Major (R) NADIR ALI Versus THE STATE

1. AMANULLAH KHAN YASINZAI, J.‑‑‑ Appellant Major (Rtd.) Nadir Ali was tried by the Accountability Court No.II. Balochistan, Quetta, constituted under the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the "NAB Ordinance", and was convicted under sections 19/11/12 of the NAB Ordinance and sentenced to suffer R.I. for one year and to pay fine of Rs.6,50,000. and in default thereof, to further undergo three months, besides the properties of appellant were also ordered to be forfeited. He was further disqualified for ten years, to hold any public office or to contest elections and also disallowed to obtain any loan or financial facility from any Bank or Financial Institution, for a period of ten years under section 15 of the NAB Ordinance, vide impugned judgment dated 31‑5‑2002, which has been challenged in the instant appeal.

2. The prosecution case is that Reference No.3 of 2000, was filed against appellant wherein it was alleged that hew had obtained four properties, detail whereof is given in the charge, and could not account for acquiring the same Investigation of the case was entrusted to P.W.7 Habibullah Tareen, who recorded statements of witnesses obtained the revenue entries from the Settlement Department, prepared Seizure Memos. and after recording statements of witnesses, submitted challan Exh.P/7‑A and Reference Exh.P/7‑B.

3. Charge was framed on 10‑4‑2000, which was denied by appellant. In the charge, it was alleged that following four properties were obtained by appellant through illegal means:‑‑

4. "(i) Plot measuring 38,659 sq. ft situated at Killi Kirani, Quetta held in the name of Major (Rtd.) Nadir Ali purchased from one Chaudhary Muhammad Siddique vide Mutation No.925 dated 17‑12‑1987.

(ii) Plot measuring 14,145 sq. ft situated at Killi Kirani, Quetta held in the name of Mst. Gul Prawer Nadir wife of the accused purchased from one Mst. Hashmat Bibi vide Mutation No. 1329 date 26‑2‑1990.

(iii) Bungalow measuring 500 sq. ft. situated at Ziarat held in the name of Major Nadir Azli.

(iv) Bunglow measuring 9155 situated at Alan‑War Road, Quetta held in the name of Major (Rtd.) Nadir Ali, the accused."

5. To prove its case prosecution examined following witnesses:‑‑

(1) P. W. I Habibullah, Assistant Director, F. I. A. He prepared Seizure Memo. Exh. P/ 1‑A and took into possession documents Articles A/1 to A/24 from Group Captain Sanaullah, which are declarations of the properties given by the appellant from time to time, during his service tenure.

(2) P.W.2 Syed Abdul Marian, Under Secretary, S&GAD. He handed over the Declaration Forms to the NAB Authorities, which were taken into possession vide Sizure Memo. Exh.P/2‑A and the declaration forms, showing the details of the properties of appellant, are Articles A/25 to A/34.

(3) P.W.3 Naeem Ahmad, Building Inspector. He submitted Assessment Report of the House belonging to appellant situated at Alamdar Road, Quetta. The Valuation Certificate and Assessment Reports are Articles A/36 and A/37.

(4) P.W.4 Ghulam Fareed, Patwari. He on the directions of Revenue Authorities submitted report regarding the property owned by appellant and also submitted the Intiqals, which are Exhs.P/4‑A‑2 to P/4‑A‑22 which were taken into possession vide Seizure Memo. Exh.P/4‑A and also prepared another report regarding the property owned by respondent which are Exhs.P/4‑B‑1 and B‑2 which were taken into possession vide Seizure Memo. Exh.P/4‑B.

(5) P.W.5 Kaleemullah, Saddar Qanoongo. He submitted the detail of the property situated at Alamdar Road, Quetta which is Exhs.P/5‑A‑1 and A‑2, taken into possession vide Seizure Memo. Exh.P/5‑A.

(6) P.W.6 Jehanzaib Khan, S.D.O., B&R. He ‑inspected the house situated at Ziarat belonging to appellant and prepared Assessment Report Exh. P/6‑A and Site Plan Exh P/6‑B:

(7) P.W.7 Habibullah Taran, is, the Investigating Officer. He investigated the case, secured aforementioned documents and submitted challan and Reference Exh.P/7‑A and Exh.P/7‑B before the Court.

6. Appellant was examined under the provisions of section 342, Cr.P.C. wherein he did not opt to record his statement on oath nor produced any evidence in defence.

7. On the conclusion of trial, appellant was convicted and sentenced, as mentioned hereinabove. Hence this appeal.

8. Mr. Mazahar Ali Akbar Naqvi, learned counsel for appellant contended that, out of the said properties, learned trial Court has held that, appellant could not account for Rs.6,11,135 for acquiring two plots vide Mutations Nos.925 and 1325 and for the construction of the Bungalow at Ziarat, amounting to Rs.5,53,290. As far as other properties are concerned, explanation given by appellant has been accepted by excluding them from the charge. Learned counsel further contended that, by mere filing a Reference by the NAB Authorities, no presumption can be drawn against the appellant that, he is guilty of the charge. It was the duty of the prosecution to establish and prove that the properties were acquired through illegal and corrupt practices. In instant case, prosecution has failed to show any misuse of powers or corruption by the appellant, for acquiring the said property. The learned counsel further argued that mere non‑declaration of the assets and property by the appellant, would not constitute any offence under the NAB Ordinance. However, at the most, it can be treated as an irregularity under the Service Laws. Besides; no cogent reasons have been given by the Accountability Court for convicting the appellant.

