In Benami transactions one of the consideration is to see what were the motives behind the transactions

PLJ 2003 Cr.C. (Peshawar) 1 (DB)

Present: TARIQ PARVEZ KHAN AND IJAZ-UL-HASSAN KHAN, JJ. NOOR-UL-HAQ--Petitioner

versus

STATE and another-Respondents Ehtisab Cr. A. No. 7 of 2002, decided on 12.8.2002. (i) Benami Transaction--

—In Benami transactions one of the consideration is to see what were the
motives behind the transactions-Where public servant would indulge in
corruption and corrupt practices and makes assets through money earned
illegally he would never purchase property in his own name to avoid
charges of corruption.                                                      [Pp. 28 & 29] C

(ii) Criminal Procedure Code, 1898 (V of 1898)--

—S. 169—Co-accused not sent up for trial before Court to face prosecution, were given notice whereupon they only filed their written reply and they were represented by counsel who made statement before Court that his clients do not want to produce any evidence in their defence, such would

be conduct from which one can infer that they avoided to appear in
witness-box, not to face cross-examination by prosecution and that they
had nothing in their defence to support defence version.               [P. 32] D

(iii) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—Ss. 9, 10 & 14-Charge of corruption and corrupt practices against civil
servant-Appellant (civil servant) had not denied existence of agricultural
land in the name of his mother, two plots in the name of his wife and had
not denied partnership of Flour Mills in the name of his wife, having been
acquired during his service tenure-Appellant could not prove his
assertion that assets in question were purchased by his mother and wife
through their own sources of income-Sufficient evidence was produced to
concluded that appellant was guilty of offence under S. 9 of Ordinance of
1999 punishable under S. 10 of Ordinance-Trial Court was right in its
conclusion to record conviction and sentence-Conviction and sentence
recorded against appellant was maintained.                                 [P. 32] F

(iv) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)-

—-Ss. 9(v) and 14(c)--Provisions of S. 9(c) of Ordinance XVIII of 1999, postulates that a holder of public office is said to have committed offence of corruption and corrupt practices where he or any of his defendants being Benamidars own possess or has acquired right or title in any moveable or immoveable property disproportionate to his known sources of income if he could not reasonably account for the same-Person accused of such offence has to satisfactorily account for such assets and Court would be entitled to prosecute unless contrary was proved that accused person was guilty of offence of corruption and corrupt practices.

[P. 32] E

(vi) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

-Object, scope and import of Ordinance XVIII of 1999, is that whenever any offence of corruption and corrupt practices was alleged to have been committed and where any person holding public office was found to have property assets either in his name or his spouse or relatives or associates, accused or person holding property on his behalf has to satisfactorily account for means through which property was acquired.

[P. 22] A

(v) National Accountability Bureau Ordinance, 1999 (XVIII of 1999)--

—-S. 14(c)-Burden 'of proof-Where person accused of corruption and corrupt practices under Ordinance i.e. XVII of 1999, was facing criminal charge, basic concept of criminal jurisdiction would remain in force i.e.

accused person was presumed to.be innocent unless proved guilty and
that burden of proof initially lies on prosecution to prove charge against
him-However, in view of provisions of S. 14(c) of Ordinance XVIII of
1999, where .prosecution has brought on record certain facts alleging
charges of corruption and corrupt practices, requirement under statute
i.e. Ordinance XVIII of 1999 is that accused should proved to the
contrary.                                                                                   [P. 24] B

PLD 2001 SC 607; PLD 2002 Lahore 95; PLD 1968 SC 313; 1997 SC 582;

1993 MLD 2061; 1997 MLD 1632; 1995 PCr L.J. 2052; PLD 1984 Lahore

315; PLD 1973 Karachi 659; PLD 1971 Karachi 78; PLD 1962 SC 489; 1975

SCMR 337; PLD 1952 Lahore 624 and PLJ 1980 Cr.C. 12 ref.

M/S Sardar Khan, M. Alam Khan and Ghulam All Khan, Advocates for Appellant.

Malik Jarrar'Hussain, Advocate for Respondents.

Dates of hearing: 6/6/2002, 25/6/2002, 26/6/2000, 3/7/2002 and 17/7/2002.

judgment

Tariq Parvez Khan, J.--Noor_:ul-Haq (hereinafter referred to as the appellant) was arrested by National Accountability Bureau on 18.10.2000 and Reference No. 1 of 2001 was filed on 16.1.2001 under Section 18 (g) read with Section 24 of National Accountability Bureau Ordinance 1999 (Ordinance XVIII of 1999), (hereinafter referred to as the Ordinance), in the Court of Mr. Said Maroof Khan Judge Accountability Court No. 1 Peshawar (hereinafter referred to as A.C) and the learned Judge vide judgment dated 27.3.2002 answered the Reference in affirmative i.e. has found the appellant guilty under Section 9/10 of the Ordinance and sentenced him to five years R.I. with a fine of Rs. 1,70,86000/-. Such fine was payable within one month from the date of announcement of the judgment or his assets shall stand forfeited to the Government and the amount of fine shall be set off against the forfeited assets in terms of Section 11 of the Ordinance. Appellant has been given the benefit of Section 382-B Cr.P.C.

2.          Appellant joined service in Forest Department in the year 1983
and remained in service until 18.10.2000 when he was arrested by the NAB
Authorities and at that stage of service he was serving as District Forest
Officer.

3.          Charge against the appellant is under Section 9 of the Ordinance
that while employed as DFO he has accumulated wealth by illegal means
and with that ill-gotten income has purchased the following assets with
market value as assessed by the NAB Authorities as against each property: -

(i)    Plot No. 49-J H -K) (in 1990 at Sheikh

Maltoon Town) worth............................... Rs. 6,20,000/-

(ii)   Fiat Tractor No. MRC-1809,

Model 1993 worth:.....................                Rs. 3,00,000/-

 (iii) Land 160 K in his own name in the

area of Mohabat Abad, Mardan (in 1994)

worth................... .!.................................. Rs. 46,82,347/-

And also constructed a house with

Hujra in 1994-1995 worth......................... Rs. 71,20,188/-

(iv) Purchased Jeep No. 1-BA 8005,

Model 1964 worth..................................... Rs. 80.000/-

(v)   Purchased Massy Tractor No. MQ 8261,

Model 1976 worth..................................... Rs. 80,000/-

(vi) Purchased land measuring 659 K-16M

worth....................................................... Rs. 1,92,98,565/-

in the limits of village Mohabatabad, Mardan in the year 1991 to 2000 in the name of your mother.

(vii) Bungalow No. 38-J, 1-K, in the year

1987, worth.............................................. Rs. 27,44,970/-

••    *.

