THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 24 of 2019
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. R.D.
Kalhoro, Special Prosecutor NAB
Mr.
Muhammad Irfan Memon D.A.G
Respondent : Masroor Ahmed Khan
Date
of Hearing : 06.12.2021
Date
of decision : 06.12.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- The State through
Chairman NAB has filed this appeal under Section 32 of NAO 1999 against
impugned order dated 30.03.2019, passed by learned Accountability Court No.I
Sindh at Karachi in Reference No. 22/2006 (The State vs. Dr. Mirza Raza Ali and
others), whereby, the respondent has
been acquitted.
2. Learned Special Prosecutor NAB has
contended that the learned Court below by the impugned order wrongfully and
illegally acquitted the accused/respondents despite the fact that there was
sufficient evidence against them on the record. It has been further argued that
learned trial Court did not evaluate the material available on record and
passed the order in slipshod manner. He, lastly submitted that instant
acquittal appeal may be allowed as prayed by setting aside the impugned order.
3. In order to appreciate the contentions
of learned Special Prosecutor NAB, we have carefully gone through the impugned order
dated 30.03.2019, passed by learned Accountability Court No.I, Sindh at Karachi.
Relevant portion of the order is reproduced as under:
“Moreover the role
of acquitted accused Shahzad Ali Khan being joint proprietor with the
applicant/accused of M/s Start Distributor is undeniable and as such the same
cannot be distinguished to deny the relief granted to co-accused Shahzad Ali
Khan and Dr. Mirza Raza Ali as such there is no probability of accused being
convicted. The learned prosecutor when confronted with this situation and
scenarios, could not reasonably explain the distinctions between the role of
accused Shahzad Ali Khan and Dr. Mirza Raza Ali and I myself am unable to find
any lawful reason to dismiss application of the accused u/s 265-K Cr.P.C and
resultantly the same is allowed and accused is acquitted accordingly.”
4. It is pertinent to mention here that in
the same Reference, co-accused had been acquitted by learned trial Court vide
order dated 27.06.2007, which order was challenged by filing Criminal
Accountability Acquittal Appeal No.11/2007 (The State/NAB vs. Dr. Mirza Raza
Ali and others), but the said Acquittal Appeal was dismissed by this Court vide
judgment dated 30.11.2021 mainly for the following reasons:
“6. At the very outset, learned advocate for
the respondents emphatically argued that instant Acquittal Appeal was
incompetent as the same was filed without any specific direction from the
Chairman NAB to the Prosecutor General NAB. Reliance is placed upon an
unreported decision of the Honourable Supreme Court dated 08.04.2009 in the
case of State through Prosecutor General Accountability Bureau, Islamabad vs.
Muhammad Akbar Khan (Criminal Petition No.55/P of 2006). Mr. R.D. Kalhoro,
Special Prosecutor General NAB could not convert the submission made by learned
advocate for the respondents. In the
present case it a matter of record that prosecution had withdrawn case against
main accused Dr. Allah Nawaz Kazi pending before Accountability Court. So far
the respondents are concerned, Special Prosecutor NAB could not point out any
misappropriation on their part. Trial court had observed that misappropriated
amount was not converted to the personal use by the respondents, but it was
used for distribution amongst deserved persons, although it was in violation of
the prescribed rules. Once the prosecution had withdrawn the case against
main accused, the respondents, similarly placed, were also to be treated alike
as provided under Article 25 of the Constitution of Islamic
Republic of Pakistan, which describes that all citizens are equal before law
and entitled to equal protection of law, however, it would be applicable on the
persons similarly placed or similarly situated.
7. The order of acquittal recorded by the learned
Accountability Court appears to be in consonance with the principles of justice
and therefore, we are not inclined to interfere with the order which does not
suffer from any illegality or miscarriage of justice. In case of PLD 2001 SC
607 (Khan Asfandyar Wali vs. Federation of Pakistan), the Hon'ble Supreme Court
has taken notice of the fact that "in the interest of good governance the
officials performing their acts in good faith should be protected otherwise
they would be reluctant to take decision and/or avoid or prolong the same on
one pretext or another, which would ultimately lead to paralysis of
State-machinery and such a course cannot be countenanced by the Supreme
Court". The Hon'ble Supreme Court further expressed need for protection to
such officials where there was no direct evidence of any corrupt motive or of
any illegal gain. In the present case, the prosecution has no evidence direct
or indirect to establish any personal gain on the part of the respondents.”
5. Perusal of record reflects that
co-accused Shahzad Ali Khan who was joint proprietor with the respondent of M/s
Star Distributor has already been acquitted by learned trial court and the
acquittal appeal filed against such order has also been dismissed by this Court.
It appears that trial Court has discussed in detail all the material produced
by the prosecution at trial and learned Special Prosecutor NAB has failed to
point out any infirmity in the impugned order which requires interference by
this Court.
6. 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 of 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.
7. So far appeal against acquittal is concerned, keeping the above in mind,
it appears that trial Court has assigned sound reasons for recording acquittal
in favour of respondent. 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).
8. 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.
9. 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