Landmark case of benami transaction

PLJ 2002 Cr.C. (Peshawar) 1058 (DB)

Present: talaat qayyum qureshi and ijaz-ul-hassan khan, JJ.

IKRAM SHAH-Appellant

versus

STATE and another-Respondents

Criminal Appeal No. 5 of 2002, decided on 17.7.2002.

National Accountability Bureau Ordinance, 1999--

—Ss. 14 & 9-Section 14 of Ordinance deals with presumption against accused-According to this Section if a person is charged under Clause (vi) or clause (vii) of sub-section (a) of Section 9 of Ordinance it is prosecution which shall first make out a reasonable and prirna facie case against accused and mere fact that a person stands charged for trial in Accountability Court does not give-rise to a presumption of guilt in respect of Section 9 of NAB Ordinance--In Section 14(c) legislation in its own wisdom has used words "unless contrary is proved" which means contrary can only be proved by accused if earlier something has been proved against him, that is burden shall shift to accused to prove to contraiy if some case has been made out against him by prosecution when law raises a presumption against accused and calls upon him to prove contrary, it is well settled that contrary cannot be said to be proved if accused succeeds in establishing that act attributed to him is capable of an interpretation other than that suggested by prosecution, therefore, it was duty of 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 facts . constituting misuse of authority as contemplated u/Section 9(a)(vi) of Ordinance are established accused cannot be called upon to prove his innocence within meaning of Section 14(d) of Ordinance--In such a case prosecution would be duty bound to lead evidence against accused and then he would be called upon to prove his innocence. [Pp. 1063 & 1064] A

PLD2001.SC 607 re/.

National Accountability Bureau Ordinance, 1999-

—Ss. 9 & 10-NAB filed reference against Executive Engineer C & W Department for accumulating and amassing wealth, moveable and immovable properties and assets through corruption and corrupt practices—Conviction and sentence by Accountability Court—Appeal against-Appellant earned Rs. 17,46,480 towards salaries from the date of his joining service till filing of reference against him which was not sufficient to make both ends meet of appellant especially keeping in view luxurious and levish life-style of appellant and his family members—Total agriculture income-of appellant from 1950 to 2000 was Rs. 59,11,360/-whereas he had spent a sum of Rs. 99,65,894/- in excess for purchase of various properties in his own name, in the names of his wife and children-He has not been able to satisfactorily account for Rs. 99,65,894-This amount is held to be disproportionate to his legal sources of income and therefore, it is held, this amount of Rs. 99.65,894/- was acquired and obtained by him through corruption and corrupt practices, therefore, properties purchased in the names of appellant his wife and children alongwith construction if any are liable to forfeiture to the Government/State concerned-Held : Conviction of appellant u/S. 9(v) of NAB Ordinance, 1999 maintained-His sentence u/S. 10(a) of NAB Ordinance 1999 reduced from 7 years to 4 years imprisonment and fine of Rs. 300,00,000/- (Three Crore Rupees) to 10 million (Rupees one crore)-Amount of fine shall be paid by convict within a period of two months to state, failing which it shall be set-off against forfeited properties in terms of Section 11 of NAB Ordinance, 1999 maintained-He shall also be disqualified for ten years for holding any public Office as per Section 15 of NAB reduced, 1999-Benefit of Section 382-B Cr. P.C. shall also be extended to him-Appeal dismissed.

[Pp. 1082, 1083, 1084 & 1085] D, E & F

Words and Phrases--

 —Word "Benami" has not been defined in NAB Ordinance, 1999-This word has only been defined in Section 82 of 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 benefit oftransferee, transferee must hold property for benefit of person paying or providing consideration." [Pp. 1066 & 1067] B

Words and Phrases-

—Benami words discussed and illustrated--

Transactions which were termed as "Benami" were dealt with in a case titled as Jane Margrete William vs. Abdul Hamid Mian (1994 CLC 1437) in 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 sale-deed mentions 'X' as purchasers-Here sale itself is genuine, but real purchaser is 'B', 'X' being his benamidar-This is class of transactions which is usually termed as fcenamz-But word 'banami' 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'-fundamental difference between these two classes of transactions is that whereas in former there is an operative transfer resulting in vesting of title in transferee, in latter there is none such, transferor continuing to retain title notwithstanding execution of transfer deed-It is only in former class of cases that it would be necessary, when a dispute arises as to whether person named in deed is real transferee or 'B', to enquire into question as to who paid consideration for transfer, 'X' or 'B'-But in later class of cases, when question is whether transfer is genuine or sham point for decision would be, not who paid consideration, but whether any consideration was paid"~(See Sres Meenakshi Mills Ltd., Maduraj vs. Commissioner of Income-Tax, Madras AIR 1957 SC 149."

Likewise August Supreme Court of Pakistan in Muhammad Sajad Hussain vs. Muhammad Anwar Hussain (1991 SCMR 703) held:-

"Some of criteria for determining question, whether a transaction is a Benami transaction or not, inter alia, following factors are to be taken into consideration:-

(i)    source of consideration;

(ii)   from   whose   custody   original   title   deed   and   other documents came in evidence;

(in) who is in possession of suit property; and                            »

(iv) motive for Benami transaction."                         [P. 1067] C

judgment

Talaat Qayyum Qureshi, J.-Through this single Judgment we shall decide Ehtesab Appeal No. 5/2002 and W.P. No. 448/2002 (Mst. Nasim Akhtar etc. vs. Judge Accountability Court No. Ill, Peshawar etc.) as both emanate from the judgment/order dated 9.3.2002 passed by the learned Judge Accountability Court No. Ill Peshawar.

The Chairman National Accountability Bureau filed ReferenceNo. 4/2001 against Ikram Shah, Executive Engineer C and W Department
for accumulating and amassing Wealth, movable and immovable propertiesand assets worth Rs. 4,29,70,609/- through corruption and corrupt practices
for trial of the above named appellant u/Sections 9/10 of NAB Ordinance,1999 (hereinafter referred to as the Ordinance) before the learned Judge
Accountability Court No. Ill Peshawar.The learned trial Court framed charge against the accused on9.4.2001. He pleaded not guilty and claimed trial.

4.  In order to prove its case the prosecution examined as many as 23witnesses. The statement of accused was recorded u/Section 342 Cr.P.C. and
he also examined 9 witnesses in his defence. In order to collect reliable dataabout the approximate income of the accused and his family members from
agriculture  property,   the  learned   trial   Court   examined   three   Courtwitnesses. The  appellant was  re-examined u/Section 342 Cr.P.C. after
examination of three Court witnesses. The learned Judge AccountabilityCourt No. Ill N.W.F.P. vide his judgment and order dated 9.3.2002 convicted
and sentenced the appellant to undergo:--

Rigorous imprisonment for a term of 7 years andFine of Rs. 3,00,00,000/- (Three Crore Rupees)

The properties mentioned in Tables Nos. 2 to 14 which are stillin the names of accused Ikram Shah, his wife Mst. Nasim
Begum, sons, Haroon and Imran, as well as daughters Marukhand Gulsanga, were  forfeited to  appropriate  Govt.  under
Section 10(a) NABO.

The amount of Rs. 9,63,000/- in PLS Account No. 3819-0 inNational Bank of Pakistan, Maneri Branch, Swabi admittedly
earned through sale of plot in Habibullah   Colony Abbottabadwas also forfeited to appropriate Govt. under Section (a) NABO.

