THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 06 of 2014
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. R.D.
Kalhoro, Special Prosecutor NAB
Respondent : Abid Majeed
Date
of Hearing : 08.12.2021
Date
of decision : 08.12.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J.- The State through
Chairman NAB has filed this appeal under Section 32 of NAO 1999 against
impugned judgment dated 27.03.2014, passed by learned Accountability Court No.I
Sindh at Karachi in Reference No. 01/2012 (The State vs. Abid Majeed and
another), 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 impugned judgment in slipshod manner. He, lastly submitted that
instant acquittal appeal may be allowed as prayed by setting aside the impugned
judgment.
3. Main allegation is against S.M. Sajjad
who has been declared proclaimed offender. Trial court in the impugned judgment
has mentioned that prosecution failed to prove its’ case against the respondent
at trial. Trial court while acquitting the respondent has assigned sound
reasons, which are reproduced as under:
“It is also one of
an essential aspect of the present case that prosecution could not produce a
single witness or any other evidence in order to show that a single penny has
been received by the accused Abid Majeed, therefore, it cannot be termed that
accused Abid Majeed received any type of benefit out of an alleged scam.
As discussed above,
many officials of Directorate of Central Health Establishment, AGPR and Bank
Officials have aided and abetted the commission of the crime but strangely enough
their role appears to have been hushed up either with design or by default.
Many allegations have been leveled against many other officials of Health Department,
AGPR and Bank but the nabbing hands of the NAB were never laid down on their
shoulders notwithstanding even a single penny could not have been drawn from
the AGPR or the bank without their consent, connivance or complicity. Why this
pick and choose, is the most nagging question, which has not been answered by
the Prosecution. Why these people have not been taken on the board for being
interrogated. In case they have been interrogated, why did they remain behind
the scene with their faces and names veiled and covered? When no explanation
comes forth, the only tenable deduction in the circumstances would be that the
case was not investigated fairly and faithfully. It looks as if actual players
have been let off and only figure heads have been brought forth to bear the
burnt. The entire exercise seems to be an eye wash.
I am very much clear
in my mind that for the commission of an offence two necessary ingredients are
required to be proved by the prosecution i.e Mens rea and Actus rios, however,
the evidence led by the prosecution in the present case is not sufficient to
determine the criminal mind and criminal act of the present accused Abid
Majeed. I therefore, do not hesitate to say that the case of Prosecution is
highly doubtful and the benefit of such doubt is always the right of accused.”
4. Moreover, it has been clearly mentioned
by trial court that this was a case of pick and choose by the NAB. Ahmed Shoaib Zaidi (PW-01) had submitted
facts finding report (Ex.5/2), which shows that Committee recommended that the employees
of Directorate of Central Health Establishment Karachi and HBL Jamshed Road
Branch/Bank Authorities were directly involved in these fraud cases because all
the sanctions had been signed by the Director and bills signed by the DDO of
the Department concerned and all cheques issued by DGPR Karachi were credited
into the accounts of absconding accused S.M Sajjad on endorsement of the Bank
authorities. Letter of Director of Directorate of Central Health Establishment
depicted that all the requisites formalities for grant of sanction of the said
bill were completed by absconding accused S.M. Sajjad, who submitted the said
bills for sanction thereof before DGPR Karachi. Ahmed Shoabi Zaidi (P.W-01) has
not stated that respondent was sole authority for allowing the said payments,
rather Branch Superintendent, Accounts Officer and other officials’ signatures
were required for the said purpose, however, this witness further stated that
respondent Abdul Majeed was posted as Senior Auditor AGPR at Karachi and that
nowhere it has been found that respondent was the only authority to process,
sanction and pass the applications for advance G.P. Funds. Record further
reflects that prosecution could not establish that respondent received any
amount or benefit out of such scam. 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 judgment which requires interference by this Court.
5. 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 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.
6. 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).
7. 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.
8. 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