(viii)Plot No. 48-J, 6.5 M in the year

1990, worth....... ...,.....,..,.......................... Rs. 192,181/-

(ix) Plot No. 50-J, IK, in the year 1990
at Sheikh Maltoon Town, Mardan in
the name of your wife, worth............          Rs. 06,20,000/-

(x)   Constructed Anjuman Flour Mills,

Timergara in the year 1999, worth.........     Rs. 48,81,380/-

(xi) Purchased some shares in Itehad Flour
Mills, Timergara in the year 1991 in
the name of your wife, worth..............        Rs. 10,50,000/-

(xii) You own a Dairy Farm worth: and....          Rs. 2,35,000/-

(xiii)Fish Farm in the limits of village

Mohabatabad, Mardan worth..................    Rs. 90,000/-

He was charged that such assets are disproportionate to his known
sources of income and thus he has committed an offence of corruption and
corrupt practices as defined in Section 9 of the Ordinance punishable under
Section 10 thereof.               '

4. As we have given the detail of property for ownership/possession whereof appellant is charged and because most of such properties are in the name of mother of the appellant and his wife, therefore, it is necessary here that we give names of certain relatives of the appellant as they appeared repeatedly either in the statement of prosecution witnesses or defence witnesses.

RELATIONSHIP

Mst. Bibi Saleha                    = Mother

Mst. Anjuman                       = Wife

Fazal Rabi

Fazal Kabir

= Brothers

Siraj-ul-Haq
Ghulam Sarwar Khan            = Father (died on)

4.9.1997

Ghulam Jan                           = Father of

Mst. Bibi Saleha.

Haji Zarin                              = Father of Mst. Anjuman,

i.e. father-in-law of the appellant, also his maternal uncle.

Abdul Ghafoor                          = Uncle of Mst. Bibi Saleha.

5.     To prove the charge against the appellant, prosecution has
produced  20  witnesses  as  against which  37  defence  witnesses  were
examined. App'ellant, however, has not appeared in his own defence under
Section 340(2) Cr.P.C.

6.   Learned A.C has exonerated the appellant in respect of assets
namely, Bungalow on Plot No. 38-J, Fiat Tractor MRC 1809, a Jeep of 1964
Model and a Massey Tractor 1976 Model on the ground that prosecution
could not produce evidence to satisfy the A.C that such assets were either in
the name of appellant or were held benamidars by others on his behalf.

Learned A.C has, however, found that rest of the assets, given in charge framed against the appellant based on Reference filed against him, are found to be beyond known sources of income of the appellant and that bulk of the property/assets whether in the name of mother Mst. Bibi Saleha or in the name of wife of the appellant Mst. Anjuman are in fact owned by the appellant and are held benamidars by the mother and the wife.

7.   Appellant has challenged his conviction and sentence through
Ehtesab Criminal Appeal No. 7/2002 filed in this Court on 4.4.2002. On
10.4.2002, appeal came up for hearing in motion and was admitted with
notice and record. Cr. Misc. No. 27 of 2002 praying for si^spension of the
judgment of A.C. was temporarily granted but to the extent of forfeiture of
the property.

8.          Mst. Bibi Saleha, Fazal Kabir, Fazal Rabi, Siraj-ul-Haq and Mst.
Anjuman also filed Ehtesab Criminal Revision No. 9 of 2002 where they have
also impugned judgment of A.C dated 27.3.2002 but their revision was        

dismissed on 2.5.2002. The m.ain averment made in the revision and argued before us was that property owned by the petitioners in the revision has been ordered to be forfeited but they were never arrayed as accused and that none of the prosecution witnesses were examined in their presence. Therefore, they have been prejudiced and that the learned A.C. should have allowed the petitioners to adduce evidence in rebuttal.

9.                Learned counsel appearing for the appellant has argued that
charge as framed by the learned A.C, inter alia, contains that appellant has
accumulated wealth by illegal means and by that ill-gotten income has
acquired assets but no evidence regarding corruption has been brought on
record. It was argued that it was for the prosecution to have first proved that
during the tenure of his service while holding a public office appellant has
ever indulged *irr accepting bribe or illegal gratification nor there is any
evidence that appellant was  ever subjected  to  any  inquiry  regarding
corruption charge and even if there was one, the appellant was exonerated
and was held to be a civil servant of good repute.

10.          It is also argued that under Section 14 of the ordinance it is the
boundened duty of the prosecution to make out a prirna facie case on the
basis of reasonable evidence and such evidence should be of a degree which
should satisfy the Court that accused person facing trial under the
Ordinance has committed the offence of corruption or corrupt practices.

It is also argued that holding that NAB Ordinance is a presumptive law and conviction is to be recorded on conjectures or inferences would be against the fundamental rights guaranteed under the Constitution and such interpretation would be against the norms of Criminal Jurisprudence. It is argued that no presumption adverse to the accused can be drawn in absence of positive evidence.

11.   Learned counsel further argued that burden of proof is always
on the prosecution and the initial burden has first to be discharged which
should be based on cogent evidence and that accused is not to prove his
innocence. Contention is raised that the burden on an accused even under
the Ordinance is only to an extent that he is to reasonably explain that he is
not guilty of the offence charged with.

It is also argued that as the impugned judgment is based on inferences and because prosecution has failed to make out zprima fade case, conviction could not have been recorded and that in the instant case even if there be some faults in the defence evidence, such should not be taken to the advantage of the prosecution as it is not for the accused to prove beyond reasonable doubt that plea taken by him is correct but he is to only show that defence version put forward by him might/probably be true.

12.   Learned counsel has formulated the above contentions and has
then elaborately argued each point with reference to evidence of the
prosecution and the defence version.

13.   Main submission of the learned counsel for the appellant is that
with regard to agricultural land measuring 659 Kanals and 16 Marias
situated in village Mohdbata&ad, such land has been purchased by Mst. Bibi
Saleha through 29 different mutations and different times spreading over a
period of about ten years i.e. from the year 1991 to year 2000. Out of such
agricultural land she has gifted land measuring 160 Kanals in favour of the
appellant in the year 1994.

14.    Learned counsel for the appellant argued that charge was
framed against his  client,. it was  so worded that the  appellant has
accumulated wealth through illegal means and with that ill-gotten income
has purchased the assets/properties. It is submitted that when there is a
charge of acquiring wealth through illegal means, with reference to person
holding public office would necessarily mean that he during his employment
has either resorted to mis-appropriation of Government money as has
obtained illegal gratification or that he has amissed such wealth through
illegal means. It is argued that not a single witness has appeared lending any
support to such charge. Submission is made that before entering into the
question whether assets held by an accused person are beyond his known
sources of income, there should be first proof that such public servant has
been indulging in such practices like acceptance of bribe or demand of illegal
gratification.

