THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 01 of 2013
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. Riaz
Alam, Special Prosecutor NAB
Respondent : Abdul Majeed Khatri through M/s Shoukat
Hayat and Abdul Hafeez advocates
Mr.
Shafqat Zaman advocate for Ms. Zahira advocate for complainant
Date
of Hearing : 29.11.2021
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 12.11.2012, passed by learned Accountability Court No.III,
Sindh at Karachi in Reference No. 02/2009 (The State vs. Abdul Majeed Khatri),
whereby, after full-dressed trial, the respondent has been acquitted.
2. Learned Special Prosecutor NAB has
contended that the learned Court below by the impugned judgment 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
learned trial Court did not evaluate the material available on record 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. Learned advocate for respondent argued
that no direct or indirect evidence has been produced by the prosecution to
show that the respondent was involved in corruption or corrupt practices; that
no loss caused to the WAPDA due to respondent on alleged shortage and said
material was available in the store of M/s Quality Steel Works Karachi as
envisaged in the letter dated 11.10.1999 (Ex. F/A-2); that learned
Accountability Court while assigning cogent reasons acquitted the respondent. Learned
counsel for respondent further 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 order
dated 12.11.2012, passed by learned Accountability Court No.III, Sindh at
Karachi. Relevant portion of the order is reproduced as under:
“The discussion of
points No.1 to 4 reveals that the prosecution has failed to prove the charge
levelled against the accused. No direct or indict evidence has been produced to
show that the accused was corrupt official and was holding responsible position
by misuse of authority. No evidence has been produced by the prosecution to
show that the accused committed corruption or obtained any undue advantage for
himself or supplied and wilfully failed to exercise his authority to prevent
the grant for undue benefit to the contractor or he fraudulently
misappropriated the material and by corrupt dishonest and illegal means
obtained for himself pecuniary advantages and caused loss to the State Exchequer
of Rs.100,189,536.16/-. From the prosecution evidence it is appeared that to
arrange the transport to transport the material was the responsibility of WAPDA
so also to release the funds was the responsibility of Chief Engineer ST&G
who had signed the contract. An inquiry was conducted by the WAPDA in which a
questionnaire was given to accused Abdul Majeed Khatri which is at page 241 of
the I.R. Anex-I, its page 241 reveal that “No loss caused to the WAPDA due to
accused on alleged shortage, in fact, there was no shortage but the said
material is still available in the store of M/s Quality Steel Works Karachi, as
they confirmed in their letter dated 11-10-1999 (F/A-2) that 65% material has
been dispatched/lifted and the balance material is stored in their factory.”
5. A careful perusal of the impugned order
shows that trial Court has discussed in detail all material produced by the
prosecution at trial.
6. In the present case after perusal of
the evidence, we have come to the conclusion that no loss was caused to the
WAPDA by the respondent, shortage was also not proved. Record shows that there
was no shortage but said material was available in the store of M/s Quality
Steel Works Karachi as confirmed in their letter dated 11.10.1999 that 65%
material has been dispatched/lifted and the balance material was stored in
their factory. Special Prosecutor NAB could not point that findings of trial
court are perverse and ridiculous.
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
respondents. 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 order 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.
These are the reasons for the short order announced on 29.11.2021.
JUDGE
JUDGE