The fine mentioned above would be paid within one month tostate failing which it would be set off against the forfeited
property in terms of Section 11 NABO.The accused, from this date, shall be disqualified for TEN years
for holding any public office in terms of Section 15 of NABO.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   counselrepresenting the appellant argued that the prosecution has failed to make
out a reasonable case against the appellant, in that it has failed to dischargeits 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 ofguilt.6.            It was also argued that three properties i.e.

(i) Plot of land measuring 2 Kanals No. 90-D, St. 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 Kanals 10 Marias 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 above mentioned 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 andhis children were regular assessees of Incme Tax and Wealth Tax and
documents to this effect were produced by the D.Ws. but the Court failed toexamine the same.It was also argued that the appellant had inherited sufficientlanded property from his father way back in the year 1972, which was underhis self cultivation. He had been gifted land measuring 24 Kanals by hisfather in the year 1950. The learned trial Court did not properly appreciatehis income derived from agriculture property and while assessing the saidincome the learned trial Court has evolved a formula of its own, which hasno basis at all. It failed to appreciate that the income derived from hisagriculture property justify his assets.

It was further argued that Abdul Sattar, father of Mst. NasimAkhtar, wife of appellant died in the year 1980. Mst. Nasim Akhtar had notinherited any property from him. On his death a plot of land measuring 1Kanal 10 Marias 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 appellant) as pocket money were taken into account, hence the learned trial Court committed illegality.It was further argued that the appellant had proved throughreasonable evidence that the properties mentioned in the charge werepurchased by him through his hard earned money and his family hadsufficient agricultural income, but the evidence produced by the appellantwas ignored altogether. It was prayed that the coviction and sentence be setaside and the appellant be set free.On the other hand Mr. Kamran Arif, the learned counselrepresenting NAB/State argued that the prosecution had through reliableevidence proved its case. The burden to rebut the case had shifted to theappellant which he failed to discharge, therefore, the conviction and sentenceawarded by the learned Court below are based on proper appreciation ofevidence and law applicable to the case.It was also argued that it was established through evidence ofprosecution that the income of the appellant from his agriculture propertywas meagre, appellant and his family's life style was lavish and theproperties purchased by him in his own name and in the name of his familymembers were, purchased with the ill-gotten money.It was further argued that "Takhmina Paidawar' produced by
the Court witnesses fully indicated the amount earned by appellant from hisagriculture property and the appellant failed to rebut the same. He also
failed to show that he earned more amount than mentioned in 'TakhminaJot'.

We" have heard the learned counsel for the parties and perusedthe record.

The argument of the learned counsel for the appellant that theprosecution has failed to make out a reasonable case against the appellant, in
that it has failed to discharge it initial burden to prove prima facie caseagainst 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 ofthe Ordinance deals with the presumption against the accused. According to"
this Section if a person is charged under Clause (vi) of clause (vii) of sub­section (a) of Section 9 of the Ordinance it is the prosecution which shall firstmake out a reasonable and prima facie case against the accused and themere 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 above mentioned Section of 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 ag ainst 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 of favour. Unless the facts constituting misuse of authority as contemplated u/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 Wall and others us. Federation of Pakistan and others (PLD 2001 S.C. 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 disapprove the presumption. This is also the consistent stand taken by Mr. Abid Hasan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phaseology used therein. We are also of the view that the above provisions d6 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 againstthe accused charged under Section 9(a)(vi) and (vii) of the NAB
Ordinance.

(2)             In case the prosecution succeeds iii making out a reasonablecase to  the  s
facie burden of proof and then the burden of proof shall shift tothe accused to rebut the presumption of guilt".

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 more 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 u/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 u/Section 342 of the Cr.P.C. and then prove his innocence as required u/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 the 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 u/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 Hon'ble Supreme Court of Pakistan in the case of Khan Asfandyar Wali and others vs. 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 M/s Ilahi CottonMills Ltd. vs. Federation of Pakistan (PLD 1997 S.C. 582) defined the word
"reasonable" as under:-

"That the word "reasonable" is a relative generic 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 AsfandyarWall's case has held that the prosecution if succeeds in making out a
reasonable case, to the "satisfaction" of the Accountability Court, theprosecution would be deemed to have discharged theprima facie burden of
proof and then the burden of proof shifts to the accused to rebut thepresumption 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 actuated by malice. In Syed.Saeed Hassan vs. Payer Ali and 7 others" (PLD 1976 S.C. 6) while examining the connotation and implication of the expression satisfaction, their Lordships laid down "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 statutory 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, la .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 assure or set free from doubt or uncertainty to convince."

19.   In the case in hand, the prosecution has -made out aprima faciecase be 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 havepurchased in the shape of movable, immovable properties and assets were
purchased through ill-gotten money. The burden to prove that the propertiesboth movable, immovable and assets were purchased/made by the appellant
and his family members through thief 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 appellantthat three properties mentioned in Para 6 were not "Benami" and the
persons holding the same were nof'Benamidars" has a great deal offeree init. 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 wereholding 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 dealtwith in a case titled as Jane Margrete William vs. 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 'banami' 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 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 later 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 vs. Commissioner of Income-Tax, Madras AIR 1957 SC 149."22.      Likewise the August Supreme Court of Pakistan in Muhammad
SajadHussain vs. Muhammad Anwar Hussain (1991 SCMR 703) held:-"Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter 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 All us. Abdul Khaliq through his L.Rs. and another (2000 MLD 1948).

(ii)   Mst. Sardar Khatoon and others vs. Dost Muhammad and another (1988 SCMR 806).

(iii) Mr. M.D. Abdul Majid and others vs. Dr. Zainul Abidin and others (PLD 1970 Dacca 414) and

(iv) Ismail Dada Adam Soomro vs. Shorat Banoo and others. (PLD 1960 Karachi 852).

In the light of criteria laid down buy 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 StreetNo. 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 allotmentorder Ex. P.W. 9/2. Possession of the said plot was also handed over to her
vide possession certificate Ex. P.W. 9/3 She paid the amount of saleconsideration through four equal six-monthly instalments. Mst. Nasim
Begum in her written statement filed before the learned AccountabilityCourt 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 anEngineer having good agriculture background could easily save something
per month and pay the amount of Rs. 74,000/- in four equal six-monthlyinstalments. This plot was transferred by Mst. Nasim Akhtar in the name of
her son Imran Ikram on 7.2.1994 vide Ex. P.W. 9/4. The above mentionedfacts were confirmed by Parvez Alam, Deputy Director, PDA,-who was
examined as P.W. 9 by the prosecution. The learned Accountability Court inParagraph No. 76 of the impugned judgment has accepted this plot to have
been purchased from validly earned income, therefore, this property cannotbe termed as "Benami".