It is submitted that after the charge of taking bribe was reasonably made out only then the assets of the appellant would be open to scrutiny, otherwise, where an accused person has shown sufficient means either through his own income like salary or where he has received land through inheritance or where some property has come to his possession pursuant to some gift and where relatives like mother, wife and brother of the accused are having their independent sources of income and are not dependent on the appellant then assets and properties held by them cannot be termed to be held on behalf of the appellant.

15.   Learned counsel while highlighting the duty of the prosecution
has referred to Section 14 of the Ordinance and argued that when a
Reference is fried against a public servant and the charge against him is
regarding assets and property then it is for the prosecution first to prove that
the property held by the accused is beyond pecuniary resources and is dis­
proportionate to the known sources of his income.

For the above object, not only a prima facie case but a reasonable case should be made out which should satisfy the mind of the Court regarding the charge and only thereafter there will be some liability on the accused to prove the contrary.

16.   It is argued that under Criminal Jurisprudence the burden of
proof though in some special Statutes has been lightened on the shoulder of
the prosecution and some responsibility is placed on the accused charged
with the offence to explain the charge but such liability of the accused cannot

be equated to that heavy burden which is always on the prosecution. Submission is made that where laws have put burden of proof on the accused it has been always' held by the superior Courts that the initial burden of proof remains on the prosecution and the liability of the accused is only to make oyt.a reasonable possibility of his defence being true.

It is argued that in the instant case, as submitted earlier> prosecution has produced no evidence regarding ill-reputation of the appellant and they have produced no evidence that in either of the properties held by his mother, his wife or brothers he has got any share and the defence has through cogent defence witnesses including independent witnesses has proved that the allegation against the appellant are untrue and baseless, therefore, the appellant could not have been convicted and is entitled to acquittal.

17.   As regards agricultural land measuring 659 Kanals 16 Marias
situated in village Mohabatabad, it is argued that such land has been
purchased by Mst. Bibi Saleha mother of the appellant and her source of
income has been sufficientlt explained i.e.  she received an amount of
Rs. 15,00000/- when some property situated in the native town of the
appellant in Tribal Territory was sold by his father Ghulam Sarwar on
22.3.1992 and in this respect Nazraf (DW-18) has testified. The second
noticeable amount of Rs. 50,00000/- was again the sale consideration of 100
Jar/6 of land sold by Ghulam Sarwar father of the appellant on 27.1.1990
and such transaction has been confirmed by Lai Badshah (DW-33). It is
argued that Mst. Bibi Saleha also received Rs. 20,00000/- when she
surrendered her share inherited by her from her father in the name of her
uncle namely, Abdul Ghafoor through deed dated .5.3.1984 (Ex. DW-12/1)
and that from such amount she has purchased the agricultural land between
the year 1991 to year 2000 through different mutations in her favour and out
of such agricultural land she has mutated 160 Kanals on 29.6.1994 (Ex.
PW3/29) in favour of the appellant.

Similarly regarding shares of Mst. Anjuman in Anjuman Flour Mills it was argued that wife of the appellant is not dependent and she hails from a rich family, has been gifted a constructed house by her father and that she was involved in 'Bardana' business jointly run by Mst. Anjuman Fazal Rabi etc. (Bardana business is sale of empty wheat bags). Learned counsel has referred to different statements of the DWs and submitted that Mst. Anjuman has been investing sufficient amount and whatever is held by her is in her own name and to that holds appellant is not a contributoiy.

18.           Learned counsel has also argued that three brothers of the
appellant are holding their independent business and are not dependent on
the appellant as is proved from the statement of different DWs.

19.           It has been vehemently argued that learned trial Judge instead
of making reference to specific evidence led by the prosecution has mostly
relied on presumptions and conjectures and although such presumptions are

admissible under the Ordinance and despite the fact that under Section 14(c) of the Ordinance a conviction recorded by A.C. shall not be invalid-for reason only that it is based solely dn presumptions but it is submitted that the presumption can only be drawn from proved fact and not that when there is no foundation laid by the prosecution. It is, therefore, argued that the impugned judgment is illegal and not maintainable.

20.           As the learned counsel for the appellant has in detail referred to
statements of DWs as against each asset, subject of the Reference, and the
charge relevant to the facts in issue, therefore, before we analyse the legal
aspects of the submissions made by learned counsel and before we make
reference to what is argued by learned Special Prosecutor on behalf of the
Chairman NAB it is  necessary that we  here given a resume of the
prosecution evidence.

21.           Miraj Nabi (PW-1) is witness to certain recovery memos which
pertain to allotment and transfer orders regarding Plots Nos. 38-J, 49-J and
50-J situated in Sheikh Maltoon Town, Mardan.

Fazal Subhan Housing Officer (PW-2) has also deposed in respect of such plots and their transfer.

Suleman~(PW-3) is Patwari Halqa for village Mohabatabad and has produced original revenue record and mutations Ex. PW-3/1 to Ex. PW-3/30 i.e. property in the name of Noor-ul-Haq and his other family members. According to him the property in the name of the appellant has been assessed worth Rs. 12,59,027/-.

Saeed Khan (PW-4) is a Sub-Engineer in C&W Department and has prepared the site-plan Ex. PW-4/1 and Ex. PW-4/2 pertaining to constructed property situated in village Mohabatabad including five houses, a Hujra, a godown and a mosque.

Khalid Khan. Assistant Director Fisheries Department Mardan was examined as PW-5 who has measured the Fish Farm situated in the fields of the appellant and has assessed its value.

Shahabuddin (PW-6) is Veternary Officer was examined to give the assessed value of Daily Farm and the catties kept thereon.

Raza Khan (PW-7) was Manager of a Motor Bargain Centre and has determined the value of a Jeep Model 1964.

Liaqat Ali (PW-8) is Manager of a firm dealing with the sale and purchase of Tractors and was examined with a view to depose regarding value of the two Tractors.

Next is- Muhammad Shoaib Tehsildar (PW-9) who was examined to prove document Ex. PW-9/1 sale-deed.

Muhammad Akbar Khan, Assistant Sub-Inspector attached to Regional Accountability Bureau Peshawar is marginal witness to recovery

memos Ex. PW-10/1, Ex. PW-3/34, Ex. PW-10/2, Ex. PW-10/3, Ex. PW-10/4, Ex. PW-10/5, Ex. PW-10/6, and Ex. PW-10/7 which pertain to documents regarding ownership and possession of different assets in the name of relatives of the appellant.

