MUHAMMAD RAFIQUE BANGASH Versus State
ABDUL LATIF KHAN, J.--- Muhammad Rafiq Bangash, Appellant, tried in Reference No.6 of 2003 before the Accountability Court No.II Peshawar and after having found guilty, convicted under section 10(a) of the NAB Ordinance and sentenced to seven years R.I. with a fine of Rs.72,31,862.48 vide judgment dated 11.12.2012, in default of payment of fine to undergo simple imprisonment for 3 years. The assets acquired by the convict-appellant, with money obtained through corruption and corrupt practices stood forfeited to the Government of Pakistan, however, benefit of section 382-B, Cr.P.C. was extended to him.
2. The allegations against the appellant are that during his service, as SDO C&W Department, he had acquired assets in his own name and his dependents, disproportionate to his known source of income, involved in corruption and through corrupt practices, accumulated huge assets. He joined the C&W Department in the year 1979, as SDO and remained on lucrative posts. He was compulsorily retired from service in the year 1999, on the basis of an inquiry, pertaining to "Raessan Bridge Kohat". He inherited only 1 Kanal 19 Marlas of land, by dint of mutation No.4300 dated 28.10.1989, which is in possession of his step brothers. The assets and Bank Account owned by the accused, disproportionate to his own source of income, were taken into consideration and took cognizance by the NAB (F) of the matter and authorized Inayatullah Khan I.O. to investigate the matter. During the course of investigation the I.O. collected necessary evidence and found that the accused purchased 16 Marlas plot in Afzal Abad, Old Jamrud Road, University Town, in the year 1985 in his own name and in the name of his wife for Rs.100,000/- and constructed a house on it, in the same year with a cost of Rs.4,38,964/-, presently costing Rs.800,000/- and cost of construction after depreciation comes out to Rs.701,257/-, duly assessed by the Patwari and Engineer. The total present cost comes out to Rs.15,1257/-.
Plot No.281 H-1 Hayat Abad measuring 1 Kanal was allotted in the year 1982 for a consideration of Rs.50,600/-. A Bungalow was constructed over it, in the year 1990- 91 costing Rs.12,10,610/-, purchase value is Rs.12,10,610/- and the present market value comes out to Rs.26,97,543/-. The accused purchased House measuring 8 Marlas in Bazukot Tall, for a sum of Rs.3,75,000/- in the year 1998, not yet transferred in his name. The prevailing market value of which is Rs.3,75,000/-.
3. One Toyota Corolla Motor Car bearing Registration No.8065 Model 1984, Karachi, sold in March 2002 to Niaz Waheed resident of Tall for a sum of Rs.2,87,000/-.
4. He maintained Account No.1128 in Allied Bank Ltd. Pawaka Branch, opened in the year 1995, total credit amount of which is Rs.20,35,291,78.
5. Another Account maintained since 1999, bearing No.1476-6 ABL Hayat Abad Branch, total credit amounting to Rs.25,78,000/- with Rs.860/- in balance.
6. Account No.1147 ABL Hayat Abad Branch Peshawar, opened in his own name and in the name of his wife, in the year 1998, total credit amount of which is Rs.10,94,856.70, grand total of these Accounts are Rs.57,08,148.48. Details of contra entries detected by the Banking experts of Rs.14,54,856.00, estimated and unaccounted for an amount, comes to Rs.42,53,292.48.
7. Per annum expenditure of average utility bills of the accused was Rs. 12840/-, excluding daily routine expenditure.
8. Expenditure incurred upon the Education of children Rs.2,96,396/-, Rs.100,000/- Hajj expenses, made by the accused in the year 1995 on performance of Hajj. The assets declaration form submitted by the accused in the year 1995, reveals that all the above assets were not declared by the accused and concealed intentionally.
9. He was charge-sheeted for sub‑standard quality and failure of performance of duty with due care, while constructing "Raeesan Bridge Kohat" in the year 1992-93, a penalty of Rs.1,20,000/- was imposed upon him and resultantly he was compulsorily retired from service in the year 1989.
10. Ihsan Junaid, running Small Scale Garments Business, obtained loan of Rs.2,50,000/- from one of his relative, refundable in five years, declared his income as Rs.1,24,000/- from 1991-2000. If the same is adjusted to that debt, it would reveal that no property is earned through this business. The accused has no other source of income except salary and pension, the total drawn Rs.18,12,526/-. The value of the assets comes out to Rs.72,31,862.48, present market value of which is estimated as Rs.96,30,488.48.
