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Petitioner: Syed ANWAR BADSHAH VS Respondent: CHAIRMAN, NATIONAL ACCOUNTABILITY COURT, JUDGMENT
Court Name: Peshawar High Court Judge(s): Assadullah Khan Chamkani, Irshad Qaiser Title:Syed ANWAR BADSHAH vs CHAIRMAN, NATIONAL ACCOUNTABILITY COURT,
JUDGMENT
Reported As: 2013 P Cr. L J 1607 Result: Appeal allowed Judgment JUDGMENT ' MRS. IRSHAD QAISAR, J.---This judgment shall dispose of both the Ehtesab Criminal Appeals Nos.4 of 2004 filed by Syed Anwar Badshah against NAB and Ehtesab Criminal Appeal No,6 of 2004 filed by NAB against Syed Anwar Badshah as they arise out of a common judgment. 2. Brief facts of the case are that Reference No, 5 of 2002 was filed by the Chairman, NAB against the appellant alleging therein that he had, while serving as Chief Officer, District Council and Municipal Corporation, Haripur, acquired following movable/immovable properties and other assets disproportionate to his known sources of income in his name and in the names of his dependents/benamidars:- SR. No.DESCRIPTION YEARPURCHASE VALUE (RS.)MARKET VALUE 1 Purchase land 8 marlas in Khaksar Mohallah Mardan in his own name.1967 2500 560000 2 Purchased land 4 marlas in Khaksar Mohallah Mardan in the name of his wife.1974 3800 280000 3 Purchased land 3.5 marlas in Khaksar Mohallah Mardan in the name of his wife.1975 2000 245000
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4 Purchased land 5 marlas in Khaksar Mohallah Mardan in his own name.1978 3500 350000 5 Purchased land 6 marlas in Khaksar Mohallah Mardan in his own name.1979 75000 420000 6 Purchased land 1.5 marlas in Khaksar Mohallah Mardan in his own name.1981 105000 7 Purchased land 7 kanals, 3 marlas in village Toru Mardan in his own name.1986 400000 8 Purchased a plot measuring 1 kanal, 10 marlas in Tehkal Payan, Arbab Road, Peshawar in the year 1984 in the name of his father and then gifted to self in the same year.1984 150000 300000 9 Purchased a Plot No.269-E measuring One kanal in Sheikh Maltoon Town, Mardan in his own name.1992 450000 1000000 10 Purchased a Plot No.01-J measuring 1 kanal in Sheikh Maltoon Town, Mardan in the name of his brother Syed Hidayat- ur-Rehman.1998 775000 1000000 11 Purchased a Plot No.58-11 measuring 10 marlas in Sheikh Maltoon Town, Mardan in his own name.1984 32500 500000 12 Purchased and sold a Plot No.305 in Sheikh Maltoon Town, Mardan in the name of his son Asif Anwar.2001100000 100000 13 Purchased a shop measuring 1088 sq.ft. at Mardan in his own name and then constructed a showroom.1990 114000 514000 14 Constructed one Garage in Mardan City on Government land.1976 35500 35500 Total 17,94,600 8509500 Construction Cost of Houses only 15 Constructed a house at Khaksar Mohallah Mardan in his own name.1985- 19864,42,800 705078 16 Constructed four double/single room family quarters at Khaksar Mohallah Mardan in his own name.1981- 822,73,820 850000
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17 Constructed a house at Sheikh Maltoon Township in his own name.1994- 9519,93,190 2304589 18 Constructed a house at Arbab Road Tehkal Payan Peshawar in his own name.1990- 9111,48,332 1442032 Total 3858142 5301699 Vehicles Description Year Approximate Market Value 19 Purchased Suzuki Car Model 1988 Registration No.H-4706 in the name of his son Asif Anwar.1998 100000 ' That in the year 1999 he set up a shop of medicine business in Jamal Plaza, Malakand Road, Mardan after investment of Rs,10,00,000. The shop is being run by his son Asif Anwar. ' That he also purchased Prize Bonds worth Rs, 1,06,000. ' That he incurred expenditure of Rs, 8,21,249 on the education of his two sons namely Syed Abbas Anwar and Syed Usman Anwar. 4. That he with his spouse went to Saudi Arabia to perform Umrah on two occasions and incurred expenditure of Rs, 3,00,000. 3. In support of the charge, the prosecution produced 25 witnesses. Thereafter the appellant was examined under section 342 of Cr.P.C. As well as under section 340(2), C.P.C. On oath. He also produced defence witnesses and submitted written statement wherein he denied the charge and has given the detail of his means of income and assets. After hearing the arguments the learned Accountability Court-II, Peshawar vide his judgment and order dated 21-6-2004, convicted and sentenced him section 10 of N.A.O., 1999 to undergo rigorous imprisonment for a period of 2-1/2 year and fine of Rs, 15,00,000, keeping in view the old age of accused and the illegal amount of Rs,11,27,800, while he was exonerated from the remaining charges levelled against him as it is held by trial Court that prosecution failed to prove the allegation. Feeling aggrieved both the parties filed their respective appeals noted above. 