2025 Y L R 1075
[Balochistan]
Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ
IMRAN TAJ GICHKI ---Appellant
Versus
The STATE--- Respondent
Criminal Ehtesab Appeals Nos. 17, 27 and 28 of 2022, decided on 24th January, 2025.
(a) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(v) & 10 ---Qanun -e-Shahadat (10 of 1984), Art. 16 ---Corruption and corrupt
practices ---Appreciation of evidence --- Statement of approver ---Scope --- Accused -
respondents were charged with the allegation of accumulation of assets disproportionate
to their known sources of income and caused loss to the government exchequer to the tune of Rs. 184,609,136/ - by means of corruption and corrupt practices ---Trial Court
convicted the accused "ITG" whereas accused "SI" was acquitted ---Prosecution case
hinged upon the statement of approver under S. 164. Cr.P.C., recorded by Judicial Magistrate ---Testimony of approver reflected that he remained in NAB custody for 33/34
days, and the prosecution had failed to furnish the details that how many times the
accused/ approver was produced before the concerned Court for obtaining his remand ---
Statement of approver must be voluntary and free from any coercion and its evidentiary value was contingent on independent corroboration which implicated the accused in the crime ---Provision of Art. 16 of Qanun -e-Shahadat Order, 1984, evaluated the testimony
of an accomplice or approver ---Such testimony should corroborate in material particulars
the substantial prosecution case and should directly implicated the accused, but in the present case the prosecution's evidence was lacking in substantiating the accusations against the appellant, as such, the testimony of approver could not be relied upon in isolation ---Moreover, the interplay with Art. 43 of Qanun- e-Shahadat, 1984, allowed
confessional statement as circumstantial evidence--- Keeping in view the principle of safe
administration of justice, it was the bounded duty of concerned Judicial Magistrate to observe the mandatory and settled procedure and precautions for recording the judicial confession of an approver ---It was evident from the statement of approver that NAB had
harassed the witness to give statement against the appellant and in this context, the approver filed a constitutional petition wherein he narrated all the facts ---Judicial
Magistrate had not adhered to the provision of S. 364 read with S. 164, Cr.P.C., as such, on such score alone the statement of approver was not to be relied upon---Circumstances established that no infirmity and perversity in impugned judgment of acquittal had been found, thus appeal against acquittal was dismissed---Further prosecution failed to prove the charge against the co -convict, thus appeal against conviction was allowed, in
circumstances.
Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others
1994 SCMR 932 and Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 rel.
(b) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(v) & 10 ---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Corruption and
corrupt practices ---Appreciation of evidence --- Material witnesses not produced ---Effect -
--Accused -respondents were charged with the allegation of accumulation of assets
disproportionate to their known sources of income and caused loss to the government exchequer to the tune of Rs. 184,609,136/ - by means of corruption and corrupt practices --
-Trial Court convicted the accused "ITG" whereas accused "SI" was acquitted ---
Prosecut ion alleged that the appellant had purchased a house and a plot of land, but in
that connection, the material five witnesses were not produced without any cogent reasons ---Thus, adverse presumption under Art. 129(g) of Qanun -e-Shahadat, 1984,
would be drawn against the prosecution that if the said witnesses had been examined then
they would not have supported the prosecution case, which aspect of the matter also made the prosecution version doubtful ---Circumstances established that no infirmity and
perversity in impugned judgment of acquittal had been found, thus appeal against acquittal was dismissed ---Further prosecution failed to prove the charge against the co-
convict, thus appeal against conviction was allowed, in circumstances.
(c) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(v) & 10 ---Corruption and corrupt practices ---Appreciation of evidence ---
Documentary evidence not establishing any nexus between the acquired property and the accused ---Accused -respondents were charged with the allegation of accumulation of
assets disproportionate to their known sources of income and caused loss to the government exchequer to the tune of Rs.184,609,136/ - by means of corruption and
corrupt practices ---Trial Court convicted the accused "ITG" whereas accused "SI" was
acquitted--- Accusation of prosecution was that the NAB had conducted a raid on a house,
to arrest the appellant, but at the time of raid, the appellant was not present in the house --
-While conducting the search of the house, Pakistani/foreign currency, jewellery, and
documents were recovered, which were produced by prosecution witness ---Documents
produced by the prosecution witnesses depicted that the house belonged to "GJ", who was wife of "MA" ---Payment for said house was made by "GJ" from her bank account ---
Prosecution had made acquitted accused -respondent in connected Criminal Ehtesab
Acquittal Appeal and"GJ" as Benamidars in the said property on the strength of property documents, wherein, "GJ" nominated acquitted accused as her nominee in the property documents ---Mere mentioning of the name of a nominee did not confer any title of
ownership with the property, as such, the documents produced to such extent did not establish any nexus of the appellant with the said house ---It was evident from the record
that "MA" and "GJ" had the citizenship of the U.K. and the recovered Pakistani/foreign currency and gold ornaments from their house had no nexus with the appellant ---
Circumstances established that no infirmity and perversity in impugned judgment of acquittal had been found, thus appeal against acquittal was dismissed---Further prosecution failed to prove the charge against the co -convict, thus appeal against
conviction was allowed, in circumstances.
