PLJ 2002 Cr.C.
(Peshawar) 1058 (DB)
Present:
talaat qayyum qureshi and ijaz-ul-hassan khan, JJ.
IKRAM
SHAH-Appellant
versus
STATE
and another-Respondents
Criminal
Appeal No. 5 of 2002, decided on 17.7.2002.
National Accountability Bureau Ordinance,
1999--
—Ss. 14 &
9-Section 14 of Ordinance deals with presumption against accused-According to
this Section if a person is charged under Clause (vi) or clause (vii) of sub-section
(a) of Section 9 of Ordinance it is prosecution which shall first make out a
reasonable and prirna facie case against accused and mere fact that a person
stands charged for trial in Accountability
Court does not give-rise to a presumption of guilt in respect of Section 9 of NAB Ordinance--In Section 14(c) legislation in
its own wisdom has used words
"unless contrary is proved" which means contrary can only be proved by accused if earlier
something has been proved against him, that is burden shall shift to
accused to prove to contraiy if some case has been made out against him by
prosecution when law raises a presumption
against accused and calls upon him to prove
contrary, it is well settled that contrary cannot be said to be proved if
accused succeeds in establishing that act attributed to him is capable of an interpretation other than that suggested by
prosecution, therefore, it was duty
of prosecution to show that accused had misused his authority and thereby
accumulated wealth, movable and immovable properties in his own name or in
the name of any other person or he wilfully failed to exercise his authority
to prevent undue benefit or favour-Unless facts . constituting misuse of authority as
contemplated u/Section 9(a)(vi) of Ordinance are established accused cannot be
called upon to prove his innocence within meaning of Section 14(d) of
Ordinance--In such a case prosecution would be duty bound to lead evidence
against accused and then he would be called upon to prove his innocence.
[Pp. 1063 & 1064] A
PLD2001.SC 607 re/.
National Accountability Bureau Ordinance, 1999-
—Ss. 9 & 10-NAB
filed reference against Executive Engineer C & W Department for
accumulating and amassing wealth, moveable and immovable properties and assets
through corruption and corrupt practices—Conviction and sentence by Accountability
Court—Appeal against-Appellant earned Rs. 17,46,480 towards salaries from the date of
his
joining service till filing of reference against him which was not sufficient to make both ends meet of
appellant especially keeping in view luxurious
and levish life-style of appellant and his family members—Total agriculture income-of appellant from 1950 to 2000
was Rs. 59,11,360/-whereas he had spent a sum of Rs. 99,65,894/- in
excess for purchase of various properties in
his own name, in the names of his wife and children-He has not been able
to satisfactorily account for Rs. 99,65,894-This amount is held to be disproportionate
to his legal sources of income and therefore, it is held, this amount of Rs.
99.65,894/- was acquired and obtained by him
through corruption and corrupt practices, therefore, properties purchased in
the names of appellant his wife and children alongwith construction if any are liable to forfeiture to the Government/State concerned-Held : Conviction of
appellant u/S. 9(v) of NAB Ordinance,
1999 maintained-His sentence u/S. 10(a) of NAB Ordinance 1999 reduced from 7 years to 4 years imprisonment and fine of
Rs. 300,00,000/- (Three Crore Rupees) to 10 million (Rupees one
crore)-Amount of fine shall be paid by convict within a period of two months to
state, failing which it shall be set-off against forfeited properties in terms of Section 11 of NAB Ordinance, 1999 maintained-He
shall also be disqualified for ten
years for holding any public Office as per Section 15 of NAB reduced, 1999-Benefit of Section 382-B Cr.
P.C. shall also be extended to
him-Appeal dismissed.
[Pp. 1082, 1083, 1084 & 1085] D, E & F
Words and Phrases--
—Word "Benami" has not been
defined in NAB Ordinance, 1999-This word has only been defined in Section 82 of Trust
Act 1882, which reads as under: -"Where property is transferred to one person for a
consideration paid or provided by another person, and it appears that such other person did not intend to pay
or provide such consideration for benefit oftransferee, transferee must hold property for
benefit of person paying or providing consideration." [Pp. 1066 & 1067]
B
Words and Phrases-
—Benami words
discussed and illustrated--
Transactions which were termed as "Benami"
were dealt with in a case titled
as Jane Margrete William vs. Abdul Hamid Mian (1994 CLC 1437) in following words:-"The word "benami" is used
"to denote two classes of transactions which differ from each other
in their legal character and incidents~In one sense,
it signifies a transaction which is real as for example when 'A' sells
properties to 'B' but sale-deed mentions 'X' as purchasers-Here sale itself is genuine, but real purchaser is
'B', 'X' being his benamidar-This
is class of transactions which is usually termed as fcenamz-But word 'banami' is also occasionally used
perhaps, not quite accurately to refer
to as sham transaction, as for example, when 'A' purports to sell his property
to 'B' without intending that his title should cease or pass to 'B'-fundamental difference between these two
classes of transactions is that
whereas in former there is an operative transfer resulting in vesting of
title in transferee, in latter there is none such, transferor continuing to retain title notwithstanding
execution of transfer deed-It is only in former class of cases that it
would be necessary, when a dispute arises as
to whether person named in deed is real transferee or 'B', to enquire into question as to who paid
consideration for transfer, 'X' or
'B'-But in later class of cases, when question is whether transfer is genuine or sham point for decision would be, not
who paid consideration, but whether
any consideration was paid"~(See Sres Meenakshi Mills Ltd., Maduraj vs. Commissioner of
Income-Tax, Madras AIR 1957 SC 149."
Likewise August Supreme Court of
Pakistan in Muhammad Sajad Hussain vs. Muhammad Anwar Hussain (1991 SCMR 703)
held:-
"Some of criteria for
determining question, whether a transaction is a Benami transaction or
not, inter alia, following factors are to be taken into consideration:-
(i) source of consideration;
(ii)
from whose custody
original title deed
and other documents came in
evidence;
(in) who is in
possession of suit property; and »
(iv) motive for Benami
transaction." [P. 1067] C
judgment
Talaat Qayyum Qureshi,
J.-Through this single Judgment we shall decide Ehtesab Appeal No. 5/2002 and
W.P. No. 448/2002 (Mst. Nasim Akhtar etc. vs. Judge Accountability Court
No. Ill, Peshawar etc.) as both emanate from the judgment/order dated 9.3.2002 passed by the
learned Judge Accountability Court No. Ill
Peshawar.
The Chairman
National Accountability Bureau filed ReferenceNo. 4/2001 against Ikram Shah,
Executive Engineer C and W Department
for accumulating and amassing Wealth, movable and immovable propertiesand assets worth Rs. 4,29,70,609/- through corruption and corrupt practices
for trial of the above named appellant u/Sections 9/10 of NAB Ordinance,1999 (hereinafter referred to as the Ordinance) before the learned Judge
Accountability Court No. Ill Peshawar.The learned trial Court framed charge against the accused on9.4.2001. He pleaded not guilty and claimed trial.
for accumulating and amassing Wealth, movable and immovable propertiesand assets worth Rs. 4,29,70,609/- through corruption and corrupt practices
for trial of the above named appellant u/Sections 9/10 of NAB Ordinance,1999 (hereinafter referred to as the Ordinance) before the learned Judge
Accountability Court No. Ill Peshawar.The learned trial Court framed charge against the accused on9.4.2001. He pleaded not guilty and claimed trial.
4. In order to prove its case the prosecution
examined as many as 23witnesses. The statement of accused was recorded
u/Section 342 Cr.P.C. and
he also examined 9 witnesses in his defence. In order to collect reliable dataabout the approximate income of the accused and his family members from
agriculture property, the learned trial Court examined three Courtwitnesses. The appellant was re-examined u/Section 342 Cr.P.C. after
examination of three Court witnesses. The learned Judge AccountabilityCourt No. Ill N.W.F.P. vide his judgment and order dated 9.3.2002 convicted
and sentenced the appellant to undergo:--
he also examined 9 witnesses in his defence. In order to collect reliable dataabout the approximate income of the accused and his family members from
agriculture property, the learned trial Court examined three Courtwitnesses. The appellant was re-examined u/Section 342 Cr.P.C. after
examination of three Court witnesses. The learned Judge AccountabilityCourt No. Ill N.W.F.P. vide his judgment and order dated 9.3.2002 convicted
and sentenced the appellant to undergo:--
Rigorous imprisonment
for a term of 7 years andFine of Rs. 3,00,00,000/- (Three Crore Rupees)
The properties
mentioned in Tables Nos. 2 to 14 which are stillin the names of accused Ikram Shah, his
wife Mst. Nasim
Begum, sons, Haroon and Imran, as well as daughters Marukhand Gulsanga, were forfeited to appropriate Govt. under
Section 10(a) NABO.
Begum, sons, Haroon and Imran, as well as daughters Marukhand Gulsanga, were forfeited to appropriate Govt. under
Section 10(a) NABO.
The amount of Rs.
9,63,000/- in PLS Account No. 3819-0 inNational Bank of Pakistan, Maneri Branch,
Swabi admittedly
earned through sale of plot in Habibullah Colony Abbottabadwas also forfeited to appropriate Govt. under Section (a) NABO.
earned through sale of plot in Habibullah Colony Abbottabadwas also forfeited to appropriate Govt. under Section (a) NABO.
The fine mentioned above would be paid
within one month tostate failing which it would be set off against the forfeited
property in terms of Section 11 NABO.The accused, from this date, shall be disqualified for TEN years
for holding any public office in terms of Section 15 of NABO.The benefit of Section 382-B Cr.P.C. was extended to accused.
property in terms of Section 11 NABO.The accused, from this date, shall be disqualified for TEN years
for holding any public office in terms of Section 15 of NABO.The benefit of Section 382-B Cr.P.C. was extended to accused.
Being aggrieved with the said judgment/order, the appellant has filed
appeal in
hand.
5. Qazi
Muhammad Anwar, Advocate
the learned counselrepresenting
the appellant argued that the prosecution has failed to make
out a reasonable case against the appellant, in that it has failed to dischargeits initial burden to prove prima facie case against the appellant, therefore,
the burden of proof did not shift to the appellant to rebut the presumption ofguilt.6. It was also argued that three properties i.e.
out a reasonable case against the appellant, in that it has failed to dischargeits initial burden to prove prima facie case against the appellant, therefore,
the burden of proof did not shift to the appellant to rebut the presumption ofguilt.6. It was also argued that three properties i.e.
