HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 51 of 2002

Mr. Justice Naimatullah Phulpoto

Mr. Justice Aftab Ahmed Gorar

Date of Hearing : 27^thJanuary 2016

Date of announcement : 27^th January 2016

Appellant : The State through Mr. Muhammad Altaf ADPG, NAB.

Respondent/accused : Manzoor Ahmed Bhutto through M/s. Hidayatullah Abbasi & Jamil Ahmed Rajper, Advocates

J U D G M E N T

NAIMATULLAH PHULPOTO, J.-- Respondent/accused Manzoor Ahmed Bhutto was tried by learned Judge, Accountability Court, Hyderabad in Reference No. 01 of 2001. After full-dressed trial by judgment dated 08.05.2002, Manzoor Ahmed Bhutto was acquitted. The State through Chairman NAB challenged the acquittal recorded in favour of Respondent/accused before this Court.

2. Brief facts leading to the filing of the appeal are that a written complaint dated nil was sent by one Muhammad Paryal Chachar, Engineering Supervisor Trunks, Pano Aqil Telephone Exchange against respondent/accused Manzoor Ahmed Bhutto, officiating Assistant Engineer Phones of Pano Akil Telephone Exchange to the Chairman, Anti-Corruption Cell, Ministry of Interior, Islamabad, which reads as follows:

“To

The Chairman Anti-Corruption Cell

Interior Ministry of Pakistan Islamabad.

Subject: Request for Impartial enquiry against Mr. Manzoor Ahmed Bhutto ESP working as A.E.Phones Pano Akil Due to close friendship with Mr. Azhar Sohail.

I wish to bring it to kind notice and draw your kind attention as under:

That Mr. Manzoor Ahmed Bhutto ESP (working as acting AE Phones Pano Akil). Who is tout of Azhar Suhail and sends him monthly according to his own language one lac per month. He is also unqualified for the post of AEP national Pay scale B-16. Unfortunately the said official is posted as AE Phones Pano Akil when the qualified B-16 passed six AEs are waiting for the promotion order in region 5 Sukkur. The said Manzoor ahmed is running illegal P.C.Os and mini exchanges in Pano Akil and at his residence. So many times the said P.C.Os and mini exchanges were raided by FIA Sukkur but due to collaboration of authorities and Azhar Suhail, Chairman APP Islamabad he was not arrested according to his illegal P.C.Os and the department is facing loss of about twenty lac per month. The public of Pano Akil is in a large trouble, so many applications received to higher authorities like as GM-V Sukkur, DET Sukkur, Chaimran PTCL and also Director General FIA Islamabad as well as to the Chairman Anti-Corruption Committee Islamabad but all in vain. Sir now after the change of Government said Manzoor Ahmed Bhutto says to public and staff that he is the person of agencies and agencies protect him. I pointed out here that the said Manzoor Ahmed Bhutto is the son of bagger and no last background is of his family.

Moreover every subscriber of Pano Akil exchange is given excess units at night time.

His property now is costing millions of rupees be confiscated to government.

Now he is in possession of millions, details of properties of Manzoor Ahmed Bhutto are as under ?

1) Bungalow opposite Irrigation Bungalow Pano Akil (30,000,00) lac)

2) Bungalow in Bhutta village near Haleji Road (20,000,00 lac)

3) Fish form behind Mahar Flour Mill (25,000,00 lac)

4) Plot near Ali Petrol Pump at National Highway (10,000,00 lac)

5) Toyota Car KRV-7356 (6,000,00 lac)

6) 10 millions fixed deposit in any bank according to his own talks at drinking time on the name of another person and get the profit himself.

Therefore, I request your kind honour that expedite investigation and arrest him in the interest of justice, nation and country, when the most corrupt person Mr. Azhar Suhail is already arrested and investigated by the authorities.