11. During the course of investigation the I.O. collected necessary evidence, compiled the final report and forwarded the same to DG NAB, on the basis of which the instant Reference was made and submitted to the Accountability Court No.II Peshawar for adjudication.
12. The prosecution in order to substantiate the allegations against the appellant, examined as many as 17 witnesses. Charge was framed against him and he was examined under section 342, Cr.P.C. Under section 340(2), Cr.P.C. he produced 9 witnesses in his defence, denying the allegations of corruption and corrupt practices, stating that none of the properties, constructions, expenditures and Banks Accounts was denied. However, he claimed all these to have been acquired through lawful means.
13. The learned counsel appearing on behalf of the convict-appellant contended that presumption of guilt is deviation from age-old principle of law of evidence that accused is presumed to be innocent, unless otherwise proved by the prosecution, still initial burden lies on the prosecution, to prove the case and if failed, no conviction can be recorded. He is saddled with liability of disproving the charge, amounts to departure from ordinary rule of jurisprudence, prosecution has to make out a reasonable case against him. He led us to the entire evidence, recorded by the prosecution as well as defence, including the statement of accused recorded under section 342, Cr.P.C. and contended that the evidence, being insufficient, cannot be made basis for conviction of the accused, as the same is un-corroborative piece of evidence. He contended that the evidence cannot be used to connect the accused with the crime. The assets, he added are not proved to have been made through corrupt practices. He contended that the construction of "Raeesan Bridge Kohat" cannot be made basis of the instant Reference, as the same allegedly made in the year, 1999 and no cause of action accrues with regard to the instant Reference. He claimed that the properties, constructions, expenditures, Bank Accounts and other assets were obtained through lawful source, as the accused appellant served abroad with effect from 1973 to 1978, earning handsome amounts through various jobs, details of which is given in defence, by getting 6000 to 7000 Darham monthly salary. He contended that the investment made by the accused-appellant in timber business and the business of his son facilitated him to improve his lawful sources. He tried to justify the Bank Accounts by advancing argument that entries were made after the retirement in the year 1999, having no nexus with the service of the appellant ended in the year 1989. He added that the credit in Banks Accounts, after retirement in. Accounts Nos.1147 and 1476 come out to Rs.31,09,356/-, if deducted from the assets accumulated by the prosecution amounting to Rs.72,31,862/-, amount of Rs.41,22,506/- would be outstanding, then the cost of vehicle and house situated at Tall, if minused from this amount, a sum of Rs.71,60,605/- would come out and if the house situated at Abbottabad would come to Rs.8,78,084/- is deducted, then Rs.25,82,422/- would come out and the amount of salary and pension etc. comes to Rs.23,34,630/-, deducted, then an amount of Rs.3,47,792/- would be remaining amount and added that the rent of the house amounting to Rs.9,65,000/-, the income gained from Dubai amounting to Rs.8,19,000/-, profit from Timber business Rs.1,79,000/-and income from Hayat Abad House amounting to Rs.96,000/- plus Rs.80,000/-earned from plot purchased for Rs.2,20,000/- and sold for Rs.300,000/-. All these show that the accused-appellant has sufficient lawful sources through which he acquired the assets and there remains, nothing to link him with the crime and the conviction and sentence recorded by the learned trial Court, being based on no evidence, are likely to be set aside.
14. As against that the learned counsel appearing on behalf of the NAB contended that the preliminary inquiry, statements of P.Ws. and even defence evidence connects the appellant with the crime, beyond any shadow of doubt. He added that the accused-appellant has been involved in corruption and corrupt practices and made assets beyond his known lawful sources. He mainly laid stress on the compulsory retirement of the accused-appellant from service in the year 1999, on the basis of report of sub-standard construction, in "Raeesan Bridge Kohat" and the fine of Rs.1,20,000/- imposed against the appellant and linked the said punishment with the instant Reference and vehemently supported the conviction recorded by the Accountability Court.
15. We have gone through the record and considered the submissions of the learned counsel for the parties.
16. The record reveals that the prosecution in support of its allegations has produced as many as 17 witnesses to establish its case against the appellant.
17. P.W.1 Abdur Rehman SDO Pak P.W.D has assessed the market value of three Houses of the appellant, as Technical expert.
18. P.W.2 deposed regarding warrant of execution, P.W.3 has produced record with regard to the allotment of plot at Hayat Abad Peshawar, allotted on the basis of Draw, price of which is Rs.50,600/- payable in 4 equal installments, which was paid accordingly.