4. Learned counsel for the appellant/convict has contended that the prosecution has failed to prove the sources of income of the appellant, as he had not only received the salary allowance etc. Since, 1957; but has other sources of income. He has been able to prove his other legal sources of income in the shape of remittance from abroad, agricultural and rental income, salary of his sons, Prize Bonds etc., but these have not been counted toward his genuine source of income by trial Court. That prosecution has also failed to prove the ingredient of offence under section 9(a)(v) of the National Accountability Ordinance, 1999, that without proving the ingredients of the offence, the provisions of section 14(c) of the Ordinance will not attract. That trial. Court has exonerated the appellant from the charges mentioned in serial Nos.1 to 4, 10, 12 to 14 of the Reference Book, But convicted him for an amount of Rs,11,27,800, in respect of property mentioned at serial Nos. 5 to 9, 11, 15 to 18 which is also not correct because the prosecution has to prove that an amount of Rs, 11,27,800 is disproportionate to the known sources of income of the appellant but they have not led an iota of evidence to prove such facts; therefore, trial Court was not justified in convicting the appellant. Alternatively, he has argued that even otherwise the appellant has sources of income and that the said amount is not disproportionate to the amount earned by him. He has relied upon judgment 2001 SCMR 138, PLD 2004 Lahore 155, 2001 MLD 910. He further contended that the properties acquired prior to 1985 could not form subject-matter of the charge before an
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Accountability Court. That the prosecution utterly failed to prove any misuse of authority resulting in the accumulation of wealth through illegal means. That in the absence of any prosecution evidence or rebuttal the learned trial Judge could not reject the defence evidence. That appellant has produced defence, submitted his written statement under section 265-F(5), Cr.P.C. And also appeared on oath under section 340(2), Cr.P.C. And in the absence of any rebuttal, the averments made therein have to be prevailed. That no show-cause notices were issued to the benamidars to prove whether the transaction is benami or they are actual owner of the respective properties. 5. Conversely, learned DPG has argued that the Chairman NAB filed reference of Rs, 79,79,991-00 the present market value of which is 1,61,38,488-00, against the accused for accumulating of assets beyond his known sources of income during his service in District Council and Municipal Corporation Haripur as Chief Officer; but, the trial Court awarded minor sentence. Since the sentence awarded to the accused is neither in accordance with law or commensurate to the offence committed therefore they filed appeal for enhancement of sentence. That the trial Court while awarding conviction and sentence had failed to appreciate the correct legal as well as factual position. That accused was required to show resources regarding each and every property but he failed to connect the properties with the legal resources available to him. That the fine imposed is not in accordance with law and same shall in no case be less then the gain derived by accused. That prosecution has produced oral and documentary evidence to prove its case but the trial Court has misread the evidence by not taking into consideration the amount spent by him on the purchase and construction of different properties; therefore, a miscarriage of justice has occurred. 6. First we have to deal with the appeal filed by NAB (F) for enhancement of sentence. Learned counsel for respondent/accused raised an objection with regard to the competency of the appeal on the ground that no approval/ direction of the Chairman, NAB for filing this appeal has been annexed with it and in the absence of that the appeal is not maintainable and liable to be dismissed. Now it is to be seen whether the prosecution has been able to fulfill the mandatory requirement of section 32 of N.A.O., 1999 before filing the present appeal or not? For proper assistance the provisions of sub section 1 of section 32 ibid is reproduced below;-- "32. Appeal [and revision]: (a) Any [person convicted or the Prosecutor General Accountability, if so directed by [the. Chairman, NAB] aggrieved by the final judgment and order of the Court under this Ordinance may, within ten days of the final judgment and order of the [xxxxxx] Court prefer an Appeal to the High Court of the Province where the Court is situated[:] 7. All the record has been scanned with the assistance of learned DPG but there is nothing on the file that the Chairman has accorded approval/directions for filing of appeal. It means that provision of section 32 ibid has not been complied with, which provides inter alia that Prosecutor- General Accountability if so directed by the Chairman NAB can file an appeal within ten days against the final judgment. It is the consistence view of this Court and apex Court that when appeal has been filed without the required direction/approval of Chairman, NAB the appeal filed by State is not competent. In this respect reference is made to Ehtesab Criminal Appeal. No,13 of 2003 decided on 24-1-2003, wherein it is held;-- "Once the language of a statute is clear and unambiguous then; the Court of law is not permitted to give it a different meaning, is a century old settled principle and no departure could be made from this universal principle on any consideration, whatsoever". ' It is further observed "It is also well-settled principle with regard to construction of statute that even if two interpretations of the criminal statute are equally possible then, the one favourable to the subject/accused must be preferred".
