regular assessees of Income-tax and Wealth Tax and documents to this effect were produced by the D.Ws. But the Court failed to examine the same. 8. It was also argued that the appellant ' had inherited sufficient landed property from his father way back in the year 1972, which was "under his self-cultivation. He had been gifted land measuring 24 Kanals by his father in the year, 1950. The learned trial Court did not properly appreciate his income derived from agrkulture property and while assessing the said income the learned trial Court has evolved a formula of its own, which has no basis at all. It failed to appreciate that the income derival from his agriculture property justify his assets. Q. It was further argued that Abdul Sattar, father of Mst. Nasim Akhtar. Wife of appellant died in the year 1980. Mst. Nasim Akhtar had not inherited any property from him. On his death a plot of land measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad, devolved upon L.Rs, of Abdul Sattar including Mst. Nasim Akhtar. The brothers and sisters of Mst. Nasim Akhtar surrendered their shares in the said plot to Mst. Nasim Akhtar. The said plot was sold by her against sale consideration of Rs,10,58,999. Neither the amount earned by the sale of said plot was considered as legitimate earning of Mst. Nasim Akhtar nor sum of Rs,5,000 paid by Abdul Sattar per month to his daughter (wife of
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appellant) as pocket money were taken into account, hence the learned trial Court committed illegality. 10. It was further argued that the appellant had proved through reasonable evidence that the properties mentioned in the charge were purchased by him through his hard earned money and his family had sufficient agricultural income, but the evidence produced by the appellant was ignored altogether. It was prayed that the conviction and sentence be set aside and the appellant be set free. 11. On the other hand Mr. Kamran Arif, the learned counsel representing NAB/State argued that the prosecution had through reliable evidence proved its case. The burden to rebut the case had shifted to the appellant which he failed to discharge, therefore, the conviction and sentence awarded by the learned Court below are based on proper appreciation of evidence and law applicable to the case. 12. It was also argued that it was established through evidence of prosecution that the income of the appellant from his agriculture property was meagre, appellant and his family's life style was lavish and the properties purchased by him in his own name and in the name of his family members were purchased with the ill-gotten money. 13. It was further argued that 'Takhmina Paidawar' produced by the Court-witnesses fully indicated the amount earned by appellant from his agriculture property and the appellant failed to rebut the same. He also failed to show that he earned more amount than mentioned in "Takhmina Jat". 14. We have heard the learned counsel for the parties and perused the record. 15. The argument of the learned counsel for, the appellant that the prosecution has failed to make out a .Reasonable case against the appellant, in that it has failed to discharge its initial burden to prove prima facie case against the appellant, therefore, the burden of proof did not shift to the appellant to rebut the presumption of guilt, has no force in it. Section 14 of the Ordinance deals with the presumption against the accused. According to this section if a person is charged under clause (vi) or clause (vii) of subsection (a) of section 9 of the Ordinance it is the prosecution which shall first make out a reasonable and prima facie case against the accused and the mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of the abovementioned section NAB Ordinance. In section 14(c) the legislation in its own wisdom has used words 'unless the contrary is proved' which means the contrary can only be proved by accused if earlier something has been proved against him, that is the burden shall shift to the accused to prove to the contrary if some case has been made out against him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, it is well-settled that the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit or favour. Unless the facts constituting misuse of authority as contemplated under ,section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In such a case the prosecution would be duty bound to lead evidence against the accused and then he would be called upon to prove his innocence. In the recent judgment titled Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607. In paragraph 230 it was observed:-- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This
