PLD 1966Dacca1 (PLP)

K. M. HASAN, J.‑I have the advantage of going through the judgments of my learned brothers. There is no substantial difference between them on the question of law. The view expressed thereon is accepted by me ; but I find a difference of opinion on the question of merits. Hence I propose to deal with the merits of the case only. The first charge is: "that you being required by an order of the Government of East Pakistan (being Order No. 166‑A. C.) dated the 17th January 1959, to furnish a statement of your properties and liabilities under section 4 (1) of the East Pakistan Anti -Corruption Act 1957, you on 19‑2‑59 furnished a statement of your properties and liabilities which is false and which, you knew or had reasonable cause to believe to be false, or not true in material particulars and thereby you committed an offence punishable under section 4, clause 2(a) of the East Pakistan Anti‑Corruption Act, 1957." The relevant portion of section 4 of the East Pakistan Anti -Corruption Act, 1957 runs :‑ "(1) When the Provincial Government, on receipt of information and after making such enquiries as it may deem necessary, is satisfied that there is reason to believe that any person or any other person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income, it may, by order, require such person to furnish in the prescribed manner and within the prescribed time a statement of his property and liabilities and such information relating thereto as may be required by the order. (2) If such person‑-- (a) upon being so required by an order under subsection (1) fails to furnish the statement or information or furnishes a statement or information which he knows or has reasonable cause to believe to be false, or not true, in any material particular, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine." I am to see whether the prosecution has been able to substantiate the above charge beyond reasonable doubt. In order to prove the charge the prosecution has examined some witnesses. It may be arranged in two classes:‑ (1) Who have spoken of the pecuniary , condition of the father of the accused and; (2) Who have spoken about pecuniary condition of the accused. P. W. 2, Firoz Khan, has deposed in chief:‑-- "I have business in watches at 22, Islarnpur Road, I know this accused Badsha Mian (idfd) since boyhood. I saw tire father of this accused as well. He was an old man. I saw him at Badamtali Ghat serving people with Hookkas and to return he used to get something from them. I have seen the house where this accused now resides. It is now a two‑storeyed building on the Jainuddin Road. I know Sachibandar. The building of this accused on the Jainuddin Road is just near Sachibandar. This two‑storeyed building has been constructed since 7/8 years. Prior to this it was a Tin‑hut." This evidence of the witness has not been challenged directly but only question was put about the age of the witness and that of the accused and when the father of the accused died. According to his evidence the age of the witness is 38 years and according to the statement of the accused under sections 242 and 342 of the Code of Criminal Procedure his age is 48 years and 57 years respectively. This change in years of the accused while examined under section 342 of the Code of Criminal Procedure is significant. Witness No. 2 for the prosecution was examined on the 17th April .1962, whereas the accused was examined on 8th August 1962. This question was apparently put to show that it was not possible for the witness to know the pecuniary circumstances of the father of the accused; but in my opinion the witness was not such a young man as not to know the pecuniary circumstances of the father of the accused. No material discrepancy has been shown in his evidence to reject his evidence on‑this point. The evidence of witness No. 3 on the point that the father of the accused was a day labourer is hearsay. So I attach no importance to his evidence, as to the pecuniary circumstances of the father of the accused. P. W. 4 has deposed that he saw the father of the accused but does not know anything at present and that previously there was a but in the land where the building was constructed by the accused 3/4 years back stands: P. W. 7 Abdul Hamid, has deposed that he knew the father of the accused and his house which was a tin‑chapra in which place a two‑storeyed building was built about 7/8 years back; that the father of the accused used to supply smokes to the smokers who used to come to the Babubazar Ferryghat and to the fishermen and in return got something from the fishermen but he did not know whether the father of the accused supplied smokes to the dealers in vegetables at that place. In cross‑examination nothing has been brought out from the witness to reject the above evidence. Only question on this point was when the father died and how old he was. P. W. 8, Abdul Kader, has deposed that he knew the father of the accused who lived in the Chapra‑house where the accused constructed a two‑storeyed building about 7/8 years back; that sometime the father of the accused sat at the Babubazar Ghat but did not know what he used to do at Babubazar Ghat. This evidence has corroborated partially the evidence of P. Ws. 2 and

7. In cross‑examination the, relationship of the accused with the Bhuiyaa family of Shainpukur has been brought out but no question was put what was the pecuniary circumstances of the father of the ‑accused. Rather from his evidence‑in‑chief it appears that the father of the accused was a poor man and not a substantial man. P. W. 22, Daliluddin Chowdhury, a retired police officer, aged 70 years has deposed that he saw the father of the accused; that the house of the father of the accused was in the area where he lived; that the house in which the father of the accused lived, so far he remembers was a Chapra; that he saw the father of the accused as a poor old man like a beggar. In cross-examination it was brought out that he did not see .him begging but the father of the accused could not do any work due to his old age. In the statement under sections 242 and 342 of the Code of Criminal Procedure the accused claimed that his father was a wealthy landlord and his father left properties in Babubazar, Akmal Khan Road and Kazi Jiauddin Road in the town of Dacca but the properties in Akmal Khan Road and Kazi Jiauddin Road have not been shown in Exh.

12. There is also evidence on record which I propose to deal with later on that the accused served as a Boy in a Tea‑stall which is incompatible with his claim being a son of a rich man. From the above evidence I am satisfied that the father of the plaintiff was a poor man; that he was in possession of a Chapra in a plot of land belonging to him and nothing more and left the same behind him to be inherited by his heirs including the accused. Now coming to the statement of assets and liabilities (Exh. 12) submitted by the accused I find 11th of the item No. 1 of the statement of the immovable properties from which a monthly rent of Rs. 550 has been claimed to have been realised from the tenants since 1941, `A' of item No. I in full, item No. 2 in part, item Nos. 4 and 5, item No. 7 in part, and item No. 9 of the statement of the movable properties have been claimed by the accused to have been inherited from his father. In item No. 9, a statement has been made that Rs. 26,000 was inherited from his father in the year.1941 and by investing the same in trade and purchasing properties earned Rs. 70,

500. Item No. 11 is a Toddy shop. The accused has claimed 0‑5‑9 share since 1956. There is evidence to show which will be dealt with later on, that the accused had only a share in the Toddy shop in 1959‑60 and not earlier or later. I have already found that father of the accused was a poor man and he could not leave behind him more than a tin‑chapra and the land on which the chapra was standing. There is evidence that one two‑storeyed building was constructed by the accused about 7/8 years ago long after the death of the father. So, the claim of inheritance from the father properties of item No. 1 of the statement of immovable properties and the income of Rs. 550 per month from 1941 therefrom and the share in the Toddy shop since 1956 is totally false to the knowledge of the accused and that he intentionally made the false statement. Similarly the claim of inheritance from father, the items of the movable properties mentioned above including s. 26,000 in cash are totally false. It has been argued that the statement of assets Exh. 12 was made while in the custody of the police and the same was written in English in which the accused is not conversant and as such there might have been some discrepancies and as such the accused cannot be found guilty. I do not find any substance in this contention. In his examination under sections 242 and 342 of the Code of Criminal Procedure, the accused has claimed that' the statement ‑Exh. 12 in respect of the properties, movable and immovable, is correct and that he inherited from his father properties worth about Rs. 1,00,

000. I accordingly find that the accused furnished the statement Exh. 12 which he knew or had reasonable cause to believe to be false or not true, in the material particulars and accordingly find him guilty of the charge. The second charge is: "that you have in your possession movable and immovable properties mostly in your name and some in the name of your wife on your behalf, under the jurisdiction of Kotwali P. S. and Keraniganj P. S., District Dacca whose valuation even according to your own aforesaid statement dated 19‑2‑59 is about 2 (two) lacs of Rupees, which properties, there is reason to believe to have been acquired by you by improper means and which is disproportionate to your known sources of income and you have thereby committed an offence punishable under section 5(1) of the East Pakistan Anti‑Corruption Act, 1957." Subsection (1) of section 5 of the Act runs :‑‑ "Whoever has in his possession any property, movable or immovable, either in his own name or in the name of any other person on his behalf, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to his known sources of income, shall, if he fails to account for such possession to the satisfaction of the Court, be punishable with imprisonment for a term which may extend to 7 years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the. accused by the Court shall be forfeited to the Provincial Government." In my considered opinion according to the above provision a person will be guilty under this section if he is in possession of properties which there is reason to believe to have been acquired by any improper means or which is proved to be disproportionate to his known source of income. The word "and" here means "or", that is, the two ingredients to constitute the offence under this section are not conjunctive but disjunctive. This view of mine is also supported by the provision of sub section (3) of section 5 of the Act which‑ runs :‑

"When in any trial of an offence under subsection (1), the fact that the accused person or any other person on his behalf is in possession of property, movable or immovable, dispro portionate to his known sources of income, is proved, the Court shall presume, unless contrary is proved, that the accused person is guilty of such offence and his conviction therefore shall not be invalid by reason only that it is based oil such presumption." Now coming to the merits, the prosecution is to prove that the properties in possession of the accused have been acquired by him by improper means or are disproportionate to his known sources of income. I have already held that the father of the accused was poor and his claim that he inherited substantial properties and cash money amounting to Rs. 26,000 from his father cannot be accepted. His father only left a but and a plot of land wherein the but was standing. In place of the said but the two‑storeyed building was constructed by the accused 7/8 years ago after the death of his father. There is evidence that the but and the plot where the but was standing were not inherited by the accused alone. He has, admittedly, a brother though the accused has claimed 7/8th share but there is no evidence in support of this claim and the law of inheritance also does not support his claim. Any way, I find that the father of the accused was a very poor man and the accused was a son of poor man. Then comes the pecuniary circumstances of the accused, or in other words, the personal sources of income of the accused. P. W. 1 Mohan Mia, P. W. 2 Firoz Khan, P. W. 3 Khairuddin and P. W. 7 Abdul Hamid have deposed that the accused started his life as a Boy in a Tea‑stall. Their evidence on this point has not been shaken in the cross‑examination. P. W. 3 has admitted that he wants the accused to be brought to book as he is a notorious goonda and disturbing element in the locality and P. W. 7 has admitted enmity with the accused but nothing has been shown against P. Ws. 1 and

2. Accordingly though there is an admitted enmity with P. W. 7 and the eagerness of ‑P. W. 3 to bring the accused to book, I accept the evidence of P. Ws. 3 and 7 B as the same has been corroborated by the evidence of P. Ws. 1 and 2 and find that the accused started his early life as a Boy in, a Tea‑shop. Next attempt has been made by the prosecution to show that the accused has or had no business. P. W. 22, Daliluddin Choudhury who retired as Deputy Superintendent of Police has deposed that he was O. C. Kotwally, Dacca in 1936/37; that the accused had no source of income and spent most of his time in the prostitute quarters at Schachibandar. This witness has claimed his knowledge about the accused and his father on the ground that he used to live in the same area where the father of the accused as well as the accused lived and was the Officer‑in- Charge, Kotwali in 1936‑37 and that the accused was a listed notorious goonda since 1934 and also a surveillee in 1936‑