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' Reference may also be made to Ehtesab Criminal Appeal No,7 of 2003 title "State through PGA v. Haji Fazal-ur-Rehman". This Court vide judgment dated 24-5-2012 in Para No,7 thereof, while interpreting the provisions of section 32 of the Ordinance held the same view. 8. We also seek guidance from the judgment of the apex Court in case Criminal Petition No,55/P of 2006 dated 8-4-2009 where exactly similar proposition of law i.e, section 32(a) was involved and where in it is held;-- "5. We have considered their submission made. A bare reading of the minutes of the Prosecution Wing of the NAB which have been appended with the petition, indicates that it was an internal correspondence between the concerned officials of the Wing with the Chairman NAB and after internal decision regarding filing of appeal, a formal direction to the Prosecution General NAB was to follow which admittedly has not been done in this case." ' In the present case when the appeal has been filed without the required approval and direction of the Chairman, NAB, the ultimate authority under the law, then, the appeal filed by State is not maintainable and the same is hereby dismissed. 10. Now while dealing with the appeal filed by convict/accused it has to be seen whether he has rightly been convicted for an amount of Rs,11,27,800 which was found disproportionate to his known sources of income. 11. Having heard the learned counsel for the parties and perusing the record, including the oral as well as documentary evidence produced by the prosecution and the appellant, we find that the reference was filed in respect of, amount of Rs,79,79,991-00, the present market value of which is Rs,1,61,38,448 for accumulation of assets through illegal and unknown source of income. But the trial Court did not agree with the prosecution with regard to the above mentioned amounts but convicted him only for an amount of Rs,11,27,800, which was allegedly disproportionate to his legal source of income. The trial Court has also completely exonerated the appellant from the charge mentioned at serial Nos.1 to 4, 10, and 12 to 14 of Reference Book. 12. From the above resume, it is established that the explanation furnished by the appellant was considered and acted upon to some extent; therefore, the amount was reduced by the trial Court. Being this factual position the learned counsel for the appellant has forcefully argued that the prosecution was required to first prove the ingredients of the offence to show the source of income of the appellant but the same has not been proved, therefore, the appellant was not required to explain everything as the burden was not shifted upon him as provided under section 14(c) of the Ordinance. 13. The offence of acquiring properties disproportionate to the known source of income is defined under section 9(a)(v) of Ordinance and under this provision of law the prosecution is required to prove the following points;-- (i) The accused was holder of Public Office. (ii) Nature and extent of pecuniary resources of property which were found in his possession. (iii) What where the known source of income i.e, known to the prosecution after thorough investigation. "(iv) Such resources or property find in possession of the accused were disproportionate to his known source of income. ' Once the above ingredients are established by the prosecution, the offence under section 9(a)(v) is complete, unless the accused is able to account for such resource and property. 14. Keeping in view the above principle in mind it is to be seen whether prosecution has been able to prove prima facie case against appellant or not? 15. The prosecution in order to prove its case had produced 25 witnesses who have given the detail of the properties acquired by accused/appellant either in his name or in the names of others as benamidars while in his statement recorded under section 342, Cr.P.C. He denied the allegations.
