PLJ 2012 SC 64
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui &
Asif Saeed Khan Khosa, JJ.
GHANI-UR-RAHMAN--Appellant
versus
NATIONAL ACCOUNTABILITY BUREAU, etc.--Respondents
Criminal Appeal No. 170 of 2003, decided on 20.9.2011.
(On appeal from the judgment dated 26.06.2002 of the Peshawar High Court, Peshawar passed in Ehtesab Criminal Appeal No. 04 of 2001)
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a)(v) & 10 r/w. S. 14(e)--Conviction and sentence recorded against accused by trial Court--Appeal was also dismissed by High Court--Challenge to--Corruption in high public offices--Allegation of--Misused his official authority during his chairmanship and ministership--Known sources of income of accused--Incompetence of I.O. and prosecuting agencies--Entire evidence produced by prosecution was completely silent regarding specific instance of misuse of any authority--Validity--Source of income of the accused had never been enlisted, determined or quantified by prosecution either during investigation or during trial--Even in Reference submitted by N.A.B and charge framed against the accused, no mention had been made of the accused exact income, source of his income or details of his resources so that the same could be setup against the value of assets of the accused, his dependants or so--called benamidars for alleging of disproportionate--Wife of the accused and his sons were set up in instant case as benamidars and admittedly by trial Court for providing them an opportunity to produce evidence in support of their claims regarding ownership of the assets in their own right or to substantiate that they had sufficient sources of their own to acquire the properties--Wife and sons of the accused, who were set-up by prosecution as benamidars, had never been summoned by trial Court to explain their position and such failure or omission on the part of trial Court had vitiating effect--Accused had accumulated the assets and pecuniary resources by misusing his authority but prosecution had not produced any evidence to establish any misuse of his authority--In complete absence of any evidence brought on record regard it could not been held by Courts below that charge, as framed against the accused, stood established by prosecution--Accused was acquitted. [Pp. 68, 71, 72 & 73] A, B, D, E & F
PLD 2002 SC 408, 2007 MLD 910, ref.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 9(a)(v)--Corruption in high public offices--Known sources of income--Disproportionate--Possession of pecuniary resources--Ingredients of offence u/S. 9(c)(a)(v) of Ordinance, 1999--Onus of proof--Validity--Onus shifts to accused to account for such resource or property because mere possession of any pecuniary resource or property is by itself not an offence but it possession of pecuniary resource or property that makes the possession objectionable and constitute the offence--Sources of income of accused had never been quantified, therefore, it was not possible for trial Court to conclude that assused or so-called benamidars possessed assets disproportionate to the accused income--Prosecution had probably on account of sheer incompetence, utterly failed to do needful and it was regrettable that even Courts below had completely failed to advert to such critical aspect of the instant case. [Pp. 70 & 71] C
2010 SCMR 1697 & PLD 2004 Lah. 155, rel.
Mr. Wasim Sajjad, Sr. ASC and Mr. Mehr Khan Malik, AOR for Appellant.
Dr. Asghar Rana, Additional Prosecutor-General for National Accountability Bureau.
Mr. Dil Muhammad Alizai, Deputy Attorney-General for Pakistan on Court's call.
Date of hearing: 20.09.2011
Judgment
Asif Saeed Khan Khosa, J.--Corruption in high public offices is unfortunately a serious bane of our society and the circumstances of this case compel us to observe that incompetence of the Investigating Officers and prosecuting agencies as well as failure of the trial Courts to pay proper heed to the legal requirements in such cases are sometimes contributing factors in that regard because such factors allow corruption to remain unchecked and the corrupt to go scot free. Ghani-ur-Rahman appellant had remained the Chairman of District Council, Hangu in the erstwhile Province of the North-West Frontier Province (now Khyber Pakhtunkhwa) during the period from 1988 to 1989 and subsequently he had remained a Provincial Minister in the Government of the North-West Frontier Province during the periods from 1993 to 1996 and from 1998 to 1.999. On 27.07.2000 he was arrested by the National Accountability Bureau on the allegation of indulging in corruption and corrupt practices and he remained on physical remand with the National Accountability Bureau for the ensuing period of ninety days. On 25.10.2000 a Reference was filed against the appellant alleging that during his Chairmanship and Ministership he had misused his official authority and had accumulated assets which were beyond the known sources of his income. On the basis of that Reference the learned Judge, Accountability Court No. IV, Peshawar framed a Charge against the appellant which read as follows:
"I Miftah-ud-Din Khan, Judge Accountability Court No. IV, Peshawar do hereby charge you accused Ghani-ur-Rehman S/O Said Malook, Ex. Minister for Irrigation R/O village Sarki Tehsil Hangu as under:--
That you while holding public office as Chairman District Council and Provincial Minister by misusing your authority used the vehicles of Irrigation Department for private purposes, and also through corruption and corrupt practices accumulated assets in your name, in the names of your wife and sons total amounting to Rs. 515,35,000/-, which are disproportionate to your known sources of income and for which you cannot furnish reasonable account or payment of lawful consideration and thereby committed an offence under Section 9 of the NAB Ordinance punishable under Section 10 of the aforesaid Ordinance and within my cognizance."
