2022 P Cr. L J 713
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ
STATE through Prosecutor General Accountability, NAB ---Appellant
Versus
NISAR HUSSAIN SHAH and another ---Respondents
Criminal Acquittal Ehtesab Appeal No. 6 of 2013, decided on 28th August, 2020.
National Accountability Ordinance (XVIII of 1999) ---
----Ss. 14 (c) & 32 ---Assets beyond known sources of income ---Appreciation of evidence ---
Appeal against acquittal ---Onus to prove ---Defective investigation ---Duty o f Investigating
officer ---Accused was alleged to have acquired assets beyond his known sources of income
by misusing his authority--- Accountability Court acquitted the accused of the charge---
Validity ---Accused owned the assets with the assertion that thos e were lawfully purchased by
him through his legal means ---By owning the assets though burden shifted on accused but
still it was prosecution who had to establish that sources shown by accused firstly during
inquiry/investigation and secondly before Accoun tability Court, were not legal or not in
conformity with his properties ---Investigating officer on each occasion failed to properly
investigate the matter ---Investigating Officer was obliged to investigate each and every
aspect of case keeping in view the defence version taken by accused at the time of investigation---Prosecution was supposed to have discovered and proved the known sources of accused --- Scope of interference in appeal against acquittal was narrow and limited as in
acquittal presumption of i nnocence was significantly added to the cardinal rule of criminal
jurisdiction and accused was presumed to be innocent until proved guilty and such presumption of innocence was doubled---High Court declined to interfere in judgment of acquittal passed by A ccountability Court in favour of accused---Appeal was dismissed, in
circumstances.
Muhammad Hashim Babar v. State 2010 SCMR 1697; Ghani -ur-Rehman v. National
Accountability Bureau PLD 2011 SC 1144 and The State v. Abdul Khaliq and others PLD 2011 SC 554 r el.
Jaffar Raza, Special Prosecutor NAB for Appellant.
Abuzar Haider and Malik Azeem for the State.
Date of hearing: 19th August, 2020.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J .---This appeal under section
32 of the National Accountability Ordinance, 1999 (hereinafter referred as "NAO, 1999") is
directed against the judgment dated 04th October, 2013, passed by the learned Judge
Accountability Court -II Quetta, whereby, the respondent (Nisar Hussain Shah) was acquitted
of the charge.
2. The brief facts necessary for adjudication of instant appeal are that a Reference
No.12/2009 before the Accountability Court -II, Quetta was filed against the respondent, with
the allegations that an inquiry was conducted by NAB authorities in pursuance of a complaint received from one Naseeb Dad Mullahzai son of Marjan Mullahzai resident of Tehsil Bori, District Loralai dated 22nd November 2003, which was later on converted into investigation on 25th June 2008 and the respondent while holding public office of DG Livestock and remained posted as Superintendent, Yetabad Sheep Farm House, Livestock
Department, Loralai from year 1952- 1998 acquired huge properties in his name and in the
names of his family members in District Loralai, Ziarat, Sanjavi, Quetta and Lahore by misusi ng his authority and by corruption and corrupt practices, which were/are
disproportionate to his known sources of income, details of such properties whereof read as under:
a. Properties in Lahore:
(i) Property No. 8/A (1/3rd share) Survey Nos.176/8- A, Shabir Road Lahore Cantt.
(ii) Property No.34 Survey No.112- A, 113- A, Defence Housing Scheme wireless
compound, Sarfraz Rafiqui Road Lahore.
(iii) Property No.J -7 Bungalow No.198/J -7, Saint Johan Park Lahore.
b. Property in Quetta:
(i) House No.3 Qamar Homes, Arbab Town Samungali Road Quetta.
c. Properties in Loralai and Ziarat:
(i) An area measuring 13 plots in the name of accused Nisar Hussain Shah.
(ii) An area measuring 3 rods 33 poles.
(iii) An area measuring 19 rods 19 poles (4.9 acres approx.)
(iv) An area measuring 43 rods 13 poles and 17 rocs 15 poles (10.83 acres approx).
(v) An area measuring 73 rods 3 poles
(vi) A house at Loralai
(vii) An area measuring 6 rods 4 poles.
(viii) An area measuring 16 rods 36 poles and 38 poles.
(ix) An area measuring 26 rods 11 poles and 9 rods 30 poles.
(x) A bungalow near Commissioner's office in Loralai.
(xi) Land measuring ten acres, 3 rods and 36 poles in Laralai.
