Mr. Justice Irfan Saadat Khan
IRFAN SAADAT KHAN, J:-, This is an appeal under Section 32 of National Accountability Bureau Ordinance, 1999 (NAB Ordinance) against the judgment dated 06.11.2001, passed in NAB Reference No.38 of 2001 by the Administrative Judge of Accountability Courts, Sindh, Karachi, convicting the appellant under Section 10 of NAB Ordinance and sentencing him to undergo R.I. for five years and to pay a fine of Rs.2,00,00,000/- (Rupees Two Crores). In default of payment of fine, the appellant would further undergo R.I. for 2 ½ years. The properties belonging to the appellant were also ordered to be forfeited. The appellant was also disqualified for ten years for seeking or from being elected, chosen, appointed or nominated as a member or representative of any public or any statutory or local authority of the Government of Pakistan. However, benefit of Section 382(B) Cr.P.C. was extended to him.
2. Briefly stated the appellant was appointed as Assistant Divisional Engineer (BPS-17) and was subsequently promoted as Divisional Engineer (BPS-18) in PTCL from 1989 to 2000. It is alleged that the appellant had accumulated a number of properties in his name which does not commensurate with his income. An enquiry was conducted and thereafter reference was submitted to the Accountability Court which tried the case and convicted the appellant in the abovementioned manner. The details of the alleged properties is as under:-
1. Plot No.79-B/II, Khayaban-e-Shahbaz, Phase-VII, D.H.A. Karachi.
2. 32 Acres of Agricultural Land in Gharo, District Thatta.
3. Premises on Mezzanine No.2, Plot No.23-C, 10th Badar Commercial Street, Phase-V, D.H.A., Karachi.
4. Flat No.2, Plot No.23-C, 10th Badar Commercial Street, Phase-V, D.H.A., Karachi.
5. Flat No.4, Plot No.23-C, 10th Badar Commercial Street, Phase-V, D.H.A., Karachi.
6. Toyota Hilux vehicle.
7. Toyota Corolla Car No.ACM-148.
8. 500 Shares of Rs.10/- each of Kashmir Polytex Limited.
9. 1800 Shares of Rs.10/- each of First Fidelity Leasing Modarba.
10. Shares of Rs.250,000/- M/s. Engro Chemical Pak. Ltd. and M/s. Pakistan State Oil.
11. Account No.6477-5 of National Bank of Pakistan, Gulshan-e-Iqbal Branch, Karachi having transaction of Rs.1,21,86,131/40 from 1995 to 2000.
12. Account No.1013127 of National Bank of Pakistan, Gulshan-e-Iqbal Branch, Karachi having transaction of Rs.1187918/- from 1996 to 2000.
3. The prosecution examined 17 witnesses. The Appellant pleaded himself not guilty of the charge. He recorded his own statement under Section 342 Cr.P.C. and examined himself on Oath. Four defense witnesses were also examined by the appellant however, the trial Court after deciding the points against the appellant convicted him in the manner stated above, hence the present appeal.
4. Mr. Muhammad Ashraf Kazi, learned counsel appearing on behalf of the appellant gave detailed explanation in respect of acquiring each & every asset in the name of the appellant and submitted that all these assets have been acquired through legitimate means. The appellant is living in a joint family system, his father is a retired government servant and his brothers are employed and are earning substantial amount, who have given certain monies from time to time to the appellant through which he had acquired those assets and the appellant can justify each & every asset acquired by him through known sources. According to learned senior counsel the appellant has satisfactorily explained the transactions appearing in his bank account and has produced ample documentary evidences to justify the purchase of the assets declared in his name. As per learned counsel the trial Court has not considered those documentary evidences and has passed an order, which needs to be disapproved and set aside. To support his view point the learned counsel has made detailed deliberation in respect of each & every asset in the name of the appellant. The learned senior counsel in support of his arguments has also relied upon the following decisions:
PLD 1962 S.C. 489.
PLD 2004 Lahore 155.
SBLR 2007 Sindh 755.
PLD 2003 S.C. 46.
2002 MLD 480.
PLD 2004 Quetta 136.
PLD 1967 S.C. 489.
5. The learned counsel for the appellant has also filed written synopsis and reconciliation of the sources and their applications in respect of acquiring of the assets.
