2002 PLP 1400 (YLR)
IKRAM SHAH‑‑‑Appellant Versus THE STATE and another‑‑‑Respondents
| Citation | 2002 PLP 1400 (YLR) |
| Forum / Court | Peshawar |
| Bench Members | Talaat Qayum Qureshi and Ijaz‑ul‑Hassan, JJ |
| Parties | IKRAM SHAH‑‑‑Appellant Versus THE STATE and another‑‑‑Respondents |
Q1: What are the key laws and sections cited in 2002 PLP 1400 (YLR)?
This judgment primarily cites: statutory provisions as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2002 PLP 1400 (YLR)?
The case was heard and decided by the Peshawar bench comprising: Talaat Qayum Qureshi and Ijaz‑ul‑Hassan, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2002 PLP 1400 (YLR) (IKRAM SHAH‑‑‑Appellant Versus THE STATE and another‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Representation
- Date of hearing: 19th June, 2002.
- 5. Qazi Muhammad Anwar, Advocate the learned counsel representing the appellant argued that the prosecution has failed to make out a reasonable case against the appellant, in that it has failed to discharge its initial burden to prove prima facie case against the appellant, therefore, the burden of proof did not shift to the appellant to rebut the presumption of guilt.
Headnotes / Summary
(a) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑ ‑‑‑Ss. 14 & 9‑‑‑Corruption and corrupt practices‑‑‑Presumption against accused‑‑ Burden of proof‑‑‑If a person is charged under S. 9(a) (vi) (vii) of National Accountability Bureau Ordinance, 1999, it is .the prosecution which shall first make out a reasonable and prima facie case against the accused‑‑‑Mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of S.14 of the Ordinance‑‑‑Where the prosecution has made out a prima facie case by placing on record sufficient evidence oral as well as documentary to the satisfaction of the Court that the accused and his family members did not have ostensible means to purchase such huge properties mentioned in the Reference and whatever they have purchased in the shape of movable, immovable properties and assets were purchased through ill‑gotten money, the burden to prove that the properties both movable, immovable and assets were purchased/made by the accused and his family members through their legally earned money, shifted to the accused and his family members who had been served with notice by the Trial Court to justify their earnings‑‑ Principles‑‑‑Term "reasonable "used in S. 14(d) of the Ordinance ‑‑‑Connotation‑‑ Expression "satisfaction "‑‑‑Concept. Section 14 of the National Accountability Bureau Ordinance, 1999 deals with the presumption against the accused. According to this section if a person is charged under clause (vi) or clause (vii) of subsection (a) of section 9 of the Ordinance it is the prosecution which shall first make out a reasonable and prima facie case against the accused and the mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of section 14 of NAB Ordinance. In section 14(c) the Legislature in its own wisdom has used words "unless the contrary is proved" which mean the contrary can only be proved by accused if earlier something has been proved, against him, that is the burden shall shift to the accused to prove to the contrary if some cases has been made out against him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit or favour. Unless the facts constituting misuse of authority as contemplated under section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In such a case the prosecution would be duty bound to lead evidence against the accused and then he would be called upon to prove his innocence. The prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. Provisions of section 14 do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, following are the directions for effective operation of section 14(d):‑‑‑(1) The prosecution shall first make out a reasonable case against the accused, charged under section 9 (a)(vi) and (vii) of the NAB Ordinance. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt. The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accused could be called upon to make a statement under section 342 of the Cr.P.C. and then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had 'misused' his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or wilfully failed to exercise his authority to prevent that grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Unless the basic facts constituting 'misuse' of authority as contemplated under section 9(a)(vi) of the Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. The word 'reasonable' is a relative generic term difficult of adequate definition. It, inter alia, connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the Constitutional bounds. The prosecution if succeeds in making out a reasonable case, to the 'satisfaction' of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shifts to the accused to rebut the presumption of guilt. Similarly in section 14(c) of the Ordinance the language used is "he cannot satisfactorily account". The satisfaction of the Court must be based on proper determination from all facts and circumstances of the case, be real, bona fide and not actuated by malice. "Satisfaction" is by no means a term of art and appears to have been used in its ordinary dictionary sense. "Satisfaction" is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well‑settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be 'satisfied' with a state of things is to be honestly convinced in one's own mind. Apart from the 'legal satisfaction' which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof, which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. "Satisfy" is synonymous with, "convince beyond a reasonable doubt" and "satisfaction" is a state of mind, which connotes a sense of certainty, and conviction, or release from suspense, doubt or uncertainty. "To satisfy" means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince. In the present case the prosecution has made out a prima facie case by placing on record sufficient evidence oral as well as documentary to the satisfaction of the Court that the accused and his family members i.e. his wife, sons and daughters did not have ostensible means to purchase such huge properties mentioned in the Reference and whatever they have purchased in the shape of movable, immovable properties and assets were purchased through ill‑gotten money. The burden to prove that the properties both movable, immovable and assets were purchased/made by the accused and his family members through their legally earned money had, therefore, shifted to the accused and his family members who had been served with notice by the trial Court to justify their earnings. Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607; Dr. Farooq Sattar v. The State Criminal Appeal No.1160 of 2000; Messrs Ilahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582 and Syed Saeed Hassan v. Payar Ali and 7 others PLD 1976 SC 6 ref. (b) National Accountability Bureau Ordinance (XVIII of 1999)‑‑‑ ‑‑‑‑Ss. 14 & 9‑‑‑Corruption and corrupt practices‑‑‑Presumption against accused‑‑ Allegation of Benami purchase of properties by the accused‑‑‑Burden of proof‑‑Principles‑ Benami transaction‑‑‑Criteria to determine‑‑ Statement of accused recorded under S.342, Cr.P.C. showed that properties were purchased by him as Benami in the names of his wife and children‑‑‑Burden to prove that the said properties were purchased/acquired by his hard earned money rested with the accused. The word "Benami" has not been defined in the Ordinance. This word has only been defined in section 82 of the Trusts Act, 1882. The word "Benami" is used "to denote two classes of transactions which differ from each other in their legal character and incidents. In one sense, it signifies a transaction which is real as for example when "A" sells properties to "B" but the sale‑deed mentions "X" as the purchasers: Here the sale itself is genuine, but the real purchaser is "B", "X" being his Benamidar. This is the class of transactions which is usually termed as Benami. But the word "Benami" is also occasionally used perhaps, not quite accurately to refer to as sham transaction, as for example, when "A" purports to sell his property to "B" without intending that .his title should cease or pass to "B". The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary, when a dispute arises as to whether the person named in the deed is the real transferee or. "B", to enquire into the question as to who paid the consideration for the transfer, "X" or "B". But in the latter class of cases, when the question is whether the transfer is genuine or sham the point for decision would be, not who paid the consideration, but whether any consideration was