26.     A piece and parcel of land measuring 2 Kanals BearingNo. 3-G/4 situated at Ph-II Hayat Abad was allotted to Mst. Zakia Begum
(paternal aunt of appellant) vide allotment letter Ex. P.W. 9/12 for a sale

'

consideration of Rs. 1,15,000/- bn 10.5.1982. Possession was handed over to her vide possession certificate Ex. P.W. 9/14. She paid the sale price in four equal instalments. She transferred the said plot in favour of Haroon Ikram (son of appellant) vide transfer deed Ex. 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 grand son, 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 grand-son 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 27.10.1997 had exchanged Plot No. 3-G/4 (transferred to him by Mst. Zakia Begum) with Plot No. 2-G/4.vide exchange deed Ex. P.W. 9/11 of Syed Ali Hayat, therefore, Plot No. 2-G/4 was also included in the impugned judgment. The prosecution, as mentioned above, has failed to prove that plot allotted to Mst. Zakia Begum was purchased by Ikram Shah, the appellant in her name as 'Benami', it also failed to prove that appellant paid the sale consideration and that possession of the said plot was handed over to him. Since the first transfer/allotment could not be proved as 'Benami', therefore, all the subsequent transfers would be considered as proper and legal transfers.

27. Regarding plot of land measuring one Kanal 10 Marias situated at Habibullah Colony Abbottabad the prosecution examined Jehanzeb Patwari Halqa Nawan Sher (Shumali), Abbottabad, who was examined as P.W. 23. He placed on record copy of Fard Jamabandi for the year 1994-1995 Ex. P.W. 23/2. Copy of Fard Jamabandi for the year 1982-1983 Ex. P.W. 23/3. According to this Jamabandi Mst. Nasim Begum was shown as owner of the said land. In cross-examination he admitted that vide Mutation No. 8093 attested on 28.2.1973 (wrongly mentioned on 28.2.1993) an area

measuring 5 Kanals was purchased out of which one Kanal 10 Marals wasmutated in favour of Abdul Sattar Khan son of Sultan Muhammad Khan.
The said mutation on was placed on record as Ex. P.W. 23/D-l. He furtheradmitted that inheritance Mutation No. 8329 was attested on 4.11.1980, in
favour of legal heirs including Ms?. Nasim Begum, copy Ex. P.W. 23/D-2; Healso admitted that vide Mutation No. 8330 attested on the same day, the
heirs of Abdul Sattar Khan gifted their share to their sister Mst. NasimAkhtar Begum, copy of the mutation is Ex. P.W. 23/D-3. In this wayMst. Nasim Begum became sole owner of plot measuring 1 Kanal 10 Mariason 4.11.1980, out of which she sold 1 Kanal 8 Mar/as for Rs. 10,58,999/- vide
Mutation No. 10755, copy is Ex. PtW. 23/D-4. He stated that the total saleconsideration mentioned in Mutation No. 10755 was Rs. 35,30,000/- but
share of Mst. Nasim Begum was Rs. 10,58,999/-. The above discussedevidence available on record proved the fact that this plot was purchased by
Abdul Sattar father of Ms?. Nasim Begum way back in the year 1973 and hewas handed over the possession, which he retained till his death. Not a
single witness produced by the prosecution uttered any word that the plot inquestion was purchased by the appellant or that he was the person who
negotiated the sale in favour of Abdul Sattar, his father-in-law. Theprosecution has only produced Patwari Halqa, who placed on record revenue
papers showing that Abdul Sattar was the owners of the above mentionedplot. This is also the case of the defence that the above mentioned plot had
nothing to do with the appellant as the same was purchased by Abdul Sattarby paying money from his own pocket.            -

28. When we examined the prosecution evidence regarding three properties discussed above, on the touchstone of Judgment of August Supreme Court of Pakistan in case titled Muhammad Sajjad vs. Muhammad Anwar Hussain (1991 SCMR 703), we find that not a single prosecution witness has stated that these three properties were purchased by the appellant in the names of his wife, paternal aunt "and father-in-law and the amount of sale consideration or any instalment was paid by the appellant. There is also nothing on record to show that the possession of the above mentioned properties were handed over to the appellant. In fact the two ladies were handed over the possession of the plots situated at Hayat Abad, whereas Abdul Sattar (late) remained in possession of the said plot since its purchase till his death in the year 1980. The documents of title were also not recovered from the possession of the appellant. The prosecution has also failed to prove the motive for purchase of said properties in the names of "Benamidars".

36. (i) So far as plot of land measuring 1 Kanal 17 Marias situated at Sugar Mills Road Halqa Mardan, purchased vide Mutations Nos. 14387, 14388, 14389, 14390 and 14391 attested on 14.4.1994 Ex. P.W. 3/3 to Ex. P.W. 3/7, in the names of Mst. Nasim Begum, wife of appellant, Haroon, Imran sons, Msf. Mahrukh and Mst. Gul Sanga daughters is concerned, the appellant in reply to Question No. 6 in his statement recorded u/Section 342 (Talaat Qayyum Qureshi, J.)Cr.P.C. admitted that this plot was purchased by his wife Mst. Nasim Begum in her own name and in the names of her children.(ii) Plot measuring 6 Kanals situated at Nisata Road Mardan purchased vide Mutation No. 10838 attested on 15.9.1990 Ex. P.W. 3/16 and Mutation No. 16423 attested on 23.11.1994 Ex. P.W. 3/17 in the names of Haroon, Imran sons, Mst. Mahrukh and Mst. Gul Sanga daughters, the appellant in answer to Question No. 7 admitted that he purchased these properties in 1990 from his agricultural income.(iii) Plot measuring 12 Kanals 14 Marias in Chak Mardan purchased vide Mutation No. 1846 attested on 27.10.1999 Ex. P.W. 3/8 in the names of Haroon and Imran sons. He admitted while replying Question No. 8 that he had purchased this property in the names of his sons from his agricultural and commercial income.(iv) Land measuring 65 Kanals 4 Marias 2 Sarsaies at Chak Mardan purchased vide Mutation No. 581 attested on 29.5.1996 Ex. P.W. 3/9, Mutation No. 9971 attested on 16.3.1991 Ex. P.W. 3/10 and Mutation No. 11656 attested on 31.7.1994 Ex. P.W. 3/11 in the names of Ikram Shah (appellant), Haroon and Imran sons of appellant. The appellant in answer to Question No. 9 admitted that he purchased this property from his agricultural and commercial income.(v) Land measuring 59 Kanals 1 Marias in Chak Mardan purchased vide Mutation No.. 1126 attested«on 30.10.1997 Ex. P.W. 3/12 in the names of Mst. Gul Sanga and Mahrukh, daughter of appellant. He also admitted having purchased this property in the names of his daughters while answering Question No. 10.

(vi) Land measuring 11 Kanals 11 Marias in Mauza Feroz Pur (Takht Bhai) purchased vide Mutation No. 293 attested on 16.6.1999 Ex. P.W. 4/4 in the name of Mst. Nasim Begum. While reply Question No. 13, the appellant admitted having purchased this plot against sale consideration of Rs. 2,00,000/- in the name of his wife. It is evident from his statement recorded u/Section 342 Cr.P.C. that the above mentioned properties were purchased as "Benami" in the names of his wife and children by the appellant. The burden to prove that the said properties were purchased/ acquired by his hard earned money rests with the appellant.

29. The following properties were also purchased by the appellant in his own name:-Land measuring 7 Kanals 8 Marias purchased vide Mutation
No. 9322 attested on 30.10.1990 Ex. P.W. 3/13.Land  measuring 65 Kanals  4 Marias  2 Sarsaies in  ChakMardan was purchased vide Mutation No.  581 attested on29.5.1996 Ex.   P.W.  3/9,   Mutation  No.   9971  attested  on16.3.1991 Ex. P.W. 3/10, Mutation No.  11650 attested on
31.7.1994 Ex. P.W. 3/11.