(d) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a)(v) & 10---Corruption and corrupt practices --- Appreciation of evidence ---
Mens rea, non -availability of ---Accused -respondents were charged with the allegation of
accumulation of assets disproportionate to their known sources of income and caused loss to the government exchequer to the tune of Rs.184,609,136/ - by means of corruption and
corrupt practices ---Trial Court convicted the accused "ITG" whereas accused "SI" was
acquitted--- Admittedly the appellant was a holder of a public office i.e. Ex -Secretary to
Chief Minister, but the prosecution record was silent regarding his misuse of authority to gain illegal gains or pecuniary benefits ---Prosecution did not bring on the service record
of the appellant that he had faced any disciplinary action for misconduct, corruption, and corrupt practices in his entire service career ---Section 9(a)(vi) of NAO, 1999,
demonstrated two elements to constitute mens rea i.e. misuse of authority and illegal gains, which were lacking in the instant case ---Initially, the prosecution was duty- bound
to discharge the burden and by mere filing of reference, the burden could not be shifted upon the accused to disprove the allegation--- In the present case, the prosecution had
failed to bring on record trustworthy, credible, and unimpeachable evidence to substantiate the allegations against the appellant ---Circumstances estab -lished that no
infirmity and perversity in impugned judgment of acquittal had been found, thus appeal against acquittal was dismissed ---Further prosecution failed to prove the charge against
the co -convict, thus appeal against conviction was allowed, in circumstances.
The State and others v. M. Idrees Ghauri and others 2008 SCMR 1118 and Ghani -
ur-Rehman v. National Accountability Bureau and others PLD 2011 SC 1144 rel.
Barrister Amir Muhammad Lehri for Appellant (in Criminal Ehtesab Appeal No.
17 of 2022).
Ameer Zaman Jogezai, DPGA, NAB along with Asad Khan Khattak, Special
Prosecutor, NAB for the State (in Criminal Ehtesab Appeal No. 17 of 2022).
Ameer Zaman Jogezai, DPGA, NAB along with Asad Khan Khattak, Special
Prosecutor, NAB for Appellant (in Criminal Ehtesab Appeal No.27 of 2022).
Barrister Amir Muhammad Lehri for Respondent (in Criminal Ehtesab Appeal
No.27 of 2022).
Ameer Zaman Jogezai, DPGA, NAB along with Asad Khan Khattak, Special
Prosecutor, NAB for Appellant (in Criminal Ehtesab Appeal No.28 of 2022).
Barrister Amir Muhammad Lehri for Respondent (in Criminal Ehtesab Appeal
No.28 of 2022).
Date of hearing: 16th December, 2024.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ---Since, the above appeals are arising out of
the same and common impugned judgment dated 17 -05-2022, therefore, are being
decided through this common judgment.
The Criminal Ehtesab Appeal No. 17 of 2022 is directed against the judgment
dated 17.05.2022 (hereinafter the "impugned Judgment") passed by learned
Accountability Court -III, Judge Balochistan, Quetta, (hereinafter the "trial Court") in
Reference No.04/ 2016, whereby the appellant Imran Taj Gichki was convicted and sentenced in the following manner:
"Under section 9(v) of National Accountability Ordinance 1999 and sentenced to suffer R.I for 5 years and fine of Rs.80,000,000/ - (Eight Crore). The amount of
fine if not paid shall be recovered from the moveable and immoveable property of the accused, as per provision of section 33(E) of the National Accountability Ordinance 1999. The property of accused i.e. Flat A -1(1022 sq.ft) Spinzar
Apartment Tehsil Murree, District Rawalpindi, House No.29 -E, Phase V(600 sq
yard) Baharia Town Islamabad and Gold and Currency mentioned in investigation report is hereby confiscated in favour of state. Benefit of section 382(B) Cr.P.C. is extended to accused.
Accused is disqualified for 10 years to hold any public office or contest election and he is also not allowed to apply for or allow any financial facility inform of loan or advance from any Bank or financial institution for a period of 10 years as provided under section 15 of National Accountability Ordinance, 1999 to be reckoned from the date of completion of his sentence.