paid". Some of the criteria for determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:‑‑ (i) Source of consideration; (ii) from whose custody the original title deed and other documents came it evidence; (iii) who is in possession of property; and (iv) motive for the Benami transaction. The initial burden of proof is on the party, who alleges that an ostensible owner is a "Benamidar" for him and that the weaknesses in defence evidence would not relieve a plaintiff from discharging the above burden of proof. It was evident from statement of accused recorded under section 342, Cr.P.C. that the properties were purchased as "Benami" in the names of his wife and children by the appellant. The burden to prove that the said properties were purchased/acquired by his hard‑earned money rested with the accused. Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Ch. Rehmat Ali v. Abdul Khaliq through his L.Rs. and another 2000 MLD 1948; Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806; M.D. Abdul Majid and others v. Dr. Zainul Abidin and others PLD, 1970 Dacca 414 and Ismail Dada Adam Soomro v. Shorat Banoo and others PLD 1960 Kar. 852 ref. (c) Benami transaction‑‑
Criteria to determine. Jane Margrete William v. Abdul Hamid Mian 1994 CLC 1437; Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703; Ch. Rehmat Ali v. Abdul Khaliq through his L.Rs. and another 2000 MLD 1948; Mst. Sardar Khatoon and others v. Dost Muhammad and another 1988 SCMR 806; M.D. Abdul Majid and others v. Dr. Zainul Abidin and others PLD 1970 Dacca 414 and Ismail Dada Adam Soomro v. Shorat Banoo and others PLD 1960 Kar. 852 ref. Qazi Muhammad Anwar Appellant. Kamran Arif for the State
Judgment & Decree
1979‑80 Rs.1,250 Rs.27,300 Rs.16.200 1980‑81 Rs.1,450 Rs.31,668 Rs.16,200 1981‑82 Rs.1.450 Rs.31,668 Rs.16,200 1982‑83 Rs.1,600 Rs.34,944 Rs.16,200 1983‑84 Rs.1,600 Rs.34,944 Rs.16,200 1984‑85 Rs.1,750 Rs.38,220 Rs.16,200 1985‑86 85.2,000 Rs.43,680 Rs.16,200 198687 Rs.2,000 Rs.43.680 Rs.16,200 1987‑88 Rs.2,062 Rs.45,045 Rs.16,200 1988‑89 Rs.2,125 Rs.46,410 Rs.16,200 1989‑90 Rs.2,400 Rs.52,416 Rs.16,200 1990‑91 Rs.2,800 Rs.61,152 Rs.16,200 1991‑92 Rs.3,100 Rs.67,704 Rs.16,200 1992‑93 Rs.3,250 Rs.70,980 Rs.16.200 1993‑94 Rs.4,000 Rs.87.360 Rs.16,200 1994‑95 Rs.4,000 Rs.87,360 Rs.16,200 1995‑96 Rs.4,325 Rs.94,458 Rs.16,200 1996‑97 Rs.4,325 Rs.94,458 Rs.16.200 1997‑98 Rs.7,000 Rs.1,52,280 Rs.16,200 1998‑99 Rs.7,102 Rs.1,55,108 Rs.16.200 1999‑2000 Rs.7,102 Rs.1,55,108 Rs.16,200 Total Rs. 17,38,550 Rs.5,32,800 Price of Bhusa from 1972 to 2000 of 108 Kanals Rs.4,53,600 + Rs.79,200 = Rs.5,32,
800. The amount of Rs.79,200 is in fact the income of Bhusa for 24 Kanals at the rate of Rs.150 per Kanal for period from 1950 till 1972.
49. We may mention here that there is no evidence available on record to indicate that the appellant remained in possession of land measuring 24 Kanals situated at Mauza Sheikh Yousaf, District Mardan from 1950 i.e. from the date the said land was gifted in his favour till 1972, when his father expired. But still in order to administer justice, we have given him agricultural income of sugarcane and wheat from 1950. We have given the amount of Bhusa at constant rate because wheat and sugarcane both were sown on small fragments of land by the appellant. Moreover, the major portion of land was given on Ijara by appellant, but we have ignored these factors.
50. The total agricultural income of the appellant from 1950 till 2000 comes to Rs.59,11,
360. We did not exclude 10% expenses also from the said income. Since the first amount was spent on construction of house at Hayatabad in the year, 1987, therefore, from the year 1987 onward we have calculated the income, the amount spent by appellant for purchase of various properties in his own name and in the names of his wife and children, the amount spent on construction of the properties mentioned in the reference, amount spent for purchasing vehicles, amount paid for utility bills and fees of his children are as under:‑‑ Years of income/amount Amount spent/income 1950 to 1987 Rs.20,97,822 Rs.14,97,822 Spent on construction of house at Hayatabad in Phase I in 1987. Rs.16,67,931 Income of the year 1987‑88 Rs.15,79,731 Purchased Plot No. 148 at Hayatabad, Peshawar on 16‑4‑1988 Rs.17,58,765 Income of the year 1988‑89 Rs.19,54,956 Income of the year 1989‑90 Rs.17,62,260 Purchased