6. Mr. Muhammad Riaz, the learned Senior Prosecutor of NAB appeared on behalf of the respondent vehemently and vociferately supported the order passed by the learned trial Court and submitted that the order of the learned trial Court is an exhaustive, unimpeachable, well reasoned and detailed one wherein the learned trial Court had not only discussed each & every asset in the name of the appellant minutely but it has also thrashed out and thread bare every asset in a detailed manner and only then reached to the conclusion that the earnings of the appellant and acquiring of other amounts at different intervals of time do not commensurate with having these assets in his name meaning thereby that he had acquired those assets beyond his means of which no plausible explanation has been given by the appellant. Moreover, as per the learned counsel representing NAB, the acquiring of these assets is not proportionate to the income of the appellant therefore, the learned trial Court was fully justified in convicting him and the present appeal filed by the appellant is not only frivolous but also devoid of any merit and needs to be dismissed. The learned counsel thereafter submitted that the decisions relied upon by the learned counsel for the appellant are quite distinguishable. The learned counsel submitted that no doubt the initial burden lies upon the prosecution to prove its case but if the present case is looked in a juxtaposition everything will be clear and all the charges leveled against the appellant stood established. The learned counsel also invited our attention to Article 2(4) of Qanoon-e-Shahadat Ordinance and Section 14(c) of NAB Ordinance. As per the learned counsel neither any error, omission or illegality has been pointed out in the order passed by the learned trial Court nor it has been alleged that the prosecution has not been able to prove its case beyond any reasonable doubt. To support his above contentions the learned counsel relied upon the decision reported as 2006 P.Cr.L.J. 1409. In the end the learned counsel prays for dismissal of the appeal.
7. Mr. Muhammad Ashraf Kazi Advocate, in his rebuttal, opposed the submissions of the Senior Prosecutor NAB and submitted that provisions of Section 14(c) of NAB Ordinance are not attracted to the present case and requests for allowing the appeal.
8. We have heard the learned counsel for the parties at considerable length and have also perused the case laws relied upon by them, the record as well the written synopsis and the reconciliation of acquiring of the assets.
9. As the present case involves a number of immovable and moveable properties, alleged to have been acquired by the appellant through unknown sources, it would be in fitness of things if we discuss and deal with each property separately.
9.1. Plot No.79-B/II, Khayaban-e-Shahbaz, Phase-VII, D.H.A. Karachi.
This plot was purchased in 1996 by the appellant in his and his father's name for an amount of Rs.7,50,000/-. It is stated that the funds for purchasing the said property was arranged from his personal savings as well as contribution from his father Mr. Ilayatullah Soomro. It is further submitted that the said plot was sold in April 1998 for a sum of Rs.36,50,000/- payment of which was received in the shape of pay orders for Rs.32,00,000/- and the rest of the amount i.e. Rs.4,50,000/- was received in cash. It is submitted that the amount received through various pay orders totaling to Rs.32,00,000/- were deposited in account bearing No.6447-5 of National Bank of Pakistan, Gulshan-e-Iqbal Branch. In the statement recorded under Section 342 Cr.P.C. also the appellant has admitted that the said plot was purchased in the year 1996 for Rs.7,50,000/- and was sold in 1998 for Rs.36,50,000/- and as such the ownership of the said plot was accepted by the appellant. In order to prove its case that the amount of purchase shown by the appellant was fabricated and deflated figure of Rs.7,50,000/- the prosecution produced PW-4 who opined that the value of the plot in the year 1996 was ranging from Rs.30,00,000/- to Rs.32,00,000/-. It is seen from the deposition of PW-4 and the statement given by the appellant that there is a marked difference in the price of the plot mentioned by them. From the impugned order it appears that the learned trial Court, in order to ascertain the real facts of the case, examined the newspapers of the relevant dates of 1996 as well as 1998 and reached to the conclusion that the plot in question could not be purchased for an amount of Rs.7,50,000/-, which appears to be a highly deflated price just to reconcile the inflow of the sources with the outflow. It is also not understandable that how in a short span of two years a plot, which was purchased for Rs.7,50,000/-, was sold for a sum of Rs.36,50,000/-, even assuming the fact that there was a boom in the price of the plots situated in DHA. We have further observed that the appellant in his statement recorded under Section 342 Cr.P.C. has stated that he has received a pay order of Rs.32,00,000/- which he subsequently deposited in his account. However, the perusal of the bank statement clearly indicates that no pay order amounting to Rs.32,00,000/- was ever deposited in the said account. We have further noted that there has been a divergent statement given by the appellant as at first stage he submitted that he received a pay order of Rs.32,00,000/- and then took a summersault and submitted that he had received the said amount in the shape of five pay orders. We have further noted that the appellant has failed to produce any sale deed or sale agreement in respect of the said plot. In support of their contention the prosecution has filed a letter of Pakistan Defence Housing Authority at Exh.127 which shows that the plot was sold on 18.04.1998 whereas the amounts received through pay orders are mostly that of 06.04.1998. It is however not understandable that how the purchaser had given the amount to the appellant even before completion of the transaction and before drawing of any agreement of sale etc. We, therefore, in view of the explicit and uncontroverted findings recorded by the learned trial Court, which remained unrebutted, are of the view that the appellant has failed to make out any case of interference by us and are of the view that the appellant has failed to substantiate with cogent material and evidence that the said property was acquired by him through "known sources". The order passed by the learned trial Court in this regard is hereby upheld.