37. He has also proved some portion of the history sheet of the accused. His evidence has not been shaken in cross‑examination. I accept his above evidence. This evidence takes us up to 1936‑

37. P. W. 11, Syed Shamsuddin Ahmad had been O. C. Kotwalli in 1944‑

45. He has deposed that the accused had no known source of income or no business; that the accused was externed from the Dacca Municipal area in 1945, from 30th March 1945. His source of knowledge is that he had to keep surveillance over the accused, took the accused in custody for allegations of offence against persons and properties. It was further his duty to ascertain the sources of income and assets and to note them and from that note it appears that the accused jointly owned a house only with his brother. I do not find any reason to reject his evidence. P. W. 1 has deposed that he does not know if the accused has any business. P. Ws. 2, 3, 7 and 11 have deposed that the accused has no business; of course some of them have used the word "legal" before the word "business" but this is to be decided by the Court and not by the witnesses. Having in view the whole of the evidence of these witnesses I am of opinion that they used the word "legal", with reference to their evidence as to extortion of money from the prostitutes and their visitors by the accused. P. W. 7 has deposed that the accused used to live on the money extorted by the accused from the prostitutes and their visitors. He is the most competent witness as he used to run the Toddy shop at Sachibandar from 9‑30 A. M. to 10 or 10‑30 P.M. and he was also admittedly a partner of the accused in 1959‑

60. According to his evidence the accused was a terror in the locality; the accused used to hold Salish over the clashes of the prostitutes, and realised fine from the guilty as well as not‑guilty, and extort money from the visitors of the prostitutes. His evidence has not been challenged directly. Enmity has been admitted but having regard to the evidence on record I do not find any reason to reject his evidence only because there was enmity. I accept his evidence. P. Ws. 10, 11, 16, 22 and 23 have deposed that the accused is a notorious goonda and surveillee since 1934. These officers were posted in Kotwalli Police Station at difference times and have proved portions of the History sheet of the accused up to 1959 during the time when they were posted there. Out of the prosecution witnesses P. Ws. 5 and 7 have deposed that the accused had licence for Toddy shop with P. W. 7 for one year only, namely, 1959‑

60. There is no evidence worth believing on record to show that the accused had any share in the Toddy shop in any other period. The claim in Exh. 12 that the accused has 0‑5‑9 share in Toddy shop since 1956 has not been proved. Excepting cross‑examination net relevant to the point and claim in his statement under section 342 of the Code, there is nothing on record to substantiate the claim of income of Rs. 300 per month as has been claimed, in his statement Exh.

12. This is nothing but a false claim. His claim about the Toddy shop has not been borne out by evidence but the evidence is to the contrary. The income from Toddy shop in 1959‑60 is immaterial for the purpose of the present case. In connection with another case, as the accused was absconding his properties were seized on 23rd September 1958. The accused thereafter surrendered in Court on 20th October 1958, and made the statement of his properties and assets vide. Exh. 12 on 9th February 1959: Hence it appears that the share in the Toddy shop at Sachibandar was acquired after the statement, Exh. 12, was made and as such, its income had nothing to do with the properties seized on 23rd September 1958, and that of Exh.

12. P. W. 8, Abdur Kader, has deposed that the accused had a permit to import Bidi leaves at the time of Awami League Government about 8 years ago. In cross‑examination he has deposed that he learned that the Bidi business was very profitable and Awami League came in power in 1944 and the accused had one grocery shop on the Akmal Khan Road and used to bring rice from Barisal and some other places. Time or period of the business has not been brought out of this witness. P. W. 9 Abdur Bari has deposed that the accused had a licence for Bidi leaves to be imported to Pakistan and in cross‑examination he has deposed that he does not know what profit was made out of the licence. This cross‑examination is very peculiar:‑-Not about the profit from business but from the licence. This witness did not prove any business in Bidi leaves. I do not attach any importance to the evidence of P. W. 13 Abdul Hamid to the effect that the accused deposited Rs. 25,000, in a Bank authorising him to deposit for licence for Bidi leaves when the accused went to Haj in 1958. In Exh. 12 the wholesale business in Bidi leaves has been claimed since 1956, and no income has been shown therefrom. Rice business has not been claimed in Exh. 12;‑of course, this business and other business have been claimed by the accused while he was examined under section 342 of the Code of Criminal Procedure but he refused to adduce any evidence. From the above evidence I am satisfied that the accused neither had nor has any of the businesses claimed by him or any other known legal business; that he is a son of poor man, started his life as a boy in tea shop, realised or extorted money from the prostitutes and their visitors; did not inherit Rs. 26,000 from his father and the other properties in Exh. 12 claimed by him to have been inherited from his father excepting the tinshed and the land wherein the tinshed stood and is a listed goonda. Now question is whether the properties as per Exh. 12 are disproportionate to his known source of income, according to his statement (Exh. 12) it appears that the earliest purchase was in 1950, thereafter in 1952, 1954, 1956 and 1957. The price of the immovable properties is about Rs. 26,700 and investment in structures as per item one of Exh. 12 is Rs. 40,C00 as shown in Exh. 12, the total comes to about Rs. 65,

700. The price of the movable properties as per Exh. 12 is about Rs. 18,005 and cash Rs. 70,500 the grand total comes to Rs. 1,37,200 which is much less than the price given by the accused in Exh.

12. This figure of amount has been reached by me having in view the consideration money given in the title deeds by the accused. Apparently the properties in possession of the accused are disproportionate to his known source of income. The accused has claimed rent from the immovable properties. I have already disallowed the claim of rent of item 1, Exh. 12, from 1941 when his father died. At most his claim may be allowed from 1954 when the two‑storeyed building was constructed by him as deposed by some of the witnesses. Taking into consideration the income derived from other immovable properties it is still disproportionate to his known source of income. The whole income in the shape of rent or in any other shape derived from the landed properties as per Exh. 12 is not of such magnitude as to leave any cash not to speak of Rs. 70,500 after meeting all necessary expenditure for maintenance of his family and properties. The investment of Rs. 40,000 in item one of the statement of immovable properties has also necessarily been spent by the accused as I have already found that the accused could not have inherited any such property from his father, namely, the buildings, structures. The cash money was found concealed in out of way place. No appropriate attempt has been made by the accused, excepting some irrelevant cross‑examination of the witnesses, to show how he could have acquired the properties. I have already discussed the evidence of the witnesses. To arrive at the above finding I have not forgotten the law of onus on the accused. He was not to prove beyond reasonable doubt his income and that was sufficient for acquiring the properties but to prove that his income was probably sufficient to acquire the properties in question (sic). Mr. Hamidul Huq relying on the evidence of P. W. 26 to the effect that the witness has not challenged the property statement has contended that the prosecution has admitted that the statement of properties is correct. I do not find any substance in this contention. The evidence is not about the truth or veracity of the claim of the accused in Exh. 12 or about his source of income but only about the statement of properties submitted by the accused. I would in the result maintain the conviction and sentence of the accused appellant under section 4 (2) (a) 'of the Act. I would also maintain the conviction and the sentence of the appellant under section 5 (I) of the Act. I would, however, modify the order of forfeiture made under this section. Properties acquired prior to the coming into force of the Act are exempted from) forfeiture. I would, therefore, order that following properties be forfeited: The cash amount of Rs. 70,500 being item No. 9 of the movable property. With the modification of the order of forfeiture as indicated above, the appeal is dismissed. A. S. CHOWDHURY, J.‑‑The appellant Badsha Mian was convicted under sections 4 (2) (a) and 5 (1) of the East Pakistan Anti‑Corruption Act, 1957, (hereinafter called the Act) at a trial held before Mr. A. F. M..Ahsanuddin Chowdhury, Additional Sessions Judge, Dacca, sitting as Ex‑Officio Tribunal Judge. The appellant was sentenced under section 4 (2) (a) to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000 or in default to undergo rigorous imprisonment for six months more. He was also sentenced under section 5 (1) of the Act to undergo rigorous imprisonment for four 'years and to pay a fine of Rs. 2,000 or in default to suffer rigorous imprisonment for one year more. Substantive sentences were directed to run concurrently but the imprisonment in default of fine would run consecutively. Some of the properties were also forfeited. The case for the prosecution, briefly stated, is that the appellant Badsha Mian was found in possession of movable and immovable properties highly disproportionate to his known sources of income and that these properties he acquired by improper means. It is further stated that he started this career at the age of 19 in the year 1934, when he was convicted under section 11 of the Goonda Act for various offences. He was ultimately externed from the city for six months with effect from 30‑3‑1945. His place of residence is in the same area where prostitute quarters are located. On his return to Dacca after six months of externment, he renewed "nefarious activities" and faced prosecution in various cases. He was found in possession of four pucca houses at an area called Babubazar, large areas of paddy land in Keraniganj Police Station, one Toddy shop, cash Rs. 70,500, two 'diamond set rings and gold ornaments worth Rs. 5,000 and one Rolex Watch gold chain. It is claimed that the total value of his present assets is‑about two lakhs of rupees which according to the prosecution is not only disproportionate to the known sources of his income but is unaccountable as well. On these allegations a first information report was lodged with the Kotwali Police Station .on 25‑10‑

