Naseer Khan Vs Chairman NAB etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department) W.P.No.2725-P/2018 Naseer Khan Vs Chairman NAB Date of hearing: 18.09.2019.

Petitioner(s) Naseer Khan by Barrister Waqar Ali Khan.

Respondent(s) Chairman NAB & others by Mr. Sohail Jadoon, ADPG, NAB.

JUDGMENT

AHMAD ALI, J. Through the petition in hand, filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, the petitioner, Naseer Khan, has made the following prayer:-

“It is, therefore, submitted with profound humility and respect that this Hon’ble Court may very graciously be pleased to; i. Set Aside the impugned order dated 30.04.2018 and allow the accused/petitioner’s application under section 265-K for his acquittal.

ii. Grant any other relief deemed appropriate in the circumstances”.

1.Brief facts of the case are that the accused-petitioner alongwith co-accused was charged by the NAB in Reference No.06/2016, pending trial in the Accountability Court-II, Peshawar. Principal accused (Pervaiz Khan) was charged for accumulation of assets beyond his known legal sources of income. Allegations against the present accused- petitioner (Naseer Khan) in the Reference and Investigation Report are that he purchased 272-kanal of

land in village Hisara, Barani Payan, Tehsil Tangi District Charsadda as benamidar of the principal accused. Charge against the present petitioner was framed on 22.07.2016.

14 properties have been mentioned in the table contained in the Charge, to be allegedly beyond the known legal sources of income of the principal accused Pervaiz Khan. The land measuring 272 Kanal, owned by the accused petitioner has been mentioned at serial No.12 of the table containing properties of the accused Pervaiz Khan. The list of witnesses enclosed in the reference book, contains five numbers of witnesses with regard to the alleged 272-kanal land, appearing at serial No.6, 12, 23, 25 & 25 of the list of witnesses. Since the accused-petitioner is the real and actual owner in possession of the said land and the allegation of NAB regarding the purchase of the said land, being a benami transaction has been based solely on presumptions, assumptions, conjectures and surmises, the accused/petitioner filed an application under section 265-K Cr.P.C for his acquittal. At that time, two official witnesses and record had already been examined. However, the learned Judge, Accountability Court decided that the rest of the three witnesses at serial No.23, 24 & 25 of the witnesses list, in respect of said land shall also be examined before deciding the application. After examination of remaining three witnesses and after the parties have been heard, the said application of petitioner filed under section 265-K, Cr.P.C was dismissed by the

learned trial Court vide impugned judgment dated 30.04.2019, hence the instant writ petition.

2.Arguments heard and record perused.

3.The learned counsel for the petitioner argued that the role of the present accused-petitioner being benamidar for main accused Pervaiz Khan and all the witnesses have been produced by the prosecution and it has been failed to established allegations and also failed to prove the purchase of 272-kanal land by the main accused Pervaiz Khan in the name of accused-petitioner. Possession of the said property is with present petitioner and all the documents related to the said property is in possession of present petitioner and that PW at serial No.6 of the list of witnesses, produced revenue record and was examined as PW4 who produced the revenue record and also stated in his examination in chief that the land belongs to Naseer Khan as per the Khasra Girdawari and Fard Jamabandi, as well as PW5, the concerned Patwari Mouza Hisara Payan Tehsil Tangi, also stated that accused-petitioner is the sole owner of disputed property and that Naseer Khan, accused- petitioner has sold out 28-kanal out of the total disputed land measuring 272-kanal to one Aman-ul-Haq; that prosecution has even not made Mst. Nageena as witness who sold the 272-k land to Naseer Khan/present petitioner.

Similarly, Aman-ul-Haq who purchased 28-kanal land from present petitioner was also not produced. He further contended that PW14 & 15 also deposed in favour of

present petitioner and they were declared as hostile by the prosecution and that prosecution is badly failed to prove levelled allegations against the present accused-petitioner, and lastly requested this Court to acquit the accused u/s 265-K Cr.P.C by setting aside the impugned order dated

4.As against that ADPG, appearing on behalf of NAB, strongly resisted the present petition by stating that there are 20 more witnesses to be examined by the prosecution and that it will prejudice the case of co-accused if at this stage present petitioner is acquitted from the charge.