PW-11 is Sheida Muhammad Inspector Regional Accountability Bureau and has witnessed the recovery memos Ex. PW-11/2 to Ex. PW-11/5 pertaining to value of Tractors, Jeep and the assessment of Anjuman Flour Mills by Sub-Engineer C&W Department.

Niamat Gul Sub-Engineer (PW-12) has prepared the site-plan and
assessed value orAnjuman Flour Mills which are Ex. PW-12/1 and Ex. PW-
12/2. ,                                                          .           '

From the office of Registrar of Companies NWFP Peshawar Muhammad Musharraf Khan was examined as PW-13 whose testimony is relevant to shares held by different shares in Itihad Flour and General Mills.

Shahi Zaman a Grade-Ill Officer of United Bank Limited appeared as PW-14 to prove the maintaining of Bank Account No. 217-2 in the name of appellant and Account No. 285-5 in the name of Mst. Anjuman.

Fazal Hameed (PW-15) is co-owner with Mst. Anjuman of Anjuman Flour Mills situated in the limits of Bandagai-Timergara and has deposed that he and his brothers Muhammad Yousaf and Muhammad Ayaz are owners-to the extent of 22% shares each while the Mst. Anjuman wife of appellant owns 34% shares in the said Mills.

Ashraf Ali Marwat is Income Tax/Wealth Tax Officer Mardan and has appeared as (PW-16) and has produced Income Tax/Wealth Tax record pertaining to Ghani and Zareen.

Abdul Hadi is the next witness of the prosecution who was examined as PW-17. He alohgwith Haji Abdul Ghafoor, Haji Raham Dad, Fazal Rabi, Fazal Kabir and Siraj-ul-Haq (latter three brothers of appellant) has purchased Jtihad Flour Mills from one Haji Qadir Gul for an amount of Rs. 8. Millions. According to him Rs. 3 Millions were paid in cash and as the vendor had an outstanding liability of Rs. 5 Millions, are per sale agreement said amount was paid to Habib Bank Ltd. Peshawar. In the Mills he owned 25% shares while the remaining were owned by other partners.

Muhammad Naeem (PW-18) is a property dealer at Nowshera Road, Mardan and was examined to state about the market value of plots situated within the limits of Sheikh Maltoon Town Mardan.

Habibullah Khan DSP (PW-19) is the star witness of the prosecution attached to RAB N.W.F.P. Peshawar. On arrest of appellant on 18.10.2000 by the Bureau he was entrusted with the investigation of the case on the following day. He obtained the custody of the accused from the A.C-II Peshawar and when the original remand expired on 23.12.2000 he produced the accused before A.C. for further remand and because of his application

Ex. PW-19/3 was granted further 14 days custody and after the expiry of such period appellant was sent tp Judicial Lock-up on 6.1.2001.

We may here refer that strong exception was taken to application (Ex. PW-19/3) by learned counsel appearing for the appellant on the ground that such application contained therein that further custody is required because the Investigating Agency wants to probe further to find out and to collect evidence regarding receipt of bribery and illegal gratification by the appellant while holding public office. It was argued that despite specific purpose for obtaining further remand and despite specific investigation made in that direction, no evidence whatsoever could be collected or brought on record that appellant has ever indulged in receiving bribe or illegal gratification and therefore, the very charge framed by the A.C,against the appellant could not be proved. Here we may make reference to the submissions of learned counsel made and referred to in earlier part of our this judgment where it was argued that while framing the charge learned trial Judge has used the terms that the wealth accumulated through illegal means by the appellant and through such ill-gotten wealth he has purchased the assets either in his name or in the name of his relatives.

Last witness of the prosecution is Sher Bahadur Arbab posted as Director Budget and Accounts in Forests Department and was examined as PW-20. He has produced the service record of the appellant according to which appellant joined Forests Department as Divisional Forests Officer in the year 1983 and remained posted as such till his arrest in this case. According to his record appellant has received a total amount of Rs. 13,55,773/- towards his pay and allowances commencing from 13.10.1983 to month of October 2000. He also stated that during his service appellant has never drawn any House Building Advance except he was granted Motor-car Advance amounting to Rs. 50,000/- in the years 1993-1994.

22. We have so far given the brief narration of prosecution evidence and it was in the background of such evidence that learned counsel for the appellant had made submissions referred to-in the preceding paras and his contention throughout is that none of such witnesses examined by the prosecution as regards the charge of corruption or corrupt practices by appellant.

It is in view of prosecution evidence that argument was advanced that none of the prosecution witnesses have uttered single word that during his service appellant has misused his official position or there was any stage when he was proceeded against departmentally for mis-conduct except once where because of an application filed by the personal enemies of the appellant an inquiry was conducted and he was exonerated of the charge.

It is also argued that keeping in view the above prosecution evidence there is no iota of evidence on the basis of which one can infer least to say charge proved, that any of the property regarding which charge is framed

against the appellant is either owned, possessed, purchased or under the control of the appellant.

It was argued that for the purpose of proof of benamidars transactions rules has been laid by the august Supreme Court of Pakistan in a judgment reported in 1991 SCMR 703 (Muhammad Sajjad Hussain vs. Muhammad Anwar Hussain) and it, inter alia contains the following dictum laid:--

"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.

The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. The burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed."

In view of the above legal position it is argued that there is no evidence that the source of consideration i.e. amount used by Mst. Bibi Saleha for the purchase of agricultural land or money invested by Mst. Anjuman either for purchase of shares in Itihad Flour Mills or purchase of proprietory rights in Anjuman Flour Mills appellant has in any manner monetary assisted them.

It was also argued that none of the titled documents were recovered from the custody of the appellant rather most of the documents exhibited during the trial regarding the ownership are coming from the official source i.e. in case of agricultural land and it is the Patwari Halqa who has produced the original revenue record and in case of shares in Itihad Flour Mills, Registrar Joint Stock Company has produced the record of shares and no title deed qua 34% shares in Anjuman Flour Mills were recovered from the person of the appellant so to infer that appellant had any personal interest either in agricultural land or in the ownership of Anjuman Flour Mills.

It is argued that according to revenue record the possession of agricultural land is that of Mst. Bibi Saleha to the exclusion of 160 Kanals of land gifted by her to appellant and rest of the ancestoral property is jointly

owned and possessed by all the brothers. The brothers namely, Fazal Rabi, Fazal Kabir and Siraj-ul-Haq are running their independent business in their own names and no witness of any locality where such business is being run has been examined to state that appellant has got any participation even as a sleeping-partner muchless as an active partner in their respective business.