19. Sub-Inspector retired, deposed in respect of Naqalmad produced as Ex.P.W.4. Ex-Accounts Officer, AG Office, Peshawar was examined with regard to pay and allowances of the accused-appellant and ACR and Service record including assets, were brought on file through P.W.6. Patwari Halqa produced the record regarding the purchase of land, deposed as P.W.7.
20. One Badar Niaz appeared as P.W.8, deposed in respect of purchase of Motor Car from accused for a sum of Rs.2,67,000/-. Mrs. Salma Sarfaraz appeared as P.W.9, who produced record in respect of payment of School Fee of the daughter of accused. Manager ABL, examined as P.W.10, who produced record in respect of PLS Account No.1128 in ABL. Income Tax Superintendent produced assessment record and declaration of income in respect of the business of Junaid son of the accused, while appearing as P.W.11. Haroon Shahid P.W.12 produced the payment of fee record by the son of accused in Edwards College, Peshawar. Khalid Khan, P.W.13 Chief Manager ABL produced record in respect of Account No.1476-6 opened in the name of accused-appellant and his son Junaid Bangash on 23.4.1999 and another Account No.1147-2 opened on 22.7.1999. P.W.14 Ikramul Haq Superintendent Administration, University of Peshawar, produced record in respect of payment of Fee by the daughter of accused-appellant as Ex.P.W.14/1.
21. The I.O. appeared as P.W.15, gave detailed statement in respect of the investigation conducted by him. He collected record pertaining to the properties both moveable and immovable, Bank Accounts, Expenditure of Hajj, Children Education and Utility Bills, Service and Income Tax record of the accused and other sources of the Income of the Family. He got recorded the statement of P.Ws, Bahader and Alif Shah under section 164, Cr.P.C. before the Judicial Magistrate through applications placed on file as Ex.P.W.15/2 and Ex.P.W.15/3. He moved an application to the Court for issuance of warrant under section 204, Cr.P.C. against the accused, as in his opinion the accused was avoiding arrest. He also applied for proclamation under section 87, Cr.P.C. on 6.1.2003. Separate proceedings under section 31-A of NAB Ordinance are also initiated, which was pending before the Accountability Court. Final report was prepared by him along with documentary evidence and list witnesses, posted as Ex.P.W.15/8, submitted before the Chairman NAB, culminating into Reference against the accused.
22. Alif Shah appeared as P.W.16, who deposed that his brother Muslim Shah sold the house situated in Bazukot Tall in favour of the appellant in the year 1987-88 and he has executed power of attorney in favour of the accused.
23. Ajmal Shah, P.W.17, former Director Financial Crime Investigation NAB Peshawar observed that he found suspicious transactions of Rs.42,53,292.48, out of which cash transaction were of Rs.15,17,000/-. His report is available on file as Ex.P.W.17/1.
24. After close of the evidence of the prosecution, the accused-appellant was examined under section 342, Cr.P.C., who did not plead guilty to the charge of corruption and corrupt practices and claimed the assets made through lawful sources. He produced 9 witnesses in his defence.
25. Younger brother of the accused appeared as D.W.1, who deposed that the accused went to Dubai, remained there for 5/6 years and on his return, he purchased the property jointly, as Benamidar, which was later on acquired by the Government, accused was attorned by him to receive the compensation being his legal entitlement.
26. Haji Hawaldar Khan, D.W.2, brother-in-law of the accused, deposed that he remained with the accused was in Dubai in the year 1977-78, took loan of 10,000/- Dirham from the accused, which was later on returned to the accused in the year 1990 and he purchased a house through that money in Afzal Abad Peshawar.
27. D.W.3, Ghuyurullah is the brother-in-law of the accused, who deposed that accused paid Rs.100,000/- to him in Timber Business and used to share the profit out of the business.
28. Dr. Rahim Bangash, D.W.4, cousin of the accused stated that he in the company of accused went to Abbottabad in the year 1978, purchased Motor Car, Datsun 120-Y. He admitted his signature on Ex.D.19, agreement to sell. He also admitted his signature on two different receipts of money paid of Hawaldar to the accused-appellant.
29. D.W.5, Muhammad Bashir, Superintending Engineer, Irrigation Department, deposed that he remained tenant of the accused on payment of Rs.8000/- as rent and the accused appeared as D.W.9, who re-iterated the same stance as taken in his statement recorded under section 342, Cr.P.C.
30. The question before us for consideration, is whether in the light of the evidence referred to above, the accused was saddled with liability of disproving the charge, which is though departure from ordinary rule of jurisprudence, when prosecution makes out a reasonable case against him.
