THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No.11 of 2020

 

                                     Present:        Mr. Justice Naimatullah Phulpoto

                                                                                                                    Mr. Justice Shamsuddin Abbasi

                                                                                                                     ------------------------------------------------

Appellant                                          Chairman NAB through Mr. Muhammad Anwar Shaheen, Special Prosecutor, NAB

 

Respondent                                       Faisal Ahmed Uquaili through Ravi R. Pinjani, advocate

 

Date of Hearing                                01.06.2023

Date of Judgment                             01.06.2023

 

JUDGMENT

 

NAIMATULLAH PHULPOTO, J.- Respondent/accused Faisal Ahmed Uquaili was tried by learned Judge, Accountability Court No.III Sindh at Karachi in Reference No.44 of 2016. After regular trial, vide judgment dated 10th August, 2020, the respondent was acquitted by the trail Court, mainly for the following reasons:

“In view of the above reasons and discussions and summarizing same as under, this Point No.1 answered as not proved:

(1)   Investigation Officer has failed to distinguish between The Land Acquisition Act, 1984 and Colonization and Disposal of Government Lands (Sind) Act, 1912 (and its Rules 2005).

(2)   The principles laid down by the Hon’ble Supreme Court to determine misuse of authority were not fulfilled.