58. He was called upon by the Provincial Government to declare his assets and liabilities under section 4 (1) of the Act. In compliance with the direction contained in the said notice, a declaration of the assets and liabilities was made by the appellant. After enquiry a charge‑sheet was eventually submitted against the appellant on 1‑9‑60 and the Sub‑Divisional Magistrate, Dacca, sent the case to the Sessions Judge as it is exclusively triable by a Tribunal under the Act. The Sessions Judge took cognizance of the offence and transferred the same to the Court of the Additional Sessions Judge for trial. At the trial, the appellant was charged under section 4 (1) of the Act; for having furnished a statement of properties and liabilities which is false and which he knew or had reasonable cause to believe to be so and he thereby committed an offence punishable under section 4 (2) of 'the Act. The prosecution further claims that there is reason to believe that the properties worth about Rupees two lakhs were acquired by him by improper means and the same are disproportionate to his known sources of income and he has thus committed an offence under section 5 (1) of the Act. The defence case is that the statement submitted by the appellant in response to the notice of the Government is true and his properties are not disproportionate to his known sources of income. He claims to have come from very respectable Zamindar family of Shainpukur of the district of Dacca and that his 'grand father and father were Zamindars and that he inherited properties worth about a lakh of rupees from his father. Besides, .he had business in Toddy, rice, Bidis and he used to get rents from the tenants. His family consisted of himself and his wife and a daughter who was only one year old at the time of the institution of the case. There Was, therefore, accumulation of wealth as he did not have to incur much expenditure for the maintenance of his family and that he all along led an honest life and performed Haj with his wife. The prosecution examined 26 witnesses in support of its case and the defence none. This appeal came up for hearing before a Division Bench consisting of Baquer and A. Subhan Choudhuri, JJ. The case was thereafter referred to the learned Chief Justice for disposal by a larger Bench. It was stated in the letter of reference as follows: "The appeal seems to, be the first of its kind in the High Court and, as stated by the learned Deputy Legal Rememb rancer several other cases depend on the result of this appeal. It involves the interpretation for the first time of the provisions of the East Pakistan Anti‑Corruption Act, 1957, being Act XXVI of 1957 and also the vires of the Act itself has been challenged by Mr. Hamidul Huq Chowdhury in the light of the Articles of the present Constitution. 'The case being thus one of constitutional importance and of far‑reaching nature, it is desirable that it should be disposed of by a larger Bench. 'The case, has therefore, come before this Bench, which is constituted for hearing this appeal. Mr. Hamidul Hun Chowdhury, learned Advocate for the appellant, submits that the Act, not having received the assent of the Governor within ninety days from passing of the Bill, was not a valid piece of legislation. Mr. Chowdhury contends that it was passed on the 2nd April 1957 and the assent of tire Governor was first published in the Dacca Gazette Extraordinary, dated the 17th August 1957: His contention, therefore, is that the assent was given to the Act after the period of ninety days expired. This Bill is governed by the Constitution of 1956. The material part of Article 90 of the said. Constitution is as follows: "(1) When a Bill has been passed by a Provincial Assembly, it shall be presented to the Governor, who shall, within ninety days,‑ (a) Assent to the Bill, or (b) reserve the Bill for the consideration of the President ; or (c) declare that he withholds assent from the Bill; or (d) in the case of the Bill other than a Money Bill, return the Bill to the Assembly with a message requesting that the Bill or any specified provision thereof, be reconsidered, and that any amendments specified by him in the message be considered." Sub‑Article (1) of Article 90 provides that after the passing of a Bill by a Provincial Assembly, it shall be presented to the Governor who, shall take any of the three steps enumerated in clause (a), (b) or (c) in case of ordinary legislation. Clause (d) refers to Money Bill with which we are not concerned in this case. He may, therefore, assent to the Bill or reserve it for the consideration of the President or may declare that he withholds assent from the same. One of the steps enumerated above shall have to be taken by the Governor within ninety days from the date of the presentation of the Bill to him. The question of giving or withholding assent or reserving it for the consideration of the President can only arise after it is presented to him. There is nothing before us to enable us to reach the conclusion that the assent was given by the Governor after the‑ expiry of the period prescribed in sub‑Article (1) of Article

90. When it was put to Mr. Choudhury that on reading sub‑Article (1) ii appeared that the period of ninety days would commence from the date of presentation and not from the date of passing of the Bill Mr. Chowdhury conceded that it was possible to take that view as well. It cannot therefore, be said that the Act is not a valid piece of legislation for want of assent of the Governor within the prescribed period. Mr. Chowdhury has argued before us that this being an ex post facto penal legislation it is void having contravened a provision of the Constitution. His contention is that this legislation vas made commission of an act an offence at a time when there was no legislation to that effect in existence. In other words an act has been made an offence retrospectively. The learned Deputy Legal Remembrancer, appearing for the State, on the other band, contends that there is no provision in the Act which is retrospective in its operation and the question of its being void on that ground does not arise. Mr. Chowdhury has found his claim on Right 4 of the Constitution which is as follows :‑ "Protection against retrospective punishment‑No law shall authorise the punishment of a person‑(a) for an act or omission that was not punishable by law at the time of the act or omission; or (b) for an offence by a penalty greater than, or of a kind different from, the penalty prescribed by law for that offence at the time the offence was committed." It is true, if any legislation is inconsistent with the right conferred by the Right 4, it will be void to the extent of repugnancy by reason of Article 6 of the Constitution which is as follows :‑ "Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void." . . . The question, however, is if any of the provisions of the Act are retrospective in operation. We are concerned in this case with sections 4 and 5 of the Act. Section 4 (1) is as follows:‑-- "When the Provincial Government, on receipt of information and after making such enquiries as it may deem necessary is satisfied that there is reason to believe that any person or any other person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income, it may, by order, require such person to furnish in the prescribed manner and within the prescribed time a statement of his property and liabilities and such information relating thereto as may be required by the order." This section, broadly speaking, provides that the Provincial Government may require a person to furnish a statement of his properties and liabilities if it is satisfied that there is reason to believe that such person "is in possession of pecuniary resources or properties disproportionate to his known sources of income." The expression "is in possession" speaks of possession in praesenti. If a person is at present in possession of properties and if the properties of which he is now in possession is disproportionate to the sources of his income known at present, he may be required to furnish the information contemplated under this section. Regard being had to the language of the section it cannot be said that it is retrospective in operation. Subsection (2) of section 4 is as follows :‑

"If such person‑

(a) upon being so required by an order under section (1) fails to furnish the statement or information or furnishes a statement or information which he knows or has reasonable cause to believe to be false or not true, in any material particular, or (b) makes in any book, account, record, declaration, return or other document which he is required by an order under subsection (1) to furnish any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular, he shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine." It speaks of a future act. Clause (a) makes failure to furnish the required particular or furnishing a statement or information which he knows to be false or has reasonable cause to believe to be false an offence. Making of false documents for the purpose of furnishing return when called for has been made an offence. These provisions have no reference to the past acts and as such it cannot be said to have any resemblance to any, provision of law which may be considered to give retrospective operation to a legislation. I would now proceed to consider section 5 of the Act. That section is as follows:

"(1) Whoever has in his possession any property movable or immovable, either in his own name or in the name of any other person on his behalf, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to his known sources of income shall, if he fails to account for such possession to the satisfaction of the Court, be punishable with imprisonment for a term which may extend to 7 years and with fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government. (2) When in any trial or an offence under subsection (1), the fact that the accused‑person or any other person on his behalf is in possession of property, movable or immovable, dispro portionate to his known sources of income, is proved, the Court shall presume unless contrary is proved, that the accused person is guilty of such offence and his conviction therefore shall not be invalid by reason only that it is based on such presumption. (3) The reference in subsection (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the force of law or by coercion, undue influence, fraud or misrepresentation within the meaning of the Contract Act, 1872." Section 4 empowers the Provincial Government to require furnishing particulars of assets and liabilities in certain circum stances. Section 5 makes it punishable if someone is‑actually found in possession of properties of given description. Opening' words of section 5 provide for punishment of one "who has in his possession" the said property. It does not speak of possession in the past. It speaks of present possession. I am not impressed by Mr. Chowdhury's argument that it may speak of present possession but the property mentioned is the property acquired in the past. That may be so but the section makes present possession of the property an offence. He says that possession of particular type of the property has been made an offence and the property must be a property which there is reason to believe to have been acquired in the past by improper means. Mr. Chowdhury's contention cannot be accepted, for the offence created by the Act is present possession of the property which has been acquired by improper means. The Act penalises the possession of the property in question after the Act came into force. Marginal note of section 5 lends support to the view expressed above. It is in the following terms :‑--‑ "Possession of property disproportionate to known sources of income." Mr. Chowdhury has also argued that even if the property in question can be said to have been acquired by improper means in accordance with law then in existence there was no provision for forfeiture of the property previous to the enactment of this law. It, according to him, imposes punishment greater than what was available then. I have already observed that offence is present possession of a property acquired by improper means as defined in subsection (3) of section 5 of the Act. A property acquired by improper means prior to coming into force of the Act will not, however, be liable to forfeiture on the ground urged by Mr. Chowdhury. It cannot therefore be said that the Act is retrospective in operation on this ground as well. These provisions, clearly indicate that the Legislature never intended to give retrospective operation. It is a well‑established rule of interpretation that "no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act or arises by necessary implication" (See Maxwell's Interpretation of Statutes, 10th Ed. 213). I am therefore of opinion that this contention of Mr. Chowdhury has also no substance. Mr. Chowdhury has also submitted that contrary to fundamental principle of Criminal Law this Act lays burden on the accused to prove that be is innocent and on this ground this Act must be declared to be a bad one. The principle is indeed well recognised and requires no argument‑in its support but exceptions cannot be forgotten. In the case of Woolmington v. Director of Public Prosecutions (L R 1935 A C 462) the learned Lord Chancellor observed : ' "Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to defence of insanity and subject also to any statutory exception." Statutory exception created by this legislation is found in subsection (1) of section 5‑of the Act already quoted above. If the Legislature itself lays some burden on the accused it cannot be held bad. No provision of the Constitution imposing any prohibition on the Legislature against such a course being adopted has been pointed to us. It has been laid down in the Act itself that a‑ person who has in his possession any property "which there is reason to believe to have been acquired by improper means, and which is proved to be disproportionate to his known sources of income, shall, if he fails to account for such possession to the satisfaction of the Court be punished with imprisonment." The expression "if he fails to account" clearly indicates that the Legislature has in certain circumstances required that the accused should give an account for possession of the property as described in the statute. It does not, however, mean that the accused is to prove his innocence. It 'merely says that the accused is to give an account. If the account or explanation is such as may be true, the accused has discharged his burden and it shifts the burden again en the prosecution to ‑prove its case beyond reasonable doubt. This is neither novel nor peculiar as claimed by Mr. Chowdhury This provision not being violative of any of the provisions of the Constitution, it cannot be said that the Act is void on this ground. The learned Deputy Legal Remembrancer has rightly placed his reliance on the cases of Blythe v. The King (A I R 1949 Cal. 64:) and Biswabhusan Naik v. The State (A I R 1952 Orissa 289) in support of his contention that in certain circumstances the Court may presume that the accused has committed an offence if it is specifically provided by a law. It was held in Orissa case as follows:

"But where the Court feels justified in drawing the presumption against the accused after a due consideration of the explanation, then the burden is on the accused to displace the presumption of criminal misconduct, always remembering as has been held in Rex v. Carrbriant (1943) 1 K B 607 that the burden of proof on the accused in such cases is less than that on the prosecution and that it is enough for the accused to make out the truth of his defence in all‑ reasonable probability though, not clearly beyond doubt. It is these principles that have to be kept in view in appreciating the evidence oh this part of the case." Referring to subsection (3) of section 5 'of the Act II of 1947, which is similar to subsection (2) of section 5 of the impugned Act, the learned Judges observed as follows in the case of Blythe v. King, referred to above ; "In the first place this provision permits the prosecution to prove in these trials a fact, which would not be relevant under the Evidence Act the fact that the accused (or anybody else on his behalf) is in possession of pecuniary resources or property, disproportionate to his known sources of income, and that for such possession the accused person cannot satisfactorily account. To prove this fact the prosecution will have in practice to prove the pecuniary resources in the possession of the accused ; then to prove what is known about his sources of income, and then to prove that the accused person cannot satisfactorily account .for this possession. If the Court is satisfied as regards these three things and also finds that the property is disproportionate to the known sources of income, the prosecution will have proved the fact, which section 5(3) gives it the right to prove. Thereupon, it will become the duty of the Court to presume that the accused have committed the offence of criminal misconduct but even then, the accused has the right to prove that he has not committed this offence. And if the accused succeeds in proving this, the Court shall not make the presumption aforesaid and will declare him not guilty." . It is also not correct to say, as was strenuously urged that there has never been any legislation 'which laid such a burden on an accused person. Subsection (3) of section 5 of the Act II of 1947 which is in the following terms has close resemblance with subsection (2) of section 5 of the impugned Act as already quoted : ‑-- "In any trial of an offence punishable under subsection (2) the fact that the accused person or, any other person on his behalf is in possession, for which he accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption." Mr. Chowdhury has also severely attacked the Act on the ground of impropriety of such a legislation. His contention is that it is unthinkable that there can be a legislation which asks its citizens to declare their assets. I must however say that an appeal founded on impropriety of legislation must of necessity lie to the Legislature. Next point urged against the validity of that Act is that it is vague in its nature and it cannot have any recognition as penal law. Mr. Chowdhury's contention is that the words "improper means" are too vague to admit of any exact definition. This contention of Mr. Chowdhury is of no avail to him as the Legislature has taken care to provide in subsection (3) of section 5 of the impugned Act as to what is meant by "improper means". In the presence of subsection (3) of section 5 quoted above, I do not consider that the Act is vague at all. I have now to consider the evidence adduced against the accused, Mr. Chowdhury claims that evidence of general repute of the accused and hearsay evidence have gone into record. I would, however, proceed to examine evidence relating to the property found in possession of the accused and, his known sources of income and‑ whether the property found in his posses sion is disproportionate to his known sources of income. It is also to be found if the accused has given an account for such possession. In making an analysis of the evidence, I am excluding from consideration evidence relating to general repute of the accused as well as hearsay evidence from consideration. The accused is alleged to have given incorrect statement in the return called for and further accusation is that movable or immovable property found in his possession is disproportionate to the known sources of his income. Keeping in mind these allegations, a brief reference to the evidence seems to be necessary. P. W.1 Mohan Mia alias Mohiuddin says that the house of "this accused lies at Sachibander, that is, in prostitute quarter near Babu Bazar, Dacca. The building in which this accused lives was constructed 7/8 years back. That building stands on the junction of Akmal Khan and Ziauddin Road, Dacca". This witness admits that he did not know the father of the accused. He, however, says : "So far as I know this accused has no business in its regular and proper term." This statement means that the accused has no business except the illegal acts attributed to him. So far as his statement regarding realisation of money from the prostitutes and the visitors in that quarters is concerned it is excluded from consideration as the witness himself said: "I cannot name prostitutes from whom this accused realised money by coercion, undue influence and torture." The prosecution has to prove that the appellant had no business and the properties found in his possession are disproportionate to his known sources of income. Evidence to the effect that this witness has no business is direct and relevant. The next witness is P, W. 2 Feroz Khan who claims to have business in Watch at 22, Islampur Road, Dacca. He says "The building of this accused on the Ziauddin Road is just near Sachibandar. This two‑storeyed building has been constructed since 7/8 years. Prior to this it was a tin hut." This shows that two‑storeyed building was not inherited, for, father of the accused died in 1941 as shown in the statement of the property (Exh. 12) submitted by the accused. This witness has also deposed to have himself seen the accused as a Boy serving in a tea stall. According to him the accused had no business in the proper sense of the term. Mr. Chowdhury, however, attacked this witness on the ground that he admitted that he had no acquaintance with any prostitute except as his customers. It should, however, be realised that the witnesses in a case of this nature were placed in a delicate position. In support of their statement they cannot claim any acquaintance with any prostitute as that would, affect their own position in society. But this witness has said that he knew them as his customers: Mr. Chowdhury has further attacked this witness for his statement to the effect that he saw this accused serving in a tea stall as a Boy although the witness was only 38 at the time of the trial and the accused was fifty years old. This is not sufficient to hold that witness is not a reliable one. Too much of precision cannot be expected of a witness of his position. At any rate, prosecution is to prove that the accused had no business and this witness stated that the accused had no business. The next witness is P. W. 3 Khwaja Khairuddin who has deposed to the effect that the father of this accused was a day labourer. This part of his deposition is excluded from consideration as being hearsay, for, he admitted in cross-examination that he had no personal knowledge of the affairs of the father of the accused. He however, says "I know the house where this accused now resides. This is a two‑storeyed pucca building. Previously there was Chhapra but on that land. About 8 or 9 years back the pucca two‑storeyed building was constructed." He also corroborates P. W. 2 in material particulars. He clearly stated that "This accused has no regular, proper and legal business. The source of the income of this accused are all improper and immoral means and he has earned money by immoral and improper means." The witness meant that the accused had no business in the ordinary sense of the term. This witness in cross‑examination admitted that he had been moving the authorities for bringing the accused to book for his illegal activities. Mr. Chowdhury therefore claims that this accused is actuated with feelings of bitter animosity. But the frank statement of the witness indicates that he may have been actuated by a feeling of public good and may have been "championing the cause of suffering people" as he claims. I am not impressed with the submission of Mr. Chowdhury that owing to political rivalry this witness has falsely deposed against the accused. He appears to have deposed in a straightforward manner. P. W. 4 Soleman Haider has also stated that the accused had no legal business‑. P. W. 5 is Mr. S. M. Ahmed, Superintendent, Excise Depart ment. He has stated to the effect that Badsha Mian was a licensee of a Tari shop jointly with one Abdul Hamid from 1959‑60, and he has further stated "To my knowledge he was neither a licensee prior to 1959‑60 nor after 1959‑

60. This licence was for Sachi bandar shop". P. W. 7 Abdul Hamid corroborates P. W. 5 that he was a partner with the 'accused in the Tari shop from the year 1959‑

60. He claims to have kept Ms. 30,000 with the accused in deposit from his shop in the sale proceeds but he was assaulted when he demanded the balance of money from him. He further says that "I have not got back the remaining money from the accused". In regard to the house of the accused this witness has stated that "This building stands on the Kazi Ziauddin Road very near to Sacbibandar. This two‑storeyed building was constructed about 7 or 8 years back." Referring to the status of the father of the accused, this witness has stated that "The father of this accused used to supply smokes to the persons who used to come to the Babu Bazar Ferryghat through a Hooka. He himself was a smoker. The fishermen used to be served generally with Hooka smoke there and they used to give him small quantity of fish in return." This witness does not say that the accused had any lawful trade or business. He proves that the building at Kazi Ziauddin Road was constructed after the death of the father of the accused. He has supported the prosecution in its claim that the, father of the accused was a man of no means and that the accused had no legal business. I do not think that there is anything to discard the evidence‑of this witness. P. W. 8 Abdul Kader witnessed the seizure of the articles by the police from the house of the accused and also stated that "there was a Chapra but before the present pucca building was constructed about 8 years back." The building, in other words, is stated to have been constructed after the death of the father of the accused. This witness had, however, said that "the accused had one grocery shop on the Akmal Khan Road. He used to bring rice from Barisal and some other places." Mr. Chowdhury strenuously argues on the evidence of this prosecution witness that the accused had a business. It is true that the witness had mentioned about a grocery shop, but there is nothing on record to hold as to what was the income of the grocery shop. This statement therefore is of little or no assist ance to the defence. P. W. 9 Abdul Bari has supported the prosecution case that the accused bad no business. He however said that he got a licence for Bidi leaves to be imported to Pakistan. The evidence of this witness read as a whole, would show that the accused had no business. He has of course also stated that he obtained a licence but what happened after that we do not know. P. W. 10 Fazlul Karim is a Sub‑Inspector of Police who was in the Kotwali Police‑Station from January 1958 to December 1959. He has also supported the prosecution in its claim that the accused had no lawful source of income. P. W. 11 Syed Samsuddin Ahmed is another Police Officer who was Officer‑in‑ Charge of the Kotwali Police Station in 1944‑45, and he deposes to the effect that the accused was externed "from the Dacca Municipality area for six months as he was found to be a terror in the locality in the year 1945." P. W. 13 is Abdul Hamid alias Panchu Mia who had a Tari shop at Sachibandar in the year 1957 along with his sharer P. W . Abdul Hamid. He says that he "had deposited Rs. 32,000 with this accused of which Rs. 10,000 was paid back to Abdul Hamid and the balance amounting to Rs. 22,000 was not paid back though demanded". This witness also said that the accused had deposited a sum of Rs. 25,OC0 with a bank authorising him to deposit the same on behalf of the accused with the Government for a licence of Bidi leaves. He, however, does not say if he actually deposited the amount at all. There is nothing in the deposition of this witness that the accused actually obtained a licence in Bidi and if so, what amount was earned by the accused. Mr. Hakim, learned Deputy Legal Remembrancer, rightly claims that the income earned from business in Bidi leaves was within the knowledge of the accused. Since the prosecution has proved that the accused had no business, the defence should have adduced evidence as to the income earned by the accused in his business, if any. There being nothing on record in this behalf, we are unable to hold that the accused had any income from any business. P. W. 15 Abdul Mia has witnessed the seizure of the articles in the house of the accused and he proves the seizure list Ex h.

7. P. Ws. 17, 18, 19, mainly prove certain transactions which were not mentioned in the statement filed by the accused. Mr. Cowdhury has of course made a grievance that the evidence relating to these transactions were not put to the accused. It will however be seen that there is other evidence of incorrectness of the statement furnished by the accused. P. W. 22 is Mr. Daliluddin Chowdhury who was Officer‑in Charge of the Kotwali Police Station, Dacca, in 1936‑

37. He has stated that the house of the father of the accused was within his jurisdiction and that "it was chhapra house". He has also stated "I saw the father of this accused Badsha as a poor man like a beggar and he was very old at that time. "This witness clearly corroborates other witnesses to the effect that the accused had a Chappra house within .his jurisdiction and he further deposed that he has himself seen the father of the accused who was like a beggar. I find nothing to disbelieve this witness, whose evidence is contrary to the defence claim that father of the accused left substantial properties for him to inherit. P. W. 23 Kazi Mohiuddin who is a Sub‑Inspector of Police was posted at Kotwali Police Station from the middle of 1957 to the middle of 1959. On a review of the relevant evidence led by the prosecution I agree with the Tribunal in its finding that "that the father of this accused was a very poor man and he could leave no property worth the name at the time of his death. It only appears that the land on which previously a Chhapra stood during the life time of this accused's father belonged to him and this could at best be inherited by accused Badsha and his another brother Asrafuddin Bhuiya. It has also been proved by P. Ws. 2, 3, 4, 7, 8 and 22 that the two‑storeyed pucca building was constructed about 7 or 8 years back. The father of the accused died in 1941. The two‑storeyed building was therefore constructed by the accused. The defence seeks to derive support to the claim that the accused is a businessman from the evidence of P. Ws. 5, 7, 8, and

9. P. W. 5 says that the accused was a licensee of a Tari shop with Abdul Hamid from 1959‑60, that is, after the relevant period. Therefore, this witness does not support the contention of the accused so far as the relevant period is concerned. Evidence of P. W. 7 is also to the same effect. I have already referred to the evidence of P. W. 8 who stated about the grocery shop owned by the accused. There is nothing on record to indicate the income of the accused from the grocery shop. Evidence relating to Tari shop also does not help the accused, for it shows that he had a Tari. shop only in the' year 1959‑