(c)            Land measuring 11 Kanals 14 Marias in Chak Mardan videMutation No. 9025 attested on 25.4.1989 Ex. P.W. 3/14.

(d)            Land measuring 35 Kanals 9 Marias in Ferozpur (Takh Bhai)vide Mutation No. 40 attested on 21.09.1992 Ex. P.W. 4/2.

(e)    Land measuring 1 Kanal in Ferozpur (Takht Bhai) videMutation No. 41 attested on 21.9.1992 Ex. P.W. 4/3.

(f)   Plot No. 48 Sector 'N' measuring 1 Kanal in Hayat Abad wasallotted 'vide allotment order dated 26.10.1987 Ex. P.W. 9/12.

(g)    Plot No. 172/F in Kanju, Swat vide allotment order dated1.8.1991 for Rs.1,50,000/-.

30.   The burden of proof that he had sufficient money to purchasethese properties was also on the appellant. Now we proceed to see as to what
was the income of the appellant and his wife.We first take the income of Mst. Nasim Akhtar, wife of the accused.

31.   Mst. Nasim Akhtar in her written statement mentioned thefollowing sources of income:-(i) Her father was paying Rs. 5,000/- per month as pocket money;(ii)   At the time of her marriage, her father gifted her Jewellery worth Rs. 1,00,000/-.

(iii)  Mother of appellant gifted gold ornaments, wheight and price not mentioned;(iv) Income from agriculture property owned by her.

32.           So far as payment of Rs. 5,000/- as pocket money by her fatherto Mst. Nasim Akhtar is concerned, there is no evidence on record to show
the said payment. She was married to the appellant in the year 1971 and herfather died in the year 1980. There is no evidence regarding the income of
the father of Mst. Nasim Akhtar during the above mentioned period. Thefactum of payment of Rs. 5,000/- to her has not even been stated by her
husband, therefore, the learned trial Court has rightly discarded this income.The reasoning given by the learned trial Court is proper, cogent and
convincing.

33.      There is no evidence available on record to prove that her fatherhad given Jewellery worth Rs. 1,00,000/- and that her mother-in-law had
also given her huge Jewellery as no witness has been examined by her inthis regard. So far as her income from agriculture property in concerned,
there is no evidence to show as to what was the property she owned and howmuch was her income. It is on record that Abdul Sattar her father died in the
year 1980. Mst. Nasim Akhtar did not inherit any property from her father.She only inherited 11 Kanals 11 Marias from her brother vide Mutation
No. 259 attested on 11.8.1998 Ex. D.W. 4/N-l. No "Takkmina Paidawar" orany other evidence regarding this property was produced by her and in
absence of any evidence, it cannot be presumed as to what kind of crop wassown in the property and what was her income. It is on record that on the death of her father, her brothers and sisters relinquished their shares (though disputed by the prosecution) in plot of land measuring 1 Kanal 10 Marias situated at Habibullah Colony Abbottabad, therefore, she became sole owner of the said plot which she sold against sale consideration of Rs. 10,58,999/-. The only income which she could prove on record was the above mentioned sale consideration of Rs. 10,58,999/-.

34.          Now we revert to the in'come of appellant.Admittedly there were two sources of income of the appellant,
(i)    Salary.   

(ii)   Agriculture income.

36.          So far as the salaries/pay is concerned, he had during his serviceearned Rs. 17,46,480/-. There is no dispute about the said income between
the parties i.e. the prosecution admits that the above mentioned amount wasearned by appellant as his salaries.

37.     So far as his Agriculture'income is concerned, the prosecution aswell as defence are at variance. The claim of the prosecution is that the
agriculture income of the petitioner was meagre. His expenditures towardshis living were on very high side, therefore, he could not purchase properties
mentioned in the Reference and whatever properties he had purchased,either in his own name or in the names of his wife, sons and daughters were
purchased by iil-gotten money. The claim of defence is that the appellant hadsufficient agriculture income and it was with the said income that he has
purchased the properties, therefore, no crime has been committed by him.38.It is an admitted position that the appellant was gifted land
measuring about 24 Kanals situated at Mauza Sheikh Yousaf by his father inthe year 1950. This property was mutated in his name vide Mutation 768
attested on 14.6.1950 it is also an admitted position that the appellant wastransferred land measuring 84 Kanals 5\ Marias by his mother as is clear
from Ex. P.W.2/10 an&Ex. P.W. 3/15.

39.   The prosecution in order to prove the agriculture income of theappellant, examined Said Badshah Office Qanungo Tehsil Mardan (P.W. 3)
who produced Goshwara of the approximate income (Takhmina Paidawar)of the appellant from 1985 to 2000 Ex. P.W. 3/1 and Ex. P.W. 3/2. In orderto rebut the said approximate income given by the said P.W, the appellantexamined Momin Khan Patwari Halqa as D.W. 4, who placed on record
Goshwara Paidawar regarding land measuring 59 Kanals 12 Marias for theyear 1993-1994 Ex. D.W. 4/1. Muhammad Nawaz Khan Patwari Halqa
Chak Mardan was also examined as D.W. 5, who also placed on recordGoshwara Paidawar  for  the  year   1995  to  2000-2001   Ex.   D.W.   5/1.
Muhammad Amin, Director Cereal Crops Research Institute, Pir Sabaq(D.W. 6) who placed on record price table showing per Acre yield of maize
crop which was exhibited on record as'Ex. D.W. 6/1. Dr. Gul Rehman,Director Sugar Cane Botanist, Sugar Crops Research Institute, Mardan was
'examined as D.W. 7 who stated that in Mardan/Takht Bhai per Acre produce of Sugar Cane was 700 to 1000 per"<naund per Acre. Mian Muhammad Mukhtar, Deputy Chief Agriculture Prices Commission, Ministry of Food, Agriculture and Livestock, Government of Pakistan Islamabad provided Sugarcane prices from 1976-1977 to 2000-2001 fixed by the Government of Pakistan. Mr. Wasil Khan, Superintendent Food •-* Directorate Government of N.W.F.P. placed on record Sugar beet prices fixed by Government of N.W.F.P. per maund from 1976 to 2001. The same were placed on record as Ex. D.W. 9/1.

40.   The evidence produced by the prosecution as well as by theappellant did not clarify as to what amount was earned by the appellant from,
his agriculture property mentioned in Para 37 above, therefore, the learnedtrial Court summoned Court witnesses so that with the help of the revenue
record and revenue Officers, the agricultural income of the appellant couldbe ascertained. Jalal Khan Office Qanungo Takht Bhai was examined as