The unexplained assets and bank credits belonging to the respondent i.e. (i)
unexpl ained assets: Rs. 12,599,345/ - (ii) unexplained bank credits: Rs. 15,217,502/ -
equal to Rs. 28816847/ -.
3. After formal investigation, the respondent was indicted before the learned Judge
Accountability Court -II, Quetta. On receipt of Reference, the learned Judge Accountability
Court -II, Balochistan Quetta on 08th February 2010, framed the charge against the
respondent/ accused under section 9(a)(v) of N.A.O., 1999 to which he pleaded not guilty and claimed trial. In addition to the afore -referred pro perties and assets in the charge read out
to the respondent on 08th February 2010 also acquired and possessed House No.198- B
Jinnah Town, Quetta in the name of his son namely Syed Ali Abbas Shah, thus, on 24th August 2012 an additional charge was also fram ed against the respondent, to which too he
pleaded not guilty and claimed trial.
4. In order to substantiate the charge against the respondent, the prosecution examined
as many as seventeen witnesses and also tendered certain documents in addition thereto as documentary evidence. Upon conclusion of prosecution evidence, the statement of the respondent accused was recorded under section 342, Cr.P.C., wherein he denied the allegations levelled against him and he also opted to record his statement on oath as w ell.
The respondent/accused produced four Defence Witnesses (DWs) in his defense. Upon completion of evidence and hearing both the sides, the learned Judge Accountability Court -
II, Quetta acquitted the respondent/accused of the charge vide impugned judgment dated 04th October, 2013. Hence, this appeal.
5. Learned Special Prosecutor NAB contended that the prosecution had proved its case
beyond a reasonable doubt and that the trial court had erred in acquitting the accused who
was not able to justify that how he had been able to accumulate such vast assets keeping in
view his income as assessed by the NAB Authorities; that the respondent has not denied ownership of any of the properties, nor could be able to justify the same either during course of inquiry or before the court; that the respondent has not denied the amount lying in his
account nor could justify the same by means of his known source of income; he therefore, urged that the impugned judgment be set aside and the respondent be convicted and awarded the maximum sentence as prescribed by the law.
6. On the other hand, learned counsel for the respondent contended that the impugned
judgment has been rightly passed by the trial court after proper appreciation of the evidence on record and the relevant law, and as such requested for dismissal of the appeal.
7. We have heard the arguments of the learned counsel for the parties, gone through the
entire evidence and the impugned judgment with the able assistance of counsel for the parties and have considered the relevant law. The Respondent was tried under section 9(a)(v), N.A.O. for accumulating assets beyond his known sources of income, the relevant provision of the N.A.O. stipulates as under:
"9. Corruption and Corrupt Practices.---(a) A holder of a public office, or any other
person, is said to commit or to have committed the offence of corruption and corrupt practices: -
(i) ..................
(ii) .................
(iii) ................
(iv) ................
(v) if he or any of his dependents or benamidars owns, possesses, or has any right or
title in acquired assets or holds irrevocable power -of-attorney in respect of any assets
or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for or maintains a standard of living beyond that which is commensurate with his sources of income."
8. The appellant's case in a nutshell was that the respondent remained posted as
Superintendent, Yetabad Sheep Farm House, Livestock Department Loralai from 1982 to 1998 and retired as DG Livestock, who on investigation according to the prosecution had purchased different properties, in both his name and his benamidar son namely Syed Ali Abbas Shah, valued far in excess of any amount, which he had earned as an officer in the Livestock Department and/or through any other sources of income and also a huge amount of unexplained credit lying in his account, and thus through corrupt means had acquired assets beyond his known sources of income.
9. Initially a reference was filed against the respondent in respect of the properties
owned by him at Lahore, Quetta, Ziarat and Loralai, while having bank credits in his account, but subsequently a supplementary reference was also filed with the allegation that house No. 198- B Jinnah Town, Quetta was traced out, which was allegedly purchased by the
respondent in the name of his son namely Syed Ali Abbas Shah. The prosecution in order to
prove the charge produced as many as seventeen witnesses, they mainly relied upon the documents and deposed that the respondent has accumulated huge property in excess of his known source of income. The respondent, though did not plead guilty to the charge, but admitted the possession and ownership of the properties alleged by the prosecution in t he
reference, however, it was the stance of the respondent that he has accumulated the property through legal means of income viz through his salary income and also from the coal mining business, which as per his assertion he started with Sardar Tahir Khan Luni, in 1980, that too
after obtaining permission from the Project Director of his department. The perusal of the record reveals that no effort was made by the investigating authorities to inquire about the alleged sources of income of the respondent nor ever tried to conduct investigation from the
legal heirs of said Sardar Tahir Khan Luni or, any one else, affiliated with the business of said coal mining, about partnership of the respondent with said Sardar Tahir Khan Luni and the so called income from the said business. It is imperative to add here that earlier when the respondent was called upon by the NAB authorities, he had tendered details of his income and expenditure statement before the NAB Authorities, wherein he had also claimed that he earned the income from the business of coal mining, but even then the NAB authorities did
not bother to conduct investigation on this aspect. The investigating officer during course of cross -examination admitted certain facts and it will be advantageous to reprod uce the same,
which are as under:
The above mentioned admission of the Investigating Officer clearly shows that no
proper investigation was conducted by the prosecution.
