THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 27 of 2012

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

Appellant : The State/NAB through Mr. R.D. Kalhoro, Special Prosecutor NAB

Respondent : Sohail Aziz Bari through Mr. Ghulam Sarwar Chandio advocate

Date of Hearing : 12.11.2021

Date of decision : 23.11.2021

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against impugned judgment dated 30.08.2012, passed by learned Accountability Court No.III Sindh at Karachi in Reference No. 04/2006 (The State vs. Sohail Aziz Bari), whereby, after full-dressed trial, the respondent has been acquitted. Appeal was admitted to regular hearing.

2. Learned Special Prosecutor NAB has contended that the learned Court below by the impugned order wrongfully and illegally acquitted the accused/respondent despite the fact that there was sufficient evidence against him on the record. It has been further argued that respondent misused his authority by using challan in the name of Suleman and subsequently transferred the plot to the name of his wife. It is submitted that the learned trial Court did not appreciate the evidence of the prosecution witnesses according to settled principles of law and passed the judgment in slipshod manner. He, lastly submitted that instant acquittal appeal may be allowed as prayed by setting aside the impugned judgment.

3. Mr. Ghulam Sarwar Chandio advocate for respondent argued that after assessing the evidence adduced at trial, the learned trial Court concluded that prosecution had failed to prove its’ case against the respondent and hence he was acquitted of the charges by assigning sound reasons. Learned counsel for respondent further argued that scope of appeal against acquittal is narrow and limited and after acquittal of respondent, presumption of innocence is doubled.

4. In order to appreciate the contentions of learned counsel for the parties, we have carefully gone the impugned judgment dated 30.08.2012, passed by learned Accountability Court No.III, Sindh at Karachi. Relevant portion of the order is reproduced as under:

“From the above evidence and record of the KDA it is established that the prosecution neither could give an idea value of the plot in the year 1996 nor could produce any document showing the reserved price of the plot at the relevant time was @ 5250/- per Sq. Yd. and the accused caused loss to the public exchequer to the tone of Rs.3,947, 390/-. From the prosecution own evidence it is established that no loss was caused to the National Exchequer, the government had allotted the plots in the year 1975 at the total value of Rs.9000/- but the purchaser deposited 2,66,050/-. This show how the government caused the loss admittedly the case does not fall within the jurisdiction of National Accountability Ordinance. Accused has denied the allegations in statement U/s. 342 Cr.P.C and also examined himself on oath, he produced original receipt of payment, original Power of Attorney and the original notification regarding his posting. All these documents have not been challenged by the prosecution. Mostly prosecution witnesses have emphasized on the lay out plan which is not part of the charge even otherwise it is not the title document, as such all that evidence is not helpful for the prosecution. From the evidence produced by the prosecution it is appeared that accused is involved in this reference with malafide intention to the officials of KDA due to jealousy in their department and the prosecution has failed to show that the accused has caused loss to the National Exchequer amount to Rs.3,947,390/-. I hold this point not proved.

Point No.6

In view of findings above points No. 1 to 5, it is clear that the prosecution has failed to show that the factum of loss as alleged by it to the government, in evidence has produced on record showing that the accused has misused his authority and committed corruption. From the evidence produced by the prosecution itself established that the disputed plot was not allotted to any person. In this regard evidence of Investigation officer would show that upto what extent the prosecution has proved the acquisition which is reproduced as under:

