2018 P Cr. L J 797
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
STATE through Prosecutor -General Accountability, NAB ---Appellant
Versus
GHULAM MUSTAFA RANDHAWA and another ---Respondents
Criminal Ehtesab Appeal No. 17 of 2015, decided on 13th November, 2017.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(iv), 14(a) & 32--- Qanun- e-Shahadat (10 of 1984), Art. 117(1) ---Assets beyond
known sources of income ---Appreciation of evidence ---Appeal against acquittal---Pecuniary
advantages ---Onus to prove ---Authorities were aggrieved of acquittal of accused from Trial
Court ---Validity ---Trial Court, while resolving the point with regard to maintaining of bank
account of Rupees 103,627,531/ - by accused instead of shifting burden of proof on accused to
justify such amount in his account, to the contrary, applied Art. 117(1) of Qanun- e-Shahadat,
1984 that burden of proof was on the prosecution to prove its case against accused ---Trial
Court failed to ask accused to justify s uch huge amount in his account and instead gave
irrelevant findings and unnecessary lengthy comments with regard to determination of huge
amounts ---Accused failed to justify maintaining of account worth millions of rupees and
under such circumstances, provisions of S. 14 of National Accountability Ordinance, 1999
could be applied which were very much relevant ---Trial Court, while dealing/passing
judgment in question ignored principal objectives with which provisions of S. 14 of National Accountability Ordinance, 1999 were into the statute ---High Court set aside judgment and
remanded the matter to Trial Court for decision of reference afresh ---Appeal was allowed
accordingly.
Faizullah Khan v. The State 1972 SCMR 672 rel.
Ewaz Zehri, Special Prosecutor NAB for Appellant.
H. Shakeel Ahmed for Respondents.
Date of hearing: 12th October, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal
(Ehtesab) Appeal No.17 of 2015 filed by State through Prosecutor General NAB Balochistan, against the judgment dated 18th September 2015 (hereinafter referred as, "the impugned
judgment") passed by the Accountability Court -II Balochistan, Quetta, (hereinafter referred
as, "the trial Court"), whereby the accused/respondent was acquitted of the charge under section 18(g) read with section 24(b) of the National Accountability Bureau Ordinance, 1999, in NAB Reference No.07/2007.
2. Facts of the case are that NAB Balochistan filed a reference bearing number 07/2007
before the trial Court against the a ccused/respondent and absconding accused Ghulam
Murtaza Randhawa with the allegations that accused being holder of public office i.e. Ex -
DFC, Food Department, acquired properties/assets in his name and in the name of his
brothers disproportionate to his known sources of income and after, investigation it revealed that accused/respondent was inducted in service in Food Department as a Food Grain Supervisor in 1973 and was promoted as Assistant Food Controller in 1976. In 1980 he being AFC Sibi was found involved in a corruption case, therefore, a Criminal Case under sections 409, 420, 467, 109, P.P.C. was registered against him and he was awarded punishment of three months with removal from service by the Summary Military Court -3 Quetta. He was
reinstated into service in July 1986 by the orders of MLA Zone D and promoted as a District Food Controller in 1996. It is alleged that during the course of his service in Food Department accused acquired the following properties/assets:
Al-Muzamil Square, Shahbaz Town Quetta:
The accused/respondent Ghulam Mustafa purchased the said property i.e. plot No.134
measuring 655 Sq. yards in Shahbaz Town phase -1 Quetta Cantt. on 4th August 1999 from
M/S Feroz Khan and Abdul Rehman in consideration of Rs.13,50,000/ - and he executed sale
deed in the name of his brother i.e. Ghulam Murtaza as benamidar, who was in Germany at the time of purchase of said plot. It is pertinent to mention here that accused Ghulam Murtaza came to Pakistan on 16th August 1999 after 20- days from the exe cution of sale deed,
executed an irrevocable power of attorney in favour of accused/respondent for his benami transaction he thus committed the act of assisting the main accused Ghulam Mustafa for benami transaction, while presently the value of the plot i s Rs.58,63,250/ - construction value
of the property is Rs.1,65,37,800/ -, whereas total amount of the said property comes to Rs.
1,78,87,800/ -. The property is in the name of Ghulam Murtaza, who holds it as benamidar.
Accused issued cheque amounting to Rs.1 4,00,000/ -
The accused/respondent had issued a cheque No.6622072 of Rs.14 lakh, which was
presented to his bank i.e. Punjab Bank Jinnah Road Quetta on 5th August, 1999. The amount of said cheque was paid to Mir Ahmed.