9.2. 32 Acres of Agricultural Land in Gharo, District Thatta.
It is submitted by the learned counsel that the said agricultural land in District Thatta was purchased in the year 1997 in the name of his father. However we have noted that the learned trial Court has categorically mentioned that the prosecution has failed to prove that the land was purchased by the appellant hence no adverse inference is drawn in respect of the said property.
9.3. Premises on Mezzanine No.2, Plot No.23-C, 10th Badar
Commercial Street, Phase-V, D.H.A., Karachi. __
It is submitted that the said property was purchased by the appellant for a sum of Rs.3,00,000/- in the year 1998, however, as per the prosecution the said property was purchased for a sum of Rs.8,70,000/- and not at the figure declared by the appellant. It is stated by the appellant that the funds for purchasing the said property was available in the shape of sale proceeds of the above mentioned plot which is stated to be sold for Rs.36,50,000/- and it is the same amount which has been rotated by him in purchasing the different properties from time to time. We have however observed from the record that though it is alleged by the appellant that whatever properties have been purchased by him were from known source i.e. availability of Rs.36,50,000/- with him however he failed to substantiate and reconcile that these properties were purchased from the sale proceeds of the plot as it is noted that if the amounts which were withdrawn from the bank account and subsequently invested in the purchase of the plot are compared then the amount appearing in the bank should have been substantially reduced whereas in fact the amounts in the bank statements have increased, which amply proves that the properties subsequently purchased by the appellant were either purchased through some unknown sources or are not satisfactorily explained to be purchased from funds available with the appellant. Moreover we have further observed that the prosecution has examined PW-10 Riazuddin, an Estate Agent, who has categorically submitted that he has sold the said Mezzanine No.2 to the appellant for a sum of Rs.8,74,000/-, though the appellant has alleged that he had purchased the said property for a sum of Rs.3,00,000/-. However no sale deed in support thereof has been produced to substantiate the claim that the said property was purchased for Rs.3,00,000/-, which onus in our opinion squarely lies on the appellant. Moreover, it is further noted that the sale agreement produced by the appellant was also not attested to confirm its veracity.
In view of the above, we are of the view, the appellant has failed to make out a case, so far as the purchase of the above property is concerned and the statement in this regard given by the appellant appears to be an afterthought.
9.4. Flat No.2, Plot No.23-C, 10th Badar Commercial Street,
Phase-V, D.H.A., Karachi. __
It is submitted that the said flat was purchased for a sum of Rs.4,00,000/- in the year 1999 and sale agreement in support thereof had been produced. The prosecution produced PW-10, an Estate Agent, who stated that the price of the flat would be around Rs.8,50,000/- to Rs.9,00,000/- at the time of the purchase. However the appellant has categorically denied such assertion and submitted in his 342 Cr.P.C. statement that he has purchased the said flat for Rs.4,00,000/-. A perusal of the record reveals that the facts pertaining to the purchase of this flat are akin to the facts in respect of mezzanine No.2 wherein we have already observed that it is unimaginable to accept the purchase prices declared by the appellant to be the actual purchase prices of the said properties. Moreover we have further observed that the appellant has failed to substantiate his claim with cogent material and cogent evidences. We, therefore, uphold the case of the prosecution so far as this asset is concerned.
9.5. Flat No. 4 , Plot No.23-C, 10th Badar Commercial
Street, Phase-V,D.H.A., Karachi. ___
The appellant in his statement has categorically denied that the said flat does not belong to him; moreover, we have found that prosecution has also failed to prove that the said flat was purchased by the appellant and belongs to him, hence no adverse inference in this regard is drawn.