With regard to benamidars transactions it was vehemently argued that there should be some motive with the appellant to transact through someone else to his exclusion and there should be some reason i.e. where a person wants to conceal or suppress his direct ownership which can be in the instant case to avoid his culpability for possessing property/assets of the value which are beyond his known sources of income and that would have been only required if there was proof of charge that appellant has received illegal gratification, has accepted bribe or has mis-appropriated Government funds entrusted to him and through such ill-gotten amount was to purchase the property.

23.    We have. extensively reproduced the submissions of learned
counsel appearing for the appellant touching upon legal points as well as
facts of the case and would here refer that in support of his submissions he
has relied on number of precedents cited at the bar.

Learned counsel while making first submission that it is for the prosecution to make out a reasonable case to the satisfaction of the Court reliance is placed on PLD 2001 SC 607 at Pages 921 and 922 (Khan Asfandyar Wall and others vs. Federation of Pakistan and others). He has also relied on PLD 2002 Lahore 95 (Page 105) (Dr. Farooq Sattdr's case). Reference is also made to the case of Abdul Baqi Balouch in PLD 1968- SC 313 (325). Also to Elahi Cotton Mills (1997 SC 582) (678).

On the, point of burden of proof reliance is placed on 1993 MLD 2061, 1997 MLD 1632, 1995 P.Cr. L.J. 2052 (2057) and Page 2093 with submission that bufden of proof would not stand shifted on the accused until such time that first the prosecution shall make out a reasonable case against him.

PLD 1984 Lahore 315 (C) is relied on in support of the argument that when there .is equal and inconsistent evidence, it would not permit to raise presumption and presumption can only be drawn when there is cogent, strong and adequate'evidence on record.

24.   Learned counsel has relied on PLD 1973 Karachi 659, PLD 1971
Karachi 78, PLD 1962 S.C. 489 and number of other judgments on the
proposition that defence is not required to prove its innocence but the
liability of the accused is to the extent that he shall make out a reasonable
and probable case showing that defence version might be true as against
prosecution which is always duty bound to prove the charge beyond all
reasonably doubts.

1975 SCMR 337 (B) Miran Box vs. Niaz and others was relied upon in support of the prosecution that it is not necessary for the accused to set up any definite case and it will be sufficient if he manages to cast doubt on prosecution case and that will entitle him to acquittal.

The emphasis of the learned counsel for the appellant throughout remained that prosecution must first make out a reasonable case which should satisfy the trial Court regarding guilt of the accused, learned -counsel has relied on PLD 1952 Lahore 624 Abdul Ghafoor vs. Crown where the word "satisfaction" and its scope was considered and it was held that satisfaction must be real and not sham. It should be bona fide and it should be on facts and not.a pretext. Reference was also made to Black's Law Dictionary and New Standard Dictionary.

25. After the evidence of the prosecution was recorded of which we had already given summary, appellant was examined under Section 342 Cr.P.C. on 28.6.2001 and for the purpose of convenience we would like to reproduce the most relevant questions and answers recorded thereon because this in fact is his defence and would also be relevant when we will be analysing the statements of the defence witnesses:-

Q. 3. It is in evidence that during your service in Forest Department you had i urchased Q59Kanals 1 Marias land at village Mohabat Abad in the years 1991 to 2000 in the name of your mother, Mst. Bibi Saleha. What do you say about it?

Ans. It is incorrect. The real fact is that-my father, namely, Ghulam Sarwar originally belonged to Koda Khel, Mehmand Agency, where he had 300 jiribs of agricultural land having^asome abadi over it. Because of enmity and feud with the local inhabitants my father migrated to Mohabat Abad, Mardan and got settled there. With the passage of time, the enmity subsided and income from that land started to my father in the year 1973. Subsequently, my father made 2 transactions of sale one relating to 40 jiribs of land at Garang Kalli, Koda Khel for a total sale consideration of Rs. 15,00,000/-. As no revenue record is existing in Mehmand Agency which is a tribal area, normally a certificate of sale is issued by the Political Agent in respect of sale transactions. Muhammad Naeem Khan witnessed the above sale transaction and issued a sale certificate dated 28.5.1990. Similarly a few months prior to it my father Ghulam Sarwar had sold 100 jiribs of land to the local inhabitant, namely, Lai Badshah S/O Haji Jan Dad Koda Khel. The sale certificate was duly signed by Political Tehsildar, namely, Abdul Qayum Khan and it was countersigned by Assistant Political Agent Akbar Mehmand Ghalani on 25.3.1990. My " mother Bibi Saleha and her father Ghulam Jan originally

belonged to lower Dhok Dara, District Dir. On the death of Ghulam Jan my mother inherited 100 Kanals of land out of his property. Subsequently as per family settlement dated 5-3-1984 she transferred the same to her uncle in lieu of sale consideration of Rs. 20,00,000/-. In Koda Khel Mehmand Agency my father still owns abotu 150 jirz&s land which is furtile and yields best crops. On the death of my father that property devolved on me and other legal heirs. I have duly mentioned these facts at the time of joining my service in my initial declaration form as well as in the subsequent declarations submitted from year to year during my entire service. On receipt of sale consideration by my father and mother as mentioned above the property at Mohabat Abad was purchased from time to time by my father in the name of my mother. Out of the purchased property only 160 Kanals agricultural land has been gifted to me by my mother while the remaining land is owned and possessed by my mother and brothers and they are also living in the houses constructed by them over the land which is owned and possessed by my brothers. I have got no concern with the remaining land. From the date of the gift in my favour as per Mutation No. 219 dated 29.6.1994 I am receiving the usufructs of the .land gifted to me. All these facts were duly mentioned to Habib Ullah Khan D.S.P./I.O but he refrained to investigate and bring the true facts before the Court. I have never purchased any land in village Mohabat Abad either during my service or prior to joining service.

* Q. 4.     It is in evidence that you had purchased a Bungalow No. 38-

J measuring one Kanal at Sheikh Maltoon Town Mardan in the year 1987 in the name of your wife Mst. Anjuman. what do you say about it?

Ans: This is incorrect. My wife Mst. Anjuman is the daughter of Hqji Zareen who is also my maternal uncle. The plot Bearing No. 38-J was purchased by Haji Zareen over which a house was constructed and later on he transferred the same by way of gift in the name of his daughter, namely, Mst. Anjuman. The permission for construction and payment of the construction charges, fees for the approval of map and the other allied charges have been paid by Haji Zareen. Haji Zareen my father-in-law is a business man dealing in bags and Flour Mills in a millionaire. My brothers were also engaged in Bardana business since 1978 and even prior to my marriage my wife Mst. Anjuman had a share in the business with them, as they were the paternal aunt's sons of Mst. Anjuman. Out of the income of Bardana

business shares were purchased in Itehad Mills which subsequently included in the shape of floating shares in Anjuman Flour Mill's. Both these Mills are Private Limited having legal entity. So my wife had her own sources also. She is having 34% floating shares in Anjuman Flour Mills being the Director of the Flour Mills,

Q. 6.     It is in evidence that you had purchased a Plot No..49-J measuring one Kanal at Sheikh Maltoon Town, Mardan in • your own name in the year 1990. What do you say about it?