The prosecution failed to prove charge against Mst. Shahana Imran as such she is hereby acquitted of the charge. She was on bail, her bail bonds stands (sic) discharge (sic) after lapses of appeal period.
The Hon'ble High Court of Balochistan is pleased to held (sic) in Criminal Ahtesab (sic) Appeal No. 9/2020, Manawar Hussain v. State and Criminal Ahtesab (sic) Appeal No.03 of 2020 Shiekh (sic) Rahmat Khan v. State, that the conviction awarded in absensia (sic) under section 31(A) of the Ordinance is in violation of Constitution of Islamic Republic of Pakistan, 1973 as such the case/reference to the extent of absconding accused Ghazala Jabeen and Ch. Muhammad Ashraf be kept informant till their arrest."
Through Criminal Ehtesab Appeals Nos.27 and 28 of 2022, the State/ NAB has
challenged the impugned judgment dated 17- 05- 2022 for enhancement of sentence of the
appellant Imran Taj Gichki and acquittal of respondent Shahana Imran, respectively.
2. Succinct facts of the instant case are that NAB Balochistan, Quetta received a
complaint against accused Imran Taj Gichki, Ex -Secretary of Chief Minister Balochistan,
Quetta with the allegation of accumulation of assets disproportionate to his known source
of income. Initially, an inquiry was authorized, which was upgraded into an investigation on 08.07.2012. It revealed in the investigation that the appellant Imran Taj Gichki Ex -
Secretary Chief Minister Balochistan, Quetta accumulated huge valuable properties in Islamabad and Rawalpindi in the name of his benamidars, and the other accused persons
to save his crime proceeds collected through corruption and corrupt practices, the co -
accused Ghazala Jabeen and Mst. Shahana Imran had no source of income and the
properties purchased by the appellant in their names as benamidars; further, alleged that the appellant
Imran Taj Gichki himself, as well as his family, made several foreign visits during the
years 2009 to 2014 and 2015, the detail of properties and liabilities of the appellant is given in para No.01 of the Final Investigation Report; further alleged that the appellant while holding the public office had caused loss to
the Government exchequer to the tune of Rs.184,609,136/ - by means
of corruption and corrupt practices. On the said allegations, NAB Reference No. 04 of
2016 was filed against accused Imran Taj Gichki, Shahana Imran, and others and the trial
commenced.
3. On 28 -09-2017, charge was framed against the accused/appellant Imran Taj Gichki
and acquitted respondent Shahana Imran under section 9(a), (v) read with section 10 of
NAB Ordinance, 1999, to which they pleaded not guilty and claimed trial, whereas
accused Ghazala Jabeen and Muhammad Ashraf were shown as absconders and accused
Jameel Ahmed became approver.
4. To prove the charge, the prosecution produced PW -1 Muhammad Mukhtar
Patwari, who produced the revenue documents as Art -P/1 to Art -P/2 through seizure
memo Ex.P -A, PW -2 Abid Hussain Businessman, produced the documents as Art -P/3 to
Art-P/5 through seizure memo Ex.P/2- A, PW -3 Muhammad Aqeel Khan, Businessman,
produced the documents as Art -P/6 to Art -P/9 through seizure memo Ex.P/3- A, PW -4
Abdul Sattar Khan, Farmer, produced the documents as Art -P/10 to Art -P/17 through
seizure memo Ex.P/4 - A, PW -5 Zakir Khan, Assistant, NAB Balochistan, Quetta,
produced the documents as Art -P/18 to Art -P/32 through seizure memo Ex.P/5 - A, PW -6
Sarfaraz Ali, produced an affidavit
as Art -P/32 through seizure memo Ex.P/6- A, PW -7 Ghulam Sabir, Junior Clerk, NAB
Balochistan, produced the documents as Art -P/33 to Art -P/50 through seizure memo
Ex.P/7- A, PW -8 Ali Asghar, Businessman, produced the documents as Art -P/51 through
seizure memo Ex.P/8 -A, PW -9 Muhammad Atif Awan, Manager Bank Islami Peshawar
Cantt: produced the documents pertaining to accounts of Ghazala Jabeen as Art -P/52 to
Art-P/200 through seizure memo Ex.P/9 -A,
PW-10 Hidayatullah, Patwari Khuzdar, produced the revenue documents as Art -P/201
to Art -P/208 through seizure memo Ex.P/10 -A, PW -11 Sahibzada Maseeh Ullah, Clerk
NAB Office, Islamabad, produced the documents as Art -P/209 to Art -P/210 through
seizure memo Ex.P/11 -A, PW -12 Asad ul Ghafoor, Private employee Rawalpindi,