Godown on 10 acres of land at Sirki R oad Quetta.
The accused Ghulam Mustafa purchased the said property on sale consideration
amount of Rs.55,40,000/ - whereas he paid partnership amount of Rs.17 lakh and construction
value of Rs.2,20,84,163/ - as such total amount comes to Rs.2,93,24,163/ - and the said
property was purchased in the name of Naseer Ahmed (brother of accused Ghulam Mustafa).
Two bungalows at Brewery Road Quetta.
The accused purchased an open plot measuring 2000 sq. ft. in January 1992 in the
sum of Rs.30,000/ - subsequently he got constructed an house over that. The accused had
purchased another plot measuring 2715 sq. ft. at Brewery Road Quetta in the sum of Rs.40,000/ - in July 1992. The construction value of the residential house was Rs.23,36,000/ -
the total value of the said pr operty is Rs.24,06,000/ -.
Two acres of land at Sariab Road Quetta.
That two plots were allotted to the accused by the Directorate of Industries and
Commerce Quetta in consideration of Rs.2,74,500/ - and accused also purchased a car in the
sum of Rs.3 lakh. The total amount spent by the accused was Rs.5,74,500/ -.
Amount in bank accounts in Pakistan Rupees and US dollars.
The accused maintained bank accounts in Pakistan Rupees and US Dollars in various
banks i.e.
Bank account Rs.9,88,69,531/ -
US $ 78000/ - Rs.47,58,000/ -
Total: Rs.10,36,27,531/ -
The above properties/assets were disproportionate to the known sources of the
accused and the failed to reasonably account for the said properties/assets.
3. On completion of investigation, refer ence was filed before the learned trial Court,
hence charge was framed, which was denied. The prosecution produced eighteen (18)
witnesses. The appellant was examined under section 342, Cr.P.C. He did not record his statement on oath under section 340(2), Cr.P.C., but produced seven witnesses in his defence. On conclusion of trial the accused/respondent was convicted under section 9(a)(v) of National Accountability Ordinance, 1999 and punished under section 10 of said ordinance to
suffer R.I. for six years with fine of Rs.4,10,48,000/ -, while the properties owned by the
accused/respondent were confiscated in favour of State, besides imposing the punishment of
disqualification for a period of ten years.
4. The accused/respondent assailed his conviction and se ntence awarded through
judgment dated 10th April, 2010, by filing Criminal (Ehtesab) Appeal No.09 of 2010 before this Court, besides three separate constitutional petitions Nos.603 of 2010, 251 of 2010 and
259 of 2010 have also been filed by the alleged bo na fide purchasers of certain units of the Al
-Muzamil Square, hence after hearing arguments, this Court through a common judgment has
partly allowed the appeal of the accused/respondent, remanded the case to the trial Court for reframing/amending the char ge properly vide judgment dated 28th July, 2011.
5. After remand of the case, charge was reframed upon the accused/respondent and
thereafter recorded the statements of the alleged bona fide purchasers of the Al -Muzamil
square as CW -1 to CW -21. Finally, arg uments were heard by the trial Court and vide
impugned judgment dated 18th September, 2015, acquitted the accused/respondent of the charge. Whereafter, the instant acquittal appeal has been filed by the State through Prosecutor General NAB Balochistan.