Ans: It is correct. I have put in 18/19 years service as Grade-17 Officer of the Forest Department. I have received salary, TA/DA and Motor Car Advance. Besides, I being the eldest son of my father used to manage and collect the usufructs of 300 jiribs of agricultural land in Garang Koda Khel, Mehmand Agency. Out of which 150 jiribs has been sold by my father while the remaining 150 jiribs is still in my possession and in possession of my brothers as legal heirs of Ghulam Sarwar deceased. I had purchased the above mentioned plot on a total sale consideration of Rs. 70.000/-which was allotted to me by Mardan Development Authority. During my service I had also purchased Prize Bonds and won Prize of Rs. 1,10,000/- as per certificate of the State Bank of Pakistan dated 12.6.1989. Similarly another Prize Bond was encashed from the State Bank of Pakistan which I had won in a draw and payment of Rs. 5,00,000/- was made to me by the State Bank of Pakistan as per certificate dated 17.11.1997. Similarly I had purchased a Prize Bond of denomination of Rs. 25,000/- and in a draw I won a prize of Rs. 1,50,000/- and alongwith price of the bond a total amount of Rs. 1,75,000/- was paid to me by the State Bank of Pakistan as per certificate dated 28.8.1997. Further more my father was not a destitute person as alleged by the prosecution. He was the Malik and Khan of the Koda Khel tribe but being a religious minded and pious man was inclined to teach the Holy Quran to the Muslim students and that is why the prosecution has with a bad intention described him to be a Mulla. My father was a rich man and he got me educated in the best educational institutions. I got Master Degree, in Chemistry and also did M. Phil in the said subject and thereafter I got Master Degree in Forestry. My educational qualification is self speaking that how much money was spent by my father on my education. It is further submitted that when my mother gifted me 160 Kanats agricultural land as per Mutation No.

. 2J9 dated 29.6.1994 since then I am getting usufructs of that land also.

Q. 13. It is in evidence that you had also constructed a Flour Mills known as Anjuman Flour Mills at Timergara and also installed machinery in the said Mills in the year 1999. What do you say about it?

Ans:                  It is incorrect. As earlier stated my brothers had a

vast business of Bardana (Empty Sacs) which they used to supply to Ranizai Flour Mills and on this profit they purchased shares in Ittehad Flour Mills. Similarly on further sale the floating shares were purchased in Anjuman Flour Mills out of that sale consideration. My wife even prior to my marriage was a co-partner with my brothers in Bardana business and she has now the major share holder in the Anjuman Flour Mills which is a Private Limited Company Pier share is managed by my brothers and I have got no concern with their business.

From the tenor of replies given by the accused it appears that he does not deny that assets referred to 'in the Reference and the charge are fictitious, non-existent or false. He accepts their existence but dis-owns that such properties are held as 'benamidars' on his behalf by others.

For agricultural land owned by the mother his stand is that two transactions of sale were made by his father regarding landed property situated at Garang Kalli Koda Khel (Tribal Territory) and a total sum of Rs. 65,00000- was the sale consideration of such property. Rs. 20,00000/-were received by Mst. Anjuman from her uncle pursuant to a family settlement and that his wife Mst. Anjuman daughter of Haji Zareen got a house at Plot No. 38-J when it was purchased by Haji Zareen and later by way of gift transferred in the name of Mst. Anjuman. It is his case that Ms?. Anjuman now his wife and a daughter of his maternal uncle being his cousin even before her marriage was engaged in Bardana business with the brothers of the appellant and out of the Bardana business she purchased shares in Itihad Flour Mills which subsequently were included in the shape of floating shares in Anjuman Flour Mills,

He has also taken the stand that he was a Grade-17 officer and has purchased Plot No. 49-J in Sheikh Maltoon Town Mardan for sale consideration of Rs. 70,000/- only and that he has purchased Prize Bonds and on more than one occasion was lucky enough to win prize of Rs. 1,10,000/-, then a prize of Rs. 5 Million, again a prize of Rs. 1,50,000/-.

With regard to ownership in Anjuman Flour Mills at Timergara his stance is that his. wife and brothers had Bardana business supplying empty bags to Ranizai Flour Mills and with their profit in the business had

purchased shares in Itihad Flour Mills and that thereafter they sold the shares and purchased floating shares of Anjuman Mills.

26.    In support of stand taken by the accused in his 342 Cr.P.C.
statement though he did not appear as his own witness under Section 340(2)
Cr.P.C. but defence has examined as many as 37 witnesses.

27.   As in respect of certain assets i.e. Velley Jeep, two Tractors and
Plot No. 38-J even the trial Court has disbelieved the evidence of the
prosecution, therefore, for brevity we will only refer to statements of such
defence witnesses who are relevant to the remaining defence-plea.

DW-15, Tariq Hussain Akhtar, has produced record regarding Prize Bonds proving that on different occasions the appellant has encashed the Prize Bonds with prizes thereon.

Umbaras Khan Assistant Officer Kanoongo Mardan was examined as DW-8 who has produced original revenue record of property of Mst. Bibi Saleha and the appellant, Jamabandies for the year 1971-1972, for the year 1980-1981 and according to him out of total property held by Mst. Bibi Saleha and Noor-ul-Haq there is 'Abadi on an area of 158 J&maZs-and 5 Marias: The value of the property in the name of appellant is assessed as Rs. 12,59,027/- and that all mutations were always attested in the name of Mst. Bibi Saleha mother of the appellant and that according to 'Goshwara Malkiyat' such groperties were purchased and the total worth comes to Rs. 51,85,618/-. Documents Ex. PW3/1 to Ex. PW3/30 are mutations attested on different dates regarding different measurement of the land from different vendors for different amount/consideration but purchased by Mst. Bibi Saleha.

Faqir Muhammad Patwari Halqa Mohabatabad was examined as DW-4 who exhibited Jamabandies and through Ex. DW4/1 has given 'Ausat Yaksala' from year 1992 to 2000.

Muhammad Ali Khan (DW-5) produced document Ex. DW5/1 an agreement to sell executed between Nawabzada Saifullah Khan and Mst. Bibi Saleha on 22.3.1992 where 50 jiribs of land was agreed to be sold by Nawabzada Saifullah Khan to Mst. Bibi Saleha and her husband Ghulam Sarwar paid Rs. 12,00000/- with remaining amount to be paid subsequently. Possession of land delivered through her husband to Mst. Bibi Saleha.