2. During the trial the prosecution produced eighteen witnesses in support of its case against the appellant. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He also made a statement on oath under Section 340(2), Cr.P.C. and produced as many as seventy-five witnesses in his defence trying to establish that his assets had not been made beyond his sources of income and also that some of the assets attributed by the prosecution to him were in fact owned and possessed by his wife and children who had made them out of their own resources. At the conclusion of the trial the learned Judge, Accountability Court No. IV, Peshawar convicted the appellant for an offence under Section 9(a)(v) read with Section 14(c) of the National Accountability Ordinance, 1999 vide judgment dated 30.05.2001 and sentenced him under Section 10 of the said Ordinance to rigorous imprisonment for eight years and to pay a fine of rupees twenty million or in default of payment thereof to undergo rigorous imprisonment for one year. All the assets in the names of the appellant's dependents mentioned in the Reference were also directed to be forfeited to the Government. The benefit under Section 382-B, Cr.P.C. was, however, extended to the appellant. The appellant challenged his conviction and sentences before the Peshawar High Court, Peshawar through Ehtesab Criminal Appeal No. 04 of 2001 which was dismissed by a learned Division Bench of the said Court through its judgment dated 26.06.2002. Hence, the present appeal by leave of this Court granted on 20.05.2003.
3. At one stage during the pendency of this appeal the appellant was acquitted by this Court through the order dated 03.03.2009 passed in Criminal Miscellaneous Application No. 459 of 2008 in terms of the provisions of Section 7 of the National Reconciliation Ordinance, 2007 and subsequently on 03.01.2010 the appellant unfortunately expired as a result of a bomb blast. However, on 29.03.2010 the main appeal of the appellant was revived and restored to its original number because by then the National Reconciliation Ordinance, 2007 had been declared by this Court as void ab initio and non est being ultra vires the Constitution through a judgment rendered in the case of Dr. Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 1). Later on through an order passed by this Court on 12.05.2010 in Criminal Miscellaneous No. 193 of 2010 the legal heirs of the appellant, except Zafar Ali who had already passed away by then, were allowed to be impleaded in place of the appellant because some properties belonging to legal heirs of the appellant had been ordered by the learned trial Court to be forfeited in favour of the Government.
4. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that during the investigation of this case the sources of income of the appellant had never been determined and his income had never been quantified, the Reference filed and the Charge framed against the appellant were absolutely silent about the income or the sources of income of the appellant and even during the trial no evidence whatsoever had been led by the prosecution in that regard. In these circumstances, according to him, it was not possible for the learned trial Court to compare the value of the assets and pecuniary resources of the appellant, his dependants or the so-called benamidars with the appellant's income and to hold that the value of the assets in issue was disproportionate to the appellant's income. It has also been pointed out by him in this regard that Qazi Abdul Hameed, Inspector FIA (PW18), the Investigating Officer of this case, had stated before the learned trial Court in so many words that the appellant had informed him about many different sources of his income but he, the Investigating Officer, had not brought that information on the record of investigation and that information supplied by the appellant had also not been made a part of the Reference filed against the appellant. It has also been contended by the learned counsel for the appellant that the wife and children of the appellant, who were alleged by the prosecution to be benamidars, had never been associated with the trial by the learned trial Court and they had never been summoned by it to explain their position vis-a-vis the properties in issue which omission had vitiated the appellant's trial. The learned counsel for the appellant has further submitted that the Reference filed against the appellant as well as the Charge framed against him by the learned trial Court alleged that he had accumulated assets and pecuniary resources disproportionate to his known resources of income by misusing his authority as Chairman of a District Council and as a Provincial Minister but the entire evidence produced by the prosecution was completely silent regarding any particular or specific instance of misuse of any authority by the appellant as Chairman or Provincial Minister and, therefore, no nexus had been developed by the prosecution between the assets and pecuniary resources of the appellant and misuse of his authority as Chairman and Provincial Minister so as to bring the charge against him home. With these submissions and with reference to some precedent cases the learned counsel for the appellant has maintained that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appellant is entitled to be acquitted of the charge. As against that the learned Additional Prosecutor-General appearing for the National Accountability Bureau as well as the learned Deputy Attorney-General have supported the impugned judgments passed by the learned Courts below and have maintained that this appeal ought to be dismissed.
5. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the learned counsel for the appellant is quite correct in maintaining that the sources of income of the appellant had never been enlisted, determined or quantified by the prosecution either during the investigation of this case or during the trial. The Investigating Officer of this case namely Qazi Abdul Hameed, Inspector FIA (PW18) had conceded before the learned trial Court that nothing in that regard had been brought on the record of investigation by him nor the information supplied to him by the appellant in that respect had been made a part of the Reference ultimately filed against the appellant. We have found that even in the Reference submitted by the National Accountability Bureau and the Charge framed against the appellant by the learned trial Court no mention had been made of the appellant's exact income, the sources of his income or the details of his resources so that the same could be set up against the value of the assets of the appellant, his dependants or the so-called benamidars for alleging that the former was disproportionate to the latter. According to Section 9(a)(v) of the National Accountability Ordinance, 1999 a holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices ------ "If he or any of his dependants or benamidars owns, possesses, or has any right or title in acquired assets or holds irrevocable of power-of-attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income". In a recent unreported judgment delivered in the case of Khalid Aziz v. The State (Criminal Appeal No. 361 of 2001 decided on 05.10.2010) this Court had dilated upon the necessary ingredients of this penal provision and had approvingly reiterated the principles laid down in that respect by a learned Division Bench of the High Court of Sindh in the case of Hakim Ali Zardari v. State (2007 MLD 910) and had reproduced in its judgment a paragraph of that judgment rendered by the High Court of Sindh which read as under:
"In order to prove the case, the prosecution is required to prove the ingredients of the offence, which are (1) it must establish that the accused was holder of a public office (2) the nature and extent of the pecuniary resources of property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution after thorough investigation and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence as defined under Section 9 (a)(v) is complete, unless the accused is able to account for such resources or property. Thus, mere possession of any pecuniary resources or property is by itself not an offence, but it is failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence. If he cannot explain, presumption under Section 14(c) of the Ordinance that accused is guilty of corruption and corrupt practices is required to be drawn. Reference is invited to a case Biswa Bhushan Naik v. State (AIR 1954 SC 350) in which identical provision in Prevention of Corruption Act, 1947 were interpreted."
In the said judgment it had further been observed by the learned Division Bench of the High Court of Sindh at different places of the judgment as follows:
"As regards the third and fourth ingredients of the offence and about the known sources of income, the expression "known sources of income" must be taken to the sources known to the prosecution on a thorough investigation of the case."
"In the case of the appellant the prosecution was required to hold a detailed inquiry to ascertain the sources of income, but it appears that the Investigating Officer did not perform his duties diligently and properly as he did not conduct any sort of investigation to know the other sources of income as is clear from his own admissions."
"From the above statement of the Investigating Officer, it is clear that the prosecution did not hold proper inquiry or investigation to ascertain the known sources of income of the appellant, therefore, the prosecution has failed to prove third and fourth parts of the ingredients of the offence. If the Investigating Officer had conducted proper and thorough enquiry or investigation, then he would have come to know about the other sources of the income of the appellant. Therefore, the prosecution was required to calculate the said income and determine whether the impugned property was disproportionate to the known sources of income of the appellant."
(italics have been supplied by us for emphasis)
Emphasis on proof all the above mentioned ingredients of the offence under Section 9(a)(v) of the National Accountability Ordinance, 1999 has also been laid by this Court as well as by the Lahore High Court, Lahore in the judgments handed down in the cases of Muhammad Hashim Babar v. The State and another (2010 SCMR 1697) and Farrukh Javed Ghumman v. The State (PLD 2004 Lahore 155).
6. The law now stands settled that in order to prove commission of an offence under Section 9(a)(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. In the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial Court to conclude or to hold that the appellant or his dependants or so-called benamidars owned or possessed assets or pecuniary resources disproportionate to the appellant's income. It is unfortunate that the Investigating Officer of this case as well as those responsible for prosecution of this case before the learned trial Court had, probably on account of their sheer incompetence, utterly failed to do the needful in this regard and it is regrettable that even the learned trial Court as well as the learned appellate Court had completely failed to advert to this critical aspect of the present case.