produced the documents as Art -P/211 to Art -P/214 through seizure memo Ex.P/12- A,
PW-13 Jameel Ahmed, Businessman, PW -14 Muhammad Nisaar, Senior Auditor, AGPR
Rawalpindi, produced the document as Art-P/215 through seizure memo Ex.P/14 -A, PW -
15 Muhammad Hanif, Judicial Magistrate -I, Quetta, produced the staments under section
164, Cr.P.C as Ex.P/15 -A to Ex.P/15 -C, PW -16 Zulfiqar, Branch Manager, MCB Gujrat,
produced the documents as Art -P/216 to Art -P/233 through seizure memo Ex.P/15- A,
PW-17 Abdul Nasir, Accounts Officer, AG Office, Quetta, produced the document as
Art-P/234 through seizure memo Ex.P/17 -A, PW -18 Shahid Ali, Patwari, Turbat,
produced the revenue record/ extract as Art -P/235 to Art -P/247 through seizure memo
Ex.P/18- A, PW -19 Idrees Ahmed, Rt: Operation Manager, KASB Bank, Quetta, produced
the documents as Art -P/248 to Art -P/287 through seizure memo Ex.P/19- A, PW -20 Ubaid
Ullah, Businessman, PW -21 Muhammad Rafique, Driver, PW22 Muhammad Asif,
Assistant Director, NAB, produced the documents as Art -P/288 to Art -P/318 through
seizure memo Ex.P/22 -A, PW -23 Idrees Ahmed, Cook Balochistan House, Islamabad,
PW24 Haji Taimoor Shah, Businessman, PW- 25 Nadeem Subhani, GM Record, DHA,
Islamabad, produced the document as Art -P/319 through seizure memo Ex.P/25 -A, PW -
26 Shakeel Ahmed, Businessman, PW -27 Sharafat Islam, Civil Engineer, Quetta, PW -28
Malik Shah, Businessman, PW- 29 Aftab Javed, Design Engineer, WP -30 Muhammad
Umar Hayat, Investigating Officer, NAB Balochistan, produced the Authority Letter as
Ex.P/30- A, final investigating report Ex.P/30 -B and Reference Ex.P/30 -C.
5. After completion of prosecution evidence, the appellant and acquitted accused
Shahana Imran were examined under section 342, Cr.P.C, wherein they denied the
allegations levelled against them. The appellant recorded his statement on oath as envisaged under section 340(2), Cr.P.C, but acquitted respondent Shahana Imran did not record her statement on oath, nor produced any evidence in her
defence. However, the appellant produced documentary evidence in his defence.
6. At the conclusion of evidence, the trial Court heard the arguments of the parties
and convicted and sentenced the appellant Imran Taj Gichki, whereas acquitted
respondent Shahana Imran vide impugned judgment dated 17 -05-2022, hence these
Criminal Ehtesab Appeals.
7. Learned counsel for the appellant in Criminal Ehtesab Appeal No. 17 of 2022
inter -alia contended that while passing the impugned judgment, the trial Court has failed
to appreciate the evidence in toto in its true perspective, thus the impugned judgment is
contrary to the settled principles of the law; that the prosecution failed to produce any
evidence to prove the allegation of corruption of appellant in any Government
department; that the appellant belongs to a noble family had owned/inhabited agricult ure
lands in Gwadar and other districts of the province, wherefrom, he had received
handsome amount and purchased certain properties, which were on his name or on the
name of his wife Shahana Imran; that the prosecution has failed to establish the
connection of the appellant with the absconding accused regarding the house in Bahria
Town; that the trial Court on one hand disbelieved the prosecution evidence to the extent of acquitted accused Shahana Imran, but on the other hand connected the house in Bahria Town with the appellant without any tangible evidence; that apart from the above, the appellant prior to his arrest had also filed a constitution petition in the Islamabad High Court with regard to his harassment by the NAB authorities, as such, keeping in view the litigation, circumstances and events, the statement of approver was required independent corroboration, which is lacking in the instant case; that even otherwise the statement of the approver alone cannot be believed and conviction without indepe ndent corroboration,
the statement always remains doubtful and not worthy of the reliance, because the approver is the person, who gains the benefit at one stage and later on appeared against his beneficiary; that as per the statement of approver, he made the draft of NBP and thereafter paid the amount to the previous owner, as such, the prosecution was under obligation to have collected the evidence in this regard and produced the same in the competent court of law, but after framing of the charge, the pow ers under section 540,
