ISLAMABAD: A three-member bench of the Supreme Court of Pakistan in a recent judgment has held in categorical terms that a person cannot be convicted in a case of assets beyond means unless the investigators thoroughly investigate and bring on record the sources of income of an accused and establish any nexus between misuse of his authority while holding a public office and amassing of wealth or accumulation of assets by him.
One of the top and respected judges of Pakistan, Justice Asif Saeed Khan Khosa had authored the judgment in the case of Ghani-ur-Rehman vs NAB (PLD 2011 Supreme Court 1144) while Justice (R) Tassaduq Hussain Jillani and Justice (R) Mahmood Akhtar Shahid Siddiqui were also on the bench. Justice Khosa had held that mere possession of any pecuniary resources or property is by itself not an offence, but it is failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence.
The case was that one Ghani-ur-Rahman (late) had remained the chairman of District Council, Hangu, in the erstwhile North-West Frontier Province (now Khyber Pakhtunkhwa) during the period from 1988 to 1989 and subsequently he had remained a provincial minister in the government of the NWFP during the periods from 1993 to 1996 and from 1998 to 1999. On 27-7-2000 he was arrested by the NAB on the allegation of indulging in corruption and corrupt practices and he remained on physical remand with the NAB for the ensuing period of ninety days. On 25-10-2000, a reference was filed against the appellant alleging that during his chairmanship and ministership he had misused his official authority and had accumulated assets which were beyond the known sources of his income. According to the reference filed and the charge framed against the appellant he had, through indulging in corruption and corrupt practices, accumulated assets in his own name and also in the names of his wife and sons and the worth of such assets was to the tune of Rs51,535,000 which was disproportionate to the appellant’s known sources of income.
Justice Asif Saeed Khosa had written in his judgment that the learned counsel for the appellant had also been found by them to be quite justified in maintaining that the reference filed against the appellant as well as the charge framed against him by the learned trial court had alleged that the appellant had accumulated the relevant assets and pecuniary resources by misusing his authority as chairman of a District Council and as a provincial minister but the prosecution had not produced any evidence worth its name before the learned trial court to establish any misuse of his authority by the appellant as chairman or provincial minister so as to develop and establish any nexus between misuse of his authority and amassing of wealth or accumulation of assets by him. In the complete absence of any evidence brought on the record by the prosecution in the above mentioned case, it could not been held by the learned courts below that the charge, as framed against the appellant, stood established by the prosecution.
Justice Khosa further wrote: “In a recent unreported judgment delivered in the case of Khalid Aziz v. The State (Criminal Appeal No 361 of 2001 decided on 5-10-2010) this court had dilated upon the necessary ingredients of this penal provision and had approvingly reiterated the principles laid down in that respect by a learned division bench of the High Court of Sindh in the case of Hakim Ali Zardari v. State (2007 MLD 910) and had reproduced in its judgment a paragraph of that judgment rendered by the High Court of Sindh which read as under:
“In order to prove the case, the prosecution is required to prove the ingredients of the offence, which are (1) it must establish that the accused was holder of a public office (2) the nature and extent of the pecuniary resources of property which were found in his possession, (3) it must be proved as to what his known sources of income were i.e. known to the prosecution after thorough investigation and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these four ingredients are established, the offence as defined under section 9(a)(v) is complete, unless the accused is able to account for such resources or property. Thus, mere possession of any pecuniary resources or property is by itself not an offence, but it is failure to satisfactorily account for such possession of pecuniary resources or property that makes the possession objectionable and constitute offence. If he cannot explain, presumption under section 14(c) of the ordinance that accused is guilty of corruption and corrupt practices is required to be drawn.”