(i) Plot of land
measuring 2 Kanals No. 90-D, St. No. 37, Phase-I Hayat Abad Peshawar in
the name of wife of the appellant was allotted to her on 24.6.1979 against total price of Rs. 74,000/-which she paid in four monthly equal instalments.
(ii) Plot of land
measuring 2 Kanals Bearing No. 3-G/4 Phase-II Hayat Abad was allotted in
the name of Mst. Zakia Begum against total price of Rs. 1,15,000/- in the
year 1982 the price of which
was paid by her.
(iii) A plot of land
measuring 1 Kanals 10 Marias situated at Habibullah Colony,
Abbottabad was purchased by Abdul Sattar father-in-law of appellant in the year 1973.
The amount of sale consideration
was paid by him and he remained in possession thereof till he died in the year
1980.
These properties were
allotted/purchased much prior to 1.1.1985 on which date NAB Ordinance,
1999 was made applicable, therefore, the above mentioned properties do not come under the purview of the
Ordinance and if at all it was considered
that the said properties fall under the purview of the Ordinance, then
in that case, the prosecution has failed to prove that the said properties were purchased by the appellant and the
two ladies and Abdul Sattar were holding those properties as "Benamidars."
7. It was also argued that Mst. Nasim Akhtar,
wife of appellant andhis children
were regular assessees of Incme Tax and Wealth Tax and
documents to this effect were produced by the D.Ws. but the Court failed toexamine the same.It was also argued that the appellant had inherited sufficientlanded property from his father way back in the year 1972, which was underhis self cultivation. He had been gifted land measuring 24 Kanals by hisfather in the year 1950. The learned trial Court did not properly appreciatehis income derived from agriculture property and while assessing the saidincome the learned trial Court has evolved a formula of its own, which hasno basis at all. It failed to appreciate that the income derived from hisagriculture property justify his assets.
documents to this effect were produced by the D.Ws. but the Court failed toexamine the same.It was also argued that the appellant had inherited sufficientlanded property from his father way back in the year 1972, which was underhis self cultivation. He had been gifted land measuring 24 Kanals by hisfather in the year 1950. The learned trial Court did not properly appreciatehis income derived from agriculture property and while assessing the saidincome the learned trial Court has evolved a formula of its own, which hasno basis at all. It failed to appreciate that the income derived from hisagriculture property justify his assets.
It was further argued
that Abdul Sattar, father of Mst. NasimAkhtar, wife of appellant died in the
year 1980. Mst. Nasim Akhtar had notinherited any property from him. On his death
a plot of land measuring 1Kanal 10 Marias situated at Habibullah
Colony Abbottabad, devolved upon
L.Rs. of
Abdul Sattar including Mst. Nasim Akhtar. The brothers and sisters of Mst. Nasim Akhtar surrendered their
shares in the said plot to Mst. Nasim
Akhtar. The said plot was sold by her against sale consideration of Rs. 10,58,999/-. Neither the amount earned by the
sale of said plot was considered as
legitimate earning of Mst. Nasim Akhtar nor sum of Rs. 5,000/-paid by Abdul Sattar per month to his
daughter (wife of appellant) as
pocket money were taken into account, hence the learned trial Court committed illegality.It was further argued that the appellant had
proved throughreasonable evidence that
the properties mentioned in the charge werepurchased by him through his hard earned money and his family hadsufficient agricultural income, but the evidence produced
by the appellantwas ignored altogether. It was prayed that the coviction
and sentence be setaside and the appellant
be set free.On the other hand Mr.
Kamran Arif, the learned counselrepresenting
NAB/State argued that the prosecution had through reliableevidence proved its case. The burden to rebut the
case had shifted to theappellant
which he failed to discharge, therefore, the conviction and sentenceawarded by the learned Court below are based on
proper appreciation ofevidence and
law applicable to the case.It was also
argued that it was established through evidence ofprosecution that the income
of the appellant from his agriculture propertywas meagre, appellant and his family's life style was lavish and theproperties purchased by him in his own name and in
the name of his familymembers were, purchased with the ill-gotten money.It was further argued that "Takhmina
Paidawar' produced by
the Court witnesses fully indicated the amount earned by appellant from hisagriculture property and the appellant failed to rebut the same. He also
failed to show that he earned more amount than mentioned in 'TakhminaJot'.
the Court witnesses fully indicated the amount earned by appellant from hisagriculture property and the appellant failed to rebut the same. He also
failed to show that he earned more amount than mentioned in 'TakhminaJot'.
We" have heard
the learned counsel for the parties and perusedthe record.
The argument of the
learned counsel for the appellant that theprosecution has failed to make out a reasonable case against the
appellant, in
that it has failed to discharge it initial burden to prove prima facie caseagainst the appellant, therefore, the burden of proof did not shift to the
appellant to rebut the presumption of guilt, has no force in it. Section 14 ofthe Ordinance deals with the presumption against the accused. According to"
this Section if a person is charged under Clause (vi) of clause (vii) of subsection (a) of Section 9 of the Ordinance it is the prosecution which shall firstmake out a reasonable and prima facie case against the accused and themere fact that a person stands charged for trial in the Accountability Court
does not give rise to a presumption of guilt in respect of the above mentioned Section of NAB Ordinance. In Section 14(c) the legislation in its own wisdom has used words "unless the contrary is proved" which means the contrary can only be proved by accused if earlier something has been proved against him, that is the burden shall shift to the accused to prove to the contrary if some case has been made out ag ainst him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit of favour. Unless the facts constituting misuse of authority as contemplated u/Section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of Section 14(d) of the Ordinance. In such a case the prosecution would be duty bound to lead evidence against the accused and then he would be called upon to prove his innocence. In the recent judgment titled Khan Asfandyar Wall and others us. Federation of Pakistan and others (PLD 2001 S.C. 607). In Paragraph 230 it was observed:-
that it has failed to discharge it initial burden to prove prima facie caseagainst the appellant, therefore, the burden of proof did not shift to the
appellant to rebut the presumption of guilt, has no force in it. Section 14 ofthe Ordinance deals with the presumption against the accused. According to"
this Section if a person is charged under Clause (vi) of clause (vii) of subsection (a) of Section 9 of the Ordinance it is the prosecution which shall firstmake out a reasonable and prima facie case against the accused and themere fact that a person stands charged for trial in the Accountability Court
does not give rise to a presumption of guilt in respect of the above mentioned Section of NAB Ordinance. In Section 14(c) the legislation in its own wisdom has used words "unless the contrary is proved" which means the contrary can only be proved by accused if earlier something has been proved against him, that is the burden shall shift to the accused to prove to the contrary if some case has been made out ag ainst him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, it is well settled that the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit of favour. Unless the facts constituting misuse of authority as contemplated u/Section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of Section 14(d) of the Ordinance. In such a case the prosecution would be duty bound to lead evidence against the accused and then he would be called upon to prove his innocence. In the recent judgment titled Khan Asfandyar Wall and others us. Federation of Pakistan and others (PLD 2001 S.C. 607). In Paragraph 230 it was observed:-
"Be that as it
may, the prosecution has to establish the preliminary facts whereafter the onus shifts
and the defence is called upon to disapprove the presumption. This is also the
consistent stand taken by Mr. Abid Hasan 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 phaseology used therein. We are also of the
view that the above provisions d6 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
againstthe
accused charged under Section 9(a)(vi) and (vii) of the NAB
Ordinance.
Ordinance.
(2)
In case the prosecution succeeds iii making out a reasonablecase to the s
facie burden of proof and then the burden of proof shall shift tothe accused to rebut the presumption of guilt".
facie burden of proof and then the burden of proof shall shift tothe accused to rebut the presumption of guilt".
1160 of 2000 decided
on 20.9.2001 by Lahore High Court it was held:-
"There is considerable force in
the arguments raised by the learned counsel for the appellant. The more fact that
a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt
in respect of offences u/Section 9(a)(vi) and (vii) of the Ordinance. If such a view
is adopted then the prosecution would be absolved of its duty to lead any
evidence and accused could be called upon to make a statement u/Section 342 of the
Cr.P.C. and then prove his innocence as required u/Section 14(d) of the Ordinance. Such an
interpretation would lead to absurdity and make a mockery of criminal justice. The
stage of showing that the accused had used his authority in the public
interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of
establishing necessary facts to show
that the accused had "misused" his authority so as to gain any
benefit for himself or any other person or to render or attempt to do so or wilfully failed to
exercise his authority to prevent
the grant or rendition of any undue benefit or favour which he could have prevented by exercising his
authority. Unless the basic facts
constituting "misuse" of authority as contemplated u/Section 9(a) (vi) of the Ordinance are established, the accused
cannot be called upon to prove his
innocence within the meaning of Section 14(d) of the Ordinance. In this connection, reliance can be placed on a recent judgment of the Hon'ble Supreme Court of
Pakistan in the case of Khan
Asfandyar Wali and others vs. Federation of Pakistan through Cabinet Division Islamabad and others (PLD 2001 SC 607 Paras 230 and 231
reproduced)"
17. The August Supreme Court of Pakistan in M/s
Ilahi CottonMills Ltd. vs.
Federation of Pakistan (PLD 1997
S.C. 582) defined the word
"reasonable" as under:-
"reasonable" as under:-
"That the word
"reasonable" is a relative generic term difficult of adequate
definition. It inter alia connotes agreeable to reason; comfortable to
'reason; having the faculty of reason; rational; thinking, speaking, or acting rationally;
or according to the dictates of reason; sensible; just; proper and equitable or to
act within the Constitutional bounds."