“It is correct to suggest that I have not inquired the procedure that when the file was sent for preparation of challan and putting the entry of same in daily collection register about the plot No.BS-61, Block-7, F.B.Area, Karachi. DCR is not the allotment register. It is correct to suggest that I have stated that com-6, Block-2, Clifton Karachi the plot of 600 Sq. Yd. was allotted to Muhammad Wasil S/o Muhammad Sharif dated 08-02-1977 and that I have not produced the paid up copy of original challan initial payment made by him for the said plot and that I have relied upon the carbon copy of allotment order of said plot which is available in the office of the Executive Engineer Clifton Karachi and I have not produced any paid up copy of the payment of original challan of subject plot, made by Muhammad Wasil S/o Muhammad Sharif. As in the record of Executive Engineer Clifton Karachi only allotment order, possession order and acknowledgement of possession are available, not the copies of any paid up challans. It is a fact that I have not produced original coy of allotment in the name of Muhammad Wasil S/o Muhammad Sharif from Land Department KDA and that the allotment register of Land Department showing the allotment entry in his name. It is correct to suggest that I have not investigated the case on point that without stamps and diary, how this carbon copy reached to the office of the Executive Engineer Clifton Karachi Division, while as per rules, it should be diarized and stamped then it can be sent to the office of the XEN Clifton Karachi. I have not made a prosecution witness Muhammad Wasil S/o Muhammad Sharif as he was not traceable and he was resident of Hyderabad. Although I have tried and recorded the statement of Suleman Memon at Hyderabad but I could not traced out the address of Muhammad Wali S/o Muhammad Sharif, as at page No. 81 of the I.R only his name is mentioned (Note: Karachi but not Hyderabad). It is correct to suggest that beside this allotment order in the name of Muhammad Wasil S/o Muhammad Sharif I could not produce any documentation or correspondence of Muhammad Wasil from the date of allotment i.e. 08-02-1977 till the date of inquiry i.e. 08-08-2001.”

The abovementioned reproduced portion of the statement of the I.O reveals that the prosecution has failed to establish the allegations levelled against the accused. Accused in his statement u/s 342 Cr.P.C has denied the charge and claimed himself innocent even in his statement of oath he has stated that he has been victimized due to the enmity of the KDA officials and prayed to the Court to acquit. While Special Prosecutor was of the view that it is a fit case for conviction, as the accused has misused his authority and caused loss the State Exchequer by corrupt, dishonest and illegal means to obtain gain for himself and thereby committed offence of corruption and corrupt practices as defined U/s 9(a)(iv) and (vi) of NAO 1999. But I am not agree with him that the conviction can be awarded in view of the provisions mentioned above. As the prosecution has miserably failed to prove the guilt of the accused. Prosecution has to make out a reasonable case against the accused charge U/s 9(a)(iv) and (vi), if the prosecution succeeded in making out a reasonable case to the satisfaction of the Court it could be deemed to have discharge the prima facie burden of prove and then the burden of prove shifted to the accused to rebut the presumption of guilt. In criminal cases the onus lies on the prosecution to prove the guilt of the accused beyond reasonable doubt and the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of accused. It is only after the prosecution is on the evidence adduced by it, succeeded in rising reasonable interference of the guilt of the accused unless the same is rebuttal but this case the prosecution has failed to prove the essential ingredients of the offence, thus no duty is cost on the accused to prove his innocence. In view of the above discussion, I am of the view that prosecution has failed to establish the guilt beyond any shadow of doubt, therefore, accused is given benefit of doubt and is hereby acquitted from charge of this case. He is on bail, his bail bond stands discharged. ”

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

6. It is evident from the record that respondent did not transfer theplot in the name of his wife. Respondent in his statement recorded on oath under Section 340(2) Cr.P.C has stated that plot in reference was purchased by his wife Zakia Sohail from Suleman Memon s/o Ali Murad Memon in the year 1978 in consideration of Rs.420,000/-, he produced receipt at Ex.59. Prosecution witnesses nowhere denied that the accused was attorney of Suleman Memon s/o Ali Murad Memon even the Power of Attorney Ex.60 was produced in original by the respondent and stated that plot was not transferred in the name of his wife due to delay caused by the department he served a notice upon KDA in 1989 so that challan was issued by Recovery Department for the balance occupancy value of said plot in 1991 which he paid. P.W-13 Bashir Hussain Shah has confirmed that on 09.12.1991 possession order along with site plan was issued for the said plot. Prosecution has miserably failed to produce any document in order to show that loss in any manner was caused to the Government exchequer. The findings of the trial court recorded while discussing point No.6 in the impugned judgment clearly show that prosecution had failed to establish its’ case against the respondent.

7. 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.

8. So far appeal against acquittal is concerned, it appears that trial Court has assigned sound reasons for recording acquittal in favour of respondent/accused Sohail Aziz Bari.  Moreover, after acquittal, acquitted accused has 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).

9.     For the above stated reasons, we have no hesitation to hold that judgment of acquittal passed by the trial Court is based on reasonable possible view, this Court should not disturb the acquittal.

10. 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

JUDGE