THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 01 of 2012
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. Riaz
Alam, Special Prosecutor NAB
Respondents : Lutuf Ali Kalhoro and Muhammad Salik Nukraich through
Mr. Ashok Kumar advocate
Iqbal
Ahmed Mirani through Mr. Muhammad Ahmed Pirzada advocate
Ghulam
Sarwar Kaladi and Ms. Lubna Salahuddin through Mr. Waseem Iqbal advocate
Date
of Hearing : 24.11.2021
Date
of decision : 24.11.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- The State through
Chairman NAB has filed this appeal under Section 32 of NAO 1999 against
impugned judgment dated 22.12.2011, passed by learned Accountability Court No.I
Sindh at Karachi in Reference No. 14/2009 (The State vs. Lutuf Ali Kalhoro and
others), whereby, after full-dressed trial, the respondents have been
acquitted. Appeal was admitted to regular hearing.
2. Learned Special Prosecutor NAB mainly
contended that exchange of Government land was allowed by Revenue
officials/respondents during ban period but the learned trial court had failed
to appreciate such legal position. It is further stated that non-examination of
complainant and PW Shafiq was not fatal to the prosecution as other P.Ws have
fully supported the prosecution case. Lastly, it is submitted that impugned
judgment is based upon speculations and prayed for allowing the acquittal
appeal.
3. Learned
advocates for the respondents argued that state land was exchanged according to
law and there was no ban for such exchange at the relevant time. It is further
argued that complaint of Col (Rtd) Zahid Aziz and P.W Muhammad Shafiq Siddiqui
were the material witnesses of the prosecution and they were examined during
investigation but they were not produced by the prosecution at trial. It is
stated that non-examination of material witnesses at trial would be fatal to
the case of prosecution and presumption would be that in case they might have
been examined they would not have supported the case of prosecution. Lastly, it
is argued that scope of appeal against acquittal is narrow
and limited and after acquittal of respondents, 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 22.12.2011, passed by learned Accountability Court No.I, Sindh at Karachi.
Relevant portion of the judgment is reproduced as under:
“It is also an
admitted position that the proceedings relating to the inquiry and
investigation were undertaken on the complaint of Col.(Retd) Zahid Aziz againt
the official accused but the complainant namely Col.(Retd) Zahid Aziz ha snot
been produced as witness to substantiate the contents of the complaint
submitted by him and non-examination of the complainant by the prosecution is
adversely reflected on the case of prosecution and inflict the material dent in
the case of prosecution, which at this stage is also not curable. Similarly the
exchange of 4 acres of land has been alleged on the application of Muhammad
Shafiq Siddiqi from Deh Gadap to Deh Tore and the said Muhammad Shafiq Siddiqi
either has not been cited as witness nor produced as witness nor has been cited
as accused and no reasonable and plausible explanation has been brought on
record to show that why the complainant Col. (Retd) Zahid Aziz and Muhammad
Shafiq Siddiqi have not been examined in support of the case of the prosecution
as such the whole structure based on the alleged complaint of Col. (Retd) Zahid
Aziz collapse.
The case against
lady accused has been brought on record as she being attorney of Muhammad
Shafiq Siddiqi has disposed off the land of 4 acres for a consideration of
Rs.800,000/- and has misappropriated the said money and has caused the loss of
Rs.800,000/- to the public exchequer. It is admitted position that the lady
accused has been implicated in her private capacity and not in her official
capacity and she being the attorney of Muhammad Shafiq Siddiqi had all the
rights and powers to maintain the property of the lessee for which the
prosecution could not raise any objection. Even otherwise in her statement u/s
342(1) Cr.P.C she has stated that she has been exonerated by the board of
revenue after conducting an inquiry and she produced a letter dated 28.03.2006
Ex.22/2 in support of her contention. A perusal of the said letter shows that
the Secretary L.U government of Sindh after examination of the relevant record
and authorities was of the view that she has not committed any offence nor her
act is subject to disciplinary action and she was, therefore, exonerated form
the alleged offence which has not been controverted by the prosecution. In such
state of affairs no cause seems to have been made out against the lady accused.
The case law relied
upon by the learned counsel for the accused to some extent support the case of
the defence. Point No.1 and 2 are, therefore, answered in affirmative, point
No.3 is answered in affirmative by holding that the accused No.1 exercised the
powers vested in him as collector under the Act of 1912 and for such exercise
of powers by exchange of the land from Deh Gadap to Deh Tore does not involved
any monitory gain and any other official accused did not act contrary to the
law.
After pondering the
whole evidence available on record, as discussed above, it is established that
4 acres of land allotted to Muhammad Shafique Siddiqi in the year 1986 for 30
years, was exchanged with the similar measurement of the land in Naclass No.158
of Deh Tore and it is an admitted position by the prosecution witnesses that
the accused had not obtained any monitory gain by such exchange of the land in
question as such in view of the dictum laid down by the Hon’ble Supreme Court
in the case of ‘The State Versus Muhammad Idrees Ghauri (NLR 2008 Criminal 555)’,
the case for taking any action against the accused, therefore, has not been
made out as the ingredients of section 9(a)(vi) of the Ordinance 1999 seems not
to have been fulfilled. In such state of affairs the case against the official
accused has, therefore, not been made out without any shadow of doubt.
Similarly the case against accused Lubna Salahuddin has not been made out as
she simply while acting as attorney of Muhammad Shafique Siddiqi had disposed
off the land under the instructions of the lessee and the monitory compensation
of Rs.800,000/- admittedly have also been received by Muhammad Shafique Siddiqi
vide his affidavit sworn before this Court vide Ex.22/2. In such state of
affairs the case against the accused has, therefore, not been made out.
The accused are,
therefore, acquitted from the charge u/s 265-H Cr.P.C. They are on bail, their
bail bonds stand cancelled.”
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 proceedings relating to the inquiry and
investigation were initiated on the complaint of Col. (Rtd) Zahid Aziz against
the official accused but the he was not examined by the prosecution. P.W
Muhammad Shafiq Siddiqi, who allegedly made application for exchange of 4 acres
of land from Deh Gadap to Deh Tore has also not been examined by the
prosecution. There is no cavil with the proposition that the prosecution has the prerogative to examine witness of
its’ choice but where a material witness is not examined and best evidence is
withheld the Court may draw an adverse inference under Illustration (g) of
Article 129 of the Qanun-e-Shahadat, 1984. Reliance is placed upon the case
reported as 2011 SCMR 646 (Tahir Khan vs. The State). Record further
reflects that lady accused being attorney of Muhammad Shafiq Siddiqi disposed
of the land of 04 acres in her private capacity and she in her statement
recorded u/s 342 Cr.P.C has stated that after conducting inquiry, she had been
exonerated by Board of Revenue and produced such letter at Ex.22/2. It has also
come on record that 4
acres of land allotted to Muhammad Shafique Siddiqi in the year 1986 for 30
years, was exchanged with the similar measurement of the land in Naclass No.158
of Deh Tore and it has been admitted by the prosecution witnesses that the
accused had not obtained any monitory gain by such exchange of the land in
question. The findings of the trial court recorded while discussing points No.
4 and 5 in the impugned judgment clearly show that prosecution had failed to
establish its’ case against the respondent.
7. Findings recorded by trial court are
based upon sound reasons and require no interference by this Court.
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 judgment 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. 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).
10. 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.
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.
12. These
are the reasons for the short order announced by us on 24.11.2021.
JUDGE
JUDGE