9.6. Toyota Hilux
It is stated by appellant that said vehicle was purchased for Rs. 6,10,000/- in the year 1998, however he contributed Rs.2,45,000/- only, whereas remaining amount was paid by the City Bank. It is further brought to our knowledge that within ten days of acquiring the said vehicle, it was stolen and then Adam Jee Insurance Company made loss good and paid the entire amount to the said bank, who adjusted their outstanding amount and returned the remaining amount of Rs. 1,95,000/- to the appellant, which he deposited in his account. The prosecution in support of their case has produced PW-6, Mehfooz Iqbal, who has affirmed the stance of the appellant. Hence no adverse inference in this respect is drawn.
9.7. Toyota Corolla Car No.ACM-148.
It is stated that the said car was purchased for Rs.7,49,000/- in the year 1999. The appellant only paid Rs.2,78,000/-, whereas the remaining amount was paid by Askari Leasing Company. As per appellant the car was purchased for commercial purposes. The car was firstly given to one Muhammad Suhail Akhtar for driving it as private taxi and an agreement in this regard has also been produced as Exh: 62. The car was then given to Regent Plaza Hotel and it is stated that installments of the car are being paid from the income of the car. It is further submitted that the installment of the car comes to Rs.21,000/- per month and said car was firstly given to one Muhammad Suhail Akhtar with the condition that installment of Rs.21,000/- would be paid by said Muhammad Suhail Akhtar thereafter car was given at a monthly rent of Rs. 21,000/- to Prime Rent A Car and then to New Prime Rent A Car for the same amount of rent i.e. 21,000/- per month. However, we have noted that prosecution has failed to dislodge the claim of the appellant with regard to giving of said vehicle to New Prime Rent A Car, as the owner of said New Prime Rent A Car namely Syed Shakeel Hassan does not seem to have been examined on oath by the prosecution whereas a duly executed lease agreement is available in the file at page 569 to 573. It is alleged on behalf of prosecution that rental income of said car has not been disclosed by the appellant in his tax return whereas according to appellant as the installment is set off against the rental of the car received by him hence there is no occasion of declaring the same in his tax return. We have examined the lease agreement and other documents available on the record and are of the view that as the prosecution has failed to examine the person to whom the said car was given on rent, we agree with the submissions of the appellant that prosecution has failed to make out any case against the appellant so far as acquiring and holding of this asset is concerned. We therefore absolve the appellant in respect of charges leveled against him so far as acquiring and holding of this asset is concerned.
9.8. Shares of different companies.
Prosecution has alleged that appellant was holding shares of different companies, which the appellant has admitted in his 342 Cr.P.C. statement and examination of record reveals that all the shares have been purchased through bank and in our opinion appellant at that particular time was having sufficient funds so far as acquiring of shares of these companies are concerned. We are, therefore, of the opinion that no adverse inference in this respect can be drawn against the appellant. Consequently, we absolve the appellant of the charges leveled against him so far as acquiring of shares of Kashmir Polytex Limited, First Fidelity Leasing Modarba, M/s. Engro Chemical Pakistan Ltd. and M/s. Pakistan State Oil are concerned.
9.9. Account Nos. 6477-5 and 1013127 of National Bank
of Pakistan, Gulshan-e-Iqbal Branch, Karachi
According to prosecution, appellant has made various transactions in the above two accounts from 1995 to 2000 and has reported that total transactions in the account No.6477-5 amounted to Rs.1,21,86,131/40 and that of 1013127 to Rs.1187918/-. It is noted that PW-3, the Manager of National Bank of Pakistan has candidly accepted that prosecution has asked him to submit the record with regard to credit entries only and no record of debit entries was asked to be prepared in respect of said accounts. He has further admitted that whenever consolidated statements of account are prepared, both debit and credit entries are shown. The appellant has not denied that statements of account produced by the prosecution do not belong to him. He has admitted that deposits and withdrawals in both accounts are correct to be best of his knowledge. Further, the most intriguing aspect of the case is that according to appellant it is the amount of Rs. 32 lac which was received by him as sale consideration of plot No. 79-B/II, Khayaban-e-Shahbaz, Phase-VII, D.H.A. Karachi which he has rotated in acquiring and disposing off a number of moveable and immovable properties. As noted above the acquiring of the plot No.79 out of funds available with the appellant is highly dubious as in our opinion the appellant has failed to substantiate with cogent material and evidence that the said plot was acquired through known sources and the price paid for the said plot commensurate with the market rate as available at that time.
