2014 PLP 985 (SCMR)

TASSADUQ HUSSAIN JILLANI, C.J.

Appellant along with Mir Faiq Ali Jamali and Ch. Muhammad Ramzan was tried in the NAB Reference (bearing No. 21/2000) and in terms of the judgment of the Accountability Court No. I, Quetta dated 28-4-2001 all the three were convicted under section 10(a) of the National Accountability Bureau Ordinance, 1999 and sentenced in terms as follows:-- "

30. The quantum of sentence for each accused goes as under:-- (i) Accused Mir Faiq Ali Jamali is convicted and sentenced under section 10(a) of NAB Ordinance for 3 years' R.I. and a fine of Rs.6,000,

000. In case of non-payment of fine amount, the same be recovered by way of forfeiting his newly constructed, bungalow on the State land. Concerned collector be informed for action. Unless this amount is recovered he shall not be released from custody. (ii) Accused Chaudhry Mohammad Ramzan is convicted and sentenced under section 10(a) of NAB Ordinance 1999 for one year's R.I. and fine of Rs.50,

000. In default of payment of fine he will further undergo four months' R.I. (iii) Whereas accused Wahid Bakhsh Baloch is convicted and sentenced under section 10(a) of NAB Ordinance for six months' R.I. and a fine of Rs.25,

000. In default of payment of fine he will further undergo two months' R.I.".

2. The prosecution story against the three accused briefly stated is that Mir Faiq Ali Jamali in his capacity as Minister for Labour and Manpower, Balochistan constructed a bungalow at Dera Allah Yar; that he occupied 41068 square feet State land for the construction of the said bungalow; that out of this an area of 24018 square feet was the property of the Municipal Committee at Dera Allah Yar which was got allotted in the name of his special man Wahid Bakhsh son of Muhammad Ramzan at Rs.4 per square feet whereas the prevalent rate was Rs.150 per square feet. It was alleged that this piece of land had two rooms municipality house which was demolished; that the cost of the said land was Rs.3,602,700 whereas he managed this allotment at Rs.96,072; that wrong assessment was made by the then Deputy Commissioner Jaffarabad Ch. Muhammad Ramzan. It was further alleged that in the remaining portion, 3508 sqft. was got allotted in the fake name of Iqbal son of Momin Faqir at a low rate of Rs.30 per sqft. instead of Rs.150 per sqft.; that this allotment was made by Senior Member Board of Revenue on the basis of assessment and NOC issued by Wahid Bakhsh Baloch, Ex-Deputy Commissioner Jaffarabad. This piece of land was in possession of the revenue department and the cost of the structure and land was Rs.733,800 but he obtained it at Rs.312,

840. Besides that he also forcibly occupied 13542 sqft. State land including 2000 sqft. belonging to Niaz Muhammad Kakar son of Khan Mohammad Kakar. Due to this wrong assessment and illegal occupation of State land, a loss to the tune of Rs.5,958,888 was caused to the Government. So far as the alleged role of the appellant was concerned, the precise allegation against him is reflected in the charge sheet framed by the trial Court in terms of the order dated 3-10-2000, which reads as follows:-- "You accused Wahid Bakhsh Baloch being Deputy Commissioner Jaffarabad made a wrong assessment of the super structure and land in order to benefit Mir Faiq Ali Jamali, by doing so you both caused a loss of Rs.420,960 to the Government. You Wahid Bakhsh and Chaudhry Muhammad Ramzan had arranged issuance of illegal patas and wrong assessment reports in order to oblige Mir Faiq Ali Jamali."