60. The trial Court rightly held that "the statement does not show that he had any income from the shop which he acquired from 1959. There is no mention that he has any business in rice". If the accused had really any income from his business in rice, he would have shown the same in the statement. Next contention of Mr. Chowdhury is that the accused could not furnish a detailed statement as he was in prison. But a broad fact like his business in rice, could have easily been mentioned if he had any. With regard to the evidence of P. W. 13 regarding the deposit on account of the Bidi shop, I. have already said that there is again nothing on record as to what was his income from Bidi shop, if any. The Tribunal also notices that "the accused in his statement Exh.12 has stated that he has wholesale shop of Bidi leaves. This is item No. 10 in the statement but he has not shown any income from that business. If he really had any business the income must have been stated in the statement". I entirely agree with the above observation as well as finding of the trial Judge that "at least there is nothing on record which may show that the accused had Bidi business prior to 1958. It is therefore obvious that the accused had no legal and 'proper business except the business in Bidi for the year 1959‑60''. The prosecution has therefore established that the accused had no business worth the name and the properties found in his possession were disproportionate to his known sources of income. It is now for the defence to displace the presumption that these properties were acquired by improper means. Mr. Chowdhury has, however, argued that not a single witness was disinterested. On the contrary, on a persual of the evidence I find that apart from, making some suggestions nothing has been established by positive evidence to enable me to hold that the witnesses for the prosecution are all interested. Attempts made by the defence to discredit the prosecution witnesses have not gone beyond making some suggestions of enmity but nothing has been established which would enable me to hold that the witnesses were actuated by feelings of animosity and in this behalf the 'tribunal also after a careful scrutiny of evidence, reached the conclusion that the defence could not substantiate its claim. With regard to the accusation that the accused furnished a false return, it is clear from the evidence referred to above that the accused did not inherit the building, although he has set out the building in item No.1 and claimed the same to be an inherited property. The consistent evidence already referred to above shows that the two‑storeyed building thereon was con structed by the accused 7/8 years ago. The accused therefore, knowingly made a false statement in Exh. 12 in regard to this building in item No.1 of Part I. With regard to the item No. 9 in Part II, also the accused made a false statement to the effect that he received Rs. 26,200 in 1941. The prosecution has established by clear and positive evidence that the father of the accused could not lave left the said amount at the time of his death: The statement furnished by the accused in this respect also is false and he knew it to be false. The Tribunal observed as follows: The cash amount of Rs. 26,000 was not also his paternal property as has already been, said because we have seen that his father had no pecuniary source to leave any cash, not to speak of Rs. 26,000 and odd." The learned Deputy Legal Remembrancer has also argued that the accused has not mentioned some of the properties acquired by him in the return submitted as required under section 4 (1) of the Act. P. W. 21 A. F. M. Altabuddin was a Deputy Jailor in Dacca Central Jail in 1959. He stated that the accused submitted a statement of property in response to the demand notice of the bureau of Anti‑Corruption Department and the same was attested by him. He has also proved the signature of the accused appearing in the return. Prosecution has proved that some properties acquired by the accused have not been mentioned in the statement. But even after excluding this evidence from consideration on the ground that these omissions were not put to the accused, there are, as indicated above sufficient materials to hold that the statement of property (Exh. 12) submitted by the, accused was false to his knowledge. It is true, P. W. 26 Abdul Baset Khan said, "I have not challenged the property statement submitted by the accused Badsha Mia except that the properties were illegally acquired." The prosecution has to prove that the properties in question are in possession of the accused either in his name or in the name of any other person on his behalf. The statement of property (Exh. 12) furnished by the accused supports the prosecution in this respect. This witness has not therefore challenged the same to the extent that the said properties belong to the accused. It does not mean that there has been no omission in mentioning about the properties. This piece of evidence has to be read with the whole of the evidence of this witness. I am unable to read this statement as a declaration to the effect that the statement (Exh. 12) submitted by the accused was a correct one. This statement appears to me to mean that the properties show: in the statement belong to the accused "except that the properties were illegally acquired". I am not therefore impressed by the argument of Mr. Chowdhury that this is an admission of the correctness of the statement in all respects. It is not thereby accept ed that the statement (Exh. 12) is complete and there has not been any omission or suppression or incorrect assertion in it. The only reasonable meaning that can be attributed to the statement of this witness is that the properties mentioned in the statement (Exh. 12) have been acquired by the accused but they were illegally acquired. The expression "except that the properties were illegally acquired" indicates that the witness was thinking as to whether the properties had been acquired by the accused at all. I have already indicated my agreement with the tribunal in its finding that the accused submitted a false return. I have therefore unhesitatingly reached the conclusion that the accused has committed an offence under section 4 (2) (a) of the Act. In regard to the acquisition of the property, I have found that the father of the accused was a day labourer and could not have left any property. I have also found that the accused was a mere hotel boy and that he had no business in the relevant period. Search of the house of the accused took place on 11‑10‑

58. He had a share in a Tari shop only in 1959‑

60. Although in the argument before us great stress has been laid on a statement that he had business in Bidi leaves, no mention about it has been made in part II of the statement submitted under section 4 (1) of the Act. As a matter of fact, P. Ws. 1, 2, 3, 4, 5, 7, 10, 11 and 13 have deposed to the effect that the accused had no business before 1959‑

60. It is to be remembered that the search of the house took place as early as in October 1958. The grocery shop itself is not mentioned by the accused in his statement (Exh. 12) and I have already stated how the statement of P. W. 8 is not of any avail. In addition to the properties described in the return, it is in evidence that an iron safe was found under the earth in a cook‑shed and a sum of Rs. 70,500 was found in the same when the search took place in October 1958. The prosecution witnesses have stated that the accused had no legal businesses, which meant that he had no business. Money earned illegally, that is, by commission of some offence is not an income derived from a business. The prosecution has succeeded in proving that the money in cash found in possession of the accused is also disproportionate to his known sources of income and that for such possession the accused has failed to give an account. The accused had claimed taut he was a Zemindar but has not produced any iota of evidence in this behalf. The prosecution proved that he was in possession of properties, disproportionate to his known sources of income, and the accused failed to give an account as to how he came to possess the properties, described in the return and found at the house of the accused after search. The law provides that, in these circumstances, a presumption should be drawn against the accused and the presumption in this case has not been displaced. Evidence discussed above clearly shows that the father of the accused could not have left a sum of Rs. 26,

000. We have also found that no evidence about his investment in trade is forthcoming, that being so, I find myself unable to hold that he invested any amount in trade. The amount found in cash is indeed disproportionate to known sources of his income. Other immovable properties are also disproportionate to his known sources of income. The learned Deputy Legal Remembrancer contends that all the properties appearing in the statement Exh. 12 have been acquired by improper means as is understood in the usual sense of the term but even if properties acquired prior to the 17th August 1957, the date of the coming into force of Act, are excluded from forfeiture, the accused bas failed to give any explanation for the same, for, it has been proved that the accused had no business. The money was found in the iron safe which had been kept concealed under the earth. This amount of money found in his possession is also disproportionate to his known sources of income. The accused has shown a sum of Rs. 7,000 deposited with him in cash from one Shanti Peshakar (prostitute) and her gold ornaments of the value of Rs. 1,

200. In his statement Exh. 12 the accused has mentioned that he received some rents for some of the houses but he had to maintain himself all these years and it cannot be said that he could accumulate the huge amount of money found in his possession on the day of the search of his house. Mr. Chowdhury has also argued that the rule‑making power as given under the Act is very wide and the executive has been given power to make rules beyond the scope of the Act. Rule making power is to be found in section 10 of the Act which is in the following terms : "The Provincial Government may make rules consistent with the provisions of this Act to carry out the purposes of the Act". This section means what it says. Rules framed under the Act are to be consistent with the provisions of the Act. It cannot therefore be said that Legislature has authorised the executive to make laws beyond the scope of the Act. I have also considered the rules already framed in this behalf and I do not find any rule ultra vires the Act. Mr. Chowdhury has also submitted that the salient features of the case have not been put to the accused when particulars of the allegations were put to him under section 242 of the Code of Criminal Procedure, Prosecution adduced evidence regarding acquisition of certain properties in order to show that they have been suppressed. I have already indicated that accusation for submitting false statement stands even if this allegation of suppression is not taken into consideration. It is to be noted also that examination of the accused has been rather elaborate in all other respects and it seems to me that all salient features of the case have been put to the accused. The prosecution witnesses have been cross‑examined by the accused in all material particulars and the accused has not been prejudiced by any omission. I would, therefore, dismiss the appeal and maintain the order of convictions and sentences of the appellant under both the sections 4 (2) (a) and 5 (I) of the Act. I am also of opinion that the order of forfeiture only requires to be modified. I have already found the Act including its provision relating to forfeiture to be prospective. The properties acquired prior to the coming into force of the Act were not subject to the penalty of forfeiture on the date of acquisition although acquired by improper means. I would, therefore exempt them from forfeiture although they are found to be disproportionate to the known sources of income of the appellant. In the result, I agree with the orders made by my learned brother Hasan, J. The appeal is accordingly dismissed with the modification of the order of forfeiture. ABDULLA, J.‑This appeal arises from the order of conviction passed by a Tribunal constituted under the East Pakistan Anti- Corruption Tribunal Ordinance, 1960, by which the appellant has been convicted under sections 4 (2) (a) and 5 (1) of the East Pakistan Anti‑Corruption Act, XXVI of 1957. The learned Judges of the Division Bench before whom the appeal was placed for disposal were of the opinion that as the appeal involved the interpretation for the first time of the provisions of the said Anti‑Corruption Act, 1957 and that as the vires of the Act itself had been challenged in the light of the Articles of the present Constitution, it was desirable that this appeal should be disposed of by a larger Bench, and, as such, the appeal was heard by this Special Bench. The said Anti‑Corruption Act XXVI of 1957 (later to be referred to as the Act) was passed by the East Pakistan Assembly on the 2nd April 1957, and the preamble stated that it was enacted in order to constitute a Bureau for East Pakistan for enquiry into, and investigation of offences, relating to corruption and for making provision for enquiry into the pecuniary resources of certain persons for more effective prevention of corruption, and also for certain other purposes. The assent of the Governor was first published in the Dacca Gazette on 17th of August 1957. Section 1 of the Acct states that the Act extends to the whole of East Pakistan and that it will come into force at once. Section 3 provides for the constitution and powers of the Bureau. The two more important sections were section 4 and section 5 which are set out below in extenso:‑

"4.‑(1) . When the Provincial Government, on receipt of information and after making such enquiries as it may deem necessary, is satisfied that there is reason to believe that any person or any other person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income, it may, by order, require such person to furnish in the prescribed manner and within the prescribed time a statement of his property and liabilities and such information relating thereto as may be required by the order. (2) If such person‑