G.W.   1,  who  placed   on  record  Jar  Paidawar as  Ex.  C.W.   1/1   and Ex.C.W.1/2. Ambaras Khan Office Qanungo Mardan was examined as C.W.       
2, who also placed on record Goshwara Takhmina Paidawar as Ex. C.W. 2/1to Ex. C.W. 2/11. Said Badshah Patwari was examined as C.W. 3. The
learned counsel for the appellant strongly objected to the procedure adopted by the learned trial Court for examination of the Court witnesses. His                                             

objection was that the appellant was directed by the learned trial Court to cross-examine tHe Court witnesses first and then the prosecution was invited to cross-examine the said witnesses, which procedure caused prejudice to the case of the appellant because after the cross-examination of the Public Prosecutor, appellant could not rebut whatever was stated by the said C.Ws. The objection of the learned counsel for the appellant was genuine, therefore, this Court summoned the C.Ws. again for cross-examination of the learned counsel for the appellant. Jalal Khan C.W. 1 was cross-examined on 7.C.2002. During cross-examination copy of 'Narkh Nama Chakwar' was placed on record as Ex. C.W. 1/D-l and copy ofKhasra Girdawari from 1992 up to dale was exhibited as Ex. C.W. l/D-2. Ambaras Khan (C.W. 2) was cross-examined on 19.6.2002. He also produced during the cross-examination Narkh Nama Chakwar' Ex. C.W. 2/X-l, 'Jar Paidawar' of1925-26 Ex. C.W. 2/X-2. The learned counsel for the parties again addressed     

their arguments after the G.Ws mentioned above were cross-examined.41.The learned  trial  Court not  only discarded  the  evidence
produced by the prosecution but it also did not accept the evidence producedby the defence regarding the agricultural income of the appellant. Reliance
was placed on the statements of C.Ws and documents produced by them.The learned trial Court calculated average income for 24 Kanals of land
situated at village Sheikh Yousaf District Mardan from 1950 till filing of theReference as Rs. 2,35,900/-. For land measuring 84 Kanals situated at Chak
Mardan a sum of Rs. 19,09,980/- as agricultural income of the appellant. Themain thrust of the arguments of the learned counsel for the appellant was
that in Goshwara Paidawqrs Ex. C.W. 1/1 to 1/2, Ex. C.W. 2/1 to C.W. 2/11yield at the rate of produce in Schedule for the years 1925-1926 has been given. The argument of the learned counsel for the appellant that yield per Acre has increased manifold. Similarly the prices have also tremendously increased from 1972 till filing of the Reference has a force in it. Goshwara Paidawars produced by C.Ws. i.e. Ex. C.W. 1/1, 1/2 Ex. C.E. 2/1 to C.W. 2/11 do not give true picture of the agricultural income of the appellant, therefore, the same (Goshwara Paidawar Ex. C.W. 1/1, 1/2 and 2/1 to 2/11) cannot be relied upon and made basis for ascertaining the agricultural income of the appellant for the reasons "firstly, the yield which would be obtained in the years 1925-^1926 has been taken in the said Goshwaras. For Example as per Ex. C.\V. 2/1 in 1985 land measuring 23 Kanals 15 Marias would produce only 480 Pucca Seers of wheat and similarly in the year 2000 also the same land would produce 480 Pucca Seers but the fact is that as per Ex. D.W. 6/1 in 1987 only land measuring 20 Kanals would yield 4 tons of wheat i.e. 4480 Seers (4 x 28 x 40= 4480). Therefore, 24 Kanals should have yielded 5376 Seers of wheat in 1987 but this produce was not shown in Ex. C.W. 2/1. It is a matter of common acknowledge that due to modern techniques and scientific advancement the production has manifold increased during past years, but this fact was altogether ignored. Secondly, the market rates were also not applied while determining the agricultural income. Old rates with old formula was made applicable i.e. for produce of 1985 seven "Chittanks" were given out 16 "Chittanks" and for the year 2000 three (3) "Chittanks" were given out of 16 Chittanks". Neither the daily rates Register was produced nor the same is kept now-a days. In old good days each Tehsildar used to keep daily commodities Register wherein daily entries about the market rates, of various every day commodities would be entered and signatures/thumb impression of shopkeepers would be .taken, if any need to check the market rates of any of the daily used commodities would arise, reference to the said Register would be made and the exact market rate of such a commodity would be found out. What to speak of the daily market rate register, the "Jhar Paidawar" of Mardan 2 Sheets) of 1925-1926 was not revised though settlement in Mardan District was completed in 1991. It is pathetic to note that people of Mardan District are still being given produce by the revenue Courts according to "Jhar Paidawar" of 1925-1926. The S.M.B.R is directed to direct the concerned Revenue officials to revise the "Jhar Paidawar" immediately. It is worth mentioning here that the prices of various produces have also undergone tremendous increase in recent past but this fact was also ignored by the learned trial Court. We, therefore, do not rely upon Ex. C.W. 1/1, 1/2 to 2/11. 42. The question that would arise here is as to what would be evidence which shall be taken into consideration for calculating the agricultural income of the appellant. As observed earlier, it was the duty and burden of the appellant to- show that he had purchased the properties mentioned in the reference in his own name and names of his wife and children through his hard earned white money. To show agricultural income he did not bother to produce any of his land tiller/peasant tenant/cultivator/worker or labourer who could testily that so and so crop  was sown in the land of the appellant in so and so year. No one has deposed that the land owned by the appellant was irrigated land. None has given evidence that best seed and fertilizer was used by the appellant. There is nothing on record to show that produce of sugar-cane was sold to Sugar Mills or 'Gur' was made out of the same and specific amount was thus earned. There is also no evidence about the yield of wheat, maize and sugar beat and income derived out of the sales.

43.              The appellant only produce experts who have given sweepingstatements showing best and ideal yield of Sugar-cane, sugar beet, wheat
and maize grown in the research centres. None of the experts (D.Ws) madereference to the land of the appellant. The learned counsel for the appellant
left to this Court to calculate the agricultural income of appellant, by givinghim best yield and the support prices fixed by the Govt. of N.W.F.P. from
time to time mentioned in Ex. D.W, 8/1 and 9/1.

44.              Although, the said Goshwaras show that various crops weregrown at small pieces of land by the appellant, but we decided to calculate
the agricultural income of the appellant on the basis of two major crops i.e.sugar-cane and wheat per annum on the total land i.e. 108 Kanals owned by
him. In order to calculate the agricultural income of the appellant, we haveworked out the same on the basis of latest yield per Acre (i.e. yield obtained
in the year 2000) with the support prices fixed by Government from time totime mentioned in Ex. D.W. 8/1 and 9/1.

45.     So far as the yield of Sugar-cane crops is concerned, theappellant in order to show per Acre yield examined Mr. Gul Rehman
Director, Sugar-cane Botonist of Sugar-cane crop research Institute Mardanas D.W. 4, who in the examination in chief stated:-

"In Mardan and Takht Bhai a farmer cultivating sugar-cane crop can get a production of 700 to 1000 maunds per Acre."

46.   In cross-examination he admitted that yield of sugar-cane perAcre depends upon the variety of seeds,  the  soil  and other relevant
conditions, like input fertilizer, water and also the efforts. The per Acre yieldof Sugar-cane given by this witness is in fact the ideal yield. However, in
order to give maximum benefit to the appellant we have calculated per Acreyield of sugar-cane crop at the rate of 700 maunds per Acre as stated by
D.W. 4. The appellant in toto owned 108 Kanals of land (24 Kanals in MauzaSheikh Yousaf and 84 Kanals in Chak Mardan). The income of 108 Kanals
of land from Sugar-cane production at the rate of 700 maunds per Acre asper support prices fixed by the Government of N.W.F.P. from time to time
Ex. D.W. 8/1. Since the support prices given in Ex. D.W. 8/1 commencesfrom 1976-1977, therefore, we have also calculated the same from the said
year. From the years 1950-1972 @ 500 per maund per Acre @ 5.89 per 40K.G. for 24 Kanals Rs. 8835 X 22 = Rs. 1,94,854/. For the past years z.e. with
effect from 1972 till 1976 we have calculated @ 500 per Acre and have giventhe support prices fixed in 1976. It is wroth mentioning here that for the

years 1950-1972 we have given support prices @ 5.89 (per 40 K.G) because no other piece of evidence is available on record.