land measuring 7 Kanals, 8 Marlas in Chak Mardan on 13‑1‑1990 Rs.7,68,964 Purchased 6 Kanals land at Nishatta Road, Mardan on 21‑8‑1990 and 9‑11‑1994, this amount is duly admitted by the appellant in his statement. Rs.9,90,428 Income of the year 1990‑91 Rs.12,18,444 Income of the year 1991‑92 Rs.1,25,166 minus Spent on the fee of his son Imran in Fazal Haq College, Mardan w.e.f. 1985‑91 Rs.15,45,474 minus Purchased land measuring 59 Kanals, 7 Marlas in Chak Mardan on 6‑3‑1991 and 20‑5‑1996 Rs.2,36,017 Income of the year 1992‑93 Rs.3,16,923 minus Purchased land measuring 35 Ferozpura Takht Bhai on 21‑9‑1992 Rs.5,33,102 Red entry Rs.40,000 minus Purchased land measuring 1 Kanal at Ferozepura Takht Bhai on 21‑9‑1992 Rs.5,37,102 Red entry Rs.2,68,935 Income of the year 1993‑94 Rs.2,73,660 plus Income of the year 1994‑95 Rs.10,42,488 minus Spent on the construction of house at Hayatabad, Peshawar. Rs.10.72,995 Red entry Rs.42,10,488 minus Purchased land measuring 1 Kanal, 7 Marlas at Sugar Mills Road, Mardan in the names of his children and wife by the appellant. Rs.52,83,483 Red entry Rs.26,59,681 Spent on construction of plaza at Sugar Mills Road, Mardan. Rs.3,04,383 plus Income of the year 1995‑96 Rs.3,13,833 plus Income of the year 1996‑97 Rs.16,97,808 minus Purchased land measuring 65 Kanals, 4 Marlas at Chak Martian on 29‑2‑1997. Rs.90,22,756 Red entry Rs.3,95,280 plus Income of the year 1997‑98 Rs.5,02,058 plus Income of the year 1998‑99 Rs.5,02,058 plus Income of the year 1999 -2000 Rs.1,03,480 minus Purchased land measuring 11 Kanals, 11 Marlas at Ferozpura, Tehsil Takht Bhai on 5‑6‑1999. Rs.3,30,708 minus Purchased land measuring 12 Kanals, 14 Marlas at Chak Mardan on 27‑10‑1999. Rs.1,50,000 minus Purchased Plot No.172‑F at Kanju Township, Swat on 1‑8‑1991. Rs.3,14,927 minus Electricity charges 1997 to 2000 Rs.59,977 minus Gas charges for the years 1998 to 2000 Rs.59,439 telephone charges For the year 2000 Rs.45,940 minus Fee of Imran in Preston University for the years 1997‑
98. Rs.68,500 minus Fee of Haroon in October, 1998 Rs.78,720 minus Fee of Gul Sanga in Beacon House with effect from 1994 to 1999. Rs.30,000 minus Fee of Gul Sanga in Fatima Jinnah Degree College. Rs.5,00,000 plus Purchase Pajero Jeep Rs.2,90,000 plus Purchased Suzuki Car Rs.14,629 minus Fee paid for Mah Rukh (daughter) in, Medical College from 1992‑1997. Rs.37,722 minus Fee paid for Haroon (son) Rs. 99,65,894 red entry Rs.5,00,000 plus Purchase Pajero Jeep Rs.2,90,000 plus Purchased Suzuki Car Rs.14,629 minus Fee paid for Mah Rukh (daughter) in Medical College from 1992‑1997. Rs.37,722 minus Fee paid for Haroon (son) Rs.2,58,492 plus bank balance Rs.99,65,894 red entry
51. The abovementioned figures show that the total agricultural income of the appellant from 1950 till 2000 was Rs.59,11,360, whereas he had spent a sum of Rs.99,65,894 in excess for purchase of various properties in his own name, in the names of his wife and children. He also spent considerable amount which has been mentioned above in detail on construction of properties, purchase of vehicle and also paid huge amount towards utility bills and fees for children, the total of which comes to Rs.99,65,
894. There is a difference of Rs.99,65,894 between his income and amounts spent by him i.e. he has spent Rs.99,65,894 more than what he had earned. He has not been able to furnish any plausible explanation about the sources as to wherefrom he received such huge amount and could manage to spend the said amount.
52. So far as the amount of income derived from salaries of the appellant is concerned, it is admitted position that appellant earned Rs.17,46,480 towards salaries from the date of his joining service till filing of Reference against him. Although this amount of monthly salary was not sufficient to make both ends meet of appellant especially keeping in view the luxurious and lavish life‑style of the appellant and his family members. Even the yearly income derived from agricultural income of the property added with the monthly salary was not sufficient to meet his expenses but still taking very lenient view, we presume that the appellant and his family members would maintain themselves with the amount of monthly salary only. We have thus separated the agricultural income and the entire amount from the agricultural property has been accounted for in the above paragraphs.
