P L D 2002 Supreme Court 39 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑Criminal Petitions Nos. 138 of 2001 and 205 of 2001 Pave been instituted for leave to appeal against the judgment, dated 14th May, 2001 passed by Peshawar High Court, Peshawar in Ehtesab Appeal No.4 of 2000, therefore, we intend to dispose of both the matters by means of instant order.

2. Succinctly stating facts of the case are that Khalid Aziz son of Abdul Aziz, former Chief Secretary, Government of N.‑W.F.P., petitioner/convict was arrayed before Accountability Court No.2, Peshawar to answer charge of accumulation vast wealth and acquiring immense movable assets which were disproportionate to his known sources of income which were, deposited by him in the Account‑of his spouse Mrs. Nelofer Khalid who had in turn deposited some of these amounts A, the name of her father. Details whereof are as under:‑‑ Name of Bank Account No. Total amount Year ____ National Saving Centre, SSA30 3,72,00,000 92‑97 University Town, Peshawar National Saving Centre, SSA 2,12,00,000 ‑do - Unviersity Town, Peshawar Bankers Equity Ltd., Mall SSR 1,50,00,000 ‑do‑. Road, Peshawar Cantt. Grindlay's Bank, 1131340956001 4,06,91,000 ‑do - Peshawar Emirates Bank. 116655712900 40,05,000 1998 Learned Accountability Court vide judgment dated 21st June, 2000 concluded that prosecution during trial has succeeded in establishing under section 9 of National Accountability Bureau Ordinance, 1999 (hereinafter. referred to as the "NAB Ordinance") that an amount of Rs.4,60,96,000 is disproportionate to the known sources of the petitioner and he failed, to account for satisfactorily. Resultantly petitioner was convicted/sentenced under section 10 of NAB Ordinance to 4 years' R.I. the amount of Rs.4,60,96,000 was also confiscated to State.

4. Petitioner preferred appeal against the judgment of Accountability Court before Peshawar High Court being Ehtesab Appeal, No.4 of 2000 which has been disposed of vide impugned order, dated 14th May, 2001. Concluding para. therefrom reads thus:‑‑ "

53. According to section 14 (c) of the NAB Ordinance, 1999 the presumption of guilty of the offence of corruption and corrupt practices is available against an accused when he cannot satisfactorily account of the property of which he or any other person on his behalf is found in possession. The amount which runs into millions was found in the bank account of his wife which does not commensurate with his income or income of his wife from any other source including company and the accumulation of such wealth in the name of the appellant's wife has not been satisfactorily explained and which leads to the conclusion that the appellant is guilty of corruption and corrupt practices and he was rightly held guilty by the Accountability Court as was convicted accordingly. However, keeping in view the reduced amount of Rs.38,43,500 for which the appellant is held guilty instead of Rs,4,60,96,000 as found by the Accountability Court, this appeal is partially accepted and he is sentenced to two years' R.I. with a fine of Rs.50,00,000 or in default of payment of fine six months' R.I. The amount of fine so imposed shall be recovered in accordance with law. Benefit of section 382‑B, Cr.P.C. shall also be extended to the appellant." Petitioner as well as State had challepged impugned judgment in these proceedings.

5. We have heard both the parties' counsel and have also examined the impugned judgment carefully. In our opinion following points emerge for consideration:‑‑ (1) Whether learned High Court has maintained conviction/sentence without adhering to the provisions of section 14 (c) of NAB Ordinance? (2) Whether the impugned judgment is in consonance with the principle of law laid down by this Court in Para. No.224 in the case of Kban Asfandyar Wali and 2 others v. Federation of Pakistan through Cabinet Division (PLD 2001 SC 607)? (3) Whether High Court reduced sentence awarded to the petitioner by the Accountability Court contrary to the provisions of section 10 (a) of NAB Ordinance? (4) Whether while imposing fine upon petitioner the High Court failed to take into consideration that it could not be less than Rs.4,60,96,00G because the amount of fine shall in no case be less than the gain derived by the accused or any relative or associate which may be set off against the forfeited or frozen assets and i property according to section I 1 of the NAB Ordinance? (5) Whether the High Court wrongly concluded that petitioner has only failed to account for Rs.38,43,500 instead of Rs.4,60,96,000 without assigning any reason? (6) Whether the High Court wrongly reduced sentence in. absence of any mitigating or extenuating circumstances particularly when reasons put forth by the Accountability Court for holding petitioner responsible for the commission of the offence were maintained? Thus, to consider above points leave is granted. N.H.Q./K‑401S Leave granted.