47.   Sugar-cane 500 per maund per Acre from 1950-1972 comes to RSi 194370/- and from 1972-1975 comes to Rs. 39,757 X 4 = Rs. 1,59,028/-.

Year of produce                          Income derived.



1976-1977
   

Rs. 55,660/-

1977-1978
   

Rs. 55,660/-

1978-1979
   

Rs. 55,660/-

1979-1980
   

Rs. 68,323/-

1980-1981
   

Rs. 88,641/-

1981-1982
   

Rs. 88,641 /-

1982-1983
   

Rs. 88,64] /-

1983-1984
   

Rs. 88,64 1/-

1984-1985
   

Rs. 88.641/-

1985-1986
   

Rs.88.641/-

1986-1987
   

Rs. 108864/-

1987-1988
   

Rs. 108864/-

1988-1989
   

Rs. 116424/-

1989-1990
   

Rs. 127575/-

1990-1991
   

Rs. 1441 12/-

1991-1992
   

Rs. 1441 12/-

1992-1993
   

Rs. 148837/-

1993-1994
   

Rs. 1G5375/-

1994-1995
   

Rs. 170100/-

1995-1996
   

Rs. 193725/-

1996-1997
   

Rs. 203175/-

1997-1998
   

Rs. 226800/-

1998-1999
   

Rs. 330750/-

1999-2000
   

Rs. 330750/-

Total                                          Rs. 36,40,010/-

48, Now we proceed to calculate the income of the appellant from wheat production. We have taken wheat as a second crop sown over the total land owned by the appellant i.e. 108 Kanals. The maximum yield per hectare shown by Ex. D.W. 6/1 comes to 4 tons.

Since the rates given in Ex. D.W. 9/1 start from the year 1976, therefore, we have calculated the income from wheat production as under-

Year of produce          Rate per ton              Total price                Bhusa.

1950-1972 for            Rs. 991.32                Rs. 104676/-             Rs. 79,200/-

24 Kanals

1972-1975                 Rs. 991.32                Rs. 8&,600/-             Rs. 64,000/-

1976-1977                 Rs. 991.32                Rs. 21.G50/-             Rs. 16,200/-

1078 Cr.C.

ikram siiah v. state (Talaat Qayyum Qureshi, J.)

PLJ



1977-1978
   

Rs. 991.32
   

Rs. 21,650/-
   

Rs. 16,2007-

1978-1979
   

Rs. 1205.65
   

Rs. 26,331/-
   

Rs. 16,200/-

1979-1980
   

Rs. 1250/-
   

Rs. 27,300/-
   

Rs."l6,200/-

1980-1981
   

Rs.1450/-
   

Rs. 31,668/-
   

Rs. 16,200/-

1981-1982
   

Rs. 1450/-
   

Rs. 31,668/-
   

Rs. 16,200/-

1982-1983
   

Rs. 1600/-
   

Rs. 34,944/-
   

Rs. 16.200/-

1983-1984
   

Rs. 1600/-
   

Rs. 34(944/-
   

Rs. 16,200/-

1984-1985
   

Rs. 1750/-
   

Rs. 38.220/-
   

Rs. 16,200/-

1985-1986
   

Rs. 2,000/-
   

Rs. 43,680/-
   

Rs. 16,200/-

1986-1987
   

Rs. 2,000/-
   

Rs. 43.680/-
   

Rs. 16,200/-

1987-1988
   

Rs. 2062/-
   

Rs. 45,045/-
   

Rs. 16,200/-

1988-1989
   

Rs. 2 125/-
   

Rs. 46.410/-
   

Rs. 16,200/-

1989-1990
   

Rs. 2400/-
   

Rs. 52,4 16/-
   

Rs. 16,200/-

1990-1991
   

Rs. 2800/-
   

Rs. 61,152/-
   

Rs. 16,200/-

1991-1992
   

Rs. 3100/-
   

Rs. 67,704/-
   

Rs. 16,200/-

1992-1993
   

Rs. 3250/-
   

Rs. 70,980/-
   

Rs. 16,200/-

1993-1994
   

Rs. 4000/-
   

Rs. 87.360/-
   

Rs. 16,200/-

1994-1995
   

Rs. 4000/-
   

Rs. 87,360/-
   

Rs. 16,200/-

1995-1996
   

Rs. 4325/-
   

Rs. 94,458/-
   

Rs. 16,200/-

1996-1997
   

Rs. 4325/-
   

Rs. 94,458/-
   

Rs. 16,200/-

1997-1998
   

Rs. 7000/-
   

Rs.152280/-
   

Rs. 16.200/-

1998-1999
   

Rs. 7102/-
   

Rs. 155108/-
   

Rs. 16,200/-

1999-2000
   

Rs. 7102/-
   

Rs. 155108/-
   

Rs. 16,200/-




Total:

Rs. 1738550/-

Rs. 532800/-



Price of Bhusa from 1972 to 2000 of 108 Kanals Rs. 453600/- + Rs. 79.200/-= Rs. 532800. The amount of Rs. 79.200/- is in fact the income of Bhusa for 24 Kanals at the rate of Rs. ISO/- per Kanal for period from 1950 till 1972.

49.      We may mention here that there is no evidence available onrecord to  indicate that the  appellant  remained  in  possession  of landmeasuring 24 Kanals situated at Mauza Sheikh Yousaf District Mardan from
1950 i.e. from the date the said land was gifted in his favour till 1972, whenhis father expired. But still in order to administer justice, we have given him
agricultural income of sugar-cane and wheat from 1950. We have given theamount of Bhusa at constant rate because wheat and sugar-cane both were
sown on small fragments of land by the appellant. Moreover, the majorportion of land was given on Ijara by appellant, but we have ignored thesefactors.

50.       The total agricultural income of the appellant from 1950 till2000 comes to Rs. 5,91,1360/-. We did not exclude 10% expenses also fromthe said income. Since the first amount was spent on construction of house
at Hayatabad in the year 1987, therefore, from the year 1987 onward wehave calculated the income, the amount spent by appellant for purchase of
various properties in his own name and in the names of his wife and children, the amount spent on construction of the properties mentioned in the reference, amount spent for purchasing vehicles, amount paid for utility bills and fees of his children are as under

Years of Income/Amount

1950 to 1987

Rs. 20,97,822/-

Rs. 6.00.0007-________ Minus

Amoun^ spent/income

Spent on construction of house at Hayatabad in Phase-I in 1987



Rs. 14,97,8227-Rs. 01.70.1097-

Plus

Income of the year 1987-88



Rs. 16,67,931/-Rs. 88.2007-

Minus

Purchased plot No. 148 at Hayat Abad Peshawar on 16.4.1988.



Rs. 15,79,731/-Rs. 1790347-

Plus

Income of the year 1988-89.



Rs. 17,58,765/-Rs. 01.96.1917-

Plus

Income of the year 1989-90.



Rs. 19,54,956/-Rs. 01,92.6967-

Minus

Purchased land measuring 7 Kanals 8 Marias in Chak Mardan on 13.1.1990.