7. According to the Reference filed and the Charge framed against the appellant he had, through indulging in corruption and corrupt practices, accumulated assets in his own name and also in the names of his wife and sons and the worth of such assets was to the tune of Rs. 5,15,35,000/- which was disproportionate to the appellant's known sources of income. The wife of the appellant and his sons were set up in this case as benamidars and admittedly the said wife and sons of the appellant had never been summoned by the learned trial Court for providing them an opportunity to produce evidence in support of their claims regarding ownership of the relevant assets in their own right or to substantiate that they had sufficient sources of their own to acquire the relevant properties. Such failure on the part of the learned trial Court was found by this Court in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408) to be fatal to the case of the prosecution. It was observed by this Court in that case as under:
"16. The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB Ordinance, we would hold that he (benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case."
(italics have been supplied by us for emphasis)
In the said judgment this Court had gone on to recommend to the Federal Government to suitably amend the National Accountability Ordinance, 1999 in the following terms:
"18. Before parting with this judgment, we shall recommend the Federal Government to consider the desirability of making amendments in the NAB Ordinance providing that in a case in which holder of public office is sent for trial of charges of corruption for acquiring assets beyond his means in the names of other persons as benamidars, such other persons/ostensible owners should necessarily be summoned by the Accountability Court to provide them opportunity during the trial to prove that the said assets were acquired by them from their own resources and in case, finally it is decided that the charges against the accused person had been proved, and such persons had failed to prove acquisition of assets from their own sources, they should be provided remedy of appeal in the same manner as is available to the accused persons in order to avoid any further litigation or complication which would advance the ends of justice."
It is admitted at all hands that in the present case the wife and sons of the appellant, who were set up by the prosecution as benamidars, had never been summoned by the learned trial Court to explain their position and this failure or omission on the part of the learned trial Court had a vitiating effect. In ordinary circumstances we would have considered remand of the appellant's case to the learned trial Court on this score for decision of the case afresh but, as has already been noted above, the appellant has already expired and a remand of the case against him for retrial would be a futile exercise because the accused person facing the trial would not be in a position to appear before the learned trial Court. It is but obvious that at this stage the matter of accountability of the appellant lies in some other jurisdiction and the same is now in the hands of some other Authority or Court!
8. The learned counsel for the appellant has also been found by us to be quite justified in maintaining that the Reference filed against the appellant as well as the Charge framed against him by the learned trial Court had alleged that the appellant had accumulated the relevant assets and pecuniary resources by misusing his authority as Chairman of a District Council and as a Provincial Minister but the prosecution had not produced any evidence worth its name before the learned trial Court to establish any misuse of his authority by the appellant as Chairman or Provincial Minister so as to develop and establish any nexus between misuse of his authority and amassing of wealth or accumulation of assets by him. In the complete absence of any evidence brought on the record by the prosecution in the above mentioned regard it could not been held by the learned Courts below that the Charge, as framed against the appellant, stood established by the prosecution.
9. For what has been discussed above this appeal is allowed, the conviction and sentences of the appellant recorded and upheld by the learned Courts below are set aside and he is acquitted of the Charge. The above are the reasons for the short order announced by us on 20.09.2011 which reads as follows:
"Having heard the learned counsel for the parties at some length and for reasons to be recorded later in the detailed judgment, we are of the view that the prosecution had failed to prove its case beyond reasonable doubt to sustain appellant's conviction and further that the judgment rendered by the learned trial Court is violative of the law laid down by this Court in Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408). That being so, this appeal is allowed and the impugned judgment is set aside."
(R.A.) Appeal allowed.
[Appellate Jurisdiction]
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui &
Asif Saeed Khan Khosa, JJ.
GHANI-UR-RAHMAN--Appellant
versus
NATIONAL ACCOUNTABILITY BUREAU, etc.--Respondents
Criminal Appeal No. 170 of 2003, decided on 20.9.2011.