10. Mr. M.A.Kazi has vehemently contended that appellant has acquired assets through known sources therefore no adverse inference could be drawn against him and prosecution has failed to make out any case against him.
11. In order to appreciate the case in a better perspective we would like to dilate upon the phrase “known source of income” as specifically used in section 9(a)(iv)&(v) of the NAB Ordinance. It would be advantageous to reproduce herein below the relevant extract of the said provision:
9. Corruption and corrupt practices.‑‑(a) 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‑‑
(i) . . . . . . . . . . . . .
(ii) . . . . . . . . . . . . .
(iii) . . . . . . . . . . . .
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents of any other person, any property, valuable thing, or pecuniary advantage; or
(v) if he or any of his dependents or benamidars owns, possesses, or has any right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; or
(vi) . . . . . . . . . . . . "
12. The term known source of income has been elaborately dealt with by a Division Bench of this Court in the case reported as JAMEEL AKHTAR KIYANI & ANOTHER V/S THE STATE (2006 P.Cr.L.J. 1409).
" 28. It will be, noticed that phrase "known sources of income" has been used in section 9(a)(v) of the Ordinance. The phrase "known source of income", was subject to interpretation by the Supreme Court of India under the similar provision of law. It has been held in P. Nallammal v. State AIR 1999 SC 2556, that the known source of income of a public servant means any lawful source. The said phrase has further been clarified in a case reported as C.S.D. Swami v. The State AIR 1960 SC 7 and in para.6 at page 11, it has been observed as under:
"The expression "known source of income" must have reference to sources known to the prosecution on a thorough investigation of the case. It was not and it could not be contended that "known source of income" mean sources known to the accused. The prosecution cannot, in the very nature of things, be expected to know the affairs of an accused person. Those will be matters "specially within the knowledge" of the accused, within the meaning of section 106 of the Evidence Act. The prosecution can only lead evidence as it has done in the instant case, to show that the accused was known to earn his living by service under the Government during the material period. The prosecution would not be justified in concluding that travelling allowance was also a source of income when such allowance is ordinarily meant to compensate an officer concerned for his out of pocket expenses incidental to journeys performed by him for his official tours. That could not possibly be alleged to be a very substantial source of income. The source of income of a particular individual will depend upon his position in life with particular reference to his occupation or avocation in life. In the case of a Government servant, the prosecution would, naturally, infer that his known source of income would be the salary earned by him during his active service. His pension or his provident found would come into calculation only after his retirement, unless he had a justification for borrowing from his provident fund. We are not, therefore, impressed by the argument that the prosecution has failed to lead proper evidence as to the appellant's known sources of income. It may be that the Investigating Officer as to his alleged sources of income, but the same, strictly, would not be evidence in the case, and if the prosecution has failed to disclose all the sources of income of an accused person, it is always open to him to prove those other sources of income which have not been taken into account or brought into evidence by the prosecution. In the present case, the prosecution has adduced the best evidence as to the pecuniary resources of the accused person, namely, his Bank accounts. They show that during the years 1947 and 1948, he had credit at the banks, amounting to a little over Rs.91,000. His average salary per mensem, during the relevant period, would be a little over Rs.1,100. His salary, during the period of the two years, assuming that the whole amount was put into the banks, would be less than one third of the total amount aforesaid, to his credit. It cannot, therefore, be said that he was not in possession of pecuniary resources disproportionate to his known sources of income."
13. The appellant was a public servant and at the time of joining of service he only had Rs. 25,000/- at his disposal. The acquiring of said properties is totally disproportionate to his salary and other emoluments received by him, which in our opinion do not permit him to purchase such properties as mentioned above, bearing in mind that appellant must have incurred expenditure for his living and for other purposes. Thus, in our opinion the acquiring of above properties are highly disproportionate to the income of the appellant and all the ingredients of offence are proved, the burden of which lies upon the appellant as per the provision of Section 14(c) of the Ordinance to satisfactorily explain and account for in respect of said properties especially in view of the fact that the appellant never denied the acquisition of the properties at Sr. No.1, 3 & 4.
