Mr. Justice Mirza Viqas Rauf in his judgment has decided the issue regarding principles of plea bargain, onus to prove assets beyond means and confrontation of material evidence under section 342 Cr.PC statement in Criminal Appeal No. 317 of 2011.
1. This single judgment shall decide the instant appeal as well as connected Writ Petition No. 6517 of 2015 as there is similarity and commonality of question of facts and law involved in the instant appeal as well as connected writ petition.
2. This appeal in terms of Section 32 of The National Accountability Ordinance, 1999 (hereinafter referred as “NAO, 1999”) is directed against the judgment dated 21st of February, 2011, passed by the learned Judge Accountability Court No.1 Lahore, whereby the appellant was convicted under Section 9(a)(v) punishable under section 10(a) of “NAO, 1999” in Accountability Court Reference No.27/2006 and sentenced to ten years rigorous imprisonment with a fine of Rs.1,00,00,000/- (ten million) recoverable as arrear of land revenue as ordained under Section 33-E of “NAO, 1999”. Plot No.146-Block-M Phase-1, DHA, Lahore Plot No.537-CC DHA Lahore and gold ornaments weighing 69-tolas stand confiscated in favour of Federal Government. In addition to the above, it was also observed that he shall forthwith ceased to hold public office, if any, held by him and further, he shall stand disqualified for a period of 10 years to be reckoned from the date, he is released after serving sentence for seeking or from being elected, chosen, appointed or nominated a member or representative of any public body or any statuary or local authority or any service of Pakistan or any province or any bank. Furthermore, he shall not be allowed to apply for or be granted or allowed any financial facility in the form of any loan or advances by any bank or financial institute for a period of 10 years from the date of conviction. Benefit of section 382-B of The Code of Criminal Procedure, 1898 was, however, extended to the appellant.
3. The facts in precision necessary for adjudication of instant appeal are that the appellant was arrayed as an accused in Accountability Court Reference No.27 of 2006 on the allegations that he, while holding public office of Additional Collector Income Tax, Lahore acquired certain assets in the shape of movable and immovable properties in the name of his dependents and benamidars by misusing his authority and by corruption and corrupt practices, which are disproportionate to his known sources of income. After formal investigation, appellant was sent to face the trial before the learned Judge Accountability Court No.1, Lahore. On receipt of Reference, the learned Judge Accountability Court framed the charge against the appellant/accused under Section 9(a)(v) punishable under section 10(a) of “NAO, 1999” to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the appellant, the prosecution examined as many as fifty-three witnesses and also tendered certain documents in addition thereto as documentary evidence. Upon conclusion of prosecution evidence, the statement of the appellant /convict was recorded under Section 342 of The Code of Criminal Procedure, 1898 (hereinafter referred as “Cr.P.C.”) wherein he denied the allegations leveled against him and submitted that he has wrongly been implicated in the case. The appellant/ convict produced certain documents in his defense, however, he did not opt to appear in terms of Section 340(2) of “Cr.P.C.”. Upon completion of evidence and hearing both the sides, the learned Judge Accountability Court No.1, Lahore convicted the appellant by way of impugned judgment as mentioned in the preceding paragraph No.2.
5. Mr. Muhammad Amjad Pervaiz, Advocate representing the appellant submitted that the charge against the appellant was groundless. He added that the prosecution has badly failed to lead any cogent evidence to prove the guilt of the appellant. Learned counsel maintained that the conviction of the appellant has been recorded without adverting to the evidence available on the record. Learned counsel argued that the prosecution evidence was disbelieved to the extent of some of the charges but astonishingly conviction of the appellant was recorded on the basis of same evidence which is neither trustworthy nor confidence inspiring. It is contended that the impugned judgment is the result of in-application of judicious mind to the facts of the case. Learned counsel submitted that material pieces of evidence were not put to the appellant in his statement under Section 342 of The Code of Criminal Procedure, 1898, thus basing his guilt on said evidence is highly unwarranted.In support of his contentions, learned counsel has placed reliance on “Khalid Aziz versus The State (Criminal Appeal No.361 of 2001), The State versus Khalid Aziz (Criminal Appeal No.362 of 2001)” (2011 SCMR 136), “Ghani-ur-Rehman versus National Accountability Bureau and others” (PLD 2011 Supreme Court 1144) and “Syed Ali Nawaz Shah and 2 others versus The State and others” (PLD 2003 Supreme Court 837).
Further information regarding principles of plea bargain, onus to prove assets beyond means and confrontation of material evidence under section 342 Cr.PC statement can be solicited from AUJ LAWYERS. Feel free to contact us in case you need any clarification and/or require legal assistance regarding similar matters.