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interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above I provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is - held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the, following directions for effective operation of section 14(d): (1) The prosecution shall first make out a reasonable case against the accused charged under section 9 (a)(vi) and (vii) of the NAB Ordinance. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt." 16. Similarly in Dr. Farooq Sattar v. The State Criminal Appeal No,1160 of 2000 decided on 20-9-2001 by Lahore High Court it was held:-- "There is considerable force in the arguments raised by the learned counsel for the appellant. The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accused could be called upon to make a statement under section 342 of the Cr.P.C. And then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had 'misused' his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or wilfully failed to exercise his authority to prevent that grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Unless the basic facts constituting 'misuse' of authority as contemplated under section 9(a)(vi) of the Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In this connection, reliance can be placed on a recent judgment of the Honourable Supreme Court of Pakistan in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division; Islamabad and others PLD 2001 SC 607 paras. 230 and 231 reproduced.)." 17. The august Supreme Court of Pakistan in Messrs Ilahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 defined the word "reasonable" as under:-- "That the word 'reasonable' is a relative genric term difficult of adequate definition. It inter alia connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the Constitutional bounds." 18. The august Supreme Court of Pakistan in Khan Asfandyar Wali's case has held that the prosecution if succeeds in making out a reasonable case, to the ' satisfaction' of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shifts to the accused to rebut the presumption of guilt. Similarly in section 14(c) of the Ordinance the language used is "he cannot satisfactorily account". The satisfaction of the Court must be' based on proper determination from all facts and circumstances of the case, be real, bona fide and not by malice. In Syed. Saeed Hassan v. Payar Ali and 7 others PLD 1976 SC 6 while examining the connotation and implication of the expression satisfaction, their Lordships laid down:-
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" ' Satisfaction' is by no means a term of art and appears to have been used in its ordinary dictionary sense. 'Satisfaction' is the existence of a state of mental persuation much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the 'legal satisfaction' which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. In corpus juris secundum 'satisfy' has been held to be synonymous with, 'convince beyond a reasonable doubt' and 'satisfaction' has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary 'to satisfy' means to furnish with sufficient proof or information or to fissure or set free from doubt or certenty to convince. " 19. In the case, in, hand the prosecution has made out thing/facie case by placing on record sufficient evidence oral as well as documentary to the satisfaction of the Court that the appellant and his family members i,e, his wife, sons and daughters did not have ostensible means to purchase such huge properties mentioned in the Reference and whatever they have purchased in the shape of movable, immovable properties and assets were purchased through ill-gotten money. The burden to prove that the properties both movable, immovable and assets were purchased/made by the appellant and his family members through their legally earned money had, therefore, shifted to the appellant and his family members who had been served with notice by the learned trial Court to justify their earnings. 20. So far as the argument of the learned counsel for the appellant that three properties mentioned in para.6 were not "Benami" and the persons holding the same were not "Benamidars" has a great deal of force in it. Before we dilate upon the evidence to find out as to whether these properties were purchased by the appellant in the names of others, who were holding the same as "Benamidars", we feel it appropriate to see as to what is "Benami" transaction. The word "Benami" has not been defined in the Ordinance. This word has only been defined in section 82 of the Trust Act, 1882, which reads as under:-- "Where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration." 21. The transactions which were termed as "Benami" were dealt with in a case titled as Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437 in the following words:-- "The word 'Benami' is used ' to denote two classes of transactions which differ, from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for,example when 'A' sells properties to 'B' but the sale-deed mentions 'X' as the purchasers. ' Here the sale itself is genuine, but the real purchaser is 'B', ' X' being his Benamidar. This is the class of transactions which is usually termed as Benami. But the word 'Benami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when ' A' purports to sell his property to 'B' without intending that his title should cease or pass to 'B'. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is