Cr.P.C. can be exercised, but no such effort was made for brining on record the evidence with regard to payment of transfer of Rs.1,900,000/ - in the account of approver by the
appellant, which was delivered/ paid in favour of the previous owner i.e. Raja Mehmood; further the trial Court while disbelieving the prosecution evidence to the extent of properties at S. Nos.3, 5 and 22 observed that the best evidence in the shape of previous owners had been withheld by the prosecution, whose name appeared at S. No.27 of the
list of witnesses, but was not produced and contrary to that convicted and sentenced the appellant on the basis of the Benamidar of the property, which was recorded in favour of approver Jameel Ahmed; that despite of non -availability of any transaction in the account
of PW -13 and besides contradictions in his statement, same was liable to be rejected in
toto, but discarded the same to the extent of other transactions and believed to the extent of alleged transaction, which is unwarranted under the law; that no conviction could be
made basis on the basis of recovery of gold ornaments and currency (Foreign and Pakistani) from the house in Phase -V Bahria Town, and the revenue extract shows the
ownership of said house with absconding accused Ghazala Jabeen; that as per settled principles of law, the appellant have not confronted the material in his statement under section 342, Cr.P.C. and violated the mandatory provision of law; that the contradictions emerged in the state -ments of PWs -8, 22 and 30 with regard to description of the gold
ornaments were overlooked by the trial Court while passing the impugned judgment; that
there are other several illegalities and irregularities on the basis whereof the impugned judgment is not sustainable to the extent of conviction of the appellant Imran Taj Gichki, hence is liable to be set aside to such extent.
8. Whereas, learned counsel for acquitted respondent No.1 in Criminal Ehtesab
Acquittal Appeal No. 28 of 2022 contended that the trial Court has rightly passed the impugned judgment to the extent of respondent No.1 after appreciating the evidence and material on record; that after gaining acquittal, the double presumption of innocence lies in favor of respondent No.1 and strong exceptional evidence is required to reverse the findings; that the prosecution has failed to justify and prove the accusation beyond reasonable doubt, as such, respondent No.1 was rightly acquitted of the charge and lastly supported the impugned judgment to her extent.
9. Conversely, the Special Prosecutor contends that the trial court's judgment is
flawed and should be overturned. Despite successfully proving the case beyond doubt, particularly regarding the properties (Flat No.01, Spinzar Market, House No. 29- E Phase
V Bahria Town, Islamabad), and assets (gold ornaments, local and foreign currency totaling Rs.12,135,724/ -), but the trial Court acquitted respondent No.1 without cogent
reason. Special Prosecutor argues that the trial Court failed to properly evaluate key evidence (Art.P/1 to Art.P/319), which directly implicated respondent No. 1 in the crime. Furthermore, Imran Taj Gichki purchased properties in the name of his mother and brother -in-law with the active collaboration of co -accused Shahana Imran, which fact was
proved through credible evidence, but the trial Court has not appreciated the material available on record. Besides, the trial Court has taken a lenient view without observing
any mitigating circumstances, as such, the conviction and sentence is liable to be enhanced; even otherwise, the accusation against respondent No.1 Shahana Imran is proven, but the trial Court has considered the minor discrepancies appeared in the testimony of witnesses, which do not create any doubt, thus, the findings to such extent are required to be reversed and respondent No.1 Shahana Imran be convicted accordingly.
10. We have heard the valuable arguments advanced by the learned counsel for the
parties and perused the record with their able assistance.