5.Perusal of record reveals that charge against the present petitioner was framed in the following manner:- “You accused No.2 is a Patwari by profession and joined service on 05th November 2010, were unable to provide any plausible/lawful justification for the source of income regarding purchase transaction of said land, as you were not in Government service at the time of purchase of the said land. Thus, you accused No.2 has assisted and abetted accused No.1 in accumulation of illegal assets.”

6.Without dilating upon the merit of the case, suffice it to say that prosecution has to produce 20 more witnesses and which are mentioned in the schedule of witnesses and prosecution has the right to produce any other witness of their choice with the permission of the Court u/s 540 Cr.P.C. which is reproduced as under:-

540.Power to summon material witness or examine persons present. Any Court may, at any stage of any inquiry, trial or other proceedings under this Code, summon any

person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case.”

7.Significant to mention that for benami transaction there are certain requirements especially when the dispute is between the real owner and benamidar and, if the dispute is between 3rd party on one hand, and the real owner and the benamidar on the other hand, then its consideration would lose its importance and in such situation the conduct of the parties and the surrounding circumstances are to be kept in view. To determine, whether the transaction was a benami one or not, source of consideration money and the possession of the title documents are essential elements to determine the nature of the transaction where the dispute arose in between the benamidar and the real owner or in case of 3rd party, some trait for benami transaction are;

i. Source of consideration

ii. From whose custody original title-deed of property is produced, and who possesses the prior deed by which the vendors proved their own title;

iii. Who is in possession of property, and;

iv. Motive for the benami transaction and, In the case in hand the most important factor is source of consideration.

8.No doubt, benami being neither a Law nor Rule, extreme caution is to be observed, when a genuine

transaction is to be made in a good faith. To arrive at a just conclusion as to whether transaction is benami or not, the above mentioned factors are to be taken into consideration.

Guidance could be sought from the judgment in case titled “IQBAL AHMED TURABI VS THE STATE” reported in PLD 2004 Supreme Court 830.

9.While dealing with application under section 265-K, no doubt, the legislature in its wisdom did not leave the question of the recording of evidence as a condition before taking action under said provision. The use of the expression “at any stage” of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some statements or even, it could be later stage as well but the provision under section 265-k should be used with great care and caution. Usually, the criminal case should be allowed, to be disposed of on merits after recording of prosecution evidence, statement of accused u/s 342 of Code of Criminal Procedure and under section 340(2) of the said Code if so desired and hearing arguments of both the parties. Provisions of section 249-A, 265-k and 561-A should not normally be pressed into action for deciding the fate of a criminal case. More-so, the Trial Court is fully competent to appraise, analyze and scrutinize prosecution evidence with a view to find out whether the charge is ground-less or that there is no satisfactory and reliable evidence to establish the guilt of

the accused, however, where there are more accused than one and one of them move an application under section 265-K of the Code of Criminal Procedure (Cr.P.C) then in such a situation the approach of the Court, to analyze and appraise the evidence, would be different from the one where there is only one accused facing trial.

10.In the instant case, as mentioned above, prosecution has to produce 20 more witnesses and any other witness of their choice to prove allegations against the present petitioner. Moreover, acquittal of accused, at this stage, will definitely prejudice the case of co-accused.

11.For what has been discussed above, instant petition is dismissed. Needless to mention here that the observations made hereinabove are tentative in nature and the learned trial Court may not be influenced, and it shall decide the matter strictly in accordance with law and merit of the case.

CHIEF JUSTICE

JUDGE

Announced:

“Amjad PS” DB of Mr. Justice Waqar Ahmad Seth, CJ & Mr. Justice Ahmad Ali