18. The August Supreme Court of Pakistan in Khan
AsfandyarWall's case has held that
the prosecution if succeeds in making out a
reasonable case, to the "satisfaction" of the Accountability Court, theprosecution would be deemed to have discharged theprima facie burden of
proof and then the burden of proof shifts to the accused to rebut thepresumption of guilt. Similarly in Section 14(c) of the Ordinance the
language used is "he cannot satisfactorily account". The satisfaction of the Court must be based on proper determination from all facts and circumstances of the case, be real, bona fide and not actuated by malice. In Syed.Saeed Hassan vs. Payer Ali and 7 others" (PLD 1976 S.C. 6) while examining the connotation and implication of the expression satisfaction, their Lordships laid down "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuation much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be "satisfied" with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the "Legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt, la .Corpus Juris Secundum "satisfy" has been held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
reasonable case, to the "satisfaction" of the Accountability Court, theprosecution would be deemed to have discharged theprima facie burden of
proof and then the burden of proof shifts to the accused to rebut thepresumption of guilt. Similarly in Section 14(c) of the Ordinance the
language used is "he cannot satisfactorily account". The satisfaction of the Court must be based on proper determination from all facts and circumstances of the case, be real, bona fide and not actuated by malice. In Syed.Saeed Hassan vs. Payer Ali and 7 others" (PLD 1976 S.C. 6) while examining the connotation and implication of the expression satisfaction, their Lordships laid down "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuation much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be "satisfied" with a state of things is to be honestly convinced in one's own mind. According to Black's Law Dictionary apart from the "Legal satisfaction" which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt, la .Corpus Juris Secundum "satisfy" has been held to be synonymous with, "convince beyond a reasonable doubt" and "satisfaction" has been explained as a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. According to the Oxford English Dictionary "to satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince."
19. In the case in hand, the prosecution has -made
out aprima faciecase be
placing on record sufficient evidence oral as well as documentary to
the satisfaction of the Court that the appellant and his family members i.e.his wife, sons and daughters did not have ostensible means to purchase such
huge properties mentioned in the Reference and whatever they havepurchased in the shape of movable, immovable properties and assets were
purchased through ill-gotten money. The burden to prove that the propertiesboth movable, immovable and assets were purchased/made by the appellant
and his family members through thief legally earned money had therefore,shifted to the appellant and his family members who had been served with
notice by the learned trial Court to justify their earnings.
the satisfaction of the Court that the appellant and his family members i.e.his wife, sons and daughters did not have ostensible means to purchase such
huge properties mentioned in the Reference and whatever they havepurchased in the shape of movable, immovable properties and assets were
purchased through ill-gotten money. The burden to prove that the propertiesboth movable, immovable and assets were purchased/made by the appellant
and his family members through thief legally earned money had therefore,shifted to the appellant and his family members who had been served with
notice by the learned trial Court to justify their earnings.
20. So
far as the argument of the learned counsel for the appellantthat three properties mentioned in Para 6 were not
"Benami" and the
persons holding the same were nof'Benamidars" has a great deal offeree init. Before we dilate upon the evidence to find out as to whether these
properties were purchased by the appellant in the names of others, who wereholding the same as "Benamidars", we feel it appropriate to see as to what is
"Benami" transaction. The word "Benami" has not been defined in the
persons holding the same were nof'Benamidars" has a great deal offeree init. Before we dilate upon the evidence to find out as to whether these
properties were purchased by the appellant in the names of others, who wereholding the same as "Benamidars", we feel it appropriate to see as to what is
"Benami" transaction. The word "Benami" has not been defined in the
Ordinance. This word has only been defined in Section 82 of the Trust Act
1882,
which reads as under: -
"Where property is transferred to one
person for a consideration paid or provided by another person, and it appears
that such other person did not intend to pay or provide such consideration for
the benefit of the transferee, the transferee must hold the property for the benefit of the person paying
or providing the consideration."
21. The transactions which were termed as "Benami"
were dealtwith in a case titled
as Jane Margrete William vs. Abdul Hamid Mian (1994
CLC 1437) in the following words:-"The word "benami" is used "to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for example when 'A' sells properties to 'B' but the sale-deed mentions 'X' as the purchasers. Here the sale itself is genuine, but the real purchaser is 'B', 'X' being his benamidar. This is the class of transactions which is usually*termed as benami. But the word 'banami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when 'A' purports to sell his property to 'B' without intending that his title should cease or pass to 'B'. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or 'B', to enquire into the question as to who paid the consideration for the transfer, 'X' or 'B'. But in the later class of cases, when the question is whether the transfer is genuine or sham the point for decision would' be, not who paid the consideration, but whether any consideration was paid". (See Sres Meenakshi Mills Ltd., Maduraj vs. Commissioner of Income-Tax, Madras AIR 1957 SC 149."22. Likewise the August Supreme Court of Pakistan in Muhammad
SajadHussain vs. Muhammad Anwar Hussain (1991 SCMR 703) held:-"Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia, the following factors are to be taken into consideration:-
CLC 1437) in the following words:-"The word "benami" is used "to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for example when 'A' sells properties to 'B' but the sale-deed mentions 'X' as the purchasers. Here the sale itself is genuine, but the real purchaser is 'B', 'X' being his benamidar. This is the class of transactions which is usually*termed as benami. But the word 'banami' is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when 'A' purports to sell his property to 'B' without intending that his title should cease or pass to 'B'. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or 'B', to enquire into the question as to who paid the consideration for the transfer, 'X' or 'B'. But in the later class of cases, when the question is whether the transfer is genuine or sham the point for decision would' be, not who paid the consideration, but whether any consideration was paid". (See Sres Meenakshi Mills Ltd., Maduraj vs. Commissioner of Income-Tax, Madras AIR 1957 SC 149."22. Likewise the August Supreme Court of Pakistan in Muhammad
SajadHussain vs. Muhammad Anwar Hussain (1991 SCMR 703) held:-"Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia, the following factors are to be taken into consideration:-
(i) source of consideration; (ii)
from whose custody the original title deed and other documents came in
evidence;
(iii) who is in possession of the suit property; and (iv) motive for the Benami
transaction."
23. In Para 7 of the said judgment their Lordships
affirmed:"It is. also well
settled Law that the initial burden of proof is on the party, who alleges that an ostensible owner is a "Benamidar"-for
him and that the weaknesses in
defence evidence would not relieve a plaintiff
from discharging the above burden of proof."24. The following judgments can also be safely cited
in support:-
(i) Ch. Rehmat
All us. Abdul Khaliq through his L.Rs. and another (2000 MLD 1948).
(ii) Mst. Sardar Khatoon and others vs. Dost
Muhammad and another (1988 SCMR 806).
(iii) Mr. M.D.
Abdul Majid and others vs. Dr. Zainul Abidin and others (PLD 1970 Dacca 414)
and
(iv) Ismail Dada
Adam Soomro vs. Shorat Banoo and others. (PLD 1960 Karachi 852).
In the light of criteria laid down
buy the August Supreme Court of Pakistan and judgments cited above we now proceed to
examine the evidence produced by the prosecution to find out as to whether
the three properties mentioned
in Paragraph No. 6 of this Judgment i.e. two plots situated, at Hayat Abad and the third one at Habibullah Colony
Abbottabad were held by the wife,
aunt and father-in-law of the appellant as "Benamidars".
25. So
far as Plot No. 90-D measuring 2 Kanals situated at StreetNo. 3737 Phase-I Hayat Abad Peshawar is
concerned, it is on record that this
plot was allotted to Mst. Nasim Akhtar wife of appellant, vide allotmentorder Ex. P.W. 9/2. Possession of the said plot was also handed over to her
vide possession certificate Ex. P.W. 9/3 She paid the amount of saleconsideration through four equal six-monthly instalments. Mst. Nasim
Begum in her written statement filed before the learned AccountabilityCourt has stated that her father used to pay Rs. 5,000/- per month and out
of the said amount she saved sufficient amount and paid the instalments.Even if the amount of Rs. 5,000/- per month given by her father is not
admitted, then it appeals to the reasonable mind that a lady who is wife of anEngineer having good agriculture background could easily save something
per month and pay the amount of Rs. 74,000/- in four equal six-monthlyinstalments. This plot was transferred by Mst. Nasim Akhtar in the name of
her son Imran Ikram on 7.2.1994 vide Ex. P.W. 9/4. The above mentionedfacts were confirmed by Parvez Alam, Deputy Director, PDA,-who was
examined as P.W. 9 by the prosecution. The learned Accountability Court inParagraph No. 76 of the impugned judgment has accepted this plot to have
been purchased from validly earned income, therefore, this property cannotbe termed as "Benami".
plot was allotted to Mst. Nasim Akhtar wife of appellant, vide allotmentorder Ex. P.W. 9/2. Possession of the said plot was also handed over to her
vide possession certificate Ex. P.W. 9/3 She paid the amount of saleconsideration through four equal six-monthly instalments. Mst. Nasim
Begum in her written statement filed before the learned AccountabilityCourt has stated that her father used to pay Rs. 5,000/- per month and out
of the said amount she saved sufficient amount and paid the instalments.Even if the amount of Rs. 5,000/- per month given by her father is not
admitted, then it appeals to the reasonable mind that a lady who is wife of anEngineer having good agriculture background could easily save something
per month and pay the amount of Rs. 74,000/- in four equal six-monthlyinstalments. This plot was transferred by Mst. Nasim Akhtar in the name of
her son Imran Ikram on 7.2.1994 vide Ex. P.W. 9/4. The above mentionedfacts were confirmed by Parvez Alam, Deputy Director, PDA,-who was
examined as P.W. 9 by the prosecution. The learned Accountability Court inParagraph No. 76 of the impugned judgment has accepted this plot to have
been purchased from validly earned income, therefore, this property cannotbe termed as "Benami".
26. A piece and parcel of land measuring 2 Kanals BearingNo. 3-G/4 situated at Ph-II Hayat Abad was
allotted to Mst. Zakia Begum
(paternal aunt of appellant) vide allotment letter Ex. P.W. 9/12 for a sale
(paternal aunt of appellant) vide allotment letter Ex. P.W. 9/12 for a sale
'
consideration of Rs. 1,15,000/- bn
10.5.1982. Possession was handed over to her vide possession certificate Ex.
P.W. 9/14. She paid the sale price in four equal instalments. She transferred the said
plot in favour of Haroon Ikram (son
of appellant) vide transfer deed Ex. P.W. 9/15. Parvez Alam (P.W. 9) admitted in cross-examination that the sale price
was paid by Mst. Zakia Begum
and possession had been handed over to her. Mst Zakia Begum is the paternal aunt of the appellant and it is on record
that her brother owned sufficient agriculture land as he in his life
time had gifted land measuring 24 Kanals to appellant in the year 1950 and on his death, his
L.Rs. inherited sufficient landed property left by him. Since this lady
belonged to a rich agriculturist family,
therefore, payment of Rs. 1,15,000/- that too through four equal six-monthly instalments was not
unbelievable phenomenon. It is also in evidence that she was unmarried.