11. Perusal of record reveals that NAB, Balochistan filed Reference No.04/2016
against the appellant and others with the allegation that the appellant being a holder of
the public office (Ex -Secretary to Chief Minister, Balochistan) accumulated/ amassed
huge 10 moveable and immovable properties from illegitimate source of income, which
was purchased in the name of his wife Mst. Shahana Imran (acquitted respondent in
connected Criminal Ehtesab Acquittal Appeal No.28 of 2022) and accused Ghazala
Jabeen and Muhammad Ashraf as Benamidars; further alleged that the appellant made 40 foreign visits from 2009 -2014, thus, the appellant in connivance with the accused
persons' accumulated assets to the tune of Rs.184,609,136/ - and committed offence under
Section 9(a)(v) read with Section 10 of NAO, 1999. The prosecution case hinges upon the statement under section 164, Cr.P.C of PW -13 Jamil Ahmed (approver) recorded by PW -
15 Muhammad Hanif, Judicial Magistrate -I, Quetta who tendered the statement under
Section 164, Cr.P.C and certificate as Ex.P/15- B and Ex.P/15- C. In his cross -
examination, he replied as under:
12. Likewise, PW -13 Jamil Ahmed/ approver deposed that his statement under Section
164, Cr.P.C was recorded by the Judicial Magistrate, wherein, he told him that he worked
in a private medical company; Imran Taj and Taj Muhammad are his brothers -in-law; the
appellant was P.S to Chief Minister, Balochistan who purchased Flat No.A -1, Spinzar
Apartments, New Iqbal Villas, Bank Road, Marri, District Rawalpindi in sale consideration of Rs.4,100,000/ - from Raja Muhammad Aslam; Imran Taj Gichki
deposited Rs.1,900,000/ - in his account and paid the remaining amount in cash. He
purchased 15 Marla land in Bani Gala, Islamabad from Chaudhry Muhammad Ashraf in sale consideration of Rs.3,100,000/ - and the amount of Rs.25,55,000/ - was paid through
cheque by Ghazala Jabeen account in his bank account; he had 15 Marla land in Bani Gala and 35 Marla in the name of late Mehmooda Nasreen and Ch. Muhammad Ashraf; an agreement for the construction of the house on the land was executed between late Mehmooda Nasreen and Chaudhary Muhammad Ashraf. According to the terms of the said agreement, Chaudhry Muhammad Ashraf had to construct the house and after the sale, they would get their shares; Mr.Imran Gichki and Muhammad Ashraf appointed him as supervisor. The cost of construction was paid by Chaudhary Muhammad Ashraf, Imran Gichki, Shahana Imran, and Ghazala Jabeen; he sold out the house to Saifullah Abro in sale consideration of Rs.37 Million and Saifullah Abro paid Rs.10 million to Chaudhary Muhammad Ashraf and the remaining amount is payable. The witness in his cross -
examination replied as under:
13. In this connection, PW -1 Muhammad Mukhtar Ahmed, Pathwari, Islamabad,
deposed that on 25 -08-2015, he went to NAB office Islamabad and appeared before the
Investigating Officer Muhammad Umar Hayat; he handed over two attested copies of
Mutation Entries bearing Nos.978 and 979, as Art.P/1 and Art.P/2,
which shows the ownership of late Mehmood Nasreen and Jamil Ahmed, respectively.
14. The testimony of approver i.e. PW -13 Jamil Ahmed, reflects that he remained in
NAB custody for 33/34 days, and the prosecution has failed to furnish the details that how many times the accused/approver was produced before the concerned Court for obtaining his remand. The statement of approver must be voluntary and free from any coercion and its evidentiary value is contingent on independent corroboration which implicates the accused in the crime. The provision of Article 16 of Qanun -e-Shahadat
Order, 1984 (QSO, 1984) evaluates the testimony of a compliance (sic) or approver. The role of prudence observe and ensure that such testimony is corroborated in materials particular to the substantial prosecution case and directly implicates the accused, but the prosecution's evidence is lacking to substantiate the accusations against the appellant, as such, the testimony of an approver cannot be relied upon in isolation. Reliance in this regard is placed on the case of "Federation of Pakistan v. Muhammad Shafi Muhammadi, Advocate and 3 others" (1994 SCMR 932), wherein it is held as under:
"12. An accomplice who takes part in the commission of the offence for which his co-accused is charged with falls within the category of a wicked person in terms of
the above verse of the Holy Qur'an and, therefore, before acting upon his
testimony, the truthfulness of it is to be verified by corroborative pieces of evidence on material particulars".
15. Moreover, the interplay with Article 43 of QSO, 1984 allows confessional
statement as circumstantial evidence, but keeping in view the principle of safe administration of justice, it was the bounded duty of concerned Judicial Magistrate to observe the mandatory and settled procedure and precautions for recording the judicial confession of an approver. It is evident from the statement of
PW-13 Jameel Ahmed that NAB, Islamabad had harassed the witness to give statement
against the appellant, and in this context, the approver filed a Constitution Petition before
Islamabad High Court, wherein, narrated all the facts. PW- 15 Muhammad Hanif, Judicial
Magistrate -I, Quetta has not adhered to the provision of section 364 read with section
164, Cr.P.C, as such, on this score alone the statement of approver is not relied upon.
Reliance in this regard is placed on the case of "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274), wherein, the Hon'ble Supreme Court has elaborated
the requirements of section 364 and section 164, Cr.P.C. The operative part is reproduced
as under:
" .......15. Keeping in view the High Court Rules, laying down a binding procedure
for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily than in that case, he would not be to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view B accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of
accused be recorded by the Magistrate with his own hand and in case there is a
genuine compelling reason then, a special note is to be given that the same was
dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded
in another read -over and explained to him in the language, the accused fully
understands and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing Police uniform, or any other police official/officer, because such careless dispensation would considerably damage the volun -tary nature of the confession, made by the accused.