10. Perusal of the record reveals that though the respondent owned the properties with the
assertion that the same were legally and lawfully purchased by him through his legal means
and by owning the same, though burden shifted on the respondent, but still it was the prosecution who had to establish the sources of the respondent or to establish that the sources shown by the respondent firstly during inquiry/investigation and secondly before the trial court, were not legal or not in conformity with his properties. As noted above, the investigating officer on each occasion faile d to properly investigate the matter. It was
obligatory duty of the investigating officer to investigate each and every aspect of the case keeping in view the defence version taken by the respondent/accused at the time of
investigation, but surprisingly the Investigating officer has acted not only in partial manner,
but also showed his inability by investigating the matter with certain flaws, not curable at
any side and point.
11. In the case of 'Muhammad Hashim Babar v. State' (2010 SCMR 1697) the Hon'ble
Supreme Court set out the guidelines, which would be required to prove an assets as beyond known sources of income's case under section 9(a)(v), N.A.O. as under:
"It is pertinent to mention here that in order to prove the case is the duty and obligation of the prosecution to prove the ingredients of the offence which are as
follows: -
(i) It must establish that the petitioner was holder of a public office.
(ii) The nature and extent of the pecuniary resources of property which were found in
his possession.
(iii) It must be proved as to what were his known source of income.
(iv) It must prove, quite objectively, that such resources or property found in possession of the petitioner were disproportionate to his known sources of income.
The aforesaid ingred ients are proved then the offence as defined under section 9(a)(v)
is complete, unless the petitioner is able to account for such resources or property. It is also settled proposition of law that mere possession of any pecuniary resources or property is by itself not an offence, but failure to satisfactorily account for such
possession of pecuniary resources or property that makes the possession objectionable and constitute offence meaning thereby that if an (sic.) petitioner cannot explain, presumption under section 18(c) of the Ordinance that petitioner is guilty of corruption and corrupt practices is required to be drawn."
12. In the latter case of 'Ghani -ur-Rehman v. National Accountability Bureau' (PLD 2011
SC 1144) the Hon'ble Supreme Court approvingly relied on the finding rendered in Hashim
Babar's case (Supra) but it also emphasized the need to carry out a thorough and meticulous
exercise of investigating that what were the actual sources of income of the petitioner and
weighing this carefully agains t the assets which he had acquired in the following terms at
(Page 1147).
"We have heard the learned counsel for the parties at some length and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellant that during the investigation of this case the sources of
income of the appellant had never been determined and his income had never been
quantified, the Reference filed and the Charge framed against the appellant were absolutely silent about the income or the sources of income of the appellant and even
during the trial no evidence whatsoever had been led by the prosecution in that regard. In these circumstances, according to him, it was not possible for the learned trial court to compare the value of the assets and pecuniary resources of the appellant,
his dependents or the so- called benamidars with the appellant's income and to hold
that the value of the assets in issue was disproportionate to the appellant's income. It has also been pointed out by him in this regard that Qazi Abdul Hameed, Inspector FIA (P.W.18), the investigation officer of this case, had stated before the learned trial court in so many words that the appellant had informed him about many different sources of his income but he, the investigation officer, had not brought that information on the record of investigation and that information supplied by the appellant."