If she had gifted this plot of land to her
minor grand son, this was also not unusual. The case of the prosecution was
that this property alongwith property mentioned in the above paragraph (Plot
No. 90-D) was purchased by Ikram Shah, appellant in the names of his wife and paternal aunt as "Benami" but
prosecution has failed to prove this fact.
The learned Court below has gone a step forward than the prosecution case while declaring that transfer of this plot in
the name of Haroon Ikram was not a
gift and a "Benami" purchase by appellant in the name of his
son. When the prosecution case was that originally this plot was purchased by appellant in the name of his paternal aunt, which
it failed to prove. It was not the
case of prosecution that the subsequent gift/sale in favour of Haroon Ikram was "Benami". On failure of
prosecution to prove that the first allotment
in favour of Mst. Zakia Begum was "Benami". The
subsequent transfer in the name of her grand-son could not be declared as "Benami".
Another factor in which the Court has gone beyond the prosecution case is that Plot No. 2-G/4 measuring 2 Kanals situated
at Phase-II Hayat Abad was not included in the Reference. Since Haroon
Ikram on 27.10.1997 had exchanged Plot No.
3-G/4 (transferred to him by Mst. Zakia Begum) with Plot No. 2-G/4.vide exchange deed Ex. P.W.
9/11 of Syed Ali Hayat, therefore,
Plot No. 2-G/4 was also included in the impugned judgment. The prosecution, as mentioned above, has failed to
prove that plot allotted to Mst. Zakia Begum was purchased by Ikram Shah, the appellant in her name as 'Benami',
it also failed to prove that appellant paid the sale consideration and that possession of the said plot was handed over
to him. Since the first transfer/allotment
could not be proved as 'Benami', therefore, all the subsequent transfers would be considered as proper
and legal transfers.
27. Regarding plot of
land measuring one Kanal 10 Marias situated at Habibullah Colony
Abbottabad the prosecution examined Jehanzeb Patwari Halqa Nawan Sher (Shumali),
Abbottabad, who was examined as P.W. 23. He placed on record copy of Fard
Jamabandi for the year 1994-1995 Ex. P.W. 23/2. Copy of Fard Jamabandi for
the year 1982-1983 Ex. P.W. 23/3. According to this Jamabandi Mst. Nasim
Begum was shown as owner of the said land. In cross-examination he admitted that vide
Mutation No. 8093 attested on 28.2.1973 (wrongly mentioned on 28.2.1993) an area
measuring 5 Kanals was purchased out
of which one Kanal 10 Marals wasmutated in favour of Abdul Sattar Khan
son of Sultan Muhammad Khan.
The said mutation on was placed on record as Ex. P.W. 23/D-l. He furtheradmitted that inheritance Mutation No. 8329 was attested on 4.11.1980, in
favour of legal heirs including Ms?. Nasim Begum, copy Ex. P.W. 23/D-2; Healso admitted that vide Mutation No. 8330 attested on the same day, the
heirs of Abdul Sattar Khan gifted their share to their sister Mst. NasimAkhtar Begum, copy of the mutation is Ex. P.W. 23/D-3. In this wayMst. Nasim Begum became sole owner of plot measuring 1 Kanal 10 Mariason 4.11.1980, out of which she sold 1 Kanal 8 Mar/as for Rs. 10,58,999/- vide
Mutation No. 10755, copy is Ex. PtW. 23/D-4. He stated that the total saleconsideration mentioned in Mutation No. 10755 was Rs. 35,30,000/- but
share of Mst. Nasim Begum was Rs. 10,58,999/-. The above discussedevidence available on record proved the fact that this plot was purchased by
Abdul Sattar father of Ms?. Nasim Begum way back in the year 1973 and hewas handed over the possession, which he retained till his death. Not a
single witness produced by the prosecution uttered any word that the plot inquestion was purchased by the appellant or that he was the person who
negotiated the sale in favour of Abdul Sattar, his father-in-law. Theprosecution has only produced Patwari Halqa, who placed on record revenue
papers showing that Abdul Sattar was the owners of the above mentionedplot. This is also the case of the defence that the above mentioned plot had
nothing to do with the appellant as the same was purchased by Abdul Sattarby paying money from his own pocket. -
The said mutation on was placed on record as Ex. P.W. 23/D-l. He furtheradmitted that inheritance Mutation No. 8329 was attested on 4.11.1980, in
favour of legal heirs including Ms?. Nasim Begum, copy Ex. P.W. 23/D-2; Healso admitted that vide Mutation No. 8330 attested on the same day, the
heirs of Abdul Sattar Khan gifted their share to their sister Mst. NasimAkhtar Begum, copy of the mutation is Ex. P.W. 23/D-3. In this wayMst. Nasim Begum became sole owner of plot measuring 1 Kanal 10 Mariason 4.11.1980, out of which she sold 1 Kanal 8 Mar/as for Rs. 10,58,999/- vide
Mutation No. 10755, copy is Ex. PtW. 23/D-4. He stated that the total saleconsideration mentioned in Mutation No. 10755 was Rs. 35,30,000/- but
share of Mst. Nasim Begum was Rs. 10,58,999/-. The above discussedevidence available on record proved the fact that this plot was purchased by
Abdul Sattar father of Ms?. Nasim Begum way back in the year 1973 and hewas handed over the possession, which he retained till his death. Not a
single witness produced by the prosecution uttered any word that the plot inquestion was purchased by the appellant or that he was the person who
negotiated the sale in favour of Abdul Sattar, his father-in-law. Theprosecution has only produced Patwari Halqa, who placed on record revenue
papers showing that Abdul Sattar was the owners of the above mentionedplot. This is also the case of the defence that the above mentioned plot had
nothing to do with the appellant as the same was purchased by Abdul Sattarby paying money from his own pocket. -
28. When we examined
the prosecution evidence regarding three properties discussed above, on the touchstone
of Judgment of August Supreme
Court of Pakistan in case titled Muhammad Sajjad vs. Muhammad Anwar Hussain (1991 SCMR 703), we find that not a single prosecution witness has stated that these three properties
were purchased by the appellant in the
names of his wife, paternal aunt "and father-in-law and the amount of sale consideration or any instalment was
paid by the appellant. There is also
nothing on record to show that the possession of the above mentioned properties were handed over to the
appellant. In fact the two ladies
were handed over the possession of the plots situated at Hayat Abad, whereas
Abdul Sattar (late) remained in possession of the said plot since its purchase
till his death in the year 1980. The documents of title were also not recovered from the possession of the appellant. The
prosecution has also failed to prove the motive for purchase of said
properties in the names of "Benamidars".
36. (i) So far as
plot of land measuring 1 Kanal 17 Marias situated at Sugar Mills Road Halqa
Mardan, purchased vide Mutations Nos. 14387, 14388, 14389, 14390 and 14391 attested on
14.4.1994 Ex. P.W. 3/3 to Ex. P.W. 3/7, in
the names of Mst. Nasim Begum, wife of appellant, Haroon, Imran sons, Msf. Mahrukh and Mst. Gul Sanga
daughters is concerned, the appellant in reply to Question No. 6 in his
statement recorded u/Section 342 (Talaat Qayyum Qureshi, J.)Cr.P.C. admitted
that this plot was purchased by his wife Mst. Nasim Begum in her own name and
in the names of her children.(ii) Plot measuring 6 Kanals situated at Nisata
Road Mardan purchased vide
Mutation No. 10838 attested on 15.9.1990 Ex. P.W. 3/16 and Mutation No. 16423 attested on 23.11.1994 Ex. P.W.
3/17 in the names of Haroon, Imran
sons, Mst. Mahrukh and Mst. Gul Sanga daughters, the appellant in answer to Question No. 7 admitted that
he purchased these properties in 1990 from his agricultural income.(iii) Plot measuring 12 Kanals 14 Marias
in Chak Mardan purchased vide Mutation
No. 1846 attested on 27.10.1999 Ex. P.W. 3/8 in the names of Haroon and Imran sons. He admitted while replying Question No. 8 that he had purchased this property in the
names of his sons from his agricultural and commercial income.(iv) Land measuring 65 Kanals 4 Marias 2 Sarsaies
at Chak Mardan purchased vide Mutation
No. 581 attested on 29.5.1996 Ex. P.W. 3/9, Mutation No. 9971 attested on
16.3.1991 Ex. P.W. 3/10 and Mutation No. 11656 attested on 31.7.1994 Ex.
P.W. 3/11 in the names of Ikram Shah (appellant),
Haroon and Imran sons of appellant. The appellant in answer to Question No. 9 admitted that he purchased this
property from his agricultural and commercial income.(v) Land measuring 59 Kanals 1 Marias in
Chak Mardan purchased vide Mutation No.. 1126 attested«on
30.10.1997 Ex. P.W. 3/12 in the names of Mst.
Gul Sanga and Mahrukh, daughter of appellant. He also admitted having purchased this property in the names of his
daughters while answering Question
No. 10.
(vi) Land measuring
11 Kanals 11 Marias in Mauza Feroz Pur (Takht Bhai) purchased
vide Mutation No. 293 attested on 16.6.1999 Ex. P.W. 4/4 in the name of Mst.
Nasim Begum. While reply Question No. 13, the appellant admitted having
purchased this plot against sale consideration of Rs. 2,00,000/- in the name of his wife. It is evident
from his statement recorded u/Section 342
Cr.P.C. that the above mentioned properties were purchased as "Benami" in the names of his wife and
children by the appellant. The burden
to prove that the said properties were purchased/ acquired by his hard earned money rests with the
appellant.
