THE STATE through Prosecutor-General, National Accountability Bureau, Islamabad vs NASIM-UR-REHMAN and others

ORDER

' IFTIKHAR MUHAMMAD CHAUDHARY, J.--- Petitioner seeks leave to appeal against the judgment, dated 17th February, 2004 passed by Peshawar High Court, Peshawar whereby appeals filed by petitioner against acquittal orders passed by the Accountability Court in favour of respondents have been dismissed.

2. Precisely stating the facts of the case are that the NationalAccountability Bureau (hereinafter referred to as 'the NAB') filed a reference No, 4 of 2002, under section 18(g) read with section 24 of theNational Accountability Bureau Ordinance (hereinafter referred to as 'the NAB Ordinance') in the Accountability Court No,III, Peshawar against the respondents namely, Nasim-ur-Rehman, Ex- M.N.A., Haji Anwar Rehman, Masood-ur-Rehman, Mujeeb-ur-Rehman, Faisal Saleem and Asad Saleem, who are closely related to each other. Allegations against them were that they have accumulated immense wealth/assets either in their names or in the names of their dependents disproportionate to their known sources of income. Initially, they were charged for accumulating the assets of Rs,8,20,925,815 but at the time of framing of charge, an objection was raised on their behalf that the charge should be confined only to the extent of assets, acquired during the period when one of them i.e, Nasim-ur-Rehman was holding public office as Member of National Assembly. The objection so raised prevailed and Nasim-ur-Rehman was charged for accumulating assets valuing Rs,1,361,173, against his individual assets, comprising value of Rs, 192,298,452, as per contents of the reference. Petitioner instituted a writ petition before the High Court against the order of the Accountability Court, reducing the amount of charge but it was dismissed on 4th June, 2003 against which reportedly petition for leave to appeal has been filed, which, according to learned counsel, is pending for decision.

4. Learned Accountability Court acquitted all the respondents on accepting their applications under section 265-K, Cr.P.C. By passing orders on 18th January, 2003 on the, applications of Anwar Rehman, Masood-ur-Rehman, Mujeeb-ur-Rehman and Faisal Rehman. Asad Saleem was acquitted after his surrender to Court vide judgment, dated 18th February, 2003. Similarly Nasim- ur-Rehman was also acquitted on 28th August, 2003. Against the orders of Accountability Court, acquittal appeals were filed by the petitioner, which have been dismissed by means of impugned judgment. As such instant petitions for leave to appeals have been filed.

5. Learned Prosecutor General NAB contended that:---

(i) The respondents except Nasim-ur-Rehman former MNA have been acquitted of the charge on the premises that they not being holders of pubic office are not liable to be tried for accumulating immense wealth/assets in their own names, whereas in view of the judgments in the case of Zulfiqar Ali v. Chairman NAB PLD 2003 Lah. 593 and Abdul Aziz Memon v. State 2003 YLR 617, they all were liable to be tried by the Accountability Court, because they have indulged in corruption and corrupt practices by accumulating immense wealth.

(ii) Prosecution was not allowed fair opportunity by the trial Court to produce complete incriminating evidence against the respondents-accused because at a very early stage of hearing, of the reference, they have been acquitted of the charge, on accepting their applications under section 265-K, Cr.P.C. Due to which serious injustice has been caused to petitioner.

(iii) The acquittal of the respondents particularly Nasim-ur-Rehman is not tenable as prosecution possesses overwhelming incriminating evidence against them but the learned High Court erred in law in maintaining the acquittal order passed in their favour by the Accountability Court.

6. On the other hand learned counsel appearing for respondents contended that:---

(a) The respondents except Nasim-ur-Rehman, not being holders of public office were not liable to be tried in the Accountability Court under NAB Ordinance, in view of the judgment in the case, of Kabir Khan v. The State 2003 YLR 1607, wherein it has been held that except the holder of public office, no one else can be charged/tried under the NAB Ordinance.

(b) Learned Accountability Court on having examined the materialavailable on record formed an opinion that there is noprobability of their being convicted and the High Court also had examined the prosecution case, keeping in view the material available on record as a result whereof, acquittal orders passed in their favour by the Accountability Court were maintained legally. Since prosecution, prima facie, could not establish accusation against the respondents, therefore, in such situation. Accountability Court was empowered to acquit them at any stage.

(c) The prosecution witnesses did not support the charge against Nasim-ur-Rehman, as such learned Accountability Court had no option but to acquit him instead of prolonging the trial.

Unnecessarily.

7. After hearing both the sides, in our opinion following questions emerge for consideration:---

(1) What is the scope of NAB Ordinance in respect of an accused who is not holder of public office but has indulged himself into corruption and corrupt practices, being the beneficiary from the accused who was holder of public office and was facing trial within them for the same charge?

(2) As to whether the view expressed in the cases of Zulfiqar Ali (ibid), Abdul Aziz Memon (ibid) and Kabir Khan (ibid) i.e, whether a person other than a public office holder but being beneficiary from such person can be tried under NAB Ordinance is just and proper or an authoritative judgment is required to be passed to reconcile the views taken in above noted judgments?

(3) As to whether the Accountability Court acquitted the respondents in exercise of its powers under section 265-K, Cr.P.C. Without affording sufficient opportunity to prosecution to lead evidence?

(4) As to whether prosecution possesses sufficient incriminating evidence to establish charge against respondent Nasim-urRehman? If so, to what effect?

8. Thus to examine inter alia above contentions raised by learned counsel for the parties as well as the questions noted hereinabove, leave to appeal is granted.

' To procure the attendance of the respondents, their bailable warrants in the sum of Rs,50,000 each, returnable to the Registrar of this Court, be issued.