THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 05 of 2012
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. Riaz
Alam Special Prosecutor NAB
Respondents : Maqsood Ahmed and Muhammad Nadeem through Mr. Ghulam
Sarwar Chandio advocate
Date
of Hearing : 27.10.2021
Date
of decision : 27.10.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J. Respondents/accused
Maqsood Ahmed and Muhammad Nadeem were tried by learned Accountability Court
No.III, Sindh at Karachi in References No. 81 of 2007. After regular trial,
vide judgment dated 20.01.2012, respondents was acquitted of the charges.
2. Brief facts leading to the filing of
the appeal against acquittal as mentioned in the impugned judgment are as
under:
“Facts necessary
for disposal of the present reference in brief are that the Managing Director
of Thatta Cement Company Limited submitted a complaint to the Chairman NAB
alleging therein that during the years 1996 to 1998 accused Maqsood Ahmed was
authorized to sell the cement against the payment of cash, pay order or demand
draft only, he however in connivance with other accused persons/ cement dealers
in violation of instructions and policy and with the intent to provide gain to
them allowed the sell of cement without receiving the sale proceeds, thereby
caused loss to the TCCL. It has been further averted in the reference that
pursuant to the cement sale policy, office orders of the Managing Director and
procedure given by the State Cement Corporation of Pakistan (SCCP), whereby
M/s. TCCL was restrained from selling cement on credit basis. It has been
further alleged in reference that during the year 1996-1999 a loss of Rs.58.092
Million was caused on account of sale of cement on credit and non-payment of
credit amount. It has also been stated in the Reference that during the course
of investigation one Riaz-ul-Hassan Rizvi former Managing Director and some of
the dealers admitted the outstanding amounts on their part for having
sold/purchased cement on credit during the year 1996 to 1999 and as such
applied for voluntarily return which was accepted and an outstanding amount in
the sum of Rs.23,389,768/- was adjusted. However, a sum of Rs.35,702,743/- is
still outstanding on account of sale of cement on credit. It has also been
stated in the instant reference that accused No.1 in connivance with Syed
Riaz-ul-Hassan Rizvi former Managing Director of M/s TCCL and accused No.2 to
10, misused power and authority and allowed illegal
credit to different
cement dealers against booking on Customer Order Forms (COFs) and rendered
undue benefit to them and thus misappropriated the funds of TCCL and caused
loss to the company to the tune of Rs.35,702,743/- and thereby obtained
pecuniary advantage for themselves or any other person and thus have committed
an offence of corruption and corrupt practices as defined U/s 9(a)(iii)(iv)&(vi)
punishable u/s 10 of the Ordinance, 1999.”
3. After filing of the Reference, learned
trial Court, framed charge against respondents at Ex.2, respondents pleaded not
guilty and claimed to be tried.
4. In order to prove its’ case,
prosecution examined as many as 11 witnesses, who exhibited various documents
in support of the prosecution case, where after the prosecution closed its’
side.
5. Trial Court recorded statements of respondents/accused
under Section 342 Cr.P.C at Ex.89 and 90 respectively, in which they denied
prosecution allegations and claimed their false implication in this case.
Respondent/accused Maqsood Ahmed examined himself on oath in disproof of the
prosecution allegations. Both the respondents/accused did not produce witness
in their defence.
6. Learned trial court heard arguments
learned counsel for the parties and after assessment of evidence, vide judgment
dated 20.01.2012 acquitted the respondents mainly for the following reasons:
“The entire case revolves around the policy of rebate issued by SCCP
because it has been stated that the said policy has been violated under which
the rebate was allowed only on cash payment, by bank draft or pay order, as it
is also alleged the rebate was allowed on sale of cement on credit. The
prosecution witnesses have also failed to produce the alleged policy and PW-1
Syed Qasim Raza has stated that Exh-8/1 is the policy. Charge against accused
is that he in active connivance and in collusion with Syed Riaz-ul-Hassan Rizvi
Ex-Managing Director of Thatta Cement Company Limited dishonestly and
fraudulently allowed rebate and caused loss to the Government Exchequer. As I
have discussed in above that the accused was not authorized to approve the
rebate to stockists, as Exh-8/1 reveals prior approval from the competent
authority was must for allowing the rebate. The actual culprit was Syed
Riaz-ul-Hassan Rizvi, who indulged in corruption and corrupt practices by
making unauthorized and excess rebate in shape of cement to the stockist/group.