29. The following properties were also purchased by the appellant
in his own name:-Land measuring 7 Kanals 8 Marias purchased
vide Mutation
No. 9322 attested on 30.10.1990 Ex. P.W. 3/13.Land measuring 65 Kanals 4 Marias 2 Sarsaies in ChakMardan was purchased vide Mutation No. 581 attested on29.5.1996 Ex. P.W. 3/9, Mutation No. 9971 attested on16.3.1991 Ex. P.W. 3/10, Mutation No. 11650 attested on
31.7.1994 Ex. P.W. 3/11.
No. 9322 attested on 30.10.1990 Ex. P.W. 3/13.Land measuring 65 Kanals 4 Marias 2 Sarsaies in ChakMardan was purchased vide Mutation No. 581 attested on29.5.1996 Ex. P.W. 3/9, Mutation No. 9971 attested on16.3.1991 Ex. P.W. 3/10, Mutation No. 11650 attested on
31.7.1994 Ex. P.W. 3/11.
(c)
Land measuring 11 Kanals 14 Marias in Chak Mardan videMutation No. 9025
attested on 25.4.1989 Ex. P.W. 3/14.
(d)
Land measuring 35 Kanals 9 Marias in Ferozpur
(Takh Bhai)vide Mutation No. 40 attested on 21.09.1992 Ex. P.W. 4/2.
(e) Land measuring 1 Kanal in Ferozpur (Takht
Bhai) videMutation No. 41
attested on 21.9.1992 Ex. P.W. 4/3.
(f) Plot
No. 48 Sector 'N' measuring 1 Kanal in Hayat Abad wasallotted 'vide allotment order dated
26.10.1987 Ex. P.W. 9/12.
(g) Plot No. 172/F in Kanju, Swat vide allotment
order dated1.8.1991 for
Rs.1,50,000/-.
30. The burden of proof that he had sufficient money
to purchasethese properties was also
on the appellant. Now we proceed to see as to what
was the income of the appellant and his wife.We first take the income of Mst. Nasim Akhtar, wife of the accused.
was the income of the appellant and his wife.We first take the income of Mst. Nasim Akhtar, wife of the accused.
31. Mst. Nasim
Akhtar in her written statement mentioned thefollowing sources of income:-(i)
Her father was paying Rs. 5,000/- per month as pocket money;(ii) At the
time of her marriage, her father gifted her Jewellery worth Rs. 1,00,000/-.
(iii) Mother of appellant gifted gold ornaments,
wheight and price not mentioned;(iv) Income from agriculture property owned by her.
32.
So far as payment of Rs. 5,000/- as pocket money by her
fatherto
Mst. Nasim Akhtar is concerned, there is no evidence on record to show
the said payment. She was married to the appellant in the year 1971 and herfather died in the year 1980. There is no evidence regarding the income of
the father of Mst. Nasim Akhtar during the above mentioned period. Thefactum of payment of Rs. 5,000/- to her has not even been stated by her
husband, therefore, the learned trial Court has rightly discarded this income.The reasoning given by the learned trial Court is proper, cogent and
convincing.
the said payment. She was married to the appellant in the year 1971 and herfather died in the year 1980. There is no evidence regarding the income of
the father of Mst. Nasim Akhtar during the above mentioned period. Thefactum of payment of Rs. 5,000/- to her has not even been stated by her
husband, therefore, the learned trial Court has rightly discarded this income.The reasoning given by the learned trial Court is proper, cogent and
convincing.
33. There is no evidence
available on record to prove that her fatherhad given Jewellery worth Rs. 1,00,000/- and that her
mother-in-law had
also given her huge Jewellery as no witness has been examined by her inthis regard. So far as her income from agriculture property in concerned,
there is no evidence to show as to what was the property she owned and howmuch was her income. It is on record that Abdul Sattar her father died in the
year 1980. Mst. Nasim Akhtar did not inherit any property from her father.She only inherited 11 Kanals 11 Marias from her brother vide Mutation
No. 259 attested on 11.8.1998 Ex. D.W. 4/N-l. No "Takkmina Paidawar" orany other evidence regarding this property was produced by her and in
absence of any evidence, it cannot be presumed as to what kind of crop wassown in the property and what was her income. It is on record that on the death of her father, her brothers and sisters relinquished their shares (though disputed by the prosecution) in plot of land measuring 1 Kanal 10 Marias situated at Habibullah Colony Abbottabad, therefore, she became sole owner of the said plot which she sold against sale consideration of Rs. 10,58,999/-. The only income which she could prove on record was the above mentioned sale consideration of Rs. 10,58,999/-.
also given her huge Jewellery as no witness has been examined by her inthis regard. So far as her income from agriculture property in concerned,
there is no evidence to show as to what was the property she owned and howmuch was her income. It is on record that Abdul Sattar her father died in the
year 1980. Mst. Nasim Akhtar did not inherit any property from her father.She only inherited 11 Kanals 11 Marias from her brother vide Mutation
No. 259 attested on 11.8.1998 Ex. D.W. 4/N-l. No "Takkmina Paidawar" orany other evidence regarding this property was produced by her and in
absence of any evidence, it cannot be presumed as to what kind of crop wassown in the property and what was her income. It is on record that on the death of her father, her brothers and sisters relinquished their shares (though disputed by the prosecution) in plot of land measuring 1 Kanal 10 Marias situated at Habibullah Colony Abbottabad, therefore, she became sole owner of the said plot which she sold against sale consideration of Rs. 10,58,999/-. The only income which she could prove on record was the above mentioned sale consideration of Rs. 10,58,999/-.
34.
Now we revert to the in'come of appellant.Admittedly
there were two sources of income of the appellant,
(i) Salary.
(i) Salary.
(ii) Agriculture income.
36.
So
far as the salaries/pay is concerned, he had during his serviceearned Rs. 17,46,480/-. There is no dispute about
the said income between
the parties i.e. the prosecution admits that the above mentioned amount wasearned by appellant as his salaries.
the parties i.e. the prosecution admits that the above mentioned amount wasearned by appellant as his salaries.
37. So far as his
Agriculture'income is concerned, the prosecution aswell as defence are
at variance. The claim of the prosecution is that the
agriculture income of the petitioner was meagre. His expenditures towardshis living were on very high side, therefore, he could not purchase properties
mentioned in the Reference and whatever properties he had purchased,either in his own name or in the names of his wife, sons and daughters were
purchased by iil-gotten money. The claim of defence is that the appellant hadsufficient agriculture income and it was with the said income that he has
purchased the properties, therefore, no crime has been committed by him.38.It is an admitted position that the appellant was gifted land
measuring about 24 Kanals situated at Mauza Sheikh Yousaf by his father inthe year 1950. This property was mutated in his name vide Mutation 768
attested on 14.6.1950 it is also an admitted position that the appellant wastransferred land measuring 84 Kanals 5\ Marias by his mother as is clear
from Ex. P.W.2/10 an&Ex. P.W. 3/15.
agriculture income of the petitioner was meagre. His expenditures towardshis living were on very high side, therefore, he could not purchase properties
mentioned in the Reference and whatever properties he had purchased,either in his own name or in the names of his wife, sons and daughters were
purchased by iil-gotten money. The claim of defence is that the appellant hadsufficient agriculture income and it was with the said income that he has
purchased the properties, therefore, no crime has been committed by him.38.It is an admitted position that the appellant was gifted land
measuring about 24 Kanals situated at Mauza Sheikh Yousaf by his father inthe year 1950. This property was mutated in his name vide Mutation 768
attested on 14.6.1950 it is also an admitted position that the appellant wastransferred land measuring 84 Kanals 5\ Marias by his mother as is clear
from Ex. P.W.2/10 an&Ex. P.W. 3/15.
39. The prosecution in order to prove the agriculture
income of theappellant, examined Said Badshah Office Qanungo Tehsil Mardan
(P.W. 3)
who produced Goshwara of the approximate income (Takhmina Paidawar)of the appellant from 1985 to 2000 Ex. P.W. 3/1 and Ex. P.W. 3/2. In orderto rebut the said approximate income given by the said P.W, the appellantexamined Momin Khan Patwari Halqa as D.W. 4, who placed on record
Goshwara Paidawar regarding land measuring 59 Kanals 12 Marias for theyear 1993-1994 Ex. D.W. 4/1. Muhammad Nawaz Khan Patwari Halqa
Chak Mardan was also examined as D.W. 5, who also placed on recordGoshwara Paidawar for the year 1995 to 2000-2001 Ex. D.W. 5/1.
Muhammad Amin, Director Cereal Crops Research Institute, Pir Sabaq(D.W. 6) who placed on record price table showing per Acre yield of maize
crop which was exhibited on record as'Ex. D.W. 6/1. Dr. Gul Rehman,Director Sugar Cane Botanist, Sugar Crops Research Institute, Mardan was
'examined as D.W. 7 who stated that in Mardan/Takht Bhai per Acre produce of Sugar Cane was 700 to 1000 per"<naund per Acre. Mian Muhammad Mukhtar, Deputy Chief Agriculture Prices Commission, Ministry of Food, Agriculture and Livestock, Government of Pakistan Islamabad provided Sugarcane prices from 1976-1977 to 2000-2001 fixed by the Government of Pakistan. Mr. Wasil Khan, Superintendent Food •-* Directorate Government of N.W.F.P. placed on record Sugar beet prices fixed by Government of N.W.F.P. per maund from 1976 to 2001. The same were placed on record as Ex. D.W. 9/1.
who produced Goshwara of the approximate income (Takhmina Paidawar)of the appellant from 1985 to 2000 Ex. P.W. 3/1 and Ex. P.W. 3/2. In orderto rebut the said approximate income given by the said P.W, the appellantexamined Momin Khan Patwari Halqa as D.W. 4, who placed on record
Goshwara Paidawar regarding land measuring 59 Kanals 12 Marias for theyear 1993-1994 Ex. D.W. 4/1. Muhammad Nawaz Khan Patwari Halqa
Chak Mardan was also examined as D.W. 5, who also placed on recordGoshwara Paidawar for the year 1995 to 2000-2001 Ex. D.W. 5/1.