3. During trial, the prosecution examined six witnesses namely P.W.1 Jamil Anwar, Ex-Chief Officer, Municipal Committee, Dera Allah Yar, P.W.2 Nisar Ahmed, Secretary Town Committee, P.W.3 Niaz Muhammad Kakar, Assistant Election Commissioner whose land was illegally occupied by the accused Mir Faiq Ali Jamali, P.W.4 Khair Muhammad, Ex-Sub Engineer, Dera Allah Yar, P.W.5 Khameesa Khan, Tax Moharrar and P.W.6 Malik Muhammad Akram, Investigating Officer. While appearing as his own witness in terms of section 340, Cr.P.C. the appellant took up the plea that while posted as Deputy Commissioner Jaffarabbad, one application was sent to him for report which was filed by one Iqbal son of Momin Faqeer; that he in turn marked the application to the Chief Officer Municipal Committee, Dera Allah Yar; that the said application was regarding allotment of an old quarter of the committee; that the Chief Officer got the price of the said quarter assessed in terms of the report Exh.A-1 and Exh.A-2; that Exh.A-1 was signed by Sub-Engineer, Municipal Committee, Dera Allah Yar and also verified by XEN B.R. District Jaffarabad; that since these officers were the technical officers regarding the assessment, he forwarded the said assessment vide letter Exh.A-4; that Senior Member Board of Revenue vide Exh.A-5 instructed for specific recommendation to which he had replied vide Exh.A-6 that the office of the Deputy Commissioner had no objection if the applied for property was allotted in favour of the applicant on usual terms and conditions subject to payment of cost of existing building as well as cost of plot assessed as Rs.3,12,

840. However, the Board of Revenue not satisfied with the afore-referred letter sent another letter vide Exh.A-8 and made a query that "you should please indicate in your report as to which Department of Balochistan Government the building belongs and should specifically say if the building belongs to another than your own, then an NOC will also be required from that Department for the allotment of the same to the applicant. Please cover all these points and send a comprehensive report so that the case could be processed further." Responding to that the appellant sent letter vide Exh.A-9 wherein he stated as follows:-- "

2. It is stated that the said building exists on a plot which is the property of Revenue Department and is presently in the custody of the Deputy Commissioner. It is in a dilapidated condition and can't be salvaged. It may, therefore, be allotted to applicant on the rate already assessed."

4. Thereafter vide letter Exh.A-10 the land was allotted by the Secretary, Board of Revenue which reads as follows:-- "The Government of Balochistan approved the allotment of land/plot with Kacha construction on lease basis for the period of 99 years in favour of Mr. Muhammad Iqbal son of Momin Faqir resident of Dera Allah Yar at the total cost of Rs.3,12,

840. A proper lease deed/agreement may also be made with the allottee/lessee and a copy thereof be sent to this Board for record in this office."

5. He lastly stated in his statement that the possession of the property in question was not handed over by him either to Iqbal son of Momin or to anyone else and that he had been falsely implicated.

6. In support of this appeal, learned counsel for the appellant submitted that the appellant neither made the allotment of the property subject matter of the charge framed against him nor made the assessment which admittedly was made by technical officials i.e. P.W.4 Khair Muhammad and XEN Sher Baloch who verified the said assessment and was not produced as witness. He added that the appellant had gained no financial benefit from the allotment and there is no allegation to that effect either. That being so, he contended, no mens rea can be attributed to him. He maintained that it is a case in which admittedly no financial loss accrued to the Government as the property in question was leased out to Iqbal for a period of 99 years and it can be cancelled anytime. However, it is admitted by the Additional Prosecutor General that it has neither been cancelled nor the National Accountability Bureau has made any request to that effect to the Provincial Government (his explanation is that since the appeal was pending therefore, no recommendation was made by the NAB). Referring to the evidence against the appellant, learned counsel submitted that the only incriminating evidence produced by the prosecution against the appellant is statement of Khair Muhammad P.W.4 who at the relevant time was Sub-Engineer and assessed the property at the rate of Rs.30 per sqft. However, during investigation he assessed the same property at the rate of Rs.150 per sqft. His testimony is worthy of no credit according to learned counsel because during cross-examination though his stand was that he initially assessed the property at the rate of Rs. 150 per sqft. but at the asking of the appellant he reduced it to Rs. 30 per sqft. but also admitted that he had no written proof to that effect. On question as to how he assessed the property at the rate of Rs.150 per sqft., he replied that it was done after assessing the value of the adjoining properties but conceded when asked that none of the adjoining properties were ever assessed since they were never sold. The testimony of this witness, according to learned counsel, is also not worthy of any reliance because he as per the prosecution story is an accomplice and the statement of an accomplice cannot be believed unless it is corroborated by any independent circumstance. He lastly submitted that the officials who made the allotment namely Senior Member Board of Revenue Abdul Hakeem and the Secretary Board of Revenue who conveyed the allotment order were never made accused.

