ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 04 of 2010

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Appellant : The State/NAB through Mr. Riaz Alam, Special Prosecutor NAB

Respondent : Muhammad Hanif through Mr. Habib Ahmed advocate

Date of Hearing : 04.11.2021

Date of decision : 09.11.2021

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against order dated 09.03.2010, passed by learned Incharge Accountability Court No.I Sindh at Karachi in Reference No.24/2000 (The State vs. Choudhry Muhammad Sharif and Muhammad Hanif), whereby the respondents have been acquitted under section 265-K Cr.P.C. Appeal was admitted to regular hearing.

2. It may be observed that respondent No.1 Choudhry Muhammad Sharif expired during pendency of this acquittal appeal and appeal stood abated to the extent of respondent No.1 vide order dated 29.01.2015.

3. Learned Special Prosecutor NAB has contended that the learned Court below by the impugned order wrongfully and illegal acquitted the accused/respondents despite the fact that there was sufficient evidence against them on the record. It has been further contended that only on the basis of evidence of 05 prosecution witnesses, trial Court acquitted accused under Section 265-K Cr.P.C, without providing fair opportunity to produce remaining witnesses to prove the case of prosecution. Lastly, it is submitted that only on the basis of evidence of 05 prosecution witnesses, the whole prosecution case should not have been disbelieved by the Court below.

4. Mr. Habib Ahmed advocate for respondent No.2 argued that trial Court recorded evidence of material witnesses and came to the conclusion that there was no probability of conviction of the accused/respondent No.2 in the case and acquittal was recorded by assigning sound reasons. Learned counsel for respondent No.2 further argued that scope of appeal against acquittal is narrow and limited and after acquittal of respondents, presumption of innocence is doubled.

5. In order to appreciate the contentions of learned counsel for the parties, we have carefully gone the impugned order dated 09.03.2010, passed by learned Accountability Court No.1, Sindh at Karachi. Relevant portion of the order is reproduced as under:

“The plain perusal of the evidence of five PWs divulge that in their examination in chief they have neither deposed about the alleged properties accumulated by the principal accused or made currency transaction or about payment of amount of tickets purchased by him for others and misusing his official authority. The examined PWs have neither spoken regarding the involvement of co-accused about his property and wealth allegedly accumulated by him being the front man of principal accused. The PWs have absolutely not produced any incriminating evidence which reflect the involvement of accused in the offences therefore it will be a futile exercise to continue with the trial of the accused and presently there is no material available for which it can be inferred that they were involved in misuse of authority. According to section 117 of Qanoon-e-Shahadat the burden to prove the existence of fact lies upon the prosecution but in this case the examined PWs are silent against accused with regard to the accumulation of assets, money transaction and misusing of authority by the accused No.1 the examined (05) PWs have not uttered a single word in respect of accused No.1 and 2, therefore in the above state of affairs it is obvious that the prosecution has miserably failed to elicited any significant and adequate evidence from the examined PWs. The provision of section 265-K CrP.C indicates that the court has ample power to acquit the accused at any stage of proceedings even before framing of charge. This view fortified from a case reported in 1991 MLD 298. The above provision has been inserted in the law to prevent the prolong proceedings which apparently court feels that it would be abuse of process of law to continue the trial when it appears that there would be no probability of conviction of accused. The grounds argued by the advocates of accused needs careful thought and I am of the view that if the cases are proceeded further, it will be a futile exercise and references would not end up in conviction even if the remaining PWs are examined. Accordingly, the applications in hand are allowed and both the accused namely Choudhry Muhammad Sharif and Muhammad Hanif are acquitted U/s 265-K Cr.P.C in Reference No.24/2000 and accused Choudhry Muhammad Sharif in Reference No.24-A/2004 they are present on bail, their bail bonds stands cancelled and surety discharged. The proceedings against accused Mukhtar Ahmed in Reference No.24-A/2004 shall remain continue according to law. The copy of this order shall be placed in Reference No.24-A/2004.”

6. A careful perusal of the impugned order shows that trial Court has discussed in detail all material evidence produced by the prosecution at trial.

7. Trial Court rightly appreciated evidence and held that prosecution has examined 05 material witnesses, but nothing incriminating against respondents came on record. According to Section 117 of Qanun-e-Shahadat Order 1984, the burden to prove the existence of the fact lies upon the prosecution but in the present case prosecution failed to bring on record sufficient incriminating material to connect the respondent No.2 in the commission of the offence. Evidence, which is available on record is silent with regard to the accumulation of the assets, money transaction and misuse of authority by accused No.1 Choudhry Muhammad Sharif, who has expired now. Contention of the Special Prosecutor NAB that respondents have been acquitted under Section 265-K Cr.P.C, it may be observed that provision of Section 265-K Cr.P.C, provides that trial court has ample powers to acquit the accused at any stage of the proceedings even before framing of charge, but in the present case, prosecution produced 05 material witnesses at trial. Further proceedings might have been futile exercise when material evidence was recorded. In our considered view, trial court rightly acquitted respondents Choudhry Muhammad Sharif and Muhammad Hanif under section 265-K Cr.P.C.

8. It is also to be kept in mind that the present appeal is against acquittal and the golden thread which runs through the administration of criminal justice while hearing the appeal against the acquittal is that even if two views are possible their innocence, the view which is favourable to the accused should be accepted and the finding of acquittal recorded by the Trial Court should not be disturbed by the appellate Court. The reason is that while passing the order of acquittal, the presumption of innocence in favor of the accused is re-enforced. In case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocence unless he is proved to be guilty by a competent Court and secondly the accused having secured an acquittal, the presumption of innocence is, re-enforced and strengthened by the Trial Court.

9. So far appeal against acquittal is concerned, it appears that trial Court has assigned sound reasons for recording acquittal in favour of respondents/accused Ch. Muhammad Sharif and Muhammad Hanif. 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 Special Prosecutor NAB on any score. Reliance is placed on the case of The State v. Abdul Khaliq, (PLD 2011 SC 554).

10. For the above stated reasons, we have no hesitation to hold that trial Court’s order of acquittal passed under Section 265-K Cr.P.C is based on reasonable possible view, this Court should not, as a rule of prudence, disturb the acquittal.

11. Considering the facts and circumstances in wake of the above cited legal position, we do not consider it to be a fit case to interfere it. Consequently, Accountability Appeal against acquittal is dismissed.

JUDGE