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ISLAMABAD: The Supreme Court said the National Accountability Bureau (NAB) failed to show that the properties alleged to be held by PPP leader Syed Khursheed Ahmed Shah are in his actual or constructive possession and/or he receives the profits of those properties.

A two-member judge bench, headed by Justice Umar Ata Bandial, had released the written order of 21 October 2021 proceeding, wherein, the PPP central leader was granted bail subject to his furnishing bail bonds.

The order penned down by Justice Mansoor Ali Shah stated there was no sufficient incriminating material to show that the properties held by the persons who were not the family members of the petitioner, but were alleged to be his benamidar, were actually of petitioner Khursheed Shah.

It said that a number of factors was to be considered to determine the question whether a particular transaction was benami in character yet perhaps the most crucial factors, in the criminal law context were: (i) who is in actual possession, or control of possession, of the property, and (ii) who receives the profits arising out of the property.

The NAB has failed to deal with these factors nor has pointed out to us, any material, which could reasonably show that the properties alleged to be held by the petitioner, in name of other persons, as his benamidar, are in his actual or constructive possession and/or he receives the profits of those properties.

So far as the value of the assets/properties in names of the petitioner and of his family members are concerned, we find that the NAB has determined the same by rejecting their value mentioned in the registered sale deeds without any solid lawful basis, to make a case that their assets are disproportionate to their known sources of income.

The order said, “It has not been specified whether the value determined by the NAB is that of the time when the said properties were purchased by the petitioner and his family members, or the same is their current value.” “It is the value of the property at the time of its purchase which is to be compared with the known sources of income of the purchaser at the time of that purchase for determining whether or not the purchase of that property is disproportionate to his sources of income,” it added.

The order further stated that the NAB had not estimated the agricultural income of the petitioner in accordance with the provisions of rule 3 of the West Pakistan Land Revenue Assessment Rules, 1968, nor had included the same in his known sources of the income. As for the transactions of amount credited and debited in the bank accounts of the petitioner and his family members, the petitioner has taken the stance that all the said accounts are disclosed and accounted for in their annual income tax returns and declarations of assets, and the NAB has not pointed out any material available on record to rebut that stance of the petitioner.

There is thus no such tangible, sufficient incriminating material available on record of the case against the petitioner which would lead to inference of the guilt of the petitioner for commission of the offence alleged against him; there are, therefore, at this stage no reasonable grounds for believing that the petitioner is guilty of the alleged offence.

The PPP leader was arrested on 18 September 2019, and is facing trial on an interim reference. The order said that since his arrest a period of more than two years has lapsed but the NAB is yet to file the final reference, thus, the conclusion of the trial is not in sight for no fault of the petitioner.

Such a long delay does constitute “inordinate and unconscionable delay”, as held in Talat Ishaq v NAB (PLD 2019 SC 112), justifying the release on bail of the petitioner pending his trial even on this ground as well.

“The NAB has been unable to show sufficient incriminating material to the Court to justify the detention of the accused, depriving the accused of his liberty and freedom even for a single day is, to say the least, unconscionable and below human dignity,” it added.

Copyright Business Recorder, 2022

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