31. The prosecution, in support of the allegations, made against the accused has produced sufficient evidence, confidence inspiring, to prove that the accused has acquired huge assets, disproportionate to his known source of income. The admitted assets purchased at Abbottabad, Hayat Abad and Bazukot Tall, worth lacs of Rupees plus the Bank Accounts, un-explained, makes out a case against the accused, beyond any reasonable shadow of doubt. This quantum of evidence, not only established tentatively the case against the accused, rather has gone a step ahead of it, then accused was under obligation to prove himself as innocent and the assets, duly admitted by the accused, were beyond means acquired through corruption and corrupt practices.
32. Perusal of preliminary inquiry and statements of D.Ws. recorded in the Court, shows that every aspect with regard to the allegations made against the accused stood established. For recording conviction, testimony of such witnesses, corroborating each other, impartial and unimpeachable, cannot be ignored. The I.O. appeared as P.W.15, who deposed that the appellant joined the C&W Department as SDO in the year 1979 and compulsorily retired in the year 1999, having drawn total emoluments to the tune of Rs.18,12,526/-, but the accused has claimed Rs.22,34,630/-, even if, the latter amount is taken into consideration, would in no way justify the assets acquired by the accused-appellant, as the same is disproportionate to the lawful income of the accused, no cogent evidence has been produced in defence, to justify the other sources of income. The service rendered at Dubai, and the amount to the tune of Rs.8,19,000/-, allegedly brought by the accused/appellant has not been proved as no remittance through Bank or any other source, has been proved to the hilt on the record. The Bank Accounts are also un-explained, found suspicious transaction amounting to Rs.42,53,292.48, by P.W.17, Director Finance, Crime Investigation Wing NAB, Peshawar. The income allegedly derived from Timber Business does not stand to reason, as there is no proof to this effect, except a single statement and that too without reference to any Ledger/Book of Accounts properly maintained by the relevant person. The rent allegedly received by the accused-appellant from the stated tenant, who works as a Senior Officer, i.e. Superintending Engineer, Irrigation Department, also does not stand to reason, as to how the Officer of a status like him dwell in such a rented house, despite posting at Peshawar, against a responsible post. These along with other sources of Income claimed from properties, seems to be planted by the accused-appellant. The defence witnesses though closely related to the accused-appellant were not disqualified to be witnesses, but the testimony of such witnesses cannot be based for adjudication, unless cogent, concrete and corroborated by independent, impartial and of unimpeachable character.
33. As far as purchase of property at Abbottabad, Hayat Abad and Bazukot Tall are concerned, and purchase of Motor Car and then sale are apparent from the evidence to have been acquired through the money obtained through the corrupt practices, because no independent source has been shown for funding the appellant accused at the relevant time of purchase of the properties. Even otherwise these properties have been acquired during the course of Service and it is established principle of Law that a Public Servant has no mandate of indulgence into any profitable Business and if found, would be liable to disciplinary action as per Efficiency and Discipline Rules, 1973.
34. So far as the allegations of the expenses incurred in Education of children by the accused-appellant and performance of Hajj, though proved by the prosecution through oral and documentary evidence, but seems to be reasonable and the accused-appellant cannot be accounted for, because the learned DPG has also conceded to this effect. However, the P.Ws. were found consistent and confidence inspiring. The P.Ws. despite being subjected to taxing and searching cross-examination, could not be shattered, while the appellant-accused has produced insufficient and scanty evidence, in defence, rightly not believed by the trial Court.
35. The learned trial Court after evaluating the evidence, available on record, convicted and sentenced the appellant for 7 years RI. With a fine of Rs.72,31,848/- and in default of payment of fine to undergo SI for three years. All the assets acquired by the convict with the money obtained through corruption and corrupt practices stood forfeited to the Government of Pakistan, with benefit of section 382-B, Cr.P.C.
36. So far as the quantum of sentence is concerned, though the prosecution fully succeeded to bring home the charge against the accused and the accused failed to prove his innocence, the sentence awarded by the trial Court, being too harsh and is not commensurate with the peculiar circumstances of the case, with special reference to the mathematical calculation with regard to the amounts involved in the case, we are of the view that in order to meet the ends of justice it requires reduction to some extent.
Consequently, we maintain the conviction, modify and reduce the sentence awarded to him by the trial Court from 7 years RI to 4 years RI and the amount of fine from Rs.72,31,862.48 to Rs.42,53,292.48 or in default to suffer further one year s SI, instead of three years SI. With the above modification the appeal stands disposed of accordingly. Benefit of section 382-B, Cr.P.C. extended to the accused by the trial Court shall remain intact.
HBT/280/P Sentence reduced.