(On appeal from the judgment dated 26.06.2002 of the Peshawar High Court, Peshawar passed in Ehtesab Criminal Appeal No. 04 of 2001)
National Accountability Ordinance, 1999 (XVIII of 1999)--
----Ss. 9(a)(v) & 10 r/w. S. 14(e)--Conviction and sentence recorded against accused by trial Court--Appeal was also dismissed by High Court--Challenge to--Corruption in high public offices--Allegation of--Misused his official authority during his chairmanship and ministership--Known sources of income of accused--Incompetence of I.O. and prosecuting agencies--Entire evidence produced by prosecution was completely silent regarding specific instance of misuse of any authority--Validity--Source of income of the accused had never been enlisted, determined or quantified by prosecution either during investigation or during trial--Even in Reference submitted by N.A.B and charge framed against the accused, no mention had been made of the accused exact income, source of his income or details of his resources so that the same could be setup against the value of assets of the accused, his dependants or so--called benamidars for alleging of disproportionate--Wife of the accused and his sons were set up in instant case as benamidars and admittedly by trial Court for providing them an opportunity to produce evidence in support of their claims regarding ownership of the assets in their own right or to substantiate that they had sufficient sources of their own to acquire the properties--Wife and sons of the accused, who were set-up by prosecution as benamidars, had never been summoned by trial Court to explain their position and such failure or omission on the part of trial Court had vitiating effect--Accused had accumulated the assets and pecuniary resources by misusing his authority but prosecution had not produced any evidence to establish any misuse of his authority--In complete absence of any evidence brought on record regard it could not been held by Courts below that charge, as framed against the accused, stood established by prosecution--Accused was acquitted. [Pp. 68, 71, 72 & 73] A, B, D, E & F
PLD 2002 SC 408, 2007 MLD 910, ref.
National Accountability Ordinance, 1999 (XVIII of 1999)--
----S. 9(a)(v)--Corruption in high public offices--Known sources of income--Disproportionate--Possession of pecuniary resources--Ingredients of offence u/S. 9(c)(a)(v) of Ordinance, 1999--Onus of proof--Validity--Onus shifts to accused to account for such resource or property because mere possession of any pecuniary resource or property is by itself not an offence but it possession of pecuniary resource or property that makes the possession objectionable and constitute the offence--Sources of income of accused had never been quantified, therefore, it was not possible for trial Court to conclude that assused or so-called benamidars possessed assets disproportionate to the accused income--Prosecution had probably on account of sheer incompetence, utterly failed to do needful and it was regrettable that even Courts below had completely failed to advert to such critical aspect of the instant case. [Pp. 70 & 71] C
2010 SCMR 1697 & PLD 2004 Lah. 155, rel.
Mr. Wasim Sajjad, Sr. ASC and Mr. Mehr Khan Malik, AOR for Appellant.
Dr. Asghar Rana, Additional Prosecutor-General for National Accountability Bureau.
Mr. Dil Muhammad Alizai, Deputy Attorney-General for Pakistan on Court's call.
Date of hearing: 20.09.2011
Judgment
Asif Saeed Khan Khosa, J.--Corruption in high public offices is unfortunately a serious bane of our society and the circumstances of this case compel us to observe that incompetence of the Investigating Officers and prosecuting agencies as well as failure of the trial Courts to pay proper heed to the legal requirements in such cases are sometimes contributing factors in that regard because such factors allow corruption to remain unchecked and the corrupt to go scot free. Ghani-ur-Rahman appellant had remained the Chairman of District Council, Hangu in the erstwhile Province of the North-West Frontier Province (now Khyber Pakhtunkhwa) during the period from 1988 to 1989 and subsequently he had remained a Provincial Minister in the Government of the North-West Frontier Province during the periods from 1993 to 1996 and from 1998 to 1.999. On 27.07.2000 he was arrested by the National Accountability Bureau on the allegation of indulging in corruption and corrupt practices and he remained on physical remand with the National Accountability Bureau for the ensuing period of ninety days. On 25.10.2000 a Reference was filed against the appellant alleging that during his Chairmanship and Ministership he had misused his official authority and had accumulated assets which were beyond the known sources of his income. On the basis of that Reference the learned Judge, Accountability Court No. IV, Peshawar framed a Charge against the appellant which read as follows:
"I Miftah-ud-Din Khan, Judge Accountability Court No. IV, Peshawar do hereby charge you accused Ghani-ur-Rehman S/O Said Malook, Ex. Minister for Irrigation R/O village Sarki Tehsil Hangu as under:--
That you while holding public office as Chairman District Council and Provincial Minister by misusing your authority used the vehicles of Irrigation Department for private purposes, and also through corruption and corrupt practices accumulated assets in your name, in the names of your wife and sons total amounting to Rs. 515,35,000/-, which are disproportionate to your known sources of income and for which you cannot furnish reasonable account or payment of lawful consideration and thereby committed an offence under Section 9 of the NAB Ordinance punishable under Section 10 of the aforesaid Ordinance and within my cognizance."