Rs. 17,62,260/-Rs. 09.93.2967-

Minus

Purchased 6 Kanals land at Nisatta Road, Mardan on 21.8.1990 and 9.11.1994, this amount is duly admitted by the appellant in his statement.



Rs. 07,68,964/-Rs. 02.21.4647-

Phis

Income of the year 1990-91



Rs. 9,90,428/-Rs. 2280167-

Rs. 12,18,444/-Rs. 01.25.1667-

Plus

Minus

Income of the year 1991-92.

Spent on the Fee of his son Imran in Fazal Haq College Mardan w.e.f. 1985-91.

1080 Cr.C.

ikram shah v. state (Talaat Qayyum Qureshi, J.)

PLJ



Rs. 10.93.278

Credit



Rs. 15.45.474/-

Rs. 4,52,196/-Rs. 2.36.0177-

Rs. 2.16.1797-

Rs. 3.16.9237-

Rs. 5.33.1027-

Rs. 40.0007-

Minus

Red entry Plus

Red entry

Minus

Red entry

Minus

Purchased land measuring 59 Kar-als 7 Marias in Chak Mardan on 6.3.1991 and 20.5.1996.

Income of the year 1992-93.

Purchased land measuring 35 Kanals 9 Marias at Ferozpura Takht Bhai on 27.9.1992.

Purchased land measuring 1 Kanal at Ferozpura Takht Bhai on 21.9.1992.



Rs. 5.37.1027-

Red entry.



Rs. 2.68.9357-

Red entry       Income of the year 1993-94.



Rs. 3.04.1677-

Red entry



Rs. 2.73,6607-

Rs. 30.5077-

Rs. 10.42.4887-

Rs. 10.72.9957-

Rs. 42,10,4887-

Rs. 52,83,483/-Rs. 26,59,681/-

Rs. 79,43,164/-Rs. 3,04,3837-

Rs. 76,38,781/-Rs. 3,13.8337-

Rs. 73,24,948/-Rs. 16,97,808/-

Rs. 90,22,756/-Rs. 3.952.80

Plus

Red entry

Minus

Red entry

Minus

Red entry.

Red entry. Plus

Plus

Red entiY Minus

Red entry Plus

Income of the year 1994-95.

Spent on the construction of house at Hayat Abad, Peshawar,

Purchased land measuring 1 Kanal 7 Marias at Sugar Mills Road Mardan in the names of his children and wife by the appellant.

Spent on construction of Plaza at Sugar Mills Road, Mardan.

Income of the year 1995-96. Income of the year 1996-97

Purchased land measuring 65 Kanals 4 Marias at Chak Mardan on 29.2.1997.

Income of the year 1997-98..




Rs. 86,274,76/-Rs. 5.020.58/-

Rs. 8,125,418/-Rs. 5.020.587-

Rs. 76,233,60 Rs. 103.4807-

Red entry Plus

Red entry Plus

Res. entiy

Minus

Income of the year 1998-99.

Income of the year 1999-2000.

Purchased land measuring 11 Kanals 11 Marias at Ferozpura Tehsil Takht Bhai on 5.6.1999.



Rs. 77,26,840/-Rs. 3.30.7087-

Red entry. Minus

Purchased land measuring 12 Kanals 14 Marias at Chak Mardah on 27.10.1999.



Rs. 80,57,548/-Rs. 1.50.0007-

Rod entry Minus

Purchased Plot No. 172-F at Kanju Township Swat on 1.8.1991.'



Rs. 82,075,48/-Rs. 31.49.277-

Red'entry

Minus

Electricity  charges w.e.f.   1997  to 2000.



Minus

Red entry

Minus

Rs. 85;22,475/-Rs. 59,977/-

Rs. 85,82,452/-Rs. 59,439/-

Rs. 8,641,891/-Rs.-45.9407-

Gas charges for the years 1998 to 2000.

Red entry

Telephone      For the year 2000. charges.

Fee of Imran in Preston University for the years 1997-98. .



Rs. 86,87,8317-Rs. 68.5007-

Red entry Minus

Fee of Haroon in October 1998.



Rs. 87,56,331/-Rs. 78.7207-

Red entry Minus

Fee of Gul Sanga in Beacon House with effect from 1994 to 1999.



Rs. 88,35,051/-Rs. 30.0007-

Red entry Minus

Fee of Gul Sanga in Fatima Jinnah Degree College.








Rs. 88,65,051/-Rs. 5.00.0007-

Rs. 93,65,051/-Rs. 2.90.0007-

Rs. 96,55,051/-Rs. 14.6297-

Plns

Plus

Minus

Purchased Pajero Jeep.

Purchased Suzuki Car.

Fee paid for Mah Rukh (daughter) in Medical College from 1992 to 1997.



Rs. 96.69.680/-Rs. 37.7227-

Rs. 97.07.402/-Rs. 2.58.4927- Plus

Rcd entry Minus

Red entry Bank Balance

Fee paid for Haroon (son)



Rs. 99,65,894/-

Red entrv.

51.               The ahove mentioned figures show that the total agriculturalIncome of the appellant from 1950 till 2000 was Rs. 59,11,3607- whereas he
had spent a sum of Rs. 9,965,894/- in excess for purchase of variousproperties in his own name, in the names of his wife and children. He also
spent considerable amount which has heen mentioned ahove in detail onconstruction of properties, purchase of vehicle and also paid huge amount
towards utility bills and fees for children the total of which comes toRs. 99,65,894/- There is a difference of Rs. 99,65,894/- between his income
and amounts spent by him i.e. he has spent Rs. 99,65,894/- more than whathe had earned. He has not been able to furnish any plausible explanationabout the sources as to wherefrom he received such huge amount and couldmanage to spend the said amount.

52.               So far as the amount of income derived from salaries of theappellant is  concerned,  it is  admitted  position  that  appellant  earned
Rs. 17,46,480/- towards salaries from the date of his joining service till filingof Reference against him. Although this amount of monthly salary was not

n sufficient to make both ends meet of appellant especially keeping in view the luxurious and levish life-style of the appellant and his family members. Even the yearly income derived from agricultural Income of the property added with the monthly salary was not sufficient to meet his expenses but still taking every lenient view, we presume that the appellant and his family members would maintain themselves with the amount of monthly salary only. We have thus separated the agricultural income and the entire amount earned from the agricultural property has been accounted for in the above paragraphs.

53.   Another factor which we want to clarify here is about the pricesof the landed properties and the amount of construction spent thereon.

When we looked into the rates of the 'landed properties and the amounts spent on their construction fixed by the NAB authorities, the same sounded veiy high and no reliable evidence in support of the market prices was available on record. The appellant also failed to point out. current evaluation excepting the evaluation of constructed building done through Engineer Mumtaz Alam (D.W. 3). The learned trial Court had fairly fixed the prices of the landed property in the light of Notifications of Deputy Commissioner whereby value of land has been fixed for the purposes of recovery of taxes. We are aware of the fact that such Notifications are issued by the D.eputy Commissioners not for fixing the value of the land but only for collection of land revenue and other taxes but one can draw clear cut idea about the market value of the property from such Notifications.