13. The evidence led by the prosecution nowhere disclosed that the assets, subject -matter
of the reference, were purchased by the accused through illegal means by corruption and corrupt practices or he was maintaining standard of living beyond his known source s of
income. While the prosecution has also failed to bring on record the known sources of income of accused during his posting as Assistant Director and thereafter as Project Director and that resource or property of accused were disproportionate to his k nown sources of
income. On the contrary, the accused has brought on record sufficient material to establish
that he had acquired and accumulated the assets through reliable sources, while one property registered in his wife's name was purchased through the amount gifted by his father -in-law,
in respect of which no investigation was carried out by the IO, thus the stance taken by the respondent/accused cannot be ruled out. It was also the duty of the prosecution to have
discovered and proved the known source s of respondent. The Hon'ble Supreme Court while
Emphasizing on the ingredients of the offence under section 9(a)(v) of the National
Accountability Ordinance, 1999 in case of Ghani -ur-Rehman v National Accountability
Bureau and others (PLD 2011 Supreme Court 1144) laid down as under:
"The law now stands settled that in order to prove commission of an offence under section 9(a)(v) of the National Accountability Ordinance, 1999 it has to be proved by the prosecution as to what were the known sources of incom e of the accused person at
the relevant time and that the resources or property of the accused person were disproportionate to his known sources of income and it is after such proof has been led and the necessary details have been provided by the prosecuti on that the onus
shifts to the accused person to account for such resources or property because mere possession of any pecuniary resource or property is by itself not an offence but it is failure to satisfactorily account for such possession of pecuniary r esource or property
that makes the possession objectionable and constitutes the relevant offence. In the case in hand the appellant's sources of income had never been brought on the record by the prosecution and had never been quantified by it at any stage of this case and,
therefore, it was not possible for the learned trial court to conclude or to hold that the appellant or his dependants or so- called benamidars owned, or possessed assets or
pecuniary resources disproportionate to the appellant's income. It is unfortunate that
the investigating officer of this case as well as those responsible for prosecution of this case before the learned trial court had, probably on account of their sheer incompetence, utterly failed to do the needful in this regard and it is regrettable that
even the learned trial court as well as the learned appellate court had completely failed to advert to this critical aspect of the present case."
14. In this case we are of the view that the respondent has, from the evidence on reco rd,
been able to satisfactorily explain from where and how he acquired assets. The prosecution in our view has also severely damaged its case by not taking into account the financial position of the son of the respondent Syed Abbas Ali Shah, who according to the respondent was having his own sources with his own National Tax Number (NTN), at the time when the alleged property registered in his name was purchased. The investigating officer failed to conduct inquiry in respect of income of the respondent's so n and also to investigate the
matter that whether the respondent's son was having any NTN number and if so, what was the source for his income shown therein, thus it cannot be conclusively found that the property on his name were not bought by him out of his own independent financial resources. Even otherwise, once the I.O. became aware that the respondent's son was a man of substance/wealth, it was incumbent on him to investigate and trace out his sources of income to see whether he could have purchased the property in his name, which he failed to do. Furthermore, despite being an alleged benamidar of the respondent he was not arrayed as accused in the reference filed by the NAB.
15. We have also observed that except the Investigation Officers, who have imp licated
the respondent in this case, none other witness was produced in support of the prosecution
case, nor any material was brought on record, and we do not find the statement of prosecution witnesses to be particularly confidence inspiring when consider ed against the
entirety of the evidence on record.
16. As regard to the amount and transaction made through the account, which is alleged
by the prosecution to be owned by the respondent, but since the respondent has disowned the amount lying therein, and the learned trial court has already ordered for confiscation of the
amount lying in the account, whereas the respondent remained contented with the observation of the learned trial court to the extent by not assailing the judgment of the trial court to the said extent, therefore, the observation passed by the trial court to this extent are
upheld and the amount in the account is confiscated in favour of the State. However, it is ordered that in case the amount is withdrawn by anyone including the respondent , the same,
shall be recovered back even through the properties owned by the respondent within one month from passing of this order.
17. It is settled law that judgment of acquittal should not be interjected until findings are
perverse, arbitrary, foolish, artificial, speculative and ridiculous as held by the Honorable
Supreme Court in the case of 'The State v. Abdul Khaliq and others' (PLD 2011 Supreme Court 554). Moreover, the scope of interference in appeal against acquittal is narrow and limited because in an acquittal the presumption of an innocence is significantly added to the
cardinal rule of criminal jurisprudence as the accused shall be presumed to be innocent until proved guilty. In other words, the presumption of innocence is doubled as held by t he
Honourable Supreme Court of Pakistan in the above referred judgment.
18. Thus, keeping in view the above law and after careful scrutiny/analysis of the record
and the impugned judgment, we find that the respondent has rightly been acquitted of the charg e by the impugned judgment as the findings of the trial court are neither perverse nor
speculative but rather well reasoned and we find no reason to interfere with the same, as such the appeal against acquittal of the respondent is dismissed, being bereft of any merit.
MH/148/Bal. Appeal dismisseThis 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,
let us know.