THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 03 of 2019
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. Riaz
Alam, Special Prosecutor NAB
Respondent : N.R
Date
of Hearing : 23.11.2021
Date
of decision : 29.11.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- The State through
Chairman NAB has filed this appeal under Section 32 of NAO 1999 against
impugned judgment dated 08.12.2018, passed by learned Accountability Court No.III
Sindh at Karachi in Reference No. 02/2014 (The State vs. Muhammad Ayaz Khan and
others), whereby, after regular trial, the respondent has been acquitted,
whereas, co-accused were convicted and sentenced by learned Accountability
Court.
2. The role assigned to the respondent in
the Reference by the prosecution as mentioned in the impugned judgment is as
under:
“It is further the
case of prosecution that accused Suleman Ghani being Federal Secretary Commerce
Government of Pakistan had abused his official position and abetted the illegal
appointment of accused Muhammad Ayyaz Niazi as Chairman NICL with the
connivance of deceased accused Makhdoom Amin Fahim, the then Federal Minister,
who handed over C.V of the accused Muhammad Ayyaz Niazi to him and ordered to
initiate the note/fulfill the post of Chairman NICL in the panel but neither
the experience/credentials defined in the C.V were verified nor post was
advertised/Departmental Selection Committee was constituted, which were
pre-requisites for the selection of any candidate from the private sector, as
envisaged in section 12 of insurance Ordinance 2000, Rules of Business 1973 and
instructions of the Federal Government, he also committed violation of the
rules/instructions when in a mixed panel of candidates from the public
sector/Government Servants had to proposed and subsequently preconditions of
advertisement/departmental selection committee were required but he moved
summary under his signature without prescribing said rules/instructions, so
also the name of accused Muhammad Ayaz Niazi was shown at Sr. No. 03 in the
note sheet was malafidely placed at Sr. No.1 by him in his office by abusing
his official position as Federal Secretary Commerce, he also kept on ignoring
the observations made by the then Secretary Commerce and Section Officer,
Establishment Secretary and Finance Secretary vide summaries dated 07.02.2009
and dated 11.04.2009 to the effect of appointment of accused instead of taking
remedial measures he sent summaries to the Prime Minister for the grant of MP-1
scale to accused Niazi, which is sheer violation of law and rules and
instructions of the Federal Government in active connivance and abetment of
deceased accused Makhdoom Amin Fahim. As such all above named accused in
connivance with each other have caused loss to the National Exchequer and
committed offence of corruption and corrupt practices.”
3. Learned Special Prosecutor NAB
contended that the learned Court below by the impugned judgment wrongfully and
illegally acquitted the accused/respondent despite the fact that there was
sufficient incriminating evidence against him on the record but the learned
trial Court did not appreciate the evidence of the prosecution witnesses according
to the settled principles of law and passed the judgment in slipshod manner to
the extent of respondent, therefore, impugned judgment requires interference by
this Court. Special Prosecution NAB frankly submitted that co-accused, who were
convicted and sentenced by learned trial Court, challenged the impugned
judgment by preferring Criminal Accountability appeals No.68 to 72 of 2018,
which were allowed by this Court vide short order dated 08.10.2019 followed by
detailed reasons dated 06.11.2019, and NAB has not filed any appeal against the
said judgment.
4. We have heard learned Special
Prosecutor NAB and have minutely perused the material available on record.
5. Evidence produced before the Trial
Court finds an elaborate mention in the judgment dated 08.12.2018 passed by the
Trial Court and therefore, the same may not be reproduced here so as to avoid
duplication and unnecessary repetition.
6. A careful perusal of the impugned judgment
shows that trial Court has discussed in detail all material evidence produced
by the prosecution at trial.
7. The learned trial court while acquitting the
respondent has rightly observed as under:
“It reveals that the
summary/note sheet para-14 available at page-22 of (Exh.51/1) that Finance
Division Government of Pakistan has concurred with Ministry of Commerce and
support the proposal initiated by the Ministry of Commerce. The Hon’ble
Superior Courts in various judgments have held that even mere flouting of
summary in violation of Rules of Business would be an irregular exercise of the
authority and at the most may call for appropriate action against the
delinquents under the service rules thereby rendering him liable to
disciplinary proceedings in his capacity as civil servant, but it would not
fall within the mischief of corrupt and corrupt practices so also mere
procedural irregularities in translation were insufficient to constitute an
offence under NAO. It is further held that it is essential to draw distinction
between procedural irregularities and violation of substantial provisions of
law to determine the question of criminal liability. Procedural irregularities
might bring an act done in official capacity under the ambit of misconduct,
which was distinctionable from the criminal misconduct.