..........16. In the instant case, the Recording Magistrate namely, Ch. Taufiq Ahmed did not observe least precautions, required under the law. He was so careless that the confessions of both the appellants were recorded with grossly violating the law, the same, therefore, has rendered the confession inadmissible which cannot be safely relied upon keeping in view the principle of safe administration of justice."
16. In addition to this, PW -2 Abid Hussain, PW -3 Muhammad Aqeel Khan, and PW -5
Zakir Khan tendered the quotations of Aluminum, Steel Work, and other Sanitary items with regard to the construction of Bani Gala house, but the above witnesses did not identify the appellant nor uttered a single word that they received any payment from the him. PW -4 Abdul Sattar Khan produced the copy of agreements to sell of Bani Gala
house executed between his father Abdul Hafeez and Shakeel Ahmed and Abdul Hafeez and Jamil Ahmed as Art.P/10 to Art.P/11 respectively. PW -6 Sarfaraz Ali produced the
agreement to sell in respect of Bani Gala house executed between Mst. Mehmooda Nasreen and Saifullah Abro as Art.P/32. Likewise, PW -9 Muhammad Atif Awan
produced the account opening form, bank statement, and deposit/credit forms pertaining to accused Ghazala Jabeen as Art.P/54 to Art.P/200. The testimony of afore -mentioned
witnesses indicates that the appellant has no nexus with the property/house situated at Bani Gala, Islamabad, and Flat bearing No.A -1, Spinzar Apartments, New Iqbal Villas,
Bank Road, Marri, District Rawalpindi. Contrary to that the Bani Gala house is recorded in the name of approver and late Mehmooda Nasreen, which was subsequently sold by Mst. Mehmooda Nasreen to Saifullah Abro vide sale agreement Art.P/32 and the sale proceeds were received by Ch: Muhammad Ashraf, therefore, the prosecution has failed to bring on record any corroborative evidence to connect the appellant with the sale/purchase of above -mentioned properties.
17. In addition to this, the prosecution alleged that the appellant had purchased the
properties i -e House No. 102 -B, Phase, II, Bahria Town and Plot No.22, Bahria Town
Phase, V, Islamabad. In this connection, the material witnesses namely Sikandar Sheer,
Syed Rizwan Ali, Nadeem Rafique Awan, Iftikhar Hussain, and Muhammad Rasheed were not produced without any cogent reasons, as such, adverse presumption under Article 129(g) of QSO, 1984 would be drawn against the prosecution that it, if the said witnesses had, were examined then they would not have supported the prosecution case,
which aspect of the matter also makes the prosecution version doubtful.
18. Furthermore, the next accusation of prosecution was that the NAB had conducted a
raid on a house bearing No.29 -E, Phase -V, Bahria Town, Islamabad to arrest the
appellant, but at the time of raid, the appellant was not present in the house. While
conducting the search of the house, Pakistani/Foreign currency, jewelry, and documents were recovered, which were produced by PW -22 Muhammad Asif, Assistant Director,
NAB as Art.P/290 to Art.P/295. The documents produced by the prosecution witnesses depict that the property bearing house No. 29- E, Phase -V, Bahria Town, Islamabad
belongs to Ghazala Jabeen, who is wife of Ch: Muhammad Ashraf. The payment for said house was made by Ghazala Jabeen from her account in Bank Islami (KASB Bank Ltd). The prosecution has made Shahana Imran (acquitted respondent in connected Criminal Ehtesab Acquittal Appeal No.28 of 2022) and Ghazala Jabeen as Benamidars in the said
property on the strength of property documents, wherein, Ghazala Jabeen nominated
Shahana Imran as her nominee in the property documents. Mere mentioning the name of a
nominee does not confer any title of ownership with the property, as such, the documents
produced to such extent do not establish any nexus of the appellant with the said house. It
is evident from the record that Ch. Muhammad Ashraf and Ghazala Jabeen have the citizenship of the U.K. and the recovered Pakistani/Foreign currency and gold ornaments from their house have no nexus with the appellant.