14. While discussing section 14(c) of the Ordinance, the court in the decision reported as 2007 SBLR 755 has observed as follows:
" As regards the burden of proof the normal rule of law is that an accused is presumed to be innocent until his guilt is proved, established and the onus of establishing the guilt is always on the prosecution. But the rule of law laid down in section 14(c) of the Ordinance is a departure from normal law and under this section, a presumption of corruption and corrupt practices is required to be drawn, if the accused or any person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income for which sources he cannot satisfactorily account. For shifting the burden upon accused to account for the sources of income, the words of the statute are pre-emptory and the burden must lie all the time on the accused to prove the contrary, after the conditions laid down in the earlier part of the section I have been fulfilled by the prosecution through evidence to the satisfaction of the Court and then the Court is required to draw the presumption that the accused person is guilty as provided under section 14(c) of the Ordinance. Such presumption continues to hold the field unless the Court is satisfied that the statutory presumption has been rebutted."
15. Further, the term corruption and corrupt practice as defined in section 9(a)(v) has comprehensively been dealt with in the case of ABDUL AZIZ MEMON V/S THE STATE (2003 YLR 617)which is as follows:
" Thus, in respect of the offence of corruption and corrupt practices defined in section 9(a)(v) and the presumption in law as contained in section 14(c) of NAB Ordinance, the prosecution is initially required to establish the possession of properties or pecuniary resources disproportionate to known sources of income. Once this fact is established by production of evidence or with the admission of accused persons, the onus shifts to the accused person to prove the contrary and give satisfactory account of holding/possessing the properties or repecuniary resources failing which the Court shall be legitimately justified in presuming the accused persons to be guilty of offence of corruption and/or corrupt practices and award the conviction provided in law. Mere disclosure of a source for acquiring an asset would not be deemed sufficient to discharge the onus laid on an accused person under NAB Ordinance. The source disclosed by an accused person should be reasonable, logical, satisfactory and known, meaning thereby that not merely the immediate source should be disclosed but the ultimate source from where the funds emanated shall also be disclosed. For instance if a person discloses that he received a gift from a particular person, it would not be sufficient accounting for the properties and would not be treated as reasonable and satisfactory source of income. If the donor is merely a name lender and has no known and visible sources of income/funds the plea shall not be acceptable as it would neither be reasonable nor logical."
16. Similar question has also been decided in the case of IQBAL AHMED TURABI and 2 others Versus THE STATE and others (MLD 2004 77) which is as follows:
"In respect of the offence of corruption and corrupt practices defined in S.9(a)(v) and the presumption in law as contained in S.14(c) of the National Accountability Ordinance, 1999 prosecution is initially required to establish the possession of properties or pecuniary resources disproportionate to known sources of income of accused. Once this fact is established by production of evidence or with the admission of accused persons, the onus, shifts to the accused to prove the contrary and give satisfactory account of holding/possessing the properties or pecuniary resources, failing which the Court shall be legitimately justified in presuming the accused persons to be guilty of offence of corruption and/or corrupt practices and awarding the conviction provided by law. Mere disclosure of a source for acquiring an asset would riot be deemed sufficient to discharge the onus laid on an accused under the Ordinance. Source disclosed by the accused should be reasonable, logical, satisfactory and known, meaning thereby that not merely the immediate source should be disclosed but the ultimate source from where the funds emanated shall also be disclosed."
17. Now again coming back to the case of Jameel Akhtar Kiyani (supra) the Hon’ble bench has observed as under:
10. According to section 9(a)(v) of the NAB Ordinance, the prosecution is required to prove that (i) the accused is a holder of Public Office; (ii) the nature and extent of the pecuniary resources or property found in his possession; (iii) what are his known sources of income (i.e. known to the prosecution); (iv) such pecuniary resources or the property found in possession of the accused are disproportionate to his known source of income. Once these ingredients are established then the offence of corruption and corrupt as defined under section 9(a)(v) is complete unless the accused is able to reasonably account for such resources from which the properties were purchased, as provided under section 14(c) of the NAB Ordinance. In this section the word "satisfactorily" has been used, whereas in section 9(a)(v) the word "reasonably" has been mentioned. For convenience sake, section 14(c) of the NAB Ordinance is reproduced to understand the position properly. Section 14(c) reads as under : ---
"In any trial of an offence punishable under this Ordinance, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices and his conviction, therefore, shall not be invalid by reason only that it is based solely on such a presumption."
