18. Presumption against accused-Scope-Mere fact that a person stood charged for trial in the Accountability Court would not give rise to a presumption of guilt in respect of S.14 of the Ordinance-Burden of proof, shifting of-Conditions-Term ‘reasonable’ used in S.14(d) of National Accountability Bureau Ordinance, 1999- Connotation-Duty of the prosecution was to prove a prima facie case which was in accordance with the reason, not absurd, fair, proper, just, moderate and suitable under the circumstances-Principles-Unless the facts constituting misuse of authority as contemplated under S.9(a)(vi) of the National Accountability Bureau Ordinance, 1999 are established the accused cannot be called upon to prove his innocence within the meaning of S.14(d) of the said Ordinance-Prosecution, in such a case would have to lead evidence against the accused and then he would be called upon to prove his innocence- Principles- Satisfaction of the Court-Concept. Section 14 of the National Accountability Bureau Ordinance, 1999 deals with the presumption against the accused. According to section 14 of the National Accountability Bureau Ordinance, 1999 if a person is charged under clause (vi) or clause (vii) of subsection (a) of section 9 of the National Accountability Bureau Ordinance, it is the prosecution which shall first make out a reasonable case against the accused and the mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of the above mentioned section of National Accountability Bureau Ordinance. In section 14(c) the legislature in its own wisdom has used words ‘unless the contrary is proved’ which means the contrary can only be proved by accused it earlier something has been proved against him, that is, the burden shall shift to the accused to prove to the contrary if some case has been made out against him by the prosecution when the law raises a presumption against the accused and calls upon him to prove the contrary, the contrary cannot be said to be proved if the accused succeeds in establishing that the act attributed to him is capable of an interpretation other than that suggested by the prosecution, therefore, it was the duty of the prosecution to show that accused had misused his authority and thereby accumulated wealth, movable and immovable properties in his own name or in the name of any other person or he wilfully failed to exercise his authority to prevent undue benefit of favour. Unless the facts constituting misuse of authority as contemplated under section 9(a)(vi) of the Ordinance are established the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In such a case the prosecution would be duty-bound to lead evidence against the accused and then he would be called upon to prove his innocence. The prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This Interpretation appears to be reasonable in the context of the background of the National Accountability Bureau Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. The provisions do not constitute a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up. The following are the directions for effective operation of section l4(d) of the Ordinance:– (1)The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi) and (vii) of the National Accountability Bureau Ordinance. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt. The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accused could be called upon to make a statement under section 342 of the Cr.P.C. and then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had ‘misused’ his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or wilfully failed to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Unless the basic facts constituting ‘misuse’ of authority as contemplated under section 9(a)(vi) of the Ordinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In the proviso to the subsection (d) of section 14 the word ‘reasonable’ has been used which is of significant importance though word ‘reasonable’ has not been defined in the National Accountability Bureau Ordinance. The word ‘reasonable’ is defined as under:- Reasonable means fair, proper, just, moderate, suitable under the circumstances. Fit and appropriate to the end in view. Having the faculty of reason; rational; governed by reason; under the influence of reason; agreeable to reason. Thinking, speaking, or acting according to the dictates of reason. Not immoderate or excessive, being synonymous with rational, honest, equitable, fair, suitable, moderate, tolerable. The word ‘reasonable’ has also been defined as under:- Reasonable. (i) Conformable to reason; such as is rationally fitting or proper; sensible as, a reasonable view. (ii) Endowed with the faculty of reason; as, reasonable beings, (iii) Acting or thinking in conformity with the dictates of reason; as, any reasonable person will admit this. (iv) Characterized by moderation; moderate. The word ‘reasonable’ has further been defined as follows:– Reasonable (-z-) a. 1. Having sound judgment, sensible, moderate, nor expecting to such, ready to listen to reason. 