7. Learned Additional Prosecutor-General defended the impugned judgment by submitting that the prosecution case against the appellant stood proved beyond reasonable doubt because the statement of P.W.4 Khair Muhammad in unequivocal terms implicates the appellant that it was at his asking that the property was assessed at Rs.30 per sqft. whereas the actual value of the property was Rs.150 per sqft. He added that another criminal dimension of the appellant's conduct was that instead of referring the matter to the Revenue Department for assessment which owned the property, the matter was referred to the Sub-Engineer of the Municipal Committee, Dera Allah Yar for mala fide reasons.

8. We have considered the submissions made and have gone through the evidence on record and the impugned judgment.

9. Appellant was charged under section 9(a)(vi) of the NAB Ordinance, 1999 and convicted under section 10(a) of the NAB Ordinance, 1999. A brief reference to section 9(a)(vi) would be in order. It reads as follows:--

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) (vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority.

10. In terms of the afore-referred charging provision, the initial burden is on the prosecution to prove that the accused was guilty of any of the offences for which he was being charged.

11. In Pir Mazharul Haq v. State (PLD 2005 SC 63), the principle that the initial onus lies on the prosecution to prove its case was reiterated and the Court at page 82 observed as follows:-- "

28. In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." In this regard reference can be made to the cases titled PLD 1956 FC 123, AIR 1956 SC 316, Phipson Evidence 7th Ed. page 33, Jagdish Ram v. Mukand Lal, 1928 L.763, Hem Chandra De Sarkar v. Amiyabala De Sarkar, 52 C. 121, Muhammad Tahir v. Raghubar Dayal, 11 IC 761, Pankjammal v. Secretary of State, 40 I.C. 516,.Pandurang v. Tukaram, 1934 N. 253, Peddi Reddy Fagi Reddi v. Panem Chirinabbi Reddi 56 I.A. 6, Chainta Dasya v. Bhalku Das, 1930 C.591, Ganga Ram v. Rulia, 2 L.249, Rangavva Hanmappa Bidri v. Sheshappa Bidri 51 B.258, Bishambar Das v: Telu Ram 1934 L.1019, Pokhar Day v. Thakar Das, 1930 L. 213(2), Jadu Nath v. Ramun Mal, 1921 L.284, Ruthna Gramany v. Veerabudra Aiyar, 21 IC 96, Sita Ram v. Haidar Khan, 25 I.C. 138, Makund v. Bahori Lal, 3 A. 824, Muhammad Tahir v. Raghubar Dayal 11 LC 76, Hajee Lin v. Mating Ba 5 R. 822, Uttam Chand Ishwar v. Hakim Muhammad Sharif 1932 L. 417, Phipson, Ev., 7th Edn. 33, Taylor and 371, Over v. Harwood (1900) I QB 803, Bindra v. 1934 O. 485, Deputy Legal Remembrancer, Behar and Orissa v. Mathukdhari Singh 32 IC 137, Shahzad Khan v. E, 1933 P.513, 515, Robert Strari Wanchoe v.E. 161 C. 168, Wolmintton v. The Director of Public Prosecutions 1935 AC 462, Nannhum v. E 165 IC 458, Muhammad Rafi v. E 1933 P. 598, Mohidin Karim v. E 551 IC 849, Gendan Lal v. E. 1930 O. 460, Basudeb Mandar v. E 1929 P. 112, Lila Ram v. E 1927 L. 862(2), Surat Singh v. Crown 1923 L. 42, Mst. Jahura Bibi v. E 1931 C. 11, Rannum v. E 7 L: 84, Ghauns v. E 7 L.561, Dinamani Udaipal Ram Twary v. E 98 IC 241,. Nur Khan v. E. 1927 O. 611, Muzaffar v. E 99 IC 322, Bishambar Nath Baijpai v. E 1925 O. 676, E. v. Damapala 14 R. 666, Bai Mani v. Usafali Bhudar 1931 B. 229, Muhammad Luqman v. State PLD 1970 SC 10, Shamoon v. State 1995 SCMR 1377; Wali Muhammad v. The State 1969 SCMR 612, Khushi Muhammad v. Muhammad Hanif 1980 SCMR 616, Ali Sher v. State PLD 1980 SC 317, Hakim Ali v. State 1971 SCMR 432, Rab Nawaz v. State PLD 1994 SC 858.