Muhammad Amin, Director Cereal Crops Research Institute, Pir Sabaq(D.W. 6) who placed on record price table showing per Acre yield of maize
crop which was exhibited on record as'Ex. D.W. 6/1. Dr. Gul Rehman,Director Sugar Cane Botanist, Sugar Crops Research Institute, Mardan was
'examined as D.W. 7 who stated that in Mardan/Takht Bhai per Acre produce of Sugar Cane was 700 to 1000 per"<naund per Acre. Mian Muhammad Mukhtar, Deputy Chief Agriculture Prices Commission, Ministry of Food, Agriculture and Livestock, Government of Pakistan Islamabad provided Sugarcane prices from 1976-1977 to 2000-2001 fixed by the Government of Pakistan. Mr. Wasil Khan, Superintendent Food •-* Directorate Government of N.W.F.P. placed on record Sugar beet prices fixed by Government of N.W.F.P. per maund from 1976 to 2001. The same were placed on record as Ex. D.W. 9/1.
40. The evidence produced by the prosecution as well
as by theappellant did not clarify as
to what amount was earned by the appellant from,
his agriculture property mentioned in Para 37 above, therefore, the learnedtrial Court summoned Court witnesses so that with the help of the revenue
record and revenue Officers, the agricultural income of the appellant couldbe ascertained. Jalal Khan Office Qanungo Takht Bhai was examined as
his agriculture property mentioned in Para 37 above, therefore, the learnedtrial Court summoned Court witnesses so that with the help of the revenue
record and revenue Officers, the agricultural income of the appellant couldbe ascertained. Jalal Khan Office Qanungo Takht Bhai was examined as
G.W.
1, who placed
on record Jar
Paidawar as Ex. C.W.
1/1 and Ex.C.W.1/2.
Ambaras Khan Office Qanungo Mardan was examined as C.W.
2, who also placed on record Goshwara Takhmina Paidawar as Ex. C.W. 2/1to Ex. C.W. 2/11. Said Badshah Patwari was examined as C.W. 3. The
learned counsel for the appellant strongly objected to the procedure adopted by the learned trial Court for examination of the Court witnesses. His
2, who also placed on record Goshwara Takhmina Paidawar as Ex. C.W. 2/1to Ex. C.W. 2/11. Said Badshah Patwari was examined as C.W. 3. The
learned counsel for the appellant strongly objected to the procedure adopted by the learned trial Court for examination of the Court witnesses. His
objection was that the appellant was
directed by the learned trial Court to cross-examine tHe Court witnesses first and
then the prosecution was invited to cross-examine the said witnesses, which
procedure caused prejudice to the case of the appellant because after the
cross-examination of the Public Prosecutor, appellant could not rebut
whatever was stated by the said C.Ws. The objection of the learned counsel for the
appellant was genuine, therefore, this Court summoned the C.Ws. again for
cross-examination of the learned counsel for the appellant. Jalal Khan C.W. 1
was cross-examined on 7.C.2002. During cross-examination copy of 'Narkh Nama
Chakwar' was placed on record as Ex. C.W. 1/D-l and copy ofKhasra Girdawari from
1992 up
to dale was exhibited as Ex. C.W. l/D-2. Ambaras Khan (C.W. 2) was cross-examined on
19.6.2002. He also produced during the cross-examination Narkh Nama Chakwar' Ex.
C.W. 2/X-l, 'Jar Paidawar' of1925-26 Ex. C.W. 2/X-2. The learned counsel
for the parties again addressed
their arguments after the G.Ws mentioned above were cross-examined.41.The learned trial
Court not only discarded the
evidence
produced by the prosecution but it also did not accept the evidence producedby the defence regarding the agricultural income of the appellant. Reliance
was placed on the statements of C.Ws and documents produced by them.The learned trial Court calculated average income for 24 Kanals of land
situated at village Sheikh Yousaf District Mardan from 1950 till filing of theReference as Rs. 2,35,900/-. For land measuring 84 Kanals situated at Chak
Mardan a sum of Rs. 19,09,980/- as agricultural income of the appellant. Themain thrust of the arguments of the learned counsel for the appellant was
that in Goshwara Paidawqrs Ex. C.W. 1/1 to 1/2, Ex. C.W. 2/1 to C.W. 2/11yield at the rate of produce in Schedule for the years 1925-1926 has been given. The argument of the learned counsel for the appellant that yield per Acre has increased manifold. Similarly the prices have also tremendously increased from 1972 till filing of the Reference has a force in it. Goshwara Paidawars produced by C.Ws. i.e. Ex. C.W. 1/1, 1/2 Ex. C.E. 2/1 to C.W. 2/11 do not give true picture of the agricultural income of the appellant, therefore, the same (Goshwara Paidawar Ex. C.W. 1/1, 1/2 and 2/1 to 2/11) cannot be relied upon and made basis for ascertaining the agricultural income of the appellant for the reasons "firstly, the yield which would be obtained in the years 1925-^1926 has been taken in the said Goshwaras. For Example as per Ex. C.\V. 2/1 in 1985 land measuring 23 Kanals 15 Marias would produce only 480 Pucca Seers of wheat and similarly in the year 2000 also the same land would produce 480 Pucca Seers but the fact is that as per Ex. D.W. 6/1 in 1987 only land measuring 20 Kanals would yield 4 tons of wheat i.e. 4480 Seers (4 x 28 x 40= 4480). Therefore, 24 Kanals should have yielded 5376 Seers of wheat in 1987 but this produce was not shown in Ex. C.W. 2/1. It is a matter of common acknowledge that due to modern techniques and scientific advancement the production has manifold increased during past years, but this fact was altogether ignored. Secondly, the market rates were also not applied while determining the agricultural income. Old rates with old formula was made applicable i.e. for produce of 1985 seven "Chittanks" were given out 16 "Chittanks" and for the year 2000 three (3) "Chittanks" were given out of 16 Chittanks". Neither the daily rates Register was produced nor the same is kept now-a days. In old good days each Tehsildar used to keep daily commodities Register wherein daily entries about the market rates, of various every day commodities would be entered and signatures/thumb impression of shopkeepers would be .taken, if any need to check the market rates of any of the daily used commodities would arise, reference to the said Register would be made and the exact market rate of such a commodity would be found out. What to speak of the daily market rate register, the "Jhar Paidawar" of Mardan 2 Sheets) of 1925-1926 was not revised though settlement in Mardan District was completed in 1991. It is pathetic to note that people of Mardan District are still being given produce by the revenue Courts according to "Jhar Paidawar" of 1925-1926. The S.M.B.R is directed to direct the concerned Revenue officials to revise the "Jhar Paidawar" immediately. It is worth mentioning here that the prices of various produces have also undergone tremendous increase in recent past but this fact was also ignored by the learned trial Court. We, therefore, do not rely upon Ex. C.W. 1/1, 1/2 to 2/11. 42. The question that would arise here is as to what would be evidence which shall be taken into consideration for calculating the agricultural income of the appellant. As observed earlier, it was the duty and burden of the appellant to- show that he had purchased the properties mentioned in the reference in his own name and names of his wife and children through his hard earned white money. To show agricultural income he did not bother to produce any of his land tiller/peasant tenant/cultivator/worker or labourer who could testily that so and so crop was sown in the land of the appellant in so and so year. No one has deposed that the land owned by the appellant was irrigated land. None has given evidence that best seed and fertilizer was used by the appellant. There is nothing on record to show that produce of sugar-cane was sold to Sugar Mills or 'Gur' was made out of the same and specific amount was thus earned. There is also no evidence about the yield of wheat, maize and sugar beat and income derived out of the sales.
produced by the prosecution but it also did not accept the evidence producedby the defence regarding the agricultural income of the appellant. Reliance
was placed on the statements of C.Ws and documents produced by them.The learned trial Court calculated average income for 24 Kanals of land
situated at village Sheikh Yousaf District Mardan from 1950 till filing of theReference as Rs. 2,35,900/-. For land measuring 84 Kanals situated at Chak
Mardan a sum of Rs. 19,09,980/- as agricultural income of the appellant. Themain thrust of the arguments of the learned counsel for the appellant was
that in Goshwara Paidawqrs Ex. C.W. 1/1 to 1/2, Ex. C.W. 2/1 to C.W. 2/11yield at the rate of produce in Schedule for the years 1925-1926 has been given. The argument of the learned counsel for the appellant that yield per Acre has increased manifold. Similarly the prices have also tremendously increased from 1972 till filing of the Reference has a force in it. Goshwara Paidawars produced by C.Ws. i.e. Ex. C.W. 1/1, 1/2 Ex. C.E. 2/1 to C.W. 2/11 do not give true picture of the agricultural income of the appellant, therefore, the same (Goshwara Paidawar Ex. C.W. 1/1, 1/2 and 2/1 to 2/11) cannot be relied upon and made basis for ascertaining the agricultural income of the appellant for the reasons "firstly, the yield which would be obtained in the years 1925-^1926 has been taken in the said Goshwaras. For Example as per Ex. C.\V. 2/1 in 1985 land measuring 23 Kanals 15 Marias would produce only 480 Pucca Seers of wheat and similarly in the year 2000 also the same land would produce 480 Pucca Seers but the fact is that as per Ex. D.W. 6/1 in 1987 only land measuring 20 Kanals would yield 4 tons of wheat i.e. 4480 Seers (4 x 28 x 40= 4480). Therefore, 24 Kanals should have yielded 5376 Seers of wheat in 1987 but this produce was not shown in Ex. C.W. 2/1. It is a matter of common acknowledge that due to modern techniques and scientific advancement the production has manifold increased during past years, but this fact was altogether ignored. Secondly, the market rates were also not applied while determining the agricultural income. Old rates with old formula was made applicable i.e. for produce of 1985 seven "Chittanks" were given out 16 "Chittanks" and for the year 2000 three (3) "Chittanks" were given out of 16 Chittanks". Neither the daily rates Register was produced nor the same is kept now-a days. In old good days each Tehsildar used to keep daily commodities Register wherein daily entries about the market rates, of various every day commodities would be entered and signatures/thumb impression of shopkeepers would be .taken, if any need to check the market rates of any of the daily used commodities would arise, reference to the said Register would be made and the exact market rate of such a commodity would be found out. What to speak of the daily market rate register, the "Jhar Paidawar" of Mardan 2 Sheets) of 1925-1926 was not revised though settlement in Mardan District was completed in 1991. It is pathetic to note that people of Mardan District are still being given produce by the revenue Courts according to "Jhar Paidawar" of 1925-1926. The S.M.B.R is directed to direct the concerned Revenue officials to revise the "Jhar Paidawar" immediately. It is worth mentioning here that the prices of various produces have also undergone tremendous increase in recent past but this fact was also ignored by the learned trial Court. We, therefore, do not rely upon Ex. C.W. 1/1, 1/2 to 2/11. 42. The question that would arise here is as to what would be evidence which shall be taken into consideration for calculating the agricultural income of the appellant. As observed earlier, it was the duty and burden of the appellant to- show that he had purchased the properties mentioned in the reference in his own name and names of his wife and children through his hard earned white money. To show agricultural income he did not bother to produce any of his land tiller/peasant tenant/cultivator/worker or labourer who could testily that so and so crop was sown in the land of the appellant in so and so year. No one has deposed that the land owned by the appellant was irrigated land. None has given evidence that best seed and fertilizer was used by the appellant. There is nothing on record to show that produce of sugar-cane was sold to Sugar Mills or 'Gur' was made out of the same and specific amount was thus earned. There is also no evidence about the yield of wheat, maize and sugar beat and income derived out of the sales.