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He produced 20 witnesses to prove his legal source of income. He himself was examined on oath as D.W.21. He also submitted his written statement under section 265-F(5), Cr.P.C. And submitted the detail of each and every property. 16. Before going to the discussion and decision of the facts of the case it would be appropriate to give finding on the legal issue which was strongly agitated by the appellant that the properties alleged to have been acquired prior to 1985 could not be made a part of reference and that out of the properties referred in the charge, eight have been acquired before 1985 and construction of four quarters were also raised before 1985. The arguments of the learned defence counsel have no force in the eye of law, because this ordinance has been promulgated to eradicate corruption and corrupt practices. In the preamble it is stated;-- "To provide for effective measures for the detection, investigation, prosecution and speedy disposal of cases involving corruption, corrupt practices, [misuse or abuse] of power, [or authority] misappropriation of property, [taking of] kickbacks, commissions and for matters connected and ancillary or incidental thereto". ' The corruption and corrupt practices and misuse of powers obviously must relate to the period during which a person is in position as a holder of Public Office to misuse this office for private gain. It is the consistent view of Superior Courts that a person who was a civil servants or was holding public office before 1-1-1985 cannot get a certificate of clearance by giving an interpretation that such Ordinance is only with regard to the properties of acquired thereafter. The Ordinance would and should apply to all properties which have been acquired whether prior to coming in to force of Ordinance or thereafter but with respect of person against whom cognizance can be taken under the ordinance. In such circumstances all the assets will be scrutinized in the light of the evidence produced by the parties and no exemption can be given to the accused. 17. In order to reach the correct stage of accountability, it is necessary to first check the whole evidence produced by the parties and to calculate the amounts which were available with the accused at the relevant time as his known sources of income. 18. Accused while examined as D.W.21 on oath under section 340(2), Cr.P.C. Has given the detail of his source of income. He stated that after his matric he joined the service as a clerk to the Commissioner Office Peshawar in the year, 1957, the copy of his service card is Exh.P.D.W.1/1 and then in 1961 he joined the Tourist Bureau N.-W.F.P. As clerk. During arguments prosecution did not challenge the service of accused rendered by him from 1957 to 1961. P.W.3 Gohar Zaman produced his service record including his declaration of assets Exh.P.W.3/-1, Exh.P.W.3/2 and copy of statement of pay and allowances of accused Exh.P.W.3/3. But his salary from 1957 to 1961 has not been mentioned. It was the duty of the Investigating Officer to give credit of this salary to accused but he failed. 19. In his statement accused also gave the financial background of his family and stated that his father was Arabic Teacher in Education Department and retired from service in 1955. Then he joined Auqaf Department as Khateeb Jamia Masjid Toru and held this office till his death on 27-11-1984. That he was agriculturist having sufficient property beside seven houses and Hujra in the village. He was a wealthy man and has sufficient sources to send his elder son Syed Badshah to U.S.A. For higher education before partition on his own expenses who has been retired as a Director, Agriculture Department. His other brothers are also highly educated and posted in different departments as Section Officer, SDO WAPDA, Manager, Grandly Bank and Public Health Engineer. That his brother who is living in U.S.A. Had executed power of attorney in his favour to supervise and receive the produce of his landed property measuring 60 kanals since 1974. That through registered deed in 1974 his father had given one house to each of his sons and one left over house measuring 13 marlas was sold by them at the cost of Rs,150,000 and the proceed was distributed amongst all brothers and sisters. He also received extra share of his brother Syed Masood-
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urRehman amounting to Rs, 21,500 besides his own. That his brother Masood-ur-Rehman also sent Rs, 80,000 upto 1980-81. He received about 900000 as produce of his agriculture land since 1974 to 2000. He also received an amount of Rs,4,00,000 .As share of his brother in the sale of trees. That his brother also remitted more than Rs,6,26,000 in his name and in the name of his son through Bank from U.S.A. He also received Rs,37,606 as compensation of land of his brother from WAPDA and it was utilized by him. He received an amount of more than Rs,9,39,000 as prize bond of different denominations. He obtained loan of Rs,10,000 from House Building Finance Corporation for construction of house at Mohallah Khaksar Manzil Mardan on 8 Marlas. He obtained Rs,1,00,000 in 1985 for construction of two quarters, Rs,1,00,000 in 1991 for construction of house at Arbab Road. He received. Rs,1,00,000 as share in the inherited cash amount. He received Rs,26,02,800 as security/rent of four quarters and two houses. His wife received Rs,2,00,000 as her share in her father's landed property. 