Yours sincerely

Sd/-

Muhammad Paryal Chachar

ES trunks (Telephone exchange Pano Akil)

And President of P.T.U Telegraph division

Sukkur

3. Complaint was forwarded by Director, Economic Wing (ECW) Islamabad to the Deputy Director FIA State Circle, Karachi for verification and report. A after holding enquiry he submitted report to the Director (ECW) Islamabad with the request to grant permission to register the case against accused. Request was allowed vide letter dated 03.11.1998. Thereafter, case was entrusted to the FIA. Case was registered against accused as Crime No.14/1998. After usual investigation interim challan was submitted against accused on 15.11.1998 before learned Special Judge, Anti-Corruption (Central), Hyderabad on 06.07.1999. On conclusion of the investigation final challan/report was submitted along with three separate charge sheets against Respondent/accused.

4. It appears that trial court framed charge against accused on 24.5.2001 for offences under sections 420/409 PPC read with Section 5(2) Prevention of Corruption Act-II of 1997, to which accused pleaded not guilty and claimed to be tried. It appears that during trial on 07.01.2001, Deputy Prosecutor General Sindh Karachi submitted an application before the trial court under section 16-A(a) of the NAB Ordinance, 1999 duly signed by the Chairman NAB Islamabad, for transferring the case to the Accountability Court for disposal according to law. Application was allowed and case transferred to the learned Accountability Court Hyderabad.

5. On 29.03.2001, learned Accountability Court framed charge against respondent/accused for offence u/s 9(a)(iii) and 9(a)(vi) of the National Accountability Ordinance, 1999. Accused pleaded not guilty and claimed to be tried.

6. In order to prove its case, prosecution examined the following witnesses:

1. P.W-1 Ghulam Mujtaba at Ex. 9

2. P.W-2 Sham Lal at Ex.10

3. P.W-3 Fayyaz Ahmed at Ex.11

4. P.W-4 Hazoor Bux Korai at Ex. 12

5. P.W-5 Abdul Rauf at Ex.13

6. P.W-6 Aijaz Ahmed at Ex.14

7. P.W-7 Kanjimal at Ex.15

8. P.W-8 Muhammad Paryal at Ex. 16

9. P.W-9 Abdul Ghafoor Bhutto at Ex. 17

10. P.W-10 Noor Muhammad at Ex.18

11. P.W-11 Manzoor A. Kalwar at Ex.19

12. P.W-12 Shakeel Ahmed at Ex.20

13. P.W-13 Shahid Hussain at Ex.21

14. P.W-14 Muhammad Taqi at Ex.22

15. P.W-15 Sikandar Ali at Ex.24

16. P.W-16 Mazhar Hussain Kawish at Ex.25

17. P.W-17 Bashir Ahmed at Ex.26

18. P.W-18 Irshad Hussain at Ex.27

19. P.W-19 Muhammad Ayub at Ex.30

Thereafter, prosecution side was closed.

7. Statement of accused was recorded u/s 342 Cr.P.C at Ex.32. Accused denied the prosecution allegations. Accused did not examine himself on oath but submitted written statement along with documents. He had also examined five witnesses in defence and produced further documents through them. Respondent/accused has denied the allegations of causing loss to the public exchequer by mal-practice and tempering of the local meters. He stated before trial court that he has been falsely implicated in this case by Muhammad Ayub Durrani, I.O in complicity with complainant Muhammad Paryal Chachar and his associate Altaf Hussain Shah.

8. It appears that trial court on conclusion of trial formulated four points for determination. Point No.3 was material, which is reproduced as under:

3) Whether accused by misusing his official authority illegally tempered with the local meters of Pano Aqil Telephone Exchange in order to gain benefit for himself or any other person and thereby caused loss to the tune of Rs.2,97,81,074/- to the public exchequer?

9. Learned trial court after hearing learned counsel for the parties, came to the conclusion that prosecution has failed to prove point No.3. Resultantly, recorded acquittal in favour of Respondent/accused.