43.
The appellant only produce experts who have given
sweepingstatements
showing best and ideal yield of Sugar-cane, sugar beet, wheat
and maize grown in the research centres. None of the experts (D.Ws) madereference to the land of the appellant. The learned counsel for the appellant
left to this Court to calculate the agricultural income of appellant, by givinghim best yield and the support prices fixed by the Govt. of N.W.F.P. from
time to time mentioned in Ex. D.W, 8/1 and 9/1.
and maize grown in the research centres. None of the experts (D.Ws) madereference to the land of the appellant. The learned counsel for the appellant
left to this Court to calculate the agricultural income of appellant, by givinghim best yield and the support prices fixed by the Govt. of N.W.F.P. from
time to time mentioned in Ex. D.W, 8/1 and 9/1.
44.
Although, the said Goshwaras show that various
crops weregrown
at small pieces of land by the appellant, but we decided to calculate
the agricultural income of the appellant on the basis of two major crops i.e.sugar-cane and wheat per annum on the total land i.e. 108 Kanals owned by
him. In order to calculate the agricultural income of the appellant, we haveworked out the same on the basis of latest yield per Acre (i.e. yield obtained
in the year 2000) with the support prices fixed by Government from time totime mentioned in Ex. D.W. 8/1 and 9/1.
the agricultural income of the appellant on the basis of two major crops i.e.sugar-cane and wheat per annum on the total land i.e. 108 Kanals owned by
him. In order to calculate the agricultural income of the appellant, we haveworked out the same on the basis of latest yield per Acre (i.e. yield obtained
in the year 2000) with the support prices fixed by Government from time totime mentioned in Ex. D.W. 8/1 and 9/1.
45. So far as the yield of Sugar-cane crops is
concerned, theappellant in order to show per Acre yield examined Mr. Gul Rehman
Director, Sugar-cane Botonist of Sugar-cane crop research Institute Mardanas D.W. 4, who in the examination in chief stated:-
Director, Sugar-cane Botonist of Sugar-cane crop research Institute Mardanas D.W. 4, who in the examination in chief stated:-
"In
Mardan and Takht Bhai a farmer cultivating sugar-cane crop can get a production of 700 to 1000 maunds per
Acre."
46. In cross-examination he admitted that yield of
sugar-cane perAcre depends upon the
variety of seeds, the soil
and other relevant
conditions, like input fertilizer, water and also the efforts. The per Acre yieldof Sugar-cane given by this witness is in fact the ideal yield. However, in
order to give maximum benefit to the appellant we have calculated per Acreyield of sugar-cane crop at the rate of 700 maunds per Acre as stated by
D.W. 4. The appellant in toto owned 108 Kanals of land (24 Kanals in MauzaSheikh Yousaf and 84 Kanals in Chak Mardan). The income of 108 Kanals
of land from Sugar-cane production at the rate of 700 maunds per Acre asper support prices fixed by the Government of N.W.F.P. from time to time
Ex. D.W. 8/1. Since the support prices given in Ex. D.W. 8/1 commencesfrom 1976-1977, therefore, we have also calculated the same from the said
year. From the years 1950-1972 @ 500 per maund per Acre @ 5.89 per 40K.G. for 24 Kanals Rs. 8835 X 22 = Rs. 1,94,854/. For the past years z.e. with
effect from 1972 till 1976 we have calculated @ 500 per Acre and have giventhe support prices fixed in 1976. It is wroth mentioning here that for the
conditions, like input fertilizer, water and also the efforts. The per Acre yieldof Sugar-cane given by this witness is in fact the ideal yield. However, in
order to give maximum benefit to the appellant we have calculated per Acreyield of sugar-cane crop at the rate of 700 maunds per Acre as stated by
D.W. 4. The appellant in toto owned 108 Kanals of land (24 Kanals in MauzaSheikh Yousaf and 84 Kanals in Chak Mardan). The income of 108 Kanals
of land from Sugar-cane production at the rate of 700 maunds per Acre asper support prices fixed by the Government of N.W.F.P. from time to time
Ex. D.W. 8/1. Since the support prices given in Ex. D.W. 8/1 commencesfrom 1976-1977, therefore, we have also calculated the same from the said
year. From the years 1950-1972 @ 500 per maund per Acre @ 5.89 per 40K.G. for 24 Kanals Rs. 8835 X 22 = Rs. 1,94,854/. For the past years z.e. with
effect from 1972 till 1976 we have calculated @ 500 per Acre and have giventhe support prices fixed in 1976. It is wroth mentioning here that for the
years 1950-1972 we have given support prices @ 5.89 (per 40 K.G) because no other piece of
evidence is available on record.
47.
Sugar-cane 500 per maund per Acre from 1950-1972 comes to RSi 194370/- and from
1972-1975 comes to Rs. 39,757 X 4 = Rs. 1,59,028/-.
Year of
produce Income derived.
|
1976-1977
|
Rs. 55,660/-
|
|
1977-1978
|
Rs. 55,660/-
|
|
1978-1979
|
Rs. 55,660/-
|
|
1979-1980
|
Rs. 68,323/-
|
|
1980-1981
|
Rs. 88,641/-
|
|
1981-1982
|
Rs. 88,641 /-
|
|
1982-1983
|
Rs. 88,64] /-
|
|
1983-1984
|
Rs. 88,64 1/-
|
|
1984-1985
|
Rs. 88.641/-
|
|
1985-1986
|
Rs.88.641/-
|
|
1986-1987
|
Rs. 108864/-
|
|
1987-1988
|
Rs. 108864/-
|
|
1988-1989
|
Rs. 116424/-
|
|
1989-1990
|
Rs. 127575/-
|
|
1990-1991
|
Rs. 1441 12/-
|
|
1991-1992
|
Rs. 1441 12/-
|
|
1992-1993
|
Rs. 148837/-
|
|
1993-1994
|
Rs. 1G5375/-
|
|
1994-1995
|
Rs. 170100/-
|
|
1995-1996
|
Rs. 193725/-
|
|
1996-1997
|
Rs. 203175/-
|
|
1997-1998
|
Rs. 226800/-
|
|
1998-1999
|
Rs. 330750/-
|
|
1999-2000
|
Rs. 330750/-
|
Total Rs. 36,40,010/-
48, Now we proceed to
calculate the income of the appellant from wheat production. We have taken
wheat as a second crop sown over the total land owned by the appellant i.e. 108 Kanals.
The maximum yield per hectare shown by Ex. D.W. 6/1 comes to 4 tons.
Since the rates given
in Ex. D.W. 9/1 start from the year 1976, therefore, we have calculated the income from
wheat production as under-
Year of produce Rate per ton Total price Bhusa.
1950-1972 for Rs. 991.32 Rs. 104676/- Rs. 79,200/-
24 Kanals
1972-1975 Rs. 991.32 Rs. 8&,600/- Rs. 64,000/-
1976-1977 Rs. 991.32 Rs. 21.G50/- Rs. 16,200/-
1078 Cr.C.
ikram siiah v. state
(Talaat
Qayyum Qureshi, J.)
PLJ
|
1977-1978
|
Rs. 991.32
|
Rs. 21,650/-
|
Rs. 16,2007-
|
|
1978-1979
|
Rs. 1205.65
|
Rs. 26,331/-
|
Rs. 16,200/-
|
|
1979-1980
|
Rs. 1250/-
|
Rs. 27,300/-
|
Rs."l6,200/-
|
|
1980-1981
|
Rs.1450/-
|
Rs. 31,668/-
|
Rs. 16,200/-
|
|
1981-1982
|
Rs. 1450/-
|
Rs. 31,668/-
|
Rs. 16,200/-
|
|
1982-1983
|
Rs. 1600/-
|
Rs. 34,944/-
|
Rs. 16.200/-
|
|
1983-1984
|
Rs. 1600/-
|
Rs. 34(944/-
|
Rs. 16,200/-
|
|
1984-1985
|
Rs. 1750/-
|
Rs. 38.220/-
|
Rs. 16,200/-
|
|
1985-1986
|
Rs. 2,000/-
|
Rs. 43,680/-
|
Rs. 16,200/-
|
|
1986-1987
|
Rs. 2,000/-
|
Rs. 43.680/-
|
Rs. 16,200/-
|
|
1987-1988
|
Rs. 2062/-
|
Rs. 45,045/-
|
Rs. 16,200/-
|
|
1988-1989
|
Rs. 2 125/-
|
Rs. 46.410/-
|
Rs. 16,200/-
|
|
1989-1990
|
Rs. 2400/-
|
Rs. 52,4 16/-
|
Rs. 16,200/-
|
|
1990-1991
|
Rs. 2800/-
|
Rs. 61,152/-
|
Rs. 16,200/-
|
|
1991-1992
|
Rs. 3100/-
|
Rs. 67,704/-
|
Rs. 16,200/-
|
|
1992-1993
|
Rs. 3250/-
|
Rs. 70,980/-
|
Rs. 16,200/-
|
|
1993-1994
|
Rs. 4000/-
|
Rs. 87.360/-
|
Rs. 16,200/-
|
|
1994-1995
|
Rs. 4000/-
|
Rs. 87,360/-
|
Rs. 16,200/-
|
|
1995-1996
|
Rs. 4325/-
|
Rs. 94,458/-
|
Rs. 16,200/-
|
|
1996-1997
|
Rs. 4325/-
|
Rs. 94,458/-
|
Rs. 16,200/-
|
|
1997-1998
|
Rs. 7000/-
|
Rs.152280/-
|
Rs. 16.200/-
|
|
1998-1999
|
Rs. 7102/-
|
Rs. 155108/-
|
Rs. 16,200/-
|
|
1999-2000
|
Rs. 7102/-
|
Rs. 155108/-
|
Rs. 16,200/-
|
Total:
Rs. 1738550/-
Rs. 532800/-
Price of Bhusa from 1972 to 2000 of 108
Kanals Rs. 453600/- + Rs. 79.200/-= Rs. 532800. The amount of Rs.