53. Another factor which we want to clarify here is about the prices of the landed properties and the amount of construction spent thereon. When we looked into the rates of the landed properties and the amounts spent on their construction fixed by the NAB Authorities, the same sounded very high and no reliable evidence in support of the market prices was available on record. The appellant also failed to point out current evaluation excepting the evaluation of constructed building done through Engineer Mumtaz Alam (D.W.3), The learned trial Court had fairly fixed the prices of the landed property in the light of Notifications of Deputy Commissioner whereby value of land has been fixed for the purposes of recovery of taxes. We are aware of the fact that such Notifications are issued by the Deputy Commissioners not for fixing the value of the land but only for collection of land revenue and other taxes but one can draw clear cut idea about the market value of the property from such Notifications.
54. In absence of any authentic proof regarding prices of the landed properties, purchased by appellant in his name and in the names of his wife and children, we while concurring with the learned trial Court relied upon the prices fixed through Notifications of Deputy Commissioners. We may mention here that we did not take into consideration the market value of landed properties fixed by the NAB Authorities as the same are exorbitant. We also did not agree with the amount spent for construction of properties mentioned in the Reference because those too were also on very high side. We have, however, taken the amount spent for construction given by Engineer Mumtaz Alam (D.W.3) and by the appellant in his statement recorded under section 342, Cr.P.C.
55. In the above paragraphs we have held that three properties i.e. (i) Plot No.90‑D, Street No.37 measuring 2 Kanals in Phase I, Hayatabad, Peshawar allotted in the name of Mst. Nasim Begum on 24‑6‑1979 against a sum of Rs.74,000; (ii) Plot measuring 1 Kanal, 10 Marlas situated at Haibullah Colony, Abbottabad (in the name of Mst. Nasim Begum) and (iii) Plot measuring 2 Kanals bearing No.30‑G/4 Phase II, Hayatabad allotted in the name of Mst. Zakia Begum in the year 1982 on price of Rs.1,15,000 were not "Benamis", and have nothing to do with the appellant.
56. The abovementioned calculations made in the above paras. show that till 1992 the appellant had sufficient money to purchase properties but thereafter, he did not amount in his credit to either purchase any landed .property or to spend any amount for their construction. He has also not been able to give any lawful justification for spending huge amount on purchase of vehicles and payment of utility bills etc. In short he has not been able to satisfactorily account for Rs.99,65,
894. This amount is held to be disproportionate to his legal sources of income and therefore, it is held that this amount of Rs.99,65,894 was acquired and obtained by him through corruption and corrupt practices, therefore, the following properties purchased in the names of appellant, his wife and children alongwith construction if any are liable to forfeiture to the appropriate. Government/State:‑‑ (i) Land measuring 35 Kanals, 9 Marlas situated at Ferozpur Takht Bhai purchased vide Mutation No.40 attested on 21‑9‑1992 Exh.P.W.4/2. (ii) Land measuring 1 Kanal situated at Ferozpur Takht Bhai purchased vide Mutation No. 41 attested on 21‑9‑1992, Exh.P.W.4/3. (iii) Land measuring 1 Kanal, 17 Marlas situated at Sugar Mills Road, Mardan purchased in the names of wife of the appellant, and children vide (Mutation Nos.14387, 14388, 14389, 14390 and 14391 attested on 14‑4‑1994 . Exh.P.W.3/3 to Exh.P.W.3/7. (iv) Land measuring 65.Kanals,
4. Marlas at Chak Mardan purchased vide Mutations No. 5581 attested on 29‑5‑1996 Exh.P.W.3/9, No.9971, attested on 16‑3‑1991 Exh.P.W.3/10 and No. 11650 attested on 31‑7‑1994 Exh. P. W.3/ 11. (v) Land measuring 11 Kanals, 11 Marlas at Ferozpur Takht Bhai purchased vide Mutation No.293 attested on 16‑6‑1999. (vi) Land measuring 12 Kanals, 14 Marlas at Chak Mardan purchased vide Mutation No.1846 attested on 27‑10‑1997 Exh.P.W.3/8. (vii) Plot No.172‑F measuring 1 Kanal at Kanju Township allotted on 1‑8‑1991 Exh.P.W.8/2.