10. Mr. Muhammad Altaf ADPG, NAB argued that prosecution had proved its case against Respondent/ accused Manzoor Ahmed Bhutto, as he was Assistant Engineer Pano Aqil at that time when huge loss was caused by misusing his official capacity. Learned ADPG, NAB further argued that Respondent/accused tampered with local meters of Pano Aqil Telephone Exchange and gained benefit for himself and caused heavy loss to the public exchequer. It is also contended that all the prosecution witnesses have fully implicated the Respondent/accused in the commission of offence. Learned Special Prosecutor argued that trial court has not assigned sound reasons for acquittal of respondent/accused and trial Court had not appreciated evidence according to the settled principles of law. Learned ADPG, NAB lastly, argued that prosecution has established its case against Respondent/accused and submitted that Respondent/accused may be convicted for the offences with which he was charged.

11. Mr. Hidayatullah Abbasi Advocate for the Respondent/accused Manzoor Ahmed Bhutto contended that no prosecution witness had seen Respondent/accused while tampering with the meters at Pano Aqil Exchange. He has argued that so far losses are concerned, respondent/accused was not posted as Assistant Engineer at Pano Aqil Exchange at the relevant time. He has also referred to the evidence of P.Ws and contended that P.Ws have categorically stated that variations were caused due to tampering outside of the Telephone Exchange and on some technical grounds. Mr. Abbasi contended that trial court has assigned sound reasons while recording acquittal in favour of Respondent. It is also argued that in case of appeal against acquittal while evaluating evidence distinction is to be made in appeal against conviction and appeal against acquittal. He has submitted that Special Prosecutor NAB has failed to point out misreading or non-reading in the evidence committed by the trial Court. Mr. Abbasi learned counsel for the Respondent in support of his contentions relied upon the judgment reported as State versus Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585) ,

12. After hearing learned counsel for the parties, we have carefully gone through the entire evidence and impugned judgment particularly reasons recorded by trial court for acquittal. It appears that trial court has acquitted the Respondent/accused for the following reasons:

“The upshot of the above discussion is that none of the prosecution witnesses has been able to show that any tempering of individual meters or malpractices in the Pano Aqil Exchange was detected through any surprise visits/raid/inspection or any other such kind of source during the period the accused was its officiating incharge or that any disciplinary action was taken against him or that any punishment was awarded to him during this period in order to prove that the accused misused his official authority. Moreover, nothing has come on record to show that the accused gained any benefit or favour for himself or any other person.

In view of above, I am of the firm opinion that the prosecution has failed to prove the charge against the accused beyond any reasonable doubt as such, this point is replied as not proved.”

13. Learned Special Prosecutor NAB could not point out that judgment of acquittal suffers from infirmities. Findings of acquittal can only be upset if the same are found perverse, arbitrary, foolish or based on misreading or non-appraisal of the evidence. In the present case, findings of the trial Court are based upon sound reasons.

14. In the case of State versus Government Sindh through Advocate General Sindh, Karachi versus Sobharo (1993 SCMR 585) Honourable Supreme Court has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal. Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice. Relevant portion is reproduced as under:-

“14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice. Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96). In consequence this appeal has no merits and is dismissed.”

15. We have come to the conclusion that trial court has examined the evidence deeply and has assigned sound reasons while recording acquittal. Trial court has rightly mentioned in the judgment that prosecution witnesses were not able to show that any tempering of individual meters or malpractice in Pano Aqil Exchange was detected through any surprise visits/raid/inspection or any other such kind of source during the period the accused was its officiating incharge. Prosecution miserably failed to prove its case against Respondent/accused.

16. For what has been discussed above, we are of the considered view that impugned judgment dated 08.05.2002 is based upon valid and sound reasons and is entirely in consonance with the law laid down by the Honourable Supreme Court of Pakistan. Neither, there is misreading, nor non-reading of material evidence or misconstruction of facts and law. Resultantly, the appeal is without merit and the same is dismissed.

JUDGE