2. During the trial the prosecution produced eighteen witnesses in support of its case against the appellant. In his statement recorded under Section 342, Cr.P.C. the appellant denied and controverted all the allegations of fact levelled against him by the prosecution and professed his innocence. He also made a statement on oath under Section 340(2), Cr.P.C. and produced as many as seventy-five witnesses in his defence trying to establish that his assets had not been made beyond his sources of income and also that some of the assets attributed by the prosecution to him were in fact owned and possessed by his wife and children who had made them out of their own resources. At the conclusion of the trial the learned Judge, Accountability Court No. IV, Peshawar convicted the appellant for an offence under Section 9(a)(v) read with Section 14(c) of the National Accountability Ordinance, 1999 vide judgment dated 30.05.2001 and sentenced him under Section 10 of the said Ordinance to rigorous imprisonment for eight years and to pay a fine of rupees twenty million or in default of payment thereof to undergo rigorous imprisonment for one year. All the assets in the names of the appellant's dependents mentioned in the Reference were also directed to be forfeited to the Government. The benefit under Section 382-B, Cr.P.C. was, however, extended to the appellant. The appellant challenged his conviction and sentences before the Peshawar High Court, Peshawar through Ehtesab Criminal Appeal No. 04 of 2001 which was dismissed by a learned Division Bench of the said Court through its judgment dated 26.06.2002. Hence, the present appeal by leave of this Court granted on 20.05.2003.
3. At one stage during the pendency of this appeal the appellant was acquitted by this Court through the order dated 03.03.2009 passed in Criminal Miscellaneous Application No. 459 of 2008 in terms of the provisions of Section 7 of the National Reconciliation Ordinance, 2007 and subsequently on 03.01.2010 the appellant unfortunately expired as a result of a bomb blast. However, on 29.03.2010 the main appeal of the appellant was revived and restored to its original number because by then the National Reconciliation Ordinance, 2007 had been declared by this Court as void ab initio and non est being ultra vires the Constitution through a judgment rendered in the case of Dr. Mubashar Hassan v. Federation of Pakistan (PLD 2010 SC 1). Later on through an order passed by this Court on 12.05.2010 in Criminal Miscellaneous No. 193 of 2010 the legal heirs of the appellant, except Zafar Ali who had already passed away by then, were allowed to be impleaded in place of the appellant because some properties belonging to legal heirs of the appellant had been ordered by the learned trial Court to be forfeited in favour of the Government.
4. We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that during the investigation of this case the sources of income of the appellant had never been determined and his income had never been quantified, the Reference filed and the Charge framed against the appellant were absolutely silent about the income or the sources of income of the appellant and even during the trial no evidence whatsoever had been led by the prosecution in that regard. In these circumstances, according to him, it was not possible for the learned trial Court to compare the value of the assets and pecuniary resources of the appellant, his dependants or the so-called benamidars with the appellant's income and to hold that the value of the assets in issue was disproportionate to the appellant's income. It has also been pointed out by him in this regard that Qazi Abdul Hameed, Inspector FIA (PW18), the Investigating Officer of this case, had stated before the learned trial Court in so many words that the appellant had informed him about many different sources of his income but he, the Investigating Officer, had not brought that information on the record of investigation and that information supplied by the appellant had also not been made a part of the Reference filed against the appellant. It has also been contended by the learned counsel for the appellant that the wife and children of the appellant, who were alleged by the prosecution to be benamidars, had never been associated with the trial by the learned trial Court and they had never been summoned by it to explain their position vis-a-vis the properties in issue which omission had vitiated the appellant's trial. The learned counsel for the appellant has further submitted that the Reference filed against the appellant as well as the Charge framed against him by the learned trial Court alleged that he had accumulated assets and pecuniary resources disproportionate to his known resources of income by misusing his authority as Chairman of a District Council and as a Provincial Minister but the entire evidence produced by the prosecution was completely silent regarding any particular or specific instance of misuse of any authority by the appellant as Chairman or Provincial Minister and, therefore, no nexus had been developed by the prosecution between the assets and pecuniary resources of the appellant and misuse of his authority as Chairman and Provincial Minister so as to bring the charge against him home. With these submissions and with reference to some precedent cases the learned counsel for the appellant has maintained that the prosecution had miserably failed to prove its case against the appellant beyond reasonable doubt and, therefore, the appellant is entitled to be acquitted of the charge. As against that the learned Additional Prosecutor-General appearing for the National Accountability Bureau as well as the learned Deputy Attorney-General have supported the impugned judgments passed by the learned Courts below and have maintained that this appeal ought to be dismissed.