As per policy of SCCP the rebate was to be allowed and the booking of cement,
which was to be made on cash payment instead of cheque, bank draft or pay
order, thus no rebate was admissible on sale of cement on credit. Said accused
has filed an application for return of illegal gain and offer was accepted by
the Chairman NAB vide letter No.7(1027)/2005-S/Adl.Dir(IM-4) dated 26-08-2005
for Rs.21.854 Million exclusive 15% and payment in lump sum in shape of 400
acres of land situated in Thatta district. The accused Syed Riaz-ul-Hassan
Rizvi on acceptance of plea bargain was released. In view above it is clear
that real culprit was Syed Riaz-ul-Hassan Rizvi Ex-Managing Director. Accused
Maqsood Ahmed was not authorized to allow the rebate hence whatever loss was
caused to the public exchequer was by Syed Riaz-ul-Hassan Rizvi and it has been
returned by the accused No. 1 Syed Riaz-ul-Hassan Rizvi. It will be relevant
that the application U/s 25(b) of NAO, 1999 was approved by the Chairman NAB
with direction that “accused should complete the transfer of land through
mutation of 400 acres land situated in Thatta district in favour of Thatta
Cement Company Limited, in case of default or refusal the above land in favour
of the said company (TCCL), the accused will again be arrested to face the
trial of the instant references.” All this shows that prosecution has miserably
failed to prove point Nos. 2 & 4 against accused Maqsood Ahmed, I hold
these points in negative.”
7. NAB/Special prosecutor being aggrieved
and dissatisfied with the acquittal recorded by the trial court in favour of
the respondents filed above appeal.
8. We have carefully heard learned Special
Prosecutor NAB as well as learned advocate for the respondents and perused the
findings of the acquittal recorded by the trial court. Trial court rightly held
that accused was not authorized to approve the
rebate to stockists, as Exh-8/1 revealed prior approval from the competent
authority was must for allowing the rebate. The main accused Syed
Riaz-ul-Hassan Rizvi, who was indulged in corruption and corrupt practices by
making unauthorized and excess rebate in shape of cement to the stockist/group had
filed an application for return of illegal gain and offer was accepted by the
Chairman NAB for Rs.21.854 Million exclusive 15% and payment in lump sum in
shape of 400 acres of land situated in Thatta district. Accused Syed
Riaz-ul-Hassan Rizvi on acceptance of plea bargain was released. Prosecution
had failed to establish that Respondents/accused Maqsood Ahmed in connivance
with co-accused Muhamad Nadeem sold cement on credit in violation of policy.
Whatever loss was caused to public exchequer by Syed Riaz-ul-Hassan Rizvi who
had returned the same.
9. We agree with the findings recorded by
trial court. So far appeal against acquittal is concerned,
it appears that trial Court has assigned sound reasons for recording acquittal
in favour of respondents/accused Maqsood Ahmed and Muhammad Nadeem.
Moreover, after acquittal, acquitted accused have acquired presumption of
double innocence. It is settled law that the scope of interference in
appeal against acquittal is most narrow and limited, because in an acquittal
the presumption of innocence is significantly added to the cardinal rule of
criminal jurisprudence, that an accused shall be presumed to be innocent until
proved guilty; in other words, the presumption of innocence is doubled.
The Courts shall be very slow in interfering with such an acquittal judgment,
unless it is shown to be perverse, passed in gross violation of law, suffering
from the errors of grave misreading or non-reading of evidence; such judgments
should not be lightly interfered and heavy burden lies on the prosecution to
rebut the presumption of innocence which the accused has earned and attained on
account of his acquittal. Interference in a judgment of acquittal is rare
and the prosecution must show that there are glaring errors of law and fact
committed by the Court in arriving at the decision, which would result into
grave miscarriage of justice; the acquittal judgment is perfunctory or wholly
artificial or a shocking conclusion has been drawn. Judgment of acquittal
should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous.
The Court of appeal should not interfere simply for the reason that on the
reappraisal of the evidence a different conclusion could possibly be arrived
at, the factual conclusions should not be upset, except when palpably perverse,
suffering from serious and material factual infirmities. Said accused
have acquired now a triple presumption of innocence which could not be
dispelled by complainant’s Counsel on any score. Reliance is placed on
the case of The State v. Abdul
Khaliq, (PLD 2011 SC 554).
10. In view of
above, we find no merit in the acquittal appeal, which is accordingly
dismissed.
11. These
are the reasons for the short order announced by us on 27.10.2021.
JUDGE
JUDGE
.