2002 M (PLP)

and, "(8) Amendment of section. 9, Ordinance XVIII of 1999‑‑‑‑In the said Ordinance in section 9,‑‑ (i) ........................... (ii) in subsection (b), after the word "Court", the words "including the High Court" shall be omitted, and (iii) . Resultantly, the Constitutional petition was converted into bail application, by a Division Bench of this Court on 17‑8‑2001 and it was numbered as a Criminal Bail Application No. 1043 of 2001. We have heard Mr. A.Q. Halepota learned counsel appearing on behalf of the applicant/accused and M/s. Aamir Raza Naqvi and Sarfraz Khan Tanoli learned counsel appearing on behalf of the NAB authorities. Mr. Aamir Raza Naqvi has opposed the bail plea of the applicant/accused and has relied upon the case of Imtiaz Ahmed v. The State reported in PLD 1997 SC

545. Mr. Halepota learned counsel argued that there was no evidence that the other persons were either dependents or benamidars of the applicant/accused. Mr. Halepota further argued that except for ancestral property listed at serial No. II of schedule annexed to the charge, no other property was either owned/possessed or held by the applicant/accused. It was submitted by Mr. Halepota that the word `dependents' has not been defined in NAB Ordinance, 1999. He, however, referred to section 5(e) and explanation of Prevention of Corruption Act, 1947, (Act II of 1947) wherein the word "dependent' in relation to a public servant has been defined as meaning. a wife, children and step‑children; parents, sister and minor brother residing with and wholly dependent on accused. He submitted that no evidence was collected by the prosecution agency to show that the sons of the accused who were in possession of and owned other properties, resided with and were wholly dependent upon the accused. He further submitted that likewise prosecution agency did not have any material with regard to properties, which were alleged to be held as `benami' on behalf of accused. Mr. Aamir Naqvi and Mr. Sarfraz Tanoli learned counsel appeared for NAB. Mr. Naqvi argued that the observations made by the learned trial Judge should not have made and that the prosecution has examined two prosecution witnesses during the pendency of bail application in this Court. He referred to the depositions of two P.Ws. namely, Sarfraz Ahmed Jalbani and Muhammad Khalid Ashraf who deposed regarding the valuation of property and that of electric appliances and power load installed at the factories owned by the accused and his family members. He quoted PLD 1997 SC 545 stated above and canvassed that no bail could be granted to accused who are guilty of crimes against society. It is well‑settled that burden of showing that a particular transaction is `benami' and the accused/owner is not the real owner always rests on the persons asserting it to be so and that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of `benami' or establish circumstances unerringly and reasonably raising an inference of the fact. Likewise the prosecution agency has to collect evidence to show that the accused/owner held properties in the name of his dependents who had no independent source of income. It will also be pertinent to reproduce hereinbelow the relevant finding of the trial Court from the impugned order:‑‑ "It is true that the 161, Cr.P.C. statement of the prosecution witnesses do not make any allegation of making of payment of consideration amounts by the accused, himself, for the purpose of purchasing of the properties, shown in the names of his relatives; it is also a fact that the prosecution has not yet produced any evidence in this case, to show that accused is in possession of any of the properties shown to be in the names of his relatives; it is also a fact that two prosecution witnesses were in attendance in this Court on 6‑8‑2001, yet Mr. Sarfraz Khan Tanoli SPP did not examine them, and instead, preferred to make an application for adjournment; it is also a fact that the accused has remained in jail for more than six months since this case was received in this Court for trial. Under the abovementioned circumstances, the accused would have been entitled to the grant of bail, but for the reasons that section 9(b) of the NAB Ordinance debars this Court from granting the bail to the accused, and for such a reason, this application is hereby rejected." The perusal of the material placed on record shows that the accused owns only one residential house mentioned at serial No. 11 of the Schedule of the property appended with the charge. The house was inherited by him from his parents and the electricity connection was allowed by the WAPDA authorities to the said residential house in the year 1975. The allegation is that the remaining properties are `benami' in the name of relatives of associates of the .applicant/accused. No material was pointed out by the learned counsel for the NAB authorities to show that the above said persons were `benamidars' and/or dependants of the accused. No evidence/material was pointed out that these other persons named as benamidas or dependents had any independent source of income of their own or not. It prima facie appears that the prosecution has not conducted investigation into individual income of these other holders of property. Speaking tentatively, therefore, it cannot be said .at this stage that these persons were holding properties/assets on behalf of the applicant/accused. They are all major. The alleged Benamidars/dependents have filed Constitutional Petitions Nos. D‑1569 of 2001 and 1614 of 2001 in this Court wherein it is averred that the applicant is neither owner B nor he has any right or title in the said properties. Thus, nothing was placed on record or pointed out to us from which it could be prima facie deduced at this stage that the properties annexed with the .charge are Benamies. The authority quoted by Mr. Naqvi is distinguishable and it is not applicable to the facts of this case. It may be pertinent to mention that during the pendency o this bail application in this Court two P.Ws. namely Sarfraz Ahmed Jalbani Executive Engineer, Pak P. W . D. Larkana and Muhammad Khalid Ashraf, Executive Engineer, IInd Operation, HESCO, went examined by prosecution. Without dilating upon the deeper appreciation of their testimony, all that could be tentatively said about their testimony was that they only estimated value of certain properties forming subject‑matter of reference. Consequently, keeping in view whatever has been states hereinabove and observation made by the trial Court in its order dated 7‑8‑2001 we are of the considered view that the cas4 D necessitates further enquiry and applicant/accused is entitled to bail. Thus, the applicant/accused ' is granted bail in the sum of Rupees 1 million and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. He is further directed to deposit his passport, if any, issued to him with the Nazir of this Court. By a short order, dated 3‑9‑2001 we had granted bail to the applicant/ accused and above are the detailed reasons for the same. N.H.Q./Q‑21/K Bail grantee