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only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or 'B', to enquire into the question as to who paid the consideration for the transfer, 'X' or 'B'. But in the latter class of cases, when the question is whether the transfer is genuine or sham the point for decision would be, not who paid the consideration, but whether any consideration was paid. (See Sres Meenakshi Mills Ltd. Maduraj v. Commissioner of Income-tax Mad. AIR 1957 SC 149)." alia the following factors are to be taken into consideration:-- (i) Source of consideration; (ii) from whose custody the original title deed and other documents came in evidence; (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction." 23. In para. 7 of the said judgment their Lordships affirmed:--- "It is also well settled Law that the initial burden of proof is on the party, who alleges that an ostensible owner is a 'Benamidar' for him and that the weaknesses in defence evidence would not relieve a plaintiff from discharging the above burden of proof." 24. The following judgments can also be safely cited in support:-- (i) Ch. Rehmat Ali v. Abdul Khaliq through his L.Rs, and another 2000 M LD 1948, (ii) Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCM R 806, (iii) M.D. Abdul Majid and others v. Dr. Zainul Abidin and others PLD 1970 Dacca 414 and (iv) Ismail Dada Adam Soomro v. Shorat Banoo and others PLD 1960 Kar. 852. 22. Likewise the august Supreme Court of Pakistan in Muhammad Sajjad Hussain v, Muhammad Anwar Hussain 1991 SCM R 703 held:-- "Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter In the light of criteria laid down by the august Supreme Court of Pakistan and judgments cited above we now proceed to examine the evidence produced by the prosecution to find out as to whether the three properties mentioned in paragraph No,6 of this judgment i,e, two plots situated at Hayat Abad and the third one at Habibullah Colony Abbottabad were held by the wife, aunt and father-in-law of the appellant as "Benamidars". 25. So far as Plot No,90-D measuring 2 Kanals situated at Street No,3737, Phase I, Hayat Abad, Peshawar is concerned, it is on record that this plot was allotted to Mst. Nasim Akhtar 'wife of appellant, vide allotment order Exh.P.W.9/2. Possession of the said plot was also handed over to her vide possession certificate Exh.P, W.9/3. She paid the amount of sale consideration through four equal six-monthly instalments. Mst. Nasim Begum in her written statement filed before the learned Accountability Court has stated that her father used to pay Rs,5,000 per month and out of the said amount she saved sufficient amount and paid the instalments. Even if the amount of Rs,5,000 per month given by her father is not admitted, then it appeals to the reasonable mind that a lady who is wife of an Engineer having good agriculture background could easily save something per month and pay the amount of Rs,74,000 in four equal six-monthly instalments. This plot was transferred by Mst. Nasim Akhtar in the name of her son Imran Ikram on 7-2-1994 vide Exh.P.W.9/4. The abovementioned facts were confirmed by Parvez Alam, Deputy Director, PDA, who was examined as P.W.9 by the prosecution. The learned Accountability Court in paragraph No,76 of the impugned judgment has accepted this plot to have been purchased from validly earned income, therefore, this property cannot be termed as "Benami". 26. A piece and parcel of land measuring 2 Kanals bearing No,3-G14 situated at Phase II, Hayat Abad was allotted to Mst. Zakia Begum (paternal-aunt of appellant) vide alltitment letter Exh.P.W.9/12 for a sale consideration of Rs,1,15,000 on 10-5-1982. Possession was handed over to her vide possession certificate Exh.P.W.9/14. She paid the sale price in four equal instalments. She
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transferred the said plot in favour of Haroon Ikram (son of appellant) vide transfer deed Exh.P.W.9/15. Parvez Alam (P.W.9) admitted in cross-examination that the sale price was paid by Mst. Zakia Begum and possession had been handed over to her. Mst. Zakia Begum is the paternal- aunt of the appellant and it is on record that her brother owned sufficient agriculture land as he in his life time had gifted land measuring 24 Kanals to appellant in the year 1950 and on his death, his L.Rs, inherited sufficient landed property left by him. Since this lady belonged to a rich agriculturist family, therefore, payment of Rs,1,15,000 that too through.Four equal six-monthly instalments was not unbelievable phenomenon. It is also in evidence that she was unmarried. If she had gifted this plot of land to her minor grandson, this was also not unusual. The case of the prosecution was that this property alongwith property mentioned in the above paragraph (Plot No,90-D) was purchased by Ikram Shah, appellant in the names of his wife and paternal-aunt as "Benami" but prosecution has failed to prove this fact. The learned Court below has gone a step forward than the prosecution case while declaring that transfer of this plot in the name of Haroon Ikram was not a gift and a "Benami" purchase by appellant in the name of his son. When the prosecution case was that originally this plot was purchased by appellant in the name of his paternal-aunt, which it failed to prove. It was not the case of prosecution that the subsequent gift/sale in favour of Haroon Ikram was "Benami". On failure of prosecution to prove that the first allotment in favour of Mst. Zakia Begum was "Benami". The subsequent transfer in the name of her grandson could not be declared as "Benami". Another factor in which the Court has gone beyond the prosecution case is that Plot No,2- G/4 measuring 2 Kanals situated at Phase-II, Hayat Abad was not included in the Reference. Since Haroon Ikram on 27-101997 had exchanged Plot No,3-G/R (transferred to him by Mst. Zakia Begum)…
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