79.200/- is in fact the income of Bhusa for 24 Kanals at the rate of Rs. ISO/- per
Kanal for period from 1950 till 1972.
49. We may mention here
that there is no evidence available onrecord to
indicate that the appellant remained in
possession of landmeasuring 24 Kanals
situated at Mauza Sheikh Yousaf District Mardan from
1950 i.e. from the date the said land was gifted in his favour till 1972, whenhis father expired. But still in order to administer justice, we have given him
agricultural income of sugar-cane and wheat from 1950. We have given theamount of Bhusa at constant rate because wheat and sugar-cane both were
sown on small fragments of land by the appellant. Moreover, the majorportion of land was given on Ijara by appellant, but we have ignored thesefactors.
1950 i.e. from the date the said land was gifted in his favour till 1972, whenhis father expired. But still in order to administer justice, we have given him
agricultural income of sugar-cane and wheat from 1950. We have given theamount of Bhusa at constant rate because wheat and sugar-cane both were
sown on small fragments of land by the appellant. Moreover, the majorportion of land was given on Ijara by appellant, but we have ignored thesefactors.
50. The total
agricultural income of the appellant from 1950 till2000 comes to Rs.
5,91,1360/-. We did not exclude 10% expenses also fromthe said income.
Since the first amount was spent on construction of house
at Hayatabad in the year 1987, therefore, from the year 1987 onward wehave calculated the income, the amount spent by appellant for purchase of
various properties in his own name and in the names of his wife and children, the amount spent on construction of the properties mentioned in the reference, amount spent for purchasing vehicles, amount paid for utility bills and fees of his children are as under
at Hayatabad in the year 1987, therefore, from the year 1987 onward wehave calculated the income, the amount spent by appellant for purchase of
various properties in his own name and in the names of his wife and children, the amount spent on construction of the properties mentioned in the reference, amount spent for purchasing vehicles, amount paid for utility bills and fees of his children are as under
Years of Income/Amount
1950 to 1987
Rs. 20,97,822/-
Rs. 6.00.0007-________ Minus
Amoun^ spent/income
Spent on construction of house at Hayatabad in Phase-I in 1987
Rs. 14,97,8227-Rs. 01.70.1097-
Plus
Income of the year
1987-88
Rs. 16,67,931/-Rs. 88.2007-
Minus
Purchased plot No. 148 at Hayat Abad Peshawar on 16.4.1988.
Rs. 15,79,731/-Rs. 1790347-
Plus
Income of the year
1988-89.
Rs. 17,58,765/-Rs. 01.96.1917-
Plus
Income of the year
1989-90.
Rs. 19,54,956/-Rs. 01,92.6967-
Minus
Purchased land measuring 7 Kanals 8 Marias in Chak
Mardan on 13.1.1990.
Rs. 17,62,260/-Rs. 09.93.2967-
Minus
Purchased 6 Kanals land at Nisatta Road, Mardan on
21.8.1990 and 9.11.1994, this amount is duly admitted by the appellant in his statement.
Rs. 07,68,964/-Rs. 02.21.4647-
Phis
Income of the year
1990-91
Rs. 9,90,428/-Rs. 2280167-
Rs. 12,18,444/-Rs. 01.25.1667-
Plus
Minus
Income of the year
1991-92.
Spent on the Fee of his son Imran in Fazal Haq College Mardan w.e.f. 1985-91.
1080 Cr.C.
ikram shah v. state (Talaat Qayyum Qureshi, J.)
PLJ
Rs. 10.93.278
Credit
Rs. 15.45.474/-
Rs. 4,52,196/-Rs. 2.36.0177-
Rs. 2.16.1797-
Rs. 3.16.9237-
Rs. 5.33.1027-
Rs. 40.0007-
Minus
Red entry Plus
Red entry
Minus
Red entry
Minus
Purchased land measuring 59 Kar-als 7 Marias in
Chak Mardan on 6.3.1991 and 20.5.1996.
Income of the year
1992-93.
Purchased land measuring 35 Kanals 9 Marias at
Ferozpura Takht Bhai on 27.9.1992.
Purchased land measuring 1 Kanal at Ferozpura Takht
Bhai on 21.9.1992.
Rs. 5.37.1027-
Red entry.
Rs. 2.68.9357-
Red entry
Income of the year 1993-94.
Rs. 3.04.1677-
Red entry
Rs. 2.73,6607-
Rs. 30.5077-
Rs. 10.42.4887-
Rs. 10.72.9957-
Rs. 42,10,4887-
Rs. 52,83,483/-Rs. 26,59,681/-
Rs. 79,43,164/-Rs. 3,04,3837-
Rs. 76,38,781/-Rs. 3,13.8337-
Rs. 73,24,948/-Rs. 16,97,808/-
Rs. 90,22,756/-Rs. 3.952.80
Plus
Red entry
Minus
Red entry
Minus
Red entry.
Red entry. Plus
Plus
Red entiY Minus
Red
entry Plus
Income of the year
1994-95.
Spent on the construction of house at Hayat Abad,
Peshawar,
Purchased land measuring 1 Kanal 7 Marias at Sugar
Mills Road Mardan in the names of his children and wife by the appellant.
Spent on construction of Plaza at Sugar Mills Road, Mardan.
Income of the year 1995-96. Income of the year 1996-97
Purchased land measuring 65 Kanals 4 Marias at
Chak Mardan on 29.2.1997.
Income of the year
1997-98..
Rs. 86,274,76/-Rs. 5.020.58/-
Rs. 8,125,418/-Rs.
5.020.587-
Rs. 76,233,60 Rs. 103.4807-
Red entry Plus
Red entry Plus
Res. entiy
Minus
Income of the year 1998-99.
Income of the year 1999-2000.
Purchased land measuring 11 Kanals 11 Marias at
Ferozpura Tehsil
Takht Bhai on 5.6.1999.
Rs. 77,26,840/-Rs. 3.30.7087-
Red entry. Minus
Purchased land measuring 12 Kanals 14 Marias at
Chak Mardah on 27.10.1999.
Rs. 80,57,548/-Rs. 1.50.0007-
Rod entry Minus
Purchased Plot No. 172-F at Kanju Township Swat on 1.8.1991.'
Rs. 82,075,48/-Rs. 31.49.277-
Red'entry
Minus
Electricity charges w.e.f. 1997
to 2000.
|
Minus
|
|
Red entry
Minus
|
Rs. 85;22,475/-Rs. 59,977/-
Rs. 85,82,452/-Rs. 59,439/-
Rs. 8,641,891/-Rs.-45.9407-
Gas charges for the years 1998 to 2000.
Red entry
Telephone For the year 2000. charges.
Fee of Imran in Preston University for the years 1997-98. .
Rs. 86,87,8317-Rs.
68.5007-
Red entry Minus
Fee of Haroon in
October 1998.
Rs. 87,56,331/-Rs.
78.7207-
Red entry Minus
Fee of Gul Sanga in Beacon House with effect from 1994 to 1999.
Rs. 88,35,051/-Rs. 30.0007-
Red entry Minus
Fee of Gul Sanga in Fatima Jinnah Degree College.
Rs. 88,65,051/-Rs. 5.00.0007-
Rs. 93,65,051/-Rs. 2.90.0007-
Rs. 96,55,051/-Rs. 14.6297-
Plns
Plus
Minus
Purchased Pajero Jeep.
Purchased Suzuki Car.
Fee paid for Mah Rukh (daughter) in Medical College
from 1992 to 1997.
Rs. 96.69.680/-Rs. 37.7227-
Rs. 97.07.402/-Rs. 2.58.4927- Plus
Rcd
entry Minus
Red entry Bank Balance
Fee paid for Haroon
(son)
Rs. 99,65,894/-
Red entrv.
51.
The ahove mentioned figures show that the total
agriculturalIncome of the
appellant from 1950 till 2000 was Rs. 59,11,3607- whereas he
had spent a sum of Rs. 9,965,894/- in excess for purchase of variousproperties in his own name, in the names of his wife and children. He also
spent considerable amount which has heen mentioned ahove in detail onconstruction of properties, purchase of vehicle and also paid huge amount
towards utility bills and fees for children the total of which comes toRs. 99,65,894/- There is a difference of Rs. 99,65,894/- between his income
and amounts spent by him i.e. he has spent Rs. 99,65,894/- more than whathe had earned. He has not been able to furnish any plausible explanationabout the sources as to wherefrom he received such huge amount and couldmanage to spend the said amount.
had spent a sum of Rs. 9,965,894/- in excess for purchase of variousproperties in his own name, in the names of his wife and children. He also
spent considerable amount which has heen mentioned ahove in detail onconstruction of properties, purchase of vehicle and also paid huge amount
towards utility bills and fees for children the total of which comes toRs. 99,65,894/- There is a difference of Rs. 99,65,894/- between his income
and amounts spent by him i.e. he has spent Rs. 99,65,894/- more than whathe had earned. He has not been able to furnish any plausible explanationabout the sources as to wherefrom he received such huge amount and couldmanage to spend the said amount.
52.
So far as the amount of income derived from salaries of
theappellant is concerned, it is
admitted position that
appellant earned
Rs. 17,46,480/- towards salaries from the date of his joining service till filingof Reference against him. Although this amount of monthly salary was not
Rs. 17,46,480/- towards salaries from the date of his joining service till filingof Reference against him. Although this amount of monthly salary was not