Mian Abdul Jalil (DW-14) is petition-writer who has scribed the deed, copy Ex. DW-5/1.

Nazraf (DW-18) has deposed that he and his brother Fazal have purchased 40jirib of land in Koda Khel from Ghulam Sarwar (father of the •appellant) for 1.5 Million through sale-deed dated 30.3.1990 (Ex. DW-18/1)

and that a certificate of Political authorities Mohmand Agency was exhibited as Ex. DW-18/2.

ial Badshah (DW-33) has^;testified that on 27.1.1990 through a sale-deed land measuring 100 jirib situated in Koda Khel was sold by Haji Ghulani Sarwar father of the appellant for sale consideration of Rs. 5 Million, copies of the sale-deed Ex. DW-33/1 and certificate of political authorities dated 25.3.1990 as DW-33/2 were exhibited.

For Bardana business run by Fazal Rabi, Fazal Kabir and others

(DW-6) Shah Bacha appeared to prove that a building situated at Shamsi

Road Mardan was.rented out to Fazal Kabir who used to run Bardana

business in the building and that such building was rented out in the year

 1985.

                        Imtiaz Khan (DW-7) is marginal witness to the rent deed, referred

above, while Anwar Baig (DW-10) had scribed the rent deed.

Muhammad AH (DW-20) is a Food Grain Dealer running
                   business at Rashakai and has purchased 500 bags of wheat each for Rs. 840/-

from Fazal Rabi and Fazal Kabir while Ajoon Khan Record-keeper o
                    Ranizai Flour Mills appeared as DW-23 in proof that Fazal Rabi an   brothers would supply Bardana to the Mills since year 1977 and they would

receive cash payment for such supply.

Najibullah (DW-34) being a clerk with Fazal Rabi, Fazal Kabir and Mst. Anjuman would maintain the record of Bardana business. According to him 15% shares in such business were owned by Mst. Anjuman.

**•_'-

                        Fazal Qadir (DW-37) brother of the appellant is a co-partner in the

Bardana business and deposed that initially he would supply Bardana to
Ranizai Flour Mills, then to Itihad Flour Mills. He also deposed that even
before marriage of Mst. Anjuman his sister-in-law had 15% shares in their
                    business and when Malik Abdul Hadi purchased Itihad Flour Mills and

because this DW and his co-partner were supplying Bardana to Ranizai Flour Mills, therefore, they purchased 35% shares in Itihad Flour Mills from Malik Abdul Hadi. Nothing in cash was paid to him but sale consideration was adjusted i» the amount of Bardana supplied to Ranizai Flour Mills:

Musharraf Shah of Nisatta (DW-11) has purchased various items
and sold the above to Siraj-ul-Haq for Anjuman Flour Mills. He was
examined to prove the involvement of Siraj-ul-Haq brother of the appellant
             in the business and not of the appellant himself.

Hazrat Yousaf appeared as DW-35 a Record-keeper of Anjuman Flour Mills to prove that land underneath Mills was purchased and that Mst. Anjuman has got 34% shares in the ownership of the Mills.

28.   Learned counsel appearing for Chairman NAB has argued that
there is no defect in charge and same stands framed under Section 9 of the
Ordinance inclusive of sub-section (v) and even if for sake of argument there
is any defect in charge that defect would be curable under Section 225 read
with Section 537 of the Cr.P.C. and that defect in charge never vitiate the
trials unless it is proved that such defect has caused prejudice to the accused.
Learned counsel has taken us through the body of the charge and argued
that charge is specific by stating that:-

"You committed an offence of corrupt and corrupt practices as defined in Section 9 of NAB Ordinance punishable under Section 10 of the aforesaid Ordinance and within my cognizance."

Submission is made that Reference of illegal means and ill-gotten money has no nexus when there is charge of holding assets beyond known sources of income and when assets are disproportionate to the income of the accused as such would be a specific charge under Section 9(v) of the Ordinance.

Learned counsel also submitted that had there been a charge specifying allegations under Section 9(i) or 9(ii) of the Ordinance that would require evidence by the prosecution of acceptance of bribery, illegal gratification or mis-appropriation of Government money and for that some witnesses were necessary. But, in case of assets prosecution is to show a reasonable case and accused is to then rebut the charges by such evidence which shall disprove arid to the satisfaction of the trial Court that assets held by him are not beyond his means.

29.   As for burden of proof on the accused, learned counsel referred
to PLJ 1980 Cr. Cases 12 and submitted that where a special Statute
provides that there is some burden on the accused then it becomes a
statutory duty to dis-lodge facts proved against him and this can only be
done if he produces such evidence which is reasonable and which satisfies a
prudent mind.

It is submitted that prosecution has made out aprima facie case and they have discharged their burden by producing official witnesses, in particular PW-20 Sher Bahader Arbab Director Budget and Accounts and according to his statement the total salary received during the course of total service by the appellant comes to Rs. 13,55,773/- whereas the property assessed held as 'benamidars' in the name of mother, wife and brothers of the appellant is worth Rs. 4,19,94,631/-.

It is submitted that mother of the appellant, his wife they both are house wives, they are not educated and so are his three brothers. They will thus be dependent on the appellant who is the only bread earner and huge assets held by the family could safely be presumed to be held 'benamidars' purchased by the appellant.

.)

30.             Learned counsel has referred to Section 14(c) of the Ordinance
and submitted that trial Court shall presume unless contrary is proved that
an accused person is guilty of offence of corruption and corrupt practices and
when convicted, his conviction shall not be invalid for the reason that it has
been solely recerded on presumptions. It is argued that there is no statutory
bar on A.C. to draw presumption from evidence led by the prosecution.
Learned counsel  argued that there is  marked distinction  between  a
presumption under the law and a conjecture made by a Judge on his
personal whims.

31.             Learned counsel has tried to distinguish the cited judgment
reported as 1991 SCMR 703 where some tests for holding of property as
'benamidar' have been specified. His submission is that it was a case where
there were two claimants in respect of same property but in the instant case
when the litigation is not civil in nature but there is charge of corruption and
corrupt  practices  and  where  the   accused,  and   his   relatives   holding
'benamidars' title are having common-interest, there cannot be direct
evidence to prove the 'benamidars' transactions.

32.             After we have reproduced the submissions made by learned
counsel for the appellant, a resume of the prosecution evidence as well as
defence evidence relevant for the purposes of disposal of this appeal and the
contentions raised by learned Special Prosecutor, we now here would refer to
certain provisions of the Ordinance as appellant is prosecuted under the
special law where offence of corruption and corrupt practices has been made
punishable and where A.C. have been established and where under the
Ordinance A.Cs are entitled to draw presumptions.

