2003 PLP 150 (SCMR)

Khan Asfundyar Wali v. The Federation of Pakistan PLD 2001 SC 607 and Mir Ahmed v. The State PLD 1962 SC 849 ref. Khursheed Hashmi, Dy. A.‑G. and Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for the State. Nemo for Respondent. Date of hearing: 1st March, 2002. SYED DEEDAR HUSSAIN SHAH, J.‑‑‑Leave is sought against judgment, dated 5‑10‑2001, of the High Court of Sindh, Karachi, passed in Criminal Accountability Appeal No. 13 of 2001.

2. Briefly stated the facts of the case are that on Reference No.5 of 2001, made by Chairman, National Accountability Bureau, the Accountability Court No.3, Karachi, framed charges against the respondent for possessing properties disproportionate to his known sources of income including charge of corrupt practices under section 9(a)(iv)(v) of the National Accountability Ordinance, 1999, punishable under section 10 of the said Ordinance. The main allegation in the charge was that the respondent was maintaining Account No.15664‑4 in Habib Bank Limited, Bahadarbad Branch, Karachi, from 1990 to 1998 in which there was a transaction/ deposit of Rs.34,00,000 and that he purchased a Toyota Corolla Car in the name of his wife. The respondent pleaded not guilty before the trial Court. The prosecution to prove the charge against him produced evidence before the trial Court. The respondent also examined witnesses in defence.

3. The trial Court, after hearing learned counsel for the parties convicted the accused‑respondent under section 9(a)(iv)(v) of the Ordinance, punishable under section 10 thereof, and sentenced him to 5 years' R.I. and to pay tine of Rs.500,

000. The trial Court further ordered forfeiture of the amount deposited in the above mentioned bank and the car purchased in the name of his wife. The respondent was also declared disqualified for 21 years for seeking or being elected to chosen or nominated as member or representative of any public statutory or local body of the Government of Pakistan.

4. Respondent challenged the aforesaid order, through an appeal, in the High Court of Sindh, Karachi. Vide impugned judgment his appeal was accepted and the conviction and sentence was set aside. Hence this petition by the State.

5. Mr. Khursheed Hashmi, learned Deputy Attorney‑General, inter alia, contended that the impugned judgment of the High Court, acquitting the accused‑respondent, is against the facts and law and is liable to be set aside; and that the learned High Court acquitted the respondent without proper appreciation of the evidence on record. 5‑A. We have considered the arguments of learned counsel for petitioner and minutely examined the material available on record. The statements of Account, which were produced by the prosecution witness on the record of trial Court show that the account, in any case, never had a balance of Rs.33,00,000, but this was the entire transaction during 9 years and lastly the balance of the account. in the year 1998 was only Rs.42.11. The respondent furnished proper explanation about various deposits in his account. His explanation was that his uncle being a British national used to provide him money for investment in some business. Respondent's uncle was examined in the trial Court and he supported the version of the accused, and his evidence was not shattered by the petitioner in cross‑examination and the same was rejected by the trial Court against the settled principles of law. So far the allegation about the car is concerned, wife of the accused‑respondent stated that the same was gifted to her by her brother. One Kamal Ahmed was examined as a defence witness, who supported the case of the respondent stating on oath that he had purchased the car in the year 1997 on an open letter, which he sold after about one and a half year to Humayun Baig, for Rs.5,00,

000. This evidence was not considered by the trial Court. The High Court had relied on the cases of Khan Asfundyar Wali v. The Federation of Pakistan (PLD 2001 SC 607) and Mir Ahmed v. The State (PLD 1962 SC 849), wherein it was held that if, on analysis of the evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, this opinion reacts upon the whole case and in consequence thereof accused is entitled to the benefit of doubt on the ground that the prosecution has not proved its case beyond reasonable doubt. The learned High Court did consider the case in its proper perspective and rightly allowed the appeal of the respondent, whereas the trial Court failed to properly consider the evidence adduced by the parties.

6. The impugned judgment is well‑reasoned and based on the law laid down by this Court. Moreover, question of public importance, as envisaged under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 is not involved in this case.

7. For the foregoing facts reasons and circumstances this petition is without merit and substance, which is hereby dismissed and leave to appeal is declined. N.H.Q./S‑240/S Leave refused.