(a) upon being so required by an order under subsection (1) fails to furnish the statement or information or furnishes a statement or information which he knows or has reasonable cause to believe to be false, or not true, in any material particular, or (b) makes in any book, account, record, declaration, return or other document which he is required by an order under subsection (1) to furnish any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particular; he shall be punishable with imprisonment for ;a term which may extend to three years and shall also be liable to fine." "5.‑(1) Whoever has in his possession any property, movable or immovable, either in his own name or in the name of any other person on his behalf, which there is reason to believe to have been acquired by improper means and which is proved to be disproportionate to his known sources of income, shall, if he fails to account for such : possession to the satisfaction of the Court, be punishable with imprisonment for a term which may extend to 7 years and with, fine, and on such conviction the property found to be disproportionate to the known sources of income of the accused by the Court shall be forfeited to the Provincial Government. (2) When in any trial of an offence under subsection (1), the fact that the accused person or any other person on his behalf is in possession of property, movable or immovable, disproportionate to his known sources of income, is proved, the Court shall presume, unless contrary is proved, that the accused person is guilty of such offence and his conviction therefore shall not be invalid by reason only that it is based on such presumption. (3) The reference in subsection (1) to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law or to any rule or instrument having the force of law or by coercion, undue influence, fraud or misrepresentation within the meaning of the Contract Act, 1872." Section 5 (A) was added by amendment in 1962 in which powers were given to officers of the Bureau not below the rank of Inspector to arrest without warrant any `person' when there is reason to believe that such person owned and possessed any property which is disproportionate to his known sources of income. Section 6 provides that no prosecution under section 4 or section 5 can be commenced without the sanction of the Provincial Government. Section 7 merely provides for Adminis tration of the Bureau. Section 8 protects bona fide action of the Bureau and the Provincial Government and further states 'that the provisions of the Act would be in addition to, and not in derogation of any other law. Section 9 provides for delegation of powers of the Provincial Government to the Director of the Bureau or any other officer. Section 10 provides for the making of Rules under the Act. There is a Schedule attached to the Act which specifies the offences, including those under the Act which can be investigated by the Bureau. Rules framed under the Act were published‑on the 28th, of December, 1957 and these provided for furnishing the statement of the property and liabilities referred to in subsection (1) of section 4 of the Act in the form given in the rules, and prescribed the time‑limit of 30 days from the date of receipt of the order of the Government. It seems from the judgment that this case was the first to be tried under the Act of 1957. The law itself was also stated to be first of its kind in Pakistan. It is obvious that this Act was intended by the Legislature of the Province to supplement .the existing law of the country which it found to be inadequate to cope with the rampant corruption prevailing in the country. R will be seen that though the Act is called Anti‑Corruption Act there is no definition of `corruption'. The Schedule only indicates the offences which the Bureau would be empowered to investigate. Creation of the Bureau to supplement the general police force is only one part of the Act. The Act itself creates a new offence, namely, possession of properties proved to be disproportionate to a person's income which there is reason to believe have been acquired by improper means. The Central Act (Prevention of Corruption Act, 1947) has a similar provision, namely, section 5 (3), which reads as follows: "5 (3). In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf is in possession, for whip the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the Court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct and his conviction therefore shall not be invalid by reason only that it is based solely on such presumption." But this Act was applicable only to public servants. The Provincial Act tried to rope in members of the general public also. In my opinion, the intention of the Legislature was to punish also those persons who got rich by the acts of criminal misconduct committed by the public servants in order to eradicate effectively "corruption" from this country. But though the two provisions seem similar there is fundamental difference between them. In the Central Act the offence of criminal misconduct has already been defined in subsection (1) of section

5. Subsection (3) only provides a method of proving the offence of misconduct. It enables the prosecution to prove a fact which would not be relevant under the Evidence Act. I may say, it is a new rule of evidence. But subsection (1) of section 5 of the Provincial Act creates the offence itself as I have stated above. It is not a mere Rule of evidence. Therefore, it is necessary to analyse the section in some details. The elements necessary for a conviction under section 5 (1) of the Act seem to be these (i) A person must be in possession of a property in his own name or in benami, (ii) There must be reason to believe the said property to have been acquired by improper means (which is defined in subsection (3) ); (iii) The said property must be proved to be disproportionate to the known sources of income of the person concerned and (iv The person concerned has failed to account for such possession. All these four ingredients must be proved before there can be a conviction under the section. So far as a public servant is concerned, there is no difficulty in finding out the known source of income. But it is not so easy so far as a non‑public servant is concerned. Therefore, the Legislature has laid down a method in section 4 (I). Whenever the conditions laid down therein are satisfied the Provincial Government can ask a person to declare his assets and such information relating thereto as may be required by the order. By Rules as stated above, the notified person has to give various details which might "account for" such possession. But there is no column specifically requiring declaration of the sources of a person's income. Column 12 which is headed as sources of income has to be read against each item declared and has been used to show income from each item of property. Subsection (2) (a) makes a statement which the person concerned knows or has reasonable cause to believe is false or not true in any material particular. That is, to say a deliberate false statement on a material particular is made punishable. With these remarks I proceed to the facts of the present case. The prosecution case, in short, is that the accused Badsha Mian was a notorious goonda of Dacca City. A history‑sheet had been opened regarding him as far back as in the year 1934. He was externed from Dacca City for six months with effect from 30‑3‑

45. He used to live in the Sachibandar prostitute quarter. He had no honest means of livelihood and, on the other hand, used to trade in prostitutes and realise money by extortion both from prostitutes as well as from the visitors. Although he had no‑ ostensible legal sources of income, this accused was found in possession of pucca houses, paddy lands, cash of Rs. 70,500, ornaments and valuables, the total value of his assets would be about rupees two lacs which was not only disproportionate to his known sources .of income but the accused also could not account for the same. The appellant was an accused in Kotwali Police Station Case No. 45 dated 23rd September 1958, under section's 147, 379 and 323 of the Pakistan Penal Code. P. W. 23, Kazi Mohiuddin, Sub‑Inspector of Police of Kotwali Police Station not being able to arrest the accused, obtained an order of "proclamation and attachment" from the Court and on the strength of the said order he searched the house of the accused in his absence on 11‑10‑58 and in. course of the search he seized a large number of articles, including an iron safe under lock and key. The iron safe was opened at the Police Station, Kotwali. Besides ornaments and other articles, cash amounting to Rs. 70,500 was recovered from the iron safe. On receipt of this information, P. W. 26 Abdul Baset Khan, who was Assistant Director, D. A. B., sent a requisition to the Officer‑in‑Charge, Kotwali Police Station to depute the Sub‑Inspector, who had recovered the articles to his office for discussion. On receiving the report from that office and a list of the properties seized this Assistant Director lodged a First Information Report Exh. 19 on 25th October 1958, stating that up to the year 1956 the accused had no ostensible means of living nor bad any legally acquired immovable properties but the accused was found to be in possession of four pucca houses at Babubazar area, a large area of paddy land in Keraniganj, one Toddy shop, cash of Rs. 70,500, two diamond set rings, gold ornaments worth Rs. 5,000 and one Rolex watch with gold chain, the total value of the assets being about Rs. 2,00,000 which was not only disproportionate to his known sources of income but was also "unaccountable". Therefore, the said Assistant Director charged the appellant of having committed an offence under section 5 of the East Pakistan Anti‑Corruption Act, 1957. Thereafter the said Assistant Director moved the Provincial Government to issue a notice upon the accused Badsha Mian to declare his assets and liabilities under section 4(1) of the East Pakistan Anti‑Corruption Act, 1957. In the meantime, the accused Badsha Mia had been taken into custody and the letter of the Government dated 19‑1‑59, directing the accused to submit his assets and liabilities, was received by him in jail. In pursuance of that notice the accused gave a declaration of his assets and liabilities which has been made Exh. 12 in the case. On receipt of the statement, Mr. Baset Khan verified the statement and by his report Exh. 23 asked for sanction for prosecution which was granted Exh.

24. Under the provisions' of the East Pakistan Anti‑corruption Tribunal Ordinance, the case was tried by a Tribunal. The accusations against the accused were :‑- "The first accusation is that being required by an order of the Government of East Pakistan (Being Order No. 166‑AC) dated the 17th January 1959, to furnish a statement of properties and liabilities under section 4(1) of the East Pakistan Anti‑Corruption Act, 1957, this accused Badsha Mian on 19‑2‑59 furnished a statement of his properties and liabilities which is false and which, he knew or had reasonable cause to believe, to be false, or not true in material particulars and thereby be has committed an offence punishable under section 4(2)(a) of the East Pakistan Anti‑Corruption Act, 1957, and the Second accusation is that this accused had in his possession movable and immovable properties mostly in his name and some in the name of his wife on his behalf under the jurisdiction of Kotwali Police Station and' Keraniganj Police Station, District Dacca, whose valuation according to his own aforesaid statement dated 19‑2‑59 is about two lakhs of rupees, which properties there is reason to believe to have been acquired by him ‑by improper means and which are disproportionate to his known sources of income and he has thereby committed an offence punishable under section 5 (1) of the East Pakistan Anti‑Corruption Act, 1957." The accused pleaded not guilty. He first submitted that the statement,, Exh. 12 was true. Secondly, that the properties of which he was the owner as shown in the statement were not disproportionate to his known sources of income. He pleaded that he came of a very respectable Zamindar family of Shainpukur, District Dacca and had inherited .properties worth about rupees one lac from his father. Besides, he had business in Toddy, rice, Bidis from which he earned money and he also received rent from his tenants. He acquired properties which stood in his name and these were after the death of his father. He further pleaded that he had no issue till the year before last of the trial when he was blessed with a daughter and as such his expenses were also very limited. Whatever he used to earn from his business accumulated, and with that accumulated money he had acquired properties. He had performed Haj and was an honest man. All the allegations of misdeeds against him were false and baseless. He was the President of the local Mohalla Awami League and Vice‑President of the City Awami League. Even Maulana Bhashani had come several times to stay at his residence. He was invited to the High circles in society because he was a political figure in the city. His allegation is that his great rival Mr. S. K. Khairuddin, a Muslim League Member initiated the present case so as to put him behind bars and thereby humiliate him publicly. The learned Judge set out to decide the case by taking the two charges in the accusation separately as points for determi nation. He started with the first point that is whether the accused had made any false statement in his declaration Exh. 12 but he did not come to any categorical finding to most of the items. The learned Tribunal found that the statement in item No. 1 of the immovable properties to the effect that the accused had inherited the 13 kutcha structures and the pucca houses in the inherited plot of land as also the statement in the list of movables that he had inherited Rs. 26,200 from his father was false and the accused knew or had reasonable cause to believe them to be false or not true in material particulars. The accused had, therefore, committed an offence punishable under section 4(2)(a) of the Act. With regard to the second accusation the learned Judge went into the evidence adduced by the prosecution and held that the prosecution had proved that the accused had no proper legal, sources of income, that his father was a‑ pauper and a labourer leaving no property on his death and that the accused had been in possession of properties which we're highly disproportionate to his known sources of income. Having come to those findings, the learned Judge held that the prosecution had discharged the onus and it was for the accused to account for his possession of the properties to the satisfaction of the Court. By giving all allowance with respect to other items he found that immovable properties in item Nos. 1‑6 of list of immovable properties and the cash of Rs. 70,500 in item No. 9 of the‑list‑‑of movables were disproportionate to the known sources of income of the accused Badsha Mian. As such he convicted the accused also under section 5 (1) of the Act. He sentenced the accused under section 4(2)(a) of the Act to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000 in default of which to suffer rigorous imprisonment for six months more and also sentenced him under section 5 (1) to rigorous imprisonment for four years and to pay a fine of Rs. 2,000 in default to rigorous imprisonment for one year more stating that the substantive sentences would run concurrently but the sentences in default ' of fine would run consecutively. The learned Judge also forfeited the above mentioned properties of the accused, viz. (1) The structures of 7 Akmal Khan Road, (2) The structures and land of 2 Dewan Saheb Road, (3) 6 Dewan Saheb Road, (4) 8 P. K. Roy Lane, (5) item No. 5 of Exh. 12, (6) 6‑Akmal Khan Road and (9) (sic.) the cash amount of Rs. 70,