Prosecution has failed to prove
that accused Suleman Ghani abetted in the illegal appointment of accused Ayaz
Khan Niazi as Chairman NICL hence point is answered as not proved.”
8. Record reflects that co-accused, who
were convicted and sentenced by learned trial court, were acquitted by
this Court vide short order dated 08.10.2019 followed by detailed reasons dated
06.11.2019 mainly for the following reasons:
1.
The various valuation reports
and the testimony of the prosecution witnesses themselves created doubt as to
the exact value of the land.
2.
The requisite ingredients of
the offences with which the appellants were charged were not proven especially
with respect to the requirement of mens rea.
3.
The principles laid down by the
Honourable Supreme Court to determine misuse of authority were not fulfilled.
4.
Evidence, which was not
produced in accordance with the Qanoon-e-Shahadat Order, 1984 was taken into
consideration by the learned trial court. Similarly, presumptions not warranted
by law were also used as a basis for conviction.
5.
The record reflects an
incomplete, woefully inadequate and extremely negligent, investigation on the
part of the investigating officer of the case.
6.
No loss to the government
exchequer or pecuniary benefit to any of the appellant was established.
7.
There was substantial doubt in
the prosecution case, the benefit of which doubt should have gone to the
appellants in accordance with well established principles of law.
9. It has been candidly conceded by
learned Special Prosecutor NAB, that no appeal has been filed by the NAB
against the said Judgment, hence it has attained finality.
10. Case against respondent Suleman Ghani was
identical to the case of co-accused Muhammad Ayaz Khan Niazi, Muhammad Zahoor, Syed
Hur Raihi Gardezi, Zahid Hussain, Amir Hussain and Amin Qasim Dada who have
been acquitted by this Court in Cr. Accountability Appeals No.68 to 72 of 2018
dated 06.11.2019. Special Prosecutor NAB failed to point out any additional
evidence against the respondent to connect him in the commission of the
offence. It is matter of record that evidence of prosecution witnesses has
already been disbelieved to the extent of co-accused in appeal and on same set
of evidence legally respondent cannot be convicted without additional material.
11. 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 shall 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.
12. The Honourable Supreme Court in the case of 2021
SCMR 873 (The State through P.G Sindh and others vs. Ahmed Omar Sheikh and
others) has held as under:
“Admittedly the parameters to deal with the
appeal against conviction and appeal against acquittal are totally different
because the acquittal carries double presumption of innocence and same could be
reversed only when found blatantly perverse, illegal, arbitrary, capricious or
speculative, shocking or rests upon impossibility. If there is a possibility of
a contrary view even then acquittal could not be set aside as has been settled
in the cases of The State v. Khuda Dad and others (2004 SCMR 425). Muhammad
Nazir v. Muhammad Ali and another (1986 SCMR 1441), Rehmatullah Khan v. Jamil
Khan and another (1986 SCMR 941), Mst. Daulan v. Rab Nawaz and another (1987
SCMR 497) and Gulzar Hussain v. Muhammad Dilawar and others (1988 SCMR 847).”
13. The principles with regard to the scope of
the powers of the appellate Court in an appeal against acquittal are well
settled. The powers of the appellate Court in an appeal against acquittal are
no less than in an appeal against conviction. But where on the basis of
evidence on record two views are reasonably possible the appellate Court cannot
substitute its view in the place of that of the trial Court. It is only when
the approach of the trial Court in acquitting an accused is found to be clearly
erroneous in its consideration of evidence on record and in deducing
conclusions therefrom that the appellate Court can interfere with the order of
acquittal.
14. After perusing the impugned judgment of the
trial court and the record of this case; we are of the considered view that the
reasoning given by the trial court while acquitting the respondent is neither
arbitrary nor perverse nor fanciful and the same does not call for any
interference by this Court. This Acquittal Appeal having no merit is accordingly
dismissed.
JUDGE
JUDGE