20. In order to prove his stance he has produced 20 witnesses in his defence D.W.1 to 3 and 6. Javed Iqbal, Amirzada, Ahmad Javed and Sahibzada stated that they are tenants under accused. They also gave the detail of rent and advance paid by them to accused. D.W.5 Hidayat Hussain stated that his sister is married to accused. His father was a landlord and had given through him 32 tolas Golden ornaments to the wife of accused. That his father died in 1983 and they paid Rs,2,50,000 to the wife of accused in lieu of her share in the landed property left by his father. D.W.8 Fazal Rabi Incharge Main Branch Habib Bank Limited Mardan stated that an amount of Rs, 6425 + 9300 and 103480 were received in his branch from Said Rehman from U.S.A which were paid to accused. Attested copies of three receipts are Exh.D.W.8/1 to Exh.D.W.8/3. D.W.9 Haroon, Officer State Bank of Pakistan produced the record Exh.D.W.9/1 to Exh.P.W.9/3 in respect of Prize Bond drawn in his favour and stated that the total amount received by him is Rs,9,19,375 D.W.10 brought record pertaining to the house building loan sanctioned in favour of accused the detail of which is Exh.D.W.10/1, 2 and Exh.D.W10/A-1. Javed Ahmad, Manager, NBP prepared the statement of account of Syed lshfaq Anwar, son of accused, from 14-6-2000 to 26-9-2002 Exh.D.W11/1. D.W.12 Musasart Shah and D.W.16 Hidayat-ur-Rehman brothers of accused gave the financial family background of accused. D.W.12 produced registered deed dated 9-9-1959 Exh.12/1 vide which his father purchased a house and it was sold through him for Rs,1,50,000 vide deed Exh.D.W.12/2. This price was distributed amongst all legal heirs of their father and accused was given two shares i.e, his share and share of his brother Masood-ur-Rehman who is in U.S.A. At the time of death of their father, he left a cash balance of Rs,3,50,000 and each son received share of Rs,50,000. He also received two shares. He further stated that Plot No,1-36 situated in Shaikh Mardan was purchased by his father and after his death it was in his possession till date, because it has been transferred in his name, while according to D.W.16 the plot bearing J-1 in Sheikh Maltoon Town is owned by him. D.W.14 Inayat Khan carried out the evaluation of four properties owned by accused and prepared four detailed BOQs Exh.D.W.14/1 to Exh.D.W.14/4. Manzoor Ahmad distributor of three Pharmaceutical firms was examined as D.W.15. He brought the record of the goods supplied to the store of Asif Shah, son of accused, Exh.D.W.15/1 and stated that supplies are made on credit. The record of Goshwara Takhmeena in respect of agricultural property of Masood-ur-Rehman was produced by D.W.13 and D.W.17. Both the sons of the accused were examined as D.W.18 and D.W.19. They have also given the detail of their income as well as the income of their father. Despite the fact that, all the defence witnesses were cross- examined at great length but nothing beneficial were squeezed from their mouth in favour of prosecution. They have given the detail of source of income of accused. There is nothing of record that they are not truthful witnesses. Some of the witnesses are official witnesses and they have no interest to depose in favour of accused. Prosecution produced 25 witnesses who have produced record in respect of salary of accused as well as the property purchased by him and the construction raised by him in his landed property. The purchase of the property in his name and
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the construction raised thereon has not been denied by him. He has also submitted the statement of his income and expenditure from 5-8-1957 to 31-12-2001 marked as Exh. D.W .21/18 . 21. From the careful perusal of impugned judgment it reveals that trial Court also considered the statements of some of the D.Ws. e.g. For the construction of the houses and quarters mentioned at serial No, 15 to 18 in column of "construction cost of houses". The learned trial Court has accepted the statement of D.W.14 Inayat Khan who carried out the evaluation of four properties owned by accused and prepared BOQs Exh.D.W.14/1 to Exh.D.W.14/4 and rejected to assessment reports Exh.P.W.10/1 to Exh.P.W.1014 prepared by P.W.10 Abdur Rehman. It is admitted fact that accused had constructed houses and quarters and he was also charged for the same I.O. Also admitted the existence of the quarter and houses when the photographs of the four quarters marked as Exh.25/D-3 and Exh.25/D-4 were confronted to him in his cross-examination. It is not expected that the quarters and the houses have been lying vacant for indefinite time after their construction till the filing of reference. In order to prove the tenancy and rent accused produced tenants who were examined as D.Ws.1 to 3 and 6. The trial Court has not brushed aside the statement of these D.Ws. Rather endorsed the same. But the trial Court has not given the benefit of this rent amount to the accused simply on the ground that it has not been proved that what was the monthly rent, advance amount and the period for which certain tenants were occupying this property. The accused has produced his defence to substantiate his plea but now it was the duty of the prosecution to…
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