500. It was argued before the learned Tribunal that no retrospective effect could be given to the Act but the Tribunal repelled the argument by holding that the Act bad been designed and enacted with a definite purpose which was to scrutinise and take account of the earnings of the whole life of a person and as such in his opinion the Act was enacted to give retrospective effect. The learned Tribunal also repelled the argument that the provisions of the Act came in conflict with Article 6 of the 1956‑Constitution by holding that there was no question of retrospective punishment and the Act having been enacted long before the present Constitution its effect‑could not be circumscribed or held to be ultra vires of the Constitution which came into existence after the Act itself. Mr. Hamidul Haq Chowdhury at first attempted to raise the point that the Act was not validly on the Statute Book as the assent of the Governor appeared to have been taken more than three months from the date of passing of the Act thus violating the provisions of Article 90 of the 1956 Constitution. When confronted with the question that Article 90 prescribed that 90 days should be counted from the date of presentation of the Bill he could not furnish any date from which it could be concluded that the assent was given in violation of the said provision. Mr. Chowdhury next argued that the offence created by the Act was so vague in nature that as a penal law it could not have any validity. He urged that there was no definition of "disproportionate" and "known sources of income" and the definition of "improper means" as given in section 5 (3) was also vague. In support of his contention he referred to page 575 of American Constitution Law by Dowling and Edwards where the learned authors have said: "The Court has developed the doctrine that unless a criminal statute meets a certain minimum degree of specificity and clarity, convictions resting thereon will be invalidated. "The vice of vagueness in criminal statutes," the Court has recently explained "is the treachery they conceal either in determining what persons are included or what acts are prohibited. Words which are vague and fluid may be as much of a trap for the innocent as the ancient laws of Caligula." He also placed before us the decision in the case of United States of America v. Ira D. Cardiff (344 U. S. 174, 97 Law Edn. 200, 73 S Ct. 189). Mr. Chowdhury also attacked the vires of the Act with reference to Article 6 of the present Constitution regarding item No. 4 of the Fundamental Rights which protects a citizen against retrospective punishment. The learned Deputy Legal Remembrancer replied that the penal provisions of the Act were not in any way vague and further that the Act is not in conflict with Article 6 of the Constitution. He argued that the Act clearly indicated that it should be given effect in presenti and the Act applies from the date on which it came into force. The learned Deputy Legal .Remembrances conceded that all the immovable properties which had been found by the Tribunal to be disproportionate to the known sources of income were acquired before coming into .operation of the Act and, as such, acquisition of these properties could not be punished under the provisions of this Act. He only claimed that the sum of Rs. 70,500 in cash which was found in the iron safe was disproportionate to the known sources of income of the accused. The Investigating Officer P. W. 26 has also admitted: "I do not find any immovable property given in the statement which has been illegally acquired after 17th August 1957, by this accused Badsha Mian". Thus it remains for us to examine only the first point raised by Mr. Chowdhury, namely, that the offence created by the Act is vague as the provisions conceal what persons are included or what act has been prohibited. Now as already stated so far as public servants are concerned all the possible sources of their income would be apparent and `known'. But in the case of private citizens there maybe sources of income not known either to the Provincial Government or to the Bureau set up under the Act. For that reason the Legislature has made provision which if fairly followed will prevent any unnecessary harassment to innocent persons. It is apparent that although prosecutions under section 5 can be straightway launched yet it would be dangerous except in the case of public servants whose sources of income are known. In that view of the matter section 4 has been incorporated so that an opportunity is given to the accused to disclose not only his assets‑ but also his sources ‑of income. Once the two data are available there cannot .be any difficulty in finding proportion between the two. Therefore the contention of Mr. Chowdhury that the word `disproportionate' or `known sources of income' is not definite and as such renders the offence vague cannot be substantiated'. We also do not find the definition of "improper means" as given in the Act to be vague. Therefore, the learned Deputy Legal Remembrancer does not call us upon to enter into the question whether the rule of law enunciated in the treatise is available in this country a point raised. In this connection Mr. Chowdhury also argued that the Court was to presume the guilt of the accused if the prosecution proved that the accused was in possession of property disproportionate to his known sources of income and this amounted to the Legislature usurping the function of the judiciary. The use of the word `shall' as prefixed to `presume' has been held by the Supreme Court of India to be a presumption in law as opposed to ‑presumption as to fact if the word `may' is used instead of `shall', State of Sadras v. A Vaidyanatha Iyer (P L D 1958 S C (Ind.) 264). But before the question of such presumption' could arise it is the Court which has to be satisfied that the property found in possession of the accused and believed to have been acquired by improper means was, in fact, disproportionate to his known sources of income. That presumption is also a rebuttable one and the burden of proof on the accused is not so heavy as the burden of proof in the case for the prosecution. So far as conviction under section 5 of the Act is concerned it is the Court which has to be satisfied at the first instance and in satisfying the Court the prosecution has to prove the case to the same degree of certainty as under any other penal statute. Then also whether the presumption has been rebutted or not is also a question to be decided by the Court as such we are of opinion that the contention of Mr. Chowdhury that the Legislature has usurped the function of the Court is not correct. The burden of establishing the guilt of the accused beyond reasonable doubt still remains on the prosecution. Now coming to the specific case of the prosecution itself, Mr. Chowdhury has argued that there has been no declaration in the statement (Exh. 12) which can be called false and he drew our attention to the cross‑examination of the Investigating Officer P. W. 26 Abdul Baset Khan who stated: "I have not challenged the property statement submitted by this accused Badsha Mian except that the properties were illegally acquired." Mr. Chowdhury also drew our attention to Exh. 23, the report submitted by the said Investigating Officer praying for sanction to prosecute the accused where he states that the statement of assets given by the accused Badsha Mian was verified locally. The immovable properties given in the statement were correct but the item said to be inherited from his father is false. His father was a day labourer and left nothing to be inherited by his son. The rest of the report is regarding the valuation of the immovable properties which the accused had given at Rs. 1,59,805 and the prosecution alleged that as the accused had not any ostensible means of income these properties were not covered by any known sources of income. The accusation also as quoted earlier does not reveal in what item he had made a false statement. The learned Deputy Legal Remembrancer placed before us a list of properties prepared by him which shows that the accused did not show in. his statement Exh. 12 all his immovable properties. Of the omitted properties one was acquired by Exhs. 11 (A) for Rs. 800 on 1‑8‑52 and another one appeared to be an agreement for purchase (Exh. 10). Two properties were acquired in the, name of the accused's wife, for Rs. 2,000 each Exhs. 9 (b) and 9 (c). The last item appeared to be a rent receiving interest regarding the property at 7‑A, Sachi Bandar Road for Rs. 3,000 by Exh. 9 (d). The learned Deputy Legal Remembrancer argued that these properties were suppressed and the return was false in material particulars. Secondly, the learned Deputy Legal Remembrancer‑argued that the assertion of inheritance of property No. 1 including all the structures therein was false and also that the cash sum of Rs. 26,200 shown as inherited from the father of the accused in 1941 was also false. So far as the question of suppression of the properties are concerned no such case was made out by any evidence in the Court nor was the said factum of suppression put to the accused in his examination under section 342 of the Code of Criminal Procedure by the learned Judge. Exh.. 11 (a) appears to be a document regarding 30, Akmal Khan Road, by way of a surety for a loan advanced and the lease conveyed by the document would come into operation if the debt had not been repaid by 30th September 1962. The prosecution has led no evidence to show that the lease came into effect. Similarly the second property was merely an agreement for purchase and the prosecution did not prove that the agreement ripened into a transaction. Regarding the two small properties in the name of the accused's wife the prosecution had not led evidence to show the accused's wife could not reasonably be held to be capable of possessing such property. The Tribunal itself has held that she could own and possess a much larger property, namely, item No. 8 of list I declared by the accused. I do, not find that the prosecution has been able to establish that these properties were not that of the wife of the accused. With regard to the last of the alleged suppressed property 7/1, Sachi Bandar the recital in the document clearly shows that the original owner could not possess the property and as such it was being disposed of to the accused. The prosecution has not shown that the accused could effectively possess the property. In any case when the accused has admittedly submitted the list of his property amounting to Rs. 1,59,000 there would be no reason for him to suppress such a small property apparently purchased at Rs. 3,

000. It must be remembered that the accused submitted the statement from jail and all the title deeds were with the police. There is no evidence that the police gave the accused access to his papers. Regarding the claim in the statement (Exh. 12) that the accused was the owner of all the structures on the ancestral plot of land measuring 22 kattas, I find it difficult to accept the prosecution case that this was a deliberate mis‑statement. First it will be seen that it is not an under‑statement but rather prima facie a statement against the accused considering the main object of the Act. The prosecution claimed that the accused had shown that he had 13 tin sheds and two one‑storeyed buildings as his own in order to show that the income from all the structures would enable him to acquire the other properties. First of all it is seen that there is only one column, namely, column No.11 in the printed form for showing the manner of acquisition of these properties. The structures and land are shown in column No.