5. After hearing the learned counsel for the parties and going through the record of this case with their assistance we have straightaway observed that the learned counsel for the appellant is quite correct in maintaining that the sources of income of the appellant had never been enlisted, determined or quantified by the prosecution either during the investigation of this case or during the trial. The Investigating Officer of this case namely Qazi Abdul Hameed, Inspector FIA (PW18) had conceded before the learned trial Court that nothing in that regard had been brought on the record of investigation by him nor the information supplied to him by the appellant in that respect had been made a part of the Reference ultimately filed against the appellant. We have found that even in the Reference submitted by the National Accountability Bureau and the Charge framed against the appellant by the learned trial Court no mention had been made of the appellant's exact income, the sources of his income or the details of his resources so that the same could be set up against the value of the assets of the appellant, his dependants or the so-called benamidars for alleging that the former was disproportionate to the latter. According to Section 9(a)(v) of the National Accountability Ordinance, 1999 a holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices ------ "If he or any of his dependants or benamidars owns, possesses, or has any right or title in acquired assets or holds irrevocable of power-of-attorney in respect of any assets or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income". In a recent unreported judgment delivered in the case of Khalid Aziz v. The State (Criminal Appeal No. 361 of 2001 decided on 05.10.2010) this Court had dilated upon the necessary ingredients of this penal provision and had approvingly reiterated the principles laid down in that respect by a learned Division Bench of the High Court of Sindh in the case of Hakim Ali Zardari v. State (2007 MLD 910) and had reproduced in its judgment a paragraph of that judgment rendered by the High Court of Sindh which read as under:
"In order to prove the case, the prosecution is required to prove the ingredients of the offence, which are (1) it must establish that the accused was holder of a public office (2) the nature and extent of the pecuniary resources of property which were found in his possession, (3) it must be proved as to what were his known sources of income i.e. known to the prosecution after thorough investigation and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence as defined under Section 9 (a)(v) is complete, unless the accused is able to account for such resources or property. Thus, mere possession of any pecuniary resources or property is by itself not an offence, but it is failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence. If he cannot explain, presumption under Section 14(c) of the Ordinance that accused is guilty of corruption and corrupt practices is required to be drawn. Reference is invited to a case Biswa Bhushan Naik v. State (AIR 1954 SC 350) in which identical provision in Prevention of Corruption Act, 1947 were interpreted."
In the said judgment it had further been observed by the learned Division Bench of the High Court of Sindh at different places of the judgment as follows:
"As regards the third and fourth ingredients of the offence and about the known sources of income, the expression "known sources of income" must be taken to the sources known to the prosecution on a thorough investigation of the case."
"In the case of the appellant the prosecution was required to hold a detailed inquiry to ascertain the sources of income, but it appears that the Investigating Officer did not perform his duties diligently and properly as he did not conduct any sort of investigation to know the other sources of income as is clear from his own admissions."
"From the above statement of the Investigating Officer, it is clear that the prosecution did not hold proper inquiry or investigation to ascertain the known sources of income of the appellant, therefore, the prosecution has failed to prove third and fourth parts of the ingredients of the offence. If the Investigating Officer had conducted proper and thorough enquiry or investigation, then he would have come to know about the other sources of the income of the appellant. Therefore, the prosecution was required to calculate the said income and determine whether the impugned property was disproportionate to the known sources of income of the appellant."
(italics have been supplied by us for emphasis)
Emphasis on proof all the above mentioned ingredients of the offence under Section 9(a)(v) of the National Accountability Ordinance, 1999 has also been laid by this Court as well as by the Lahore High Court, Lahore in the judgments handed down in the cases of Muhammad Hashim Babar v. The State and another (2010 SCMR 1697) and Farrukh Javed Ghumman v. The State (PLD 2004 Lahore 155).
6. The law now stands settled that in order to prove commission of an offence under Section 9(a)(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of income of the accused person at the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecution that the onus shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily account for such possession of pecuniary resource or property that makes the possession objectionable and constitutes the relevant offence. In the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and, therefore, it was not possible for the learned trial Court to conclude or to hold that the appellant or his dependants or so-called benamidars owned or possessed assets or pecuniary resources disproportionate to the appellant's income. It is unfortunate that the Investigating Officer of this case as well as those responsible for prosecution of this case before the learned trial Court had, probably on account of their sheer incompetence, utterly failed to do the needful in this regard and it is regrettable that even the learned trial Court as well as the learned appellate Court had completely failed to advert to this critical aspect of the present case.