29. We are not persuaded to agree with learned Deputy Prosecutor General NAB that conviction could have been awarded in view of the provision as contained in section 14 of NAB Ordinance, 1999 for the simple reason that "the section cannot be used to undermine the well established rule of law that save in very exceptional class of cases, the burden to prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of proving the guilt of an accused which always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty." The above view finds support from the authorities mentioned herein below:-- Shambu Nath Mehara v. State (1956 SC 404), E v. Santa Singh (1944 L 339), State v. Pranjivan Gandalal (1952 Sau. 35), J.A. Humphrey v. Crown (PLD 1952 L 632), E v. Damapla (1937 R 83), E v. Santa Singh 1944 L 339, Kanakasabai Pillai v. E. 1940 M 1., Senerviratue v. R 1936 PC 289, Attygalie v. R 1936 PC 169, Raghunath Gope v. E 1941 P 175, Mattial Chakravarty v. The King 1949 C 586, Lachman Singh v. The King 1949 C 235."

30. It hardly needs any elaboration that "the ordinary rule that applies to criminal trials, viz., that the onus lies on the prosecution to prove the guilt of the accused, is not in any way modified by the rule of evidence contained in this section which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, that such inference can be negative by proof of some fact which, in its nature, can only be within the special knowledge of the accused. If the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence." (Narayanan v. Executive Officer, ILR [1964] 1 Ker 177)."

12. In M. Anwar Saifullah Khan v. State (PLD 2002 Lahore 458), the Court while adverting to the initial burden on prosecution to prove the charge of misuse of authorities or powers held at page 477 as under:-- "

20. Misuse of authority means the use of authority or power in a manner contrary to law or reflects an unreasonable departure from known precedents or custom. Every misuse of authority is not culpable. To establish the charge of misuse of authority, the prosecution has to establish the two essential ingredients of the alleged crime i.e. "mens rea" and "actus reus". If either of these is missing no offence is made out. Mens rea or guilty mind, in context of misuse of authority, would require that the accused had the knowledge that he had no authority to act in the manner he acted or that it was against law or practice in vogue but despite that he issued the instruction or passed the order. In the instant case the documentary evidence led by the prosecution and its own witnesses admit that the appellant was told that he had the authority to relax the rules and the competent authority P.W.3 could make the appointments thereafter. The guilty intent or mens rea is missing. Even the actus reus is doubtful because he had not made the appointments. He merely approved the proposal and sent the matter to the competent authority. At worst he could be accused of mistake of civil law. i.e. ignorance of rules. But a mistake of civil law negates mens rea."

13. Admittedly the only evidence to prove mens rea is the statement of Khair Muhammad P.W.4 who was at that time serving as Sub-Engineer in the Municipal Committee and alleged that when he received the letter to assess the property in question, he initially valued it as Rs.150 per sqft. but it was at the asking of the appellant that he reduced it to Rs.30 per sqft. However, in his cross-examination he admitted that he never gave it in writing that the property valued Rs.150 per sqft. When questioned regarding the formula followed by him to determine the value, he explained that the property in question was assessed after assessing the value of the adjacent properties but admitted that the adjoining properties were never assessed as none was sold. The appellant while appearing as his own witness in terms of section 340, Cr.P.C. had candidly denied the charge and maintained that he merely forwarded the letter received from the Senior Member Board of Revenue to Sub-Engineer concerned and the latter's report received regarding assessment was sent to the former and that he had nothing to do with either the allotment or giving possession of the property to Iqbal son of Momin. Surprisingly no question was asked by the prosecution to him that the property in question was assessed at the rate of Rs. 150 at his asking; that he derived any pecuniary benefit from the said transaction or that the property was owned by the revenue department and not the Municipal Committee. There is no corroboration of the statement of P.W.4 regarding the value of the property nor is there any other documentary evidence either.

14. In the afore-referred circumstances, we are of the view that the prosecution had failed to discharge the initial burden to prove beyond reasonable doubt to sustain conviction. Consequently, the impugned judgments cannot be sustained. The appeal is allowed and the impugned judgment of the High Court and that of the trial Court to his extent are set aside. The appellant is acquitted of the charge. MWA/W-2/SC Appeal allowed.