1. Then the land has been shown separately in column No. 5 and the valuation of land has been shown in column No.

7. Of course, the accused could have in the remarks columns given the details of which structures were ancestral and which were built by him. Mr. Chowdhury has argued that the prosecution has failed to prove that the accused's father was a pauper in 1941. Admittedly on the prose cution evidence itself the accused's father died possessing 22 kattas of land and they admit at least one tin Chapra. The accused version is that there were 1.3 tin Chapras on the land at the time of the death of his father and thereafter pucca houses were built there and are now occupied by the accused. The rent accrues mainly from the 13 katchas structures. It is admitted that the statement is in English and the accused is not able to understand himself all the implications of the different heads under which he had to submit the return. Even if it is presumed that by signing the statement on the last page he has accepted the statement as to bb his own, it cannot be said that the accused deliberately made the alleged false statement all the more so as the motive now ascribed to him was not put to him in his examination under section 342 of the Code of Criminal Procedure. Coming to the last argument of the learned Deputy Legal Remembrancer regarding the charge under section 4 (2) (a) that the sum of Rs. 26,200 shown in item No. 9 of the list of movable properties in his statement Exh. 12 was falsely stated to have been inherited from his father I find that the prosecution has failed to prove that the statement was false in view of the prosecution evidence itself to the following effect‑: P. W. 8 Abdul Kader in his cross‑examination stated: "I have heard of the village Shainpukur in the District of Dacca. The Bhuiya family of Shainpukur is a well‑known' family and they have houses at Akmal Khan Road at Babubazar. The elder brother of this accused is Ashrafuddin Bhuiya. Mr. Fazlur Rahman, ex‑Minister comes from Bhuiya Bari of Shainpukur. I know Fazal Bhuiya of that Bhuiya family of Shainpukur. He was a big Talukdar of that locality. This Fazal Bhuiya was grandfather of this accused Badsha and his brother Ashrafuddin. This Fazal Bhuiya was first cousin of ex‑Minister Mr. Fazlur Rahman. Abdul Hakim Bhuiya was the father of this accused. I speak all this from my personal knowledge." In view of this evidence and the admitted fact that the accused's father left behind 22 kattas of land at least in the busiest part of the city of Dacca, the evidence that the accused's father was a pauper and was a "cooly", serving tobacco to the fishermen in return for small pittance seems bard to be believed. The evidence of P. W. 2 Firoz Khan that the accused's father used to serve people Hookkas cannot be accepted, as firstly, he was deposing to facts more than 20 years back and secondly, because he admitted that he had never gone to the area wherein the accused's father had lived at any time. His evidence is "I did not go to Sachi bandar at any time". Similarly P. W: 3 Mr. Khairuddin who, according to the prosecution is the most competent witness, admitted that he did not know Badsha Mian's father personally and he could not say when he died and he had no personal knowledge about the affairs of Badsha's father but that he only heard of the same. P. W. 8 Abdul Kader'in his examination‑in‑chief has avoided the question of the status of the father of the accused by saying "I do not know what he used to do". Therefore, in my opinion, it has not been established by the prosecution that the accused did not receive the sum of Rs. 26,200 as mentioned by him on the death of his father. From the above evidence as shown I cannot hold that the accused has made any false statement deliberately on any material particular in his statement (Exh. 12) and therefore, his conviction under section 4 (2) (a) cannot be maintained. Now coming to the charge under section 5 (1) I have shown above that the offence was a creation of the present Act. There fore, applying the protection guaranteed by the Fundamental Rights of the 1956‑Constitution as well as of the present Constitu tion the charge cannot relate to any of the properties already acquired before the Act, making the possession of such properties an offence, came into force. It is left for me to consider the sum of Rs. 70,500 which was found in the iron safe, as all the immovable properties were admittedly acquired before the 17th August 1957, on which date the Act came into force. The sum of Rs. 70,500 must be found to be a sum (1) of which the accused was in possession (2) that there is reason to believe that this sum was acquired by improper means (3) that this sum was‑ proved disproportionate to his known sources of income and (4) that the accused lad failed to account for such possession to the satisfac tion of the Court before conviction under section 5 (1) can be maintained for the possession of the sum. The accused in his statement boldly claimed that this sum accumulated as the cash ‑z)f Rs. 26,200 inherited from his father in 1941 was invested in trade and purchase of properties for 19 years. Strictly speaking this sum also has been given a go‑by by the Investigating Officer. His evidence in cross‑examination is that not only that he did not find any immovable property given in the statement which had been illegally acquired after 17th August 1957, by the accused Badsha Mian but he also stated "I do not also find any movable property given in that statement which has been illegally acquired by this accused after 17th August 1957." This statement of the Investigating Officer has also taken the sum of Rs. 70,5.00 out of the purview of the Act. But the learned Deputy Legal Remem brancer argued that the sum having been found in the accused's possession in October 1958 would lead to a conclusion that the sum was acquired after 17th August 1957. I am unable to accept this contention of the learned Deputy Legal Remembrancer. As has been stated by the accused in his defence the sum was the accumulated balance of his earnings. As to his sources of income he has stated in his examination under section 342 of the Code of Criminal Procedure. "I had business in rice, grocery, timber, fuel, bidi leaves and toddy. Besides, I used to get houses' rent also. I derived the income from all those business. These are my lawful business. I did not carry on any unlawful trade. I have acquired property from all these income". In answer to a specific question regarding the considerable amount of money be replied.:‑

"I have got all those, articles by the income of my business. I did not carry on any unlawful trade or business. All my money are lawful money. I have no unlawful money. The money that I received as rent from my ancestral properties is sufficient. Over and above that I have properties acquired by my own income. I have acquired all those articles with these income." Now, coming to the prosecution evidence, P. W. 1 Mohan Mia alias Mohiuddin stated in examination‑in‑chief that to his knowledge the accused had no business properly speaking and he gave in evidence that the accused used to realise money from the prostitutes of Sachibandar by coercion and undue influence and torture and also in the same manner from the visitors of the prostitutes. But in cross‑examination he has admitted that he could not name any prostitute from whom this accused realised money by coercion nor could he name any person who had visited the prostitutes. He also said that he was not on friendly terms with the accused. P. W. 2 Firoz Khan claims that the accused had no sources of money excepting his dealing in women at Sachibandar and that in his teen he was a Boy in a tea‑stall. But in cross‑examination he admits that he had never been to the prostitute quarter and could not name any person who used to frequent these quarters but his knowledge was based on reports of the affairs of Sachibandar. The evidence of P. W. 3 Mr. S. K. Khairuddin is also to the effect that the accused had no business excepting earnings of the prostitutes but he admits that what he has described was not from personal knowledge but that he had heard about that system. This witness in cross‑examination also admits that he had been trying his utmost to have this accused punished. P. W. 4 Solaiman Haider similarly testifies that the accused's income is from the earnings from prostitutes but in cross‑examination be admits that he has no personal knowledge. On the other hand, I find from the statement which the accused has submitted and which the prosecution itself has had to admit as correct that the accused was getting rent to the extent of more than Rs. 1,000 per month at least for a considerable period of years. The evidence that he was eight annas owner of a Toddy shop is testified by witnesses Nos. 5 and

7. Moreover, P. W. 7 Abdul Hamid states that he had kept Rs. 32,000 with the accused in deposit., of which Rs. 10,000 was returned and balance ox Rs. 22,000 remained with the accused. This witness admits partnership at least for one year. The alleged sum may be proceeds of previous partnership denied by him but alleged by the accused. P. W. 7 also admits that all the persons of the Toddy shop business are not shown in the official records. P. W. 8 Abdul Kader admits that the accused had a permit to import Bidi leaves at the time of Awami League Government about 8 years back from the date of his deposition. P. W. 13 Abdul Hamid alias. Pachu Mia stated: "When this accused went to perform Haj, he deposited Rs. 25,000 with a Bank authorising me to deposit the same on behalf of this accused with the Government for licence of the ‑Bidi leaves." P. W. 8 states: "This accused had one grocery shop on the Akmal Khan Road. He used to bring rice from Barisal and some other places. This accused was a Vice‑President of the Dacca City Awami League and also President of the local Mohalla Committee during Awami League Regime." In view of the above evidence given by the prosecution witnesses I find that the claim of the accused that he had business and this sum of Rs. 70,500 was accumulated out of the profits there from finds support from the prosecution witnesses. The prosecution witnesses themselves have given evidence as to the source of income of the accused and accepting that evidence this sum does not appear to me to be disproportionate. One must remember as has been held in the case of Captain T. E. Blythe v. The King, where the burden of proving of any fact is on the accused it is not necessary to prove it beyond reasonable doubt, and it is sufficient to show that the probabilities are that this is the fact. Viewed in the light of the above observation, I have no hesitation in agreeing and I hold that the accused has accounted for the possession of‑the said sum of Rs. 70,500 to my satisfaction. I, therefore, hold that there is no reason to believe that the said sum of Rs. 70,500 has been acquired by improper means or that it is disproportionate to the known sources of income of the accused. The illegality in the acquisition of other properties mentioned in the charge cannot be taken into consideration for arriving at a decision regarding this sum of Rs. 70,500 following the well‑established cannons of criminal trial. However, before parting with the case I must also point out that even if Fundamental Rights guaranteed by the Constitution of 1956 and the present Constitution did not take the immovable properties out of the charge under section 5 (1), I would have found on the prosecution evidence itself as analysed above that the gradual acquisition of the immovable properties for possession of which the accused was convicted was not disproportionate to his known sources of income as disclosed by the accused himself and the prosecution witnesses. So far as the evidence of the police officers P. Ws. 10, 11, 22 and 23 are concerned, I have no hesitation in rejecting the same as it amounts only to "negative evidence", that is to say, they speak only that it was beyond their knowledge that the accused had any legal business. That does not carry the prosecution very far especially in view of the prosecution evidence itself revealing legitimate sources of income of the accused and the status of the accused and his family. Moreover, the police records, the History Sheet Exh. 3, also corroborates in material particulars the case of the accused regarding his political status and his getting permits for bidi leaves. In view of the above findings, I hold (a) that the immovable properties, namely, (1) the structures of 7, Akmal Khan Road, to 1/2, Kazi Ziauddin Road and (z) the structures and land of 2, Dewan Saheb Road, Sachibandar, (3) 6, Dewan Saheb Road, Sachibandar, (4) 8, P. K. Roy Lane, Sachibandar, (5) another building with the land; which is item No. 5, of P. K. Roy Lane, Badamtali, the holding number of which is not mentioned in the statement, (6) 6, Akmal Khan Road, could not have been made the subject of charge under section 5 (1) of the East Pakistan Anti‑Corruption Act, 1957, and direct that the order of conviction for the possession thereof and the order of forfeiture passed regarding the said properties are set aside and the accused is acquitted of the charge regarding the said properties and the properties are directed to be returned to the accused, (b) that the conviction under section 4 (2) (a) of the East Pakistan Anti -Corruption Act, 1957, cannot be maintained and the accused is acquitted of the charge and the sentences of fine and imprisonment are set aside and (c) that the charge under section 5 (1) of the East Pakistan Anti‑Corruption Act, 1957, with regard to the sum of Rs. 70,500 is not also maintainable and the conviction therefore is set aside and the said sum of Rs. 70,500 is directed to be returned to the accused. In the result, I allow the appeal, set aside the conviction and sentence both under sections 4 (2) (a) and 5 (1) of the Act and the accused is set at liberty forthwith if not wanted in any other case and the forfeited properties are to be returned to him as well as the fines if any realised. In the result the convictions and sentences of the accused appellant under sections 4 (2) (a) and 5 (1) of the East Pakistan Anti‑Corruption Act of 1957 are maintained. But the order of forfeiture made under section 5 (1) of the Act is modified, namely, the properties acquired prior to the coming into force of the Act are exempted from forfeiture and cash amount of Rs. 70,500 being item No. 9 of the statement of movable properties is forfeited. With the aforesaid modification of the order of forfeiture only as indicated above, the appeal is dismissed. K. R. B. A. Appeal dismissed.