54.          In absence of any authentic proof regarding prices of the landedproperties, purchased by appellant in his name and in the names of his wife
and children, we while concurring with the learned trial Court relief upon^g prices f\xe(j through Notifications of Deputy Commissioners. We may
mention here that we did not take into consideration the market value oflanded properties fixed by the NAB authorities as the same are exorbitant.
We also did not agree with the amount spent for construction of propertiesmentioned in the Reference because those too were also on very high side.We have,  however, taken the amount spent for construction given byEngineer Mumtaz Alam (D.W. 3) and by the appellant in his statement
recorded u/S. 342 Cr.P.C.

55.          In the above paragraphs we have held that three properties i.e.

(i) Plot No. 90-D, St. No. 37 measuring 2 Kanals in Phase-I Hayat Abad Peshawar allotted in the name otMst. Nasim Begum on 24.6.1979 against a sum of Rs. 74,000/-;

(5i) Plot measuring 1 Kanal 10 Marias situated at Habibullah Colony, Abbottabad (in the name of Mst. Nasim Begum) and

(iii) Plot measuring 2 Kanals Bearing No. 30-G/4 Phase-II Hayat Abad allotted in the name of Ms?. Zakia Begum in the year 1982 on price ofRs. l,15,000/-were not'benamis", and have nothing to do with the appellant.

56.   The above mentioned calculations made in the above paras showthat till 1992 the appellant had sufficient money to purchase properties but
thereafter, he did not have any amount in his credit to either purchase anylanded property or to spend any amount for their construction. He has also
not been able to give any lawful justification for spending huge amount onpurchase of vehicles and payment of utility bills etc. In short he has not been
able to satisfactorily account for Rs. 99,65,894/- This amount is held to bedisproportionate t his legal sources of income and therefore,'it is held that
this amount of Rs. 99,65,894/- was acquired and obtained by him throughcorruption   and   corrupt  practices,   therefore,   the  following   properties



purchased in the names of appellant, his wife and children alongwith
construction if any are liable to forfeiture to the appropriate Government/
State:--             .

(i) Land measuring 35 Kanals 9 Marias situated at Ferozpura Takht Bhai purchased vide Mutation No. 40 attested on 21.9.1992 Ex. P.W. 4/2.

(ii) Land measuring 1 Kanal situated at Ferozpura Takht Bhai purchased vide,- Mutation No. 41 attested on 21.9.1992, Ex. P.W. 4/3.

(iii) Land measuring 1 Kanal 17 Marias situated at Sugar Mills Road Mardan Purchased in the names of wife of the appellant, and children vide Mutations Nos. 14387, 14388, 14389, 14390 and 14391 attested on 14.4.1994 Ex. P.W. 3/3 to Ex. P.W. 3/7.

(iv) Land measuring 65 Kanals 4 Marias at Chak Mardan purchased vide Mutations Nos. 5581 attested on 29.5.1996 Ex. P.W. 3/9, No. 9971, attested on 16.3.91 Ex. P.W. 3/10 and No. 11650 attested on 31.7.94 Ex. P.W. 3/11.

(v) Land measuring 11 Kanals 11 Marias at Ferozpura Takht Bhai Purchased vide Mutation No. 293 attested on 16.6.99.

(vi) Land measuring 12 Kanals 14 Marias at Chak Mardan Purchased vide Mutation No. 1846 attested on 27.10.1996 Ex. P.W. 3/8.(vii) Plot No. 172-F measuring 1 on 1.8.91 Ex. P.W. 8/2.

Kanal at Kanju Township allotted

57.                   It is also held that the amount spent on construction ofproperties, payment of utility bills, fees of children of appellant, for purchase
of vehicles and the amount kept by him in Account No. 1487-7 H.B.L, SwabiBranch and Account No. 2971 at A.B.L. Charsadda Branch i.e. Rs. 2,58,492/-
was also not earned by him through lawful means and the same had beenearned by corruption and corrupt practices. The amount lying in the above
mentioned Accounts is also forfeited to Government/State. We would alsonot forfeit/confiscate the amount lying in PLS Account No. 3819-0 at N.B.P.
Maneri Branch Swabi, beca\ise the amount lying there is the amount of saleconsideration of Plot measuring 1 Kanal 10 Marias situated at Habibullah
Colony Abbottabad sold by Mst. Nasim Begum. We would also not order forconfiscation of vehicles i.e. Pajero Jeep and Suzuki Car giving the appellant
the benefit that he must have earned allowances/T.A./D.A during hisservice and we also give him the margin of human error in calculating his
agricultural income.

58.          We,  therefore,  have  no  alternative but to  maintain  theconviction of the appellant u/S. 9(v) of NAB Ordinance, 1997. So far as his
sentence u/S. 10(a) of NAB Ordinance, 1999 of 7 years imprisonment andfine of Rs. 300,00,000/- (Three Crore Rupees) imposed by the learned Accountability Court is concerned, keeping in view the agricultural Income derived by the appellant from year 1950 till 2000 (mentioned above), we reduce the sentence from 7 years to 4 years R.I. We also reduce the amount of fine from Rs. 300,00,000/- (Rupees three Crores to Rs. 10 millions (Rupees One Crore) only. The amount of fine shall be paid by the convict within a period of two months to the State, falling which it sh all be set off against the forfeited properties in terms of Section 11 of the NAB Ordinance, 1999. He shall also be disqualified for ten years for holding any public office as per Section 15 of the NAB Ordinance, 1999. Benefit of Section 382-B Cr.P.C. shall also stand extended to him. With the above modification the appeal is dismissed.

59. So far as the writ petition filed by Mst. Nasim begum and others (children of appellant) is concerne9, the same deserves dismissal for the simple reason that Mst. Nasim Begum and the children were served with notices to justify their means of earnings but they utterly failed to avail the opportunity. Mst. Nasim Begum though examined two D.Ws. in her defence but she failed to show any lawful source of income. She not only failed to prove that the gold ornaments were given to her by her father and mother-in-law at the time her marriage, but she also failed to prove that she generated some amount by selling the same. She also failed to prove that she was being given Rs. 5000/- per month by her father. The only property which she could prove in her name was that she acquired land measuring

I  Kanal 10 Marias at Habibullah Colony Abbottabad after the death of herfather and that the shares of her brothers and sisters were surrendered in
her favour in the said plot. She also proved that she acquired land measuringII     Kanals 11 Marias in the year 1998 through inheritance from her brother
vide Mutation No. 259 attested on 11.8.1998 Ex. D.W- 4/N-l. Since we haveheld that Mat. Nasim Begum was lawful owner of Plot measuring 1 Kanal 10
Marias situated at Habibullah Colony Abbottabad, which she had sold for asum of Rs. 10,58,999/- vide Mutation No. 10755 Ex. P.W. 23/D-4, therefore,
we hold that the amount of Rs. 9,63,000/- in PLS Account No. 3819-0 in thename of appellant at National Bank of Pakistan Maneri Branch Swabi is the
amount of sale consideration of the said plot. The children (otl^r petitioners)neither appeared before the learned Accountability O'..a nor bothered to
give justification of their earnings. On the other ha.id Ikram Shah appellantin his statement recorded u/S. 342 Cr.P.C. admitted having purchased
the properties mentioned, in the Reference in the names of his wife andchildren. The writ Petition having no merit is dismissed with no orders as to
costs.Copy of this judgment should be supplied to S.M.B.R. for compliance of directions made on Page 46 of this Judgment.

(T.A.F.)                                           Appeal dismissed.