National Accountability Bureau Ordinance XVIII of 1999 was promulgated and the veiy preamble contains that its object is to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices and matters ancillary thereto.

Under Section 5(c) the word "assets" has been defined which means "any property owned, controlled by or belonging to any accused, whether directly or indirectly, or held benami in the name of his spouse or relatives or associates, whether within or out side Pakistan, or for which they cannot reasonably account, or for which they cannot prove payment of full and lawful consideration."

Section 5(m) defines "Holder of Public Office" and under its sub­section (iv) a person holding post in the service of Pakistan, or any service in connection with the affairs of the Federation, or of a Province is included in the definition of holder of Public Office. The word "Offence" has been defined in Section 5(n) means "the offences of corruption and corrupt practices as defined in the Ordinance."

33.     Section 9 of the Ordinance .defines the various kinds of
corruption and corrupt practices and a person holding public office is
charged for having assets whether mbveable or immovable which are beyond
his known resources of income and for which he cannot reasonably account
for, such would be an offence punishable under Section 10 of the Ordinance.

Under Section 14(c) of the Ordinance any trial of an offence punishable under the Ordinance, the fact that an 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 property beyond his pecuniary resources for which he cannot satisfactorily account for, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and/or corrupt practices.

34.     THe  above  statutory  provisions,  therefore,   provide  that
whenever an offence of corrupt and corrupt practices is alleged to have been
committed and where any person holding public office is found to have
property/assets either in his name or in the name of his spouse or relatives
or associates, it is for that person i.e. the accused or person holding property
on his behalf to satisfactorily account for the means through which the
property was acquired.

35.             Despite the statutory provisions as prima facie they appear to
have shifted the burden of proof on the shoulder of the accused but the
superior Courts of the country have time and again and with reference to
laws parameteria to the Ordinance have held that notwithstanding burden of
proof placed on accused still the initial burden to make out a case remains on
the prosecution.

36.             Very recently a Division Bench of Lahore High Court while
deciding case of Dr. Farooq Sattar vs. The State (PLD 2002 Lahore 95) it was
held that mere fact that a person stands charged for trial before A.C. does
not give rise to a presumption of guilt in respect of offences under the
Ordinance. It was held that 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 in defence and to prove his innocence but
such an interpretation would lead to absurdity and make a .mockery of
criminal justice, ft was held that prosecution has initial duty to discharge his
burden  of establishing necessary facts to  show that the  accused  had
"misused" his authority.

37.  In case of Khan Asfandyar Wali (PLD 2001 S.C. 607) the Hon'ble
§upreme Court in Para 230 held as under:-

"230. Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove 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 phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, we deem it necessary to issue the following directions for effective operation of Section 14(d):

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

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

Back in 1968, in case of Abdul Baqi Baluch (PLD 1968 SC 313) his lordship Justice Hamood-ur-Rehman made the following observation:-

"Before parting with this question, I would also like to add that though it is true that there is a difference between "being satisfied" and "suspecting upon reasonable grounds" the difference, in my humble opinion, is this that the former connotes,a state of mind bordering on conviction induced by the existence of facts which have removed the doubts, if any, from the mind and taken it out of the stage of suspicion."

38. As we have referred in some preceding paras that under Section 14(c) of the Ordinance burden is shifted on the accused to "satisfactorily account for", we take the privilege to refer to PLD 1976 SC 6 (Syed Saeed Hassan us. Payar All and 7 others) and would reproduce what was held by the Supreme Court while interpreting the word "satisfaction":-

"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 persuasion 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 provisions 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 oscillation. To be "satisfied" with a state of things is to be honestly convinced in on'e's own mind. Apcording to Black's Law Dictionaiy apart from the "legal satisfaction" which is a term of ait 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. In 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."

39.    While dilating 'Upon burden of proof even this Court while
hearing Ehtesab Criminal Appeal No. 5 of 2000 (Syed Zahir Shah vs. The
State) decided on 2.1.2001 it was held that burden of proof shifts to the
accused to provethe contrary would only be applicable where something is
proved against him. We with advantage would reproduce Para 38 from the
said judgment as we concluded:-

"38. Thus there is no cavil with the cardinal principle that though the special law has laid burden on the shoulder of the accused to prove the contrary but that would be only where the prosecution succeeds in making out a case. Otherwise too, it is the basic principle of criminal law applied from time immemorial in all the civilised societies and all the judicial systems. Similarly, under the Islamic Jurisprudence an accused person is presumed to be guilty unless he proves his innocence."

40.            Similar view was taken by another Hon'ble Division Bench of
this Court in case of Ehtesab Criminal Appeal No. 9 of 2001 decided on
15.5.2002 (Muhammad Hayat vs. The State).

41.            Seeking guidance from the above case law and conscious of the
fact that  person  accused  of corrupt  and  corrupt practices  under  the
Ordinance is facing a criminal charge, therefore, the basic concept of
Criminal Jurisprudence would remain in force i.e. an accused person is

n presumed to be innocent unless proved guilty and that burden of proof initially lies on the prosecution to prove the charge. But, in view of provisions of Section 14(c) of the Ordinance where prosecution has brought on record certain facts alleging charges of corruption and corrupt practices it is required under the Statute i.e. Ordinance that the accused should prove to the contrary. We have also taken serious note of the submission made by learned counsel for the appellant that judgment of conviction based on inferences and conjectures would not be a valid judgment. Such argument

on the face of it appears to be weighty but seen in the light of provisions of the Ordinance it looses its significance. We have referred to the object of promulgation of the Ordinance and the very language used therein which is to eradicate corruption and corrupt practices and hold accountable all those persons accused of such practices. "To hold accountable" would demonstrate that from the very inception of the Ordinance the object of law maker was to ask for the explanation of the accused person charged with the offence and it is for him to account for as to how he has acquired property subject of the Reference.

Under Section 5(c) of the Ordinance where assets have been defined, the very definition suggests that where any property is owned, controlled or is belonging to an accused whether directly or indirectly or held benami and for which they cannot reasonably account (underlining is by us) would also place the liability on the person accused for the offence to account for as to how such assets and property were acquired. In fact it also includes the spouse or the relatives or the associates that they are to reasonably account regarding means of such acquisition.

Section 9(v) which makes certain acts to be corruption and corrupt practices also places burden on the accused to reasonably account for such assets and property which are disproportionate to his known sources of income and finally Section 14(c) of the Ordinance where liability of the accused or person holding property is to satisfy the mind of the trial Judge that the property/assets