19. Apart from the above, it is an admitted fact that the appellant was a holder of a
public office i.e. Ex -Secretary to Chief Minister, Balochistan, but the prosecution record
is silent regarding his misuse of authority to gain illegal gains or pecuniary benefits. The prosecution did not bring on the service record of the appellant that he had faced any disciplinary action for misconduct, corruption, and corrupt practices in his entire service career. Section 9(a)(vi) of NAO, 1999 demonstrates two elements to constitute mens rea i-e misuse of authority and illegal gains, which are also lacking in the instant case. It is a
cardinal principle of criminal jurisprudence that initially, the prosecution is duty -bound
to discharge the burden and by mere filing of reference, the burden cannot be shifted upon the accused to disprove the allegation. In the present case, the prosecution has failed to bring on record trustworthy, credible, and unimpeachable evidence to substantiate the allegations against the appellant. Reliance in this regard is placed on the case of "The State and others v. M. Idrees Ghauri and others" (2008 SCMR 1118), wherein it is held as under:
"18. The plain reading of the above provisions would show that without discharge of initial burden by the prosecution, the presumption of guilt cannot be raised and trial of a person on vague allegation is misuse of process of law and Courts. The prosecution must discharge its duty fairly, justly and in accordance with law and since any lapse of prosecuting agency in respect of the right and liabilities of a person facing prosecution, is not condonable, therefore, the Courts must be vigilant about the righ t of such a person to save him from incarceration of
unjustified prosecution at the cost of his honor and reputation. In Islam right to honor was declared a sacred right, which means not only the violation of such right is punishable and to be compensated but the violation is also to be prevented and thus on one hand protection is to be provided to the victim and on the other hand, one who violates such right is made accountable. In criminal administration of justice, this is common principle that in case o f liability with penal or quasi
penal consequence, the oppressive use of law in respect of honor and reputation of a person is not justified and denial of safeguard of just and fair treatment must be prevented in the larger interest of justice which is the most fundamental of all the rights in Islam and cannot be abridged by any limitation. The NAB Ordinance is a special law and use of this law in oppressive manner must be tested on touchstone offundamental right of a person as guaranteed under the Constitution. This Court in Asfandyar Wali case, (supra), no doubt held that the NAB Ordinance is not discriminatory or un -Islamic law but in view of its oppressiveness, it was observed
that legislature can completely amend the law or make new law on the subject. Be
that as it may, the misuse of law, cannot be overlooked or ignored by the Superior Court being the custodian of the Constitution. Since the Courts are under legal duty to defend, preserve and enforce the rights of people and their Constitutional guarantees, therefore, notwithstanding the protection provided to the NAB
authorities under the law in respect of their functions, the use of power by them in
an unbridled manner for prosecution of innocent persons in disregard to their
constitutional guarantees, rights, liabilities and duties must not be allowed and Courts must prevent such oppressive use ofpenal law through judicial determination."
A similar view has been taken in the case of "Ghani -ur-Rehman v. National
Accountability Bureau and others" (PLD 2011 SC 1144), wherein it has held 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 income 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 prosecution 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 'ofpecuniary resource 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 dependents 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."
20. Besides, the trial Court has disbelieved a part of prosecution evidence to the extent
of the acquitted respondent in Criminal Ehtesab Appeal No. 28 of 2022 while extending the benefit of doubt as such a double presumption of innocence is attached with the acquitted respondent. It is settled by now that evaluating the entire evidence in the case of appeal against acquittal and an appeal against conviction distinction is to be made and only interference in the instant case could be made where there is a gross mis -reading and
mis-appreciation of evidence, but no infirmity and perversity in impugned judgment of
acquittal has been found, which to such extend is based on valid or sound reasons. Reliance in this regard is placed on the case of "Muhammad Yaqoob v. Manzoor Hussain and 3 others" (2008 SCMR 1549). The relevant part read as follows: -
"It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v. Muhammad Asghar and others 2003 SCMR 477 "that the law relating to re -appraisal of evidence in appeals
against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such
finding cannot be reserved, upset and disturbed except when the judgment is found
to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or mis -reading/non -reading of evidence law requires that a judgment
of acquittal shall not be disturbed even though second opinion may be reasonably possible."
21. As a sequel to the above discussion, it is concluded that the prosecution has failed
to prove the charge against the appellant and the glaring discrepancies, and deficiencies
in the testimony of witnesses make the prosecution version doubtful, as such, the findings
rendered by the trial Court are not based on mis -appreciation of evidence and material
available on record, thus, the impugned judgment is not sustainable.
For the above reasons, Criminal Ehtesab Appeal No. 17 of 2022 is allowed,
consequently, the impugned judgment dated 17.05.2022 passed by Accountability Court -
III Judge, Balochistan, Quetta is hereby set aside to the extent of appellant namely Imran Taj Gichki son of Taj Muhammad Gichki and he is acquitted of the charge in Reference No.04 of 2016 and the moveable and immovable properties confiscated in favour of State shall stand released. The appellant namely Imran Taj Gichki is on bail, his bail bonds stand discharged.
Resultantly, Criminal Ehtesab Appeal No.27 of 2022 for enhancement of sentence
and Criminal Ehtesab Acquittal Appeal No.28 of 2022, being devoid of merits, are dismissed.
JK/41/Bal. Order accordingly.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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