2022 M L D 2061
[Balochistan]
Before Naeem Akhtar Afghan, CJ and Sardar Ahmed Haleemi, J
CHAIRMAN NATIONAL ACCOUNTABILITY BUREAU through Prosecutor General
Accountability, NAB ---Appellant
Versus
ABDUL NABI JATTAK and another ---Respondents
Criminal Ehtesab Appeal No.06 of 2022, decided on 17th August, 2022.
National Accountability Ordinance (XVIII of 1999) ---
----Ss.9(a)(iv) & 14 ---Assets beyond known sources of income ---Appreciation of evidence---
Acquittal of accused ---Initial onus to prove ---Accused persons were charged for acquiring
assets beyond known sources of their income but Trial Court acquitted them of the charge ---
Validity ---Initial burden was on prosecution to establish allegation / charges levelled against
accused persons ---Prosecution failed to discharge its initial burden of proving allegations
against accused persons ---Criteria for evaluating evidence in appeal against conviction and in
appeal against acquittal were distinct ---Interference in order of acqu ittal was to be made
where there was a gross mis -reading and mis -appreciation of evidence resulting in
miscarriage of justice ---High Court declined to interfere in judgment of acquittal as it was
not suffering from any illegality, infirmity and was based o n valid and sound reasons ---
Appeal was dismissed, in circumstances.
Yar Muhammad v. State 1992 SCMR 96 rel.
Jaffar Raza Khan, Acting Deputy Prosecutor General NAB for Appellant.
None present for Respondents.
Date of hearing: 1st August, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J .----The instant Criminal Ehtesab Appeal No.06 of
2022 is directed against the judgment dated 27.10.2021 (hereinafter referred as "impugned Judgment") passed by the learned Judge Accountability Court -II Balochistan, Quetta,
(hereinafter referred as "trial court") in Reference No.02/2019 whereby the respondent Nos.1 and 2 were acquitted from the charges.
2. Brief facts which lead to the filing of the instant appeal are that a complaint was
received to NAB authorities against respondent No.1 (accused Abdul Nabi Jattak) regarding
the allegation of accumulation of assets beyond his known sources of income. Hence, an inquiry was authorized which was subsequently upgraded into investigation on 24.09.2018. The investigation revealed that the respondent No.1 joined Local Government Department
Balochistan on 14.12.1980 as Sub- Engineer (BPS -11) at Directorate of Rural Development,
Usta Muhammad; thereafter, he was promoted as Tehsil Officer Planning/Town Planner
(BPS -17) on 09.04.2008 a nd transferred to the office of Assistant Director, Local
Government, Kalat. On 24.08.2011 he was transferred to Town Planner Office of Director
Local Government at Quetta Division, as Town Planner; as per revenue and bank records, the respondent No.1 poss esses assets, including property in Mouza Samungli Karez, Quetta, a
house in Killi Daiba Quetta and a farm house in Mouza Karez Samungli and also the amounts in his bank accounts are un- explained which are disproportionate to his known
sources of income. T he respondent No.2 (accused Abdul Ghani) is benamidar of respondent
No.1 who transferred a piece of land measuring 101- 2/3 poles in Mouza Karez Samungli in
the name of respondent No.1 and unjustified bank account credits, disproportionate to income of the respondent No.2.
On the aforementioned allegations Reference No.2 of 2009 was filed against the
respondents before the trial Court under section 9(a) (v) and (xii), punishable under section 10 of the National Accountability Ordinance, 1999.
3. At the trial both the respondents did not plead guilty to the charge and claimed trial.
4. The prosecution examined as many as nineteen (19) witnesses; after completion of
prosecution evidence, the statement of respondents were recorded under section 342 Cr.P.C,
wherein they denied the allegations; both the respondents recorded their statements on oath
as envisaged under section 340 (2) Cr.P.C, and produced documents as Exp.D -A/A to Exp.D -
B/B and Exp.D -B/A; they also produced DW -1 Abdul Wali, DW -2 Nasrullah and DW -3 Ali
Madad Hazara in their defence.
5. The trial Court after conclusion of the trial, heard the arguments of the parties and
acquitted the respondents vide impugned judgment dated 27.10.2021.
6. Being aggrieved the appellant (DG NAB Balochistan) filed Crimi nal Ehestab Appeal
No.06 of 2022 before this Court.
7. Learned Acting Deputy Prosecutor General NAB contended that the prosecution has
established the allegations through documentary evidence but the trial Court has failed to appreciate the same; it was al so established that the respondents were operating several bank
accounts with huge irrational transactions; the respondents possessed assets and properties in Mouza Samungli Quetta; they had constructed houses in Killi Daiba beside; owned houses which were disproportionate to their known sources of income and the respondents had failed
to justify the same but the trial Court has failed to take into consideration the documentary evidence and has passed a non -speaking judgment which deserves to be set aside.
8. After hearing learned Acting DPG NAB, we have perused the available record and
have gone through the impugned judgment. In order to substantiate the allegations in respect
of property of respondent No.1 the prosecution produced PW -9 Ajmal Shah Tehsildar Pishin
who placed on record ownership documents of the properties as Article P/7 to Article P/60, which exists in the name of Nabi Bakhsh (father of the respondent No.1) and produced tenants of properties as witnesses, who recorded their statements as PW -13, PW -14, PW -15
and PW -17, stating therein that they were residing in the houses of the respondent No.1 and
paid monthly rent of Rs.3000/ - to Rs.4000/ - for each house to the respondent No.1, all the
witnesses admitted in their cross -examination that respo ndent No.1 along with his brother
were residing adjacent to the aforesaid rented out houses, the properties were their ancestral belongings, no document was produced by the prosecution to prove that the properties were purchased by the respondent No.1 from his alleged illegal gain during his tenure of holding
public office. The prosecution has also failed to prove that, being the holder of public office, respondent No.1 was involved in corrupt practices and accumulated huge property by misuse of his authori ty/official position. The respondent No.1 recorded his statement on oath and
produced documents of property situated at Killi Daiba as Ex.P/D -BA bearing Khasra
No.589/128 measuring 11162 sqft which revealed that the said property existed in the name of his ancestors.
9. DW-1 Abdul Wali (brother of respondent No.1) stated in his statement that he along
with his brother were residing at Killi Daiba and by profession he was a contractor, he was holding joint properties and business with his brothers; he produc ed orders (relating
construction works) issued to him by different departments as Ex.P/1- A to Ex.P/1 -P. Perusal
of above documents reveal that different departments had awarded him construction works which fact was not denied by the prosecution.
10. The respondent No.1 has proved from record that his father was man of means and
had enough resources to purchase the aforementioned properties which was admitted by the prosecution witnesses in their cross -examination. The prosecution has failed to substantiate
the allegations against the respondent No.1 for accumulating properties beyond his known source of income.
11. The next allegation against the respondents pertained to bank accounts, benami
property and running of a business.
To establish these allegations, the prosecution produced PW -1 Imran Javed who
produced agreement/iqrar nama dated 30.01.2015 as Article P/1; perusal of said agreement revealed that Mehmood Ali gave rupees five million to respondent No.2 for sharing 50% of holding in business of sale p urchase of vehicles as the respondent No.2 had sufficient
experience in the said field; PW- 1 admitted in his cross -examination that on the request of
investigation officer he become witness of seizure memo being an employee of NAB and showed his ignorance with regard to allegations against the respondents. To the extent of agreement, PW- 3 Mehmood Ali recorded his statement whereby he categorically stated that
he paid rupees five million to respondent No.2 for the business of sale purchase of vehicles, out of which he had received only four lacs; the said witness further admitted in his cross -
examination that the respondents inherited fourteen (14) houses located in Killi Daiba and are also receiving monthly rent; further he confirmed that the respondent No. 1 and his
brother have a joint venture business and they resided as a joint family and added that the
respondents were also receiving income earnings from their inherited property situated at Kalat.
12. PW-2 (Sardar Khan) and PW -4 (Safar Khan) had recorded their statement on oath as
they were witness of agreement dated 30.01.2015 (Article P/1); both in their cross -
examination owned the document i.e. Article P/1; admitted about the inherited properties/houses of respondents located in Killi Daiba; receiving monthly rent and further
supported the version of respondents by elaborating that the properties located at Killi Daiba were quite expensive being in the heart of Quetta city valuing Rs.10000/ - to Rs.11000/ - per
sqft; the respondents lived as a joint famil y and were running joint business; they had further
admitted in cross -examination that DW -1 (Abdul Wali) is the brother of respondent No.1,
who ran a business of sale purchase of vehicles and also carries out construction works. The prosecution witnesses i .e. PW -2, PW -3, PW -4 did not deny the authenticity of the agreement
as well the inherited properties owned by respondents.
13. PW-16 (Muhammad Asif) property dealer has stated in his cross -examination that
respondent No.2 was a friend of him, who purchased the land @ Rs.70/75 per sqft and the amount was paid to him in installments, however, the said property was transferred in the name of respondent No.1 as per consent of respondent No.2. The witness in his cross -
examination admitted that respondent No.2 was running a joint business of vehicles with his uncle Mehmood Ahmed (DW -1) and also admitted that the respondents were receiving the
rent from their ancestral properties.
14. Now coming to the allegation of huge transactions carried out through the bank
account by the respondents; in that context PW -8 and PW -10 recorded their statements and
produced the account opening form, statements of accounts and vouchers through Ex.P/8- A
as Article P/19 to Article P/59, Ex.P/10 -A as Article P/71 to Article P/ 126, which were not
denied by the respondents rather it was admitted by the PW -19 (Investigation Officer) in his
cross -examination that the respondent No.2 had told him about the business and about the
transaction of money among the respondents with Ali Ma dad Hazara as sale proceeds of
vehicles.
15. The Investigation Officer admitted that Ali Madad Hazara was called by him during
course of investigation but his statement could not be recorded for which no explanation has been offered by the investigating of ficer. However, the respondents produced Ali Madad
Hazara as DW- 2 who stated that he was running business of sale purchase of vehicles in
collaboration with respondent No.2, which reflects that the investigation officer deliberately did not record the stat ement of Ali Madad Hazara.
16. It reflects from record that the respondents owned specified ancestral properties in the
city and were receiving monthly rent of said property which was not disputed by the prosecution witnesses rather they admitted the same. It is relevant to note here that the
prosecution was not able to bring on record any source of illegal income of the respondents and the respondent No.2 has proved that he was running business of sale and purchase of vehicles and had enough resources to purchase property.
17. According to settled principles, initial burden is on the prosecution to establish the
allegation/charges leveled against accused. Perusal of record of the instant case reveals that
the prosecution has failed to discharge its initial burden of proving the allegations against the
respondents.
18. Criteria for evaluating evidence in appeal against conviction and in appeal against
acquittal are distinct.
Interference in the order of acquittal is to be made where there is a gross mis -reading
and mis -appreciation of evidence resulting in miscarriage of justice. Reliance in this regard is
placed on the case of Yar Muhammad v. State 1992 SCMR 96. The relevant para is as under: -
"In view of these discrepancies the learned trial Court acquitted the appellants. The High Court was hearing an acquittal appeal and the principles for setting aside an order of acquittal are now well settled. Unless the judgment of the trial Court is perverse, completely illegal and on perusal of evidence no other dec ision can be given
except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, the High Court will not exercise jurisdiction under section 417, Cr.P.C. In exercising this jurisdiction the High Cour t is always slow
unless it feels that gross injustice has been done in the administration of criminal justice".
19. In our considered view, the impugned judgment of acquittal is not suffering from any
illegality; infirmity and same is based on valid and sound reasons.
For the above reasons, the instant Criminal Ehtesab Appeal being without merit, is
dismissed in limine.
MH/126/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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