7. According to the Reference filed and the Charge framed against the appellant he had, through indulging in corruption and corrupt practices, accumulated assets in his own name and also in the names of his wife and sons and the worth of such assets was to the tune of Rs. 5,15,35,000/- which was disproportionate to the appellant's known sources of income. The wife of the appellant and his sons were set up in this case as benamidars and admittedly the said wife and sons of the appellant had never been summoned by the learned trial Court for providing them an opportunity to produce evidence in support of their claims regarding ownership of the relevant assets in their own right or to substantiate that they had sufficient sources of their own to acquire the relevant properties. Such failure on the part of the learned trial Court was found by this Court in the case of Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408) to be fatal to the case of the prosecution. It was observed by this Court in that case as under:
"16. The law by now is firmly settled that no person can be condemned unheard as regards any matter in which he has any interest. It has also been laid down as principle of law by the superior Courts that in every statute, principle of natural justice of hearing a person before condemning him as to his rights shall be deemed to have been embodied unless application thereof has been expressly or impliedly done away with. In the absence of any express provision to exclude the applicability of principles of natural justice of hearing of a person adversely affected by an order or judgment of the Court under NAB Ordinance, we would hold that he (benamidar) has a right to approach the said Court during the trial and before final judgment is passed that he should be heard. We may also observe that in all such cases, where the properties are alleged to have been purchased by an accused person in the names of his spouse, relative and others as benamidars, the Court should itself summon those persons and give them opportunity to produce evidence in support of their claim as to ownership in their own right to substantiate that they had sufficient sources of their own to acquire the properties and thereafter decide the case."
(italics have been supplied by us for emphasis)
In the said judgment this Court had gone on to recommend to the Federal Government to suitably amend the National Accountability Ordinance, 1999 in the following terms:
"18. Before parting with this judgment, we shall recommend the Federal Government to consider the desirability of making amendments in the NAB Ordinance providing that in a case in which holder of public office is sent for trial of charges of corruption for acquiring assets beyond his means in the names of other persons as benamidars, such other persons/ostensible owners should necessarily be summoned by the Accountability Court to provide them opportunity during the trial to prove that the said assets were acquired by them from their own resources and in case, finally it is decided that the charges against the accused person had been proved, and such persons had failed to prove acquisition of assets from their own sources, they should be provided remedy of appeal in the same manner as is available to the accused persons in order to avoid any further litigation or complication which would advance the ends of justice."
It is admitted at all hands that in the present case the wife and sons of the appellant, who were set up by the prosecution as benamidars, had never been summoned by the learned trial Court to explain their position and this failure or omission on the part of the learned trial Court had a vitiating effect. In ordinary circumstances we would have considered remand of the appellant's case to the learned trial Court on this score for decision of the case afresh but, as has already been noted above, the appellant has already expired and a remand of the case against him for retrial would be a futile exercise because the accused person facing the trial would not be in a position to appear before the learned trial Court. It is but obvious that at this stage the matter of accountability of the appellant lies in some other jurisdiction and the same is now in the hands of some other Authority or Court!
8. The learned counsel for the appellant has also been found by us to be quite justified in maintaining that the Reference filed against the appellant as well as the Charge framed against him by the learned trial Court had alleged that the appellant had accumulated the relevant assets and pecuniary resources by misusing his authority as Chairman of a District Council and as a Provincial Minister but the prosecution had not produced any evidence worth its name before the learned trial Court to establish any misuse of his authority by the appellant as Chairman or Provincial Minister so as to develop and establish any nexus between misuse of his authority and amassing of wealth or accumulation of assets by him. In the complete absence of any evidence brought on the record by the prosecution in the above mentioned regard it could not been held by the learned Courts below that the Charge, as framed against the appellant, stood established by the prosecution.
9. For what has been discussed above this appeal is allowed, the conviction and sentences of the appellant recorded and upheld by the learned Courts below are set aside and he is acquitted of the Charge. The above are the reasons for the short order announced by us on 20.09.2011 which reads as follows:
"Having heard the learned counsel for the parties at some length and for reasons to be recorded later in the detailed judgment, we are of the view that the prosecution had failed to prove its case beyond reasonable doubt to sustain appellant's conviction and further that the judgment rendered by the learned trial Court is violative of the law laid down by this Court in Mst. Zahida Sattar and others v. Federation of Pakistan and others (PLD 2002 SC 408). That being so, this appeal is allowed and the impugned judgment is set aside."
(R.A.) Appeal allowed.
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