2. In accordance with reason, not absurd; within the limits or reason, not greatly less or more than might be expected; inexpensive, not extortionate; tolerable, fair. 3. (arch.) endowed with faculty of reason. The word ‘reasonable’ is a relative generic term difficult of adequate definition. It inter alia connotes agreeable to reason; comfortable to reason; having the faculty of reason; rational; thinking, speaking, or acting rationally; or according to the dictates of reason; sensible; just; proper and equitable or to act within the Constitutional bounds. Keeping in view the definitions of word ‘reasonable’ it was the duty of the prosecution to prove a prima facie case which was in accordance with the reason, not absurd, fair, proper, just, moderate and suitable under the circumstances. ‘The prosecution if succeeds in making out a reasonable case, to the ‘satisfaction’ of the Accountability Court, it would be deemed to have discharged the prima facie burden of proof and then the burden of proof shifts to the accused to rebut the presumption of guilt. Similarly in section 14(c) of the Ordinance the language used is ‘he cannot satisfactorily account’. The satisfaction of the Court must be based on proper determination from all facts and circumstances of the case, be real, bona tide and not actuated by malice. ‘Satisfaction’ is by no means a term of art and appears to have been used in its ordinary dictionary sense. ‘Satisfaction’ is the existence of a state of mental persuasion much higher than a mere opinion and when used in the context of judicial proceedings has to be arrived at in compliance with the prescribed statutory provision and other legal requirements. Far from being a subjectively or capriciously arrived at conclusion, it presumes observance of certain well-settled judicial principles and is a firm state of mind admitting of no doubt or indecision or ascillation. To be ‘satisfied’ with a state of things is to be honestly convinced in one’s own mind. Apart from the ‘Legal satisfaction’ which is a term of art and connotes discharge of a claim, debt or legal demand, to satisfy in the ordinary sense is to convince. Satisfactory evidence has been explained as sufficient evidence meaning an amount of proof which ordinarily satisfies an unprejudicial mind beyond a reasonable doubt. ‘Satisfy’ is synonymous with, ‘convince beyond a reasonable doubt’ and ‘satisfaction’ is a state of mind, which connotes a sense of certainty, and conviction or release from suspense, doubt or uncertainty. ‘To satisfy’ means to furnish with sufficient proof or information or to assure or set free from doubt or uncertainty to convince. Though it is true that there is a difference between ‘being satisfied’ and ‘suspecting upon reasonable grounds’ the difference, is this that the former connotes a state of mind bordering on conviction induced by the existence of facts which has removed the doubts, if any, from the mind and taken it out of the stage of suspicion. It is the duty of the prosecution to prove a prima facie case reasonably to the satisfaction of the Court. In case the prosecution succeeds in proving prima facie case, when the burden shifts to the accused. This burden can be discharged by him by producing evidence oral or documentary, by examining a witness or through his statement recorded under section 342, Cr.P.C. If the accused succeeds in offering reasonable explanation or by circumstances a doubt is created in the case of prosecution, then presumption of guilt cannot be drawn against the accused. Plausible explanation tendered by accused should be given weight and preference over prosecution version. The burden can be discharged by defence by showing preponderance of probabilities and unlike the prosecution the defence is not liable to prove its case beyond any shadow of doubt. Khan Asfandyar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607; Mir Abdul Baqi Baluch v. The Government of Pakistan and others PLD 1968 SC 313; Syed Saeed Hassan v. Dayar Ali and others PLD 1976 SC 6; PLD 1994 SC 679; PLD 1991 SC 787; Dr. Farooq Sattar v. The State Criminal Appeal No. 1160 of 2000; Black’s Law Dictionary, 6th Edn.; New Standard Dictionary, Vol.III; Concise Oxford Dictionary, 7th Edn.; Messrs Ilahi Cotton Mills Ltd. v. Federation of Pakistan PLD 1997 SC 582; Syed Saeed Hassan v. Payar Ali and 7 others PLD 1976 SC 6; Ikramuddin v. The State PLD 1958 (W.P.) Kar. 21; Sultan Ali v. The State PLD 1971 Kar. 78; Allahdino Khan v. The State 1992 MLD 564; Jeoomal Tikamdas v. Emperor AIR 1939 Sindh 208; Syed Muhammad Khalilullah v. State PLD 1962 Dacca 270; Barkat Ali and another v. The State PLD 1973 Kar. 659; Lutf Ali v. The State 1977 PCr.LJ 627; Muhammad Hanif v. The State 1992 SCMR 2272; Mir Ahmad v. The State PLD 1962 SC 639; Malik Waris Khan v. Ishtiaq and others PLD 1986 SC 335 and AIR 1953 SC 46
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