57. It is also held that the amount spent on construction of properties, payment of utility bills, fees of children of appellant, for purchase of vehicles and the amount kept by him in Account No.1487‑7 H.B.L., Swabi Branch and Account No.2971 at A.B.L. Charsadda Branch i.e. Rs.2,58,492 was also not earned by him through lawful means and the same had been earned by corruption and corrupt practices. The amount lying in the abovementioned Accounts is also forfeited to Government/State. We would also not forfeit/confiscate the amount lying in PLS Account No.3819‑0 at N.B.P. Maneri Branch Swabi, because the amount lying there is the amount of sale consideration of plot measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad sold by Mst. Nasim Begum. We would also not order for confiscation of vehicles i.e. Pajero Jeep and Suzuki car giving the appellant the benefit that he must have earned allowances/T.A./D.A. during his service and we also give him the margin of human error in calculating his agricultural income.
58. We, therefore, have no alternative but to maintain the conviction of the appellant under section 9(v) of NAB Ordinance, 1997. So far as his sentence under section 10(a) of NAB Ordinance, 1999 of 7 years' imprisonment and fine of Rs.3,00,00,000 (Rupees Three Crore) imposed by the learned Accountability Court is concerned, keeping in view the agricultural income derived by the appellant from year 1950 till 2000 (mentioned above), we reduce the sentence from 7 years to 4 years' R.I. also reduce the amount of fine from Rs.3,00,00,000 (Rupees three crores to Rs.10 millions (Rupees one crore) only. The amount of fine shall be paid by the convict within a period of two months to the State failing which it shall be set off against the forfeited properties in terms of section 11 of the NAB Ordinance, 1999. He shall also be disqualified for ten years for holding any public office as per section 15 of the NAB Ordinance, 1999. Benefit of section 382‑B, Cr.P.C. shall also stand extended to him. With the above modification the appeal is dismissed.
59. So far as the writ petition filed by Mst. Nasim Begum and others (children of appellant) is concerned, the same deserves dismissal for the simple reason that Mst. Nasim Begum and the children were served with notices to justify their means of earnings but they utterly failed to avail the opportunity. Mst. Nasim Begum though examined two D.Ws. in her defence but she failed to show any lawful source of income. She not only failed to prove that the gold ornaments were given to her by her father and mother‑in‑law at the time her marriage, but she also failed to prove that she generated some amount by selling the same. She also failed to prove that she was being given Rs.5,000 per month by her father. The only property which she could prove in her name was that she acquired land measuring 1 Kanal, 10 Marlas at Habibullah Colony, Abbottabad after the death of her father and that the shares of her brothers and sisters were surrendered in her favour in the said plot. She also proved that she acquired land measuring 11 Kanals, 11 Marlas in the year 1998 through inheritance from her brother vide Mutation No.259 attested on 11‑8‑1998 Exh.D.W.4/N‑
1. Since we have held that Mst. Nasim Begum was lawful owner of Plot measuring 1 Kanal, 10 Marlas situated at Habibullah Colony, Abbottabad, which she had sold for a sum of Rs.10,58,999 vide Mutation No. 10755 Exh.P.W.23/D‑4, therefore, we hold that the amount of Rs.9,63,000 in PLS Account No.3819‑0 in the name of appellant at National Bank of Pakistan Maneri Branch, Swabi is the amount of sale consideration of the said plot. The children (other petitioners) neither appeared before the learned Accountability Court nor bothered to give justification of their earnings. On the other hand 1kram Shah appellant in his statement recorded under section 342, Cr.P.C. admitted having purchased the properties mentioned in the Reference in the names of his wife and children. The writ petition having no merit is dismissed with no orders as to costs. Copy of this judgment should be supplied to S.M.B.R. for compliance of directions made in page 46 of this judgment (herein page 1417). M.B.A./564/P Order accordingly.