6. The learned Special Prosecutor NAB contended that the impugned judgment passed
by the learned trial Court is contrary to fact and law, suffers from misreading and non- reading
of evidence; that the learned trial Court has failed to take into count that the accused/respondent No.1 did not dispute the documentary evidence produced by the prosecution, which have remains unchallenged and he also admitted that he was a holder of public office and in his statement under section 342, Cr.P.C.; that the appellant proved its case through confidence inspiring documentary evidence, but the learned trial Court has
failed to take the same into consideration; that the respondent No.1 shifted his responsibility
upon his brother Mr. Ghulam Murtaza. He is working in Germany, but the entry and exit stamp/endorsement seal on the passport of Ghulam Murtaza (Benamedar) shows that he came to Pakistan on 16th August, 1999 and left for Germany on 08th September, 1999. The execution of sale deed and general power of attorney in the nam e of respondent No.1 create
doubt in prudent mind about the presence of Ghulam Murtaza in the days of sale deed and purchase of plot, but the learned trial Court failed to consider this aspect of the case; that the documentary evidence produced by the defe nce show; that the accused avail facility of
running finance of rupees three (03) million, five (05) million and twenty (20) million from different banks, but the defence is silent about the use of said money for the purchase of property or the construction raised over the plot; that the learned trial Court failed to consider that as per law i.e. Power of Attorney Act 1982, it is mandatory for the donor and donee to be present before a concerned authority, but the same has not been done in the instant matte r and
the donor was never ever appeared before the competent authority and the execution of said power of attorney create doubt; that earlier to the impugned judgment the respondent No.1 was convicted by the learned trial Court, but after filing appeal the matter was remanded by
this Court to the trial Court for examination of effectees/beneficiaries and after recording of their statements, nothing new came on record on the bases of which, respondent No.1 was extended benefit of doubt and acquitted of the c harge; that the impugned judgment is based
on presumption by not taking into count the section 14 of NAB Ordinance, 1999, the learned trial Court acquitted the respondent No.1; that there are material illegalities and irregularities in the impugned judgment, which is not sustainable and liable to be set aside and the respondent No.1 be convicted of the charge.
7. Conversely the learned counsel for the respondent No.1 vehemently opposed the
arguments so advanced by the learned counsel for the appellant and c ontended that the
prosecution has failed to prove its case through confidence inspiring evidence the case of the prosecution mainly based against the accused for accumulating the assets beyond his known sources of income during his service; that the respondent No.1 has shown the resources regarding each and every property, allegation of which was leveled by NAB authority to the respondent No.1; that the properties in question were purchased by the respondent No.1 on behalf of his brother being attorney of t heir brother namely Ghulam Murtaza, who is working
in Germany and invested the said amount for 'purchase of the said properties as well as the respondent No.1 was also attorney of his brother Naseer Ahmed, as such, the property so purchased was justified f rom within the means of income and bank transactions; that the
prosecution has failed to prove its case against the respondent No.1; that the learned trial Court after proper appreciation of evidence has rightly acquitted the respondent No.1 from the charg e. Even otherwise, on the same charge his brother co- accused Ghulam Murtaza is
behind the bar in NAB custody and facing trial on the same set of allegations.
8. Heard the learned counsel for the parties and scanned the record minutely with their
valuable assistance, which reveals that the appellants initially filed reference No.7/2007
against the respondent No.1 Ghulam Mustafa and his brother co- accused Ghulam Murtaza
with the allegation has stated above in Para No.2, the record reflects that in the first r ound of
litigations, the learned trial Court after recording evidence and hearing the parties, convicted the respondent No.1, vide judgment dated 10th April 2010. The respondent assailed the above order before this Court in Criminal Ehtesab Appeal No.9/2010. Besides, three Constitutional petitions Nos.603, 251, 259/2010 filed by the alleged bona fide purchasers and this Court vide its common judgment dated 28th July 2011 set aside the judgment of trial Court and remanded the case with the following directio ns:
"Consequently, without touching merits of the case, Criminal Ehtesab Appeal
No.09/2010 and Constitutional Petitions No.603/2010, 251/2010 and 259/2010 are accepted, the judgment impugned dated 10- 04-2010 passed by the Accountability
Court No.2, Quetta , is set -aside. The matter is remanded to Accountability Court
No.2, Balochistan, Quetta, with directions to amend/reframe the charge properly by putting all the properties/assets to the appellant/convict in the charge, issue notice to the petitioners/alle ged benamdars/legal heirs/purchasers and provide opportunity of
hearing as well as production of evidence to all the petitioners in the light of their claims about the properties/assets under reference."
9. After remand of the case, the learned trial Court issued notices to the parties including
beneficiaries and benamedars, who thereafter submitted their affidavits and after recording the statements of CWs the learned trial Court formulated following points for determination as under:
1. Whether the under trial Ghulam Mustafa Randhawa son of Haji Ghulam
Rasool held the public office at the Food Department, the Government of
Balochistan from the year 1973 to the year 2005 and whether he ever had other allegations of corruption and corrupt practices against himself during the course of his service career?
2. Whether the under trial Ghulam Mustafa Randhawa being the holder of the aforementioned public office illegally and unlawfully acquired for beyond his known sources of income, the properties including the plot No.134 at Shahbaz Town, a 10 acres godown at the Sirki Road, two number of bungalows at the
Brewry Road, two acres of land at the Sirki Road, Quetta and a car motor on his name and on the names of his two brothers namely the late Naseer Ahmed and the proclaimed Ghulam Murtaza son of the late Ghulam Rasool Randhawa?