9. Mr. M. S. Rukhshani, learned Deputy Attorney‑General, argued that, appellant has failed to account for the Bungalow at Ziarat and plots and further had not even clarified the said position in his statement, thus, he has been rightly convicted.

10. We have heard the learned counsel for parties at length and also perused the record of case.

11. It is pertinent to note that the charge as framed against the appellant, is that he acquired huge property in his name and in the name of his spouse, for which he could not disclose his source of income satisfactorily for acquiring the said property. The appellant before joining the civil services, was retired from the Army with full benefits, thereafter was inducted into civil service. As far as the construction of Bungalow situated at Alamdar Road is concerned, appellant has accounted for the same, which explanation has been accepted by the Accountability Court. As regards the other plots, appellant has stated that he had obtained loan from the Government, and purchased the said plots. As far as obtaining of loan from the Government is concerned, the same has not been disputed by the, prosecution. Thereafter, the aforesaid two plots were sold in small pieces and mutation entries were placed on record. Admittedly the sale price has been shown higher than that of purchase price and after the sale of two plots, appellant has saved some amount, which has not been rebutted.

12. Needless to observe that under the NAB Ordinance, an adverse presumption cannot be drawn against an accused, merely by filing, a Reference, burden shifts upon him to disprove the allegation (Primarily), it is the bounden duty of the prosecution to prove the case against the accused in terms of section 3(1)(d) of the NAB Ordinance, i.e. the appellant had acquired property, valuable thing or had taken pecuniary advantage, by corrupt dishonest or illegal means. It may be pointed out that prosecution has to make out a reasonable case through evidence, satisfying the conscience of the Court, regarding the guilt of accused and thereafter the presumption shall be raised against the accused and onus would shift upon him. Reliance is placed on the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others (PLD 2001 SC 607), operative portion of which, reads as under:‑‑

13. "Be that as it may, the prosecution has to establish the preliminary facts where-after the onus shifts and the defence is called upon to disprove the presumption; This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney‑General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set‑up, we deem it necessary to issue the following directions for effective operation of section 14(d).

(1) The prosecution shall first make out a reasonable case against the accused charged under sections 9(a)(vi) and (vii) of the NAB.

(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall. shift to the accused to rebut the presumption of guilt."

14. It may be pointed out that learned trial Court has calculated the price of the house at Ziarat mathematically. It is surprising to note the manner, in which the house was assessed as Rs.5,54,000. The plea of the appellant was that, land was obtained on lease from the Government and construction raised thereon is old and whereas the value assessed by Court is not proper. P.W.6 Jehangir Khan, could not give a definite answer that the building was constructed about 14/15 years back. He has assessed the same on the market value, as it stood on 15‑9‑2001 and has simply calculated the value from outside. The said witness admittedly toad not inspected the building from inside and only prepared a rough Assessment. Report from outside and the trial Court has erroneously relied upon the same. Thus on the basis of such report, it cannot be concluded that the amount so assessed has been exactly spent on the Bungalow.

15. It may be observed here that the appellant in his statement under section 342, Cr.P.C. has stated that the: said property was leased out to him and was constructed in the year 1987. The said fact has not been disputed by the prosecution and even P. W.6 who, assessed the value of the Bungalow could not give details in his report. Thus in absence of any evidence to the contrary, statement of appellant has to be accepted.

16. As regards the other two plots, appellant has stated that he had obtained the loan from the Government and was also having some prize bonds, through which the same were obtained. Be that as it may, even presuming that, appellant had acquired properties, during his service still, it is not sufficient to bring home the charge against him that, he had acquired the properties without accounting for the same. It is also the duty of the prosecution to bring some material that the said property was acquired through corrupt practices. It may be pointed out that, case against the appellant was under investigation, for a very long period, but during this period, nothing was brought on record against him to show, that he was ever involved in any corruption or corrupt practices. Even the properties bearing Mutations Nos.329 and 925 were acquired in the years 1980 and 1987, respectively, for which, appellant stated that he has obtained loan and purchased the said land, has placed on record the documents, which are not disputed. The land was sold subsequently in small plots at higher rates. Thus the explanation given by appellant seems to be satisfactory and whereas .the prosecution has failed to shift the initial burden regarding acquiring of the properties through corruption and corrupt practices.

17. For the foregoing reasons, in our considered opinion, the prosecution has failed to prove its case against the appellant, beyond any shadow of doubt, therefore, giving benefit of doubt to the appellant, he is acquitted of the charge. He be set at liberty, if not required in any other case.

18. N.H.Q./151/Q Appeal accepted.