18. Mr. M.A.Kazi, the learned counsel for the appellant has submitted that there is no mens rea on the part of accused hence he could not be convicted. Complete answer to this assertion has already been explained in the case of CHAUDHARY AAMIR ALI V/S THE STATE (2002 YLR 1902), which reads as under:
" Contention that prosecution must establish the basic facts constituting the offence showing, mens rea on the part of the accused was true in its own place, but in cases involving properties disproportionate to the known sources of income of an accused, law had raised a presumption under S. 14‑C of the NAB Ordinance which provided that the fact that the accused or any other person on his behalf was in possession of property or pecuniary sources disproportionate to his known sources of his income which he could not satisfactorily account for, the Court would presume, unless the contrary was proved, that he was guilty of corruption and corrupt practices. Such presumption equally encompassed the element of mens rea and threw the burden on the accused to prove the contrary. Conviction of accused according to S. 14‑C of the NAB Ordinance would not be invalid by reason only that it was based solely on such a presumption of law which was reputable, but the accused had not been able to successfully rebut it. Properties owned by the accused were clearly beyond his known sources of his income as was decipherable from his tax returns during the period from 1983 to 1993. Income of accused did not justify acquisition of such large and valuable properties as were owned by him and the burden, therefore, shifted to him to rebut the presumption of guilt which he had failed to do"
19. It is a trite law that in NAB cases the burden is upon the applicant to prove beyond any reasonable doubt that he has acquired the assets through known source and through legitimate means. A Division Bench of this Court, in the case reported as Hakimali Zardari V/S The State (2007 SBLR Sindh 755), while dealing with the above preposition of law has observed 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."
20. Though the appellant has produced defence witnesses with various documents and has tried to prove that he has received ample amounts through various persons, however, the perusal of income tax documents, assets liabilities statement and reconciliation of proof beyond any iota of doubt that there is a high disparity in earnings and applications of the appellant. In order to reach a just conclusion, we have examined each property and source of income of purchase of this property to ascertain whether the said properties were purchased from the legitimate source of income and whether the appellant has satisfactorily accounted for the purchase of said properties. We have also examined the statements given by other PWs and DWs, who have tried to help out the appellant by stating that during intervals of time they have advanced different amounts to appellant but that aspect in our opinion is hardly available to the appellant in view of the fact that the appellant has failed to explain that he has received a sum of rupees approximately 11 lacs from his salary which is main source of his income and if other amounts given to him by DWs are added to his known source of income even then it is proved that the properties mentioned above could not be purchased from the said source of income in view of the fact that appellant has declared the value of properties purchased by him much below the rates prevailing in the market at a particular time just to meet the ends of his known source with that of the applications. In view of above discussion we are of the view that appellant has neither satisfactorily nor reasonably accounted for above mentioned properties and bank transactions and as these assets are highly disproportionate to his known sources of income, we, therefore, uphold the findings of the trial court and are of the view that presumption under section 14(c) of the Ordinance is duly attracted in this case and the prosecution has proved the case against the appellant beyond any reasonable doubt. The learned trial judge has appreciated the evidences in accordance with law thus considered all the aspects of the case and in our opinion reached a proper and just conclusion.
21. However, as we have absolved the appellant from the charges leveled against him so far as Toyota Hilux, Toyota Corolla ACM-148, Shares of Kashmir Polytex Limited, First Fidelity Leasing Modarba, M/s. Engro Chemical Pakistan Ltd. and M/s. Pakistan State Oil hence the appellant is convicted and sentenced to suffer R.I. for three years and to pay fine of Rs. 1 Crore and in case of non-payment of fine the appellant shall undergo R.I. for 1 & 1/2 year. The premises Flat No.2, and Mezzanine No.2 of building constructed on Plot No.23-C, 10th Badar Commercial Street, Phase-V, D.H.A., Karachi, Bank Accounts No. 6477-5 and 1013127 of National Bank of Pakistan are forfeited to Government of Pakistan. However, Toyota Corolla Car bearing Registration No. ACM-148, Shares of Kashmir Polytex Limited, First Fidelity Leasing Modarba, M/s. Engro Chemical Pakistan Ltd. and M/s. Pakistan State Oil are ordered to be released. The appellant shall stand disqualified for ten years for seeking or being elected, chosen, appointed or nominated as member or representative of any public or any statutory or local authority of Government of Pakistan. The appellant is on bail, his bail is cancelled and he is remanded to jail custody to serve out his remaining un-expired sentence. The appellant is however entitled for benefit under section 382-B Cr.P.C.
22. The appeal in the above terms stands disposed off.
J U D G E
J U D G E
Karachi, the _____ August, 2010.