3. Whether the under trial Ghulam Musfafa Randhawa maintained Bank accounts of Rs. 10627531/ - in all including Rs.9886953/ - and US Dollar
78000/ - equal to Rs.4758000/ - in different Banks as a holder of public office
and whether the same is unjustified and beyond his known sources of income?
4. What offence, it any, has been committed by the under tail Ghulam Mustafa Randhawa under the Scheme of the NAB Ordinance, 1999 and what punishment, if a ny, is he liable to thereunder?
10. While resolving point No.1, the learned trial Court submitted that initially the
respondent No.1 was holding public office as Food Grain Supervisor (FGS) in the year 1976 and got promoted to the post of Assistant Food Controller (AFC) afterward in the year 1980 while performing his official duties as AFC Sibi the then Summery military Court No.3 Quetta tried the accused/applicant for offence of corruption and corrupt practice under sections 409, 420, 467 and 109 of P.P.C. 1860 and removed him from service on that
account, however, he was reinstated under the order of the MLA Zone -D, Balochistan and
promoted as District Food Controller in the year 1996 and finally he was holding the post of DFC and it was also come on recor d during the course of the service he has embezzled 10160
begs of wheat as the incharge of PRC Sariab godown Quetta managed to dishonestly the money misappropriate of national exchequer by committing the act of corruption and corrupt practices and misuse o f public authority and embezzlement and misappreciation of
government wheat. Though as per record the said amount of aforesaid begs of wheat godown
were subsequently deposited by him, but however, he was not discharged from the criminal liability of corrup tion and corrupt practices and the learned trial Court has rightly resolved the
point No.1 against the respondent No.1. While resolving the point No.2 i.e.
2. Whether the under trial Ghulam Mustafa Randhawa being the holder of the aforementioned public off ice illegally and unlawfully acquired for beyond his
known sources of income, the properties including the plot No.134 at Shahbaz Town, a 10 acres godown at the Sirki Road, two number of bungalows at the Brewry Road, two acres of land at the Sirki Road, Quetta and a car motor on his name and on the names of his two brothers namely the late Naseer Ahmed and the proclaimed Ghulam Murtaza son of the late Ghulam Rasool Randhawa?
11. The findings of the learned trial Court reflects that the learned trial Court f ailed to
properly appreciate the evidence/ documents brought on record by the parties especially NAB
authorities and failed to apply its judicial mind to discuss each and every evidence to its true
perspective; that the respondent No.1 was involved in corr uption and corrupt practices and
allegedly managed to execute power of attorney in his favour on behalf of his brother co-
accused Ghulam Murtaza and also executed sale deed dated 31st July, 1999 between the PW -
1 namely Ziya -ur- Rehman son of Sheikh Muhamma d and the attorney of his brother namely
Feroz Khan, Zafarullah and Abdul Rehman in the name of proclaimed accused Ghulam
Murtaza Randhawa when he was in Germany. While as per inquiry reports of NAB authorities the entry and exits stamps and endorsement se als on the passport of co- accused
Ghualm Murtaza benamedar shown that he came to Pakistan on 16th August 1999 and left
for Germany on 08th September, 1999.
12. In view of the above, power of attorney and the sale deed executed on his behalf of
create serio us doubt in the prudent mind without the presence of Ghulam Murtaza. The
learned trial Court while discussed the above points submitted that though as per NAB, the said Ghulam Murtaza Randhawa came to Pakistan on 16th August 1999 and went aboard on 08th Se ptember, 1999 and he gave the general power of attorney i.e. Art.P/28 produced by
PW-8 to the respondent No.1 Ghulam Murtaza on 25th August, 1999, which explicitly read
that former "Ghulam Musfafa Randhawa" is owner of plot No.134 at Shahbaz Town Quetta and is unable to personally look after the same, hence the granted of general power to his real
brother i.e. respondent Ghulam Mustafa Randhawa in connection of irrespective or any illegality or irregularity in the execution of general power of attorney in q uestion, the same
suggests that the ownership of plot No.134 on the part of the proclaimed Ghulam Murtaza Randhawa in his own right then the benamedar ownership on his part on behalf of under trial Ghulam Musfafa Randhawa."
13. Be that as it may, it is very astonishing to say that the alleged sale deed executed on
31st July, 1999 with regard to the Plot No.134 Al -Muzamil Sequare, situated at Shahbaz
town Quetta prior to the execution of power of attorney as per the findings of le arned trial
Court, the said power of attorney was issued on 25th August, 1999, when the co accused Ghulam Murtaza was very much present in Pakistan. The above findings of the learned trial Court not only benefited the acquittal to the respondent No.1 Ghula m Mustafa, but however,
simultaneously amount to acquittal of the co- accused Ghulam Murtaza, which is nowadays
facing trial. Besides, the learned trial Court failed to discuss the statements of the prosecution witnesses as well as to discuss the statements of DWs and CWs collectively to ascertain the
guilt or innocence of the accused persons. Even otherwise, the property in question of worth
of millions, but no money trial was given by the defence, how many amount of sale consideration was transmitted/ paym ents made by the co -accused Ghulam Murtaza. The
record is silent in this regard, except showing of Rs.28 million borrowed by respondent No.1 on his own count from banks and failed to show utilization of the same.
14. In view of the above, the point No.2 wa s wrongly resolved by the learned trial Court
in share violation of law. The point No.3 was as under: -
3. Whether the under trial Ghulam Mustafa Randhawa maintained Bank accounts
of Rs.10627531/ - in all including Rs.98869531/ - and US Dollar 78000/ - equal
to Rs.4758000/ - in different Banks as a holder of public office and whether the
same is unjustified and beyond his known sources of income?
15. It is also astonishing to mention here that while resolving the above point with regard
to the maintaining of banks account Rs.103,627,531/ - by the respondent No.1, the learned
trial Court instead to shift the burden of proof on the respondent No.1 to justify the above amount in his account, to the contrary submitted that under Article 117(1) of Qanun- e-
Shahadat, the burden of proof is on prosecution to prove its case against the respondent and
in this regard, also placed reliance on certain irrelevant case laws.
16. Perusal whereof reflects that the learned trial Court has failed to ask the respondent
No.1 to justify the aforesaid huge amount in his account, but instead of that given irrelevant
findings and unnecessary lengthy comments with regard to the determination of point No.3. The perusal of record reflects that the respondent No.1 has badly failed to justify the
maintaining of account worth of millions of rupees as mentioned above under the such circumstances the provisions of section 14 of NAB Ordinance, 1999 could be applied and very much relevant, the learned trial Court while dealing/passing the impugned jud gment has
completely ignored the principal objectives with which the provisions of above section has been brought into statute. Reliance is placed in Faizullah Khan v. The State, 1972 SCMR 672, the Hon'ble Supreme Court of Pakistan observed that where the appeal is admitted, the entire case is reopened both on fact and law. No limitation is laid down in the Code of Criminal Procedure on the appellate power of High Court against the order of acquittal, if the reasons given by the trial Judge in rejecting the prosecution evidence are of speculative and
artificial nature, or the findings recorded are based on no evidence, or misinterpretation of evidence, thus, resulting in miscarriage of justice. It becomes necessary for the appellate Court to reexamine the wh ole evidence and to draw its own conclusion therefrom. In the
instant case the trial Court while discarding the evidence available on record has not given its reasons, besides the material evidence available on record had also not been put to the accused, which resulted grave prejudice in the proceedings and further while recording the
acquittal did not discuss or assign any reason for not bringing the above material evidence on record in the manner as discussed hereinabove, therefore, impugned judgment war rants
interference.
17. In view of the above, the learned trial Court has failed to comply the directions of this
Court dated 28th July 2011 and to decide the matter within the given parameters of this Court and the learned Senior Prosecutor NAB has succeeded to made out a case for remand, as such, Criminal Acquittal Ehtesab Appeal No.17 of 2015 is partly allowed and the judgment dated 18th September, 2015, passed by the Accountability Court -II, Balochistan Quetta in
Reference No.7/2007 is set aside and cas e is remanded to the learned trial Court for decision
of the case a fresh with the case of co -accused Ghulam Murtaza, passing a common judgment
in the light of directions have already been passed by this Court dated 28th July 2011 after
providing proper opportunity to the parties. However, the respondent No.1 shall remain on bail during trial as per previous orders on same surety bonds, if the same have already been discharge the respondent shall furnish bail bond of equal amount afresh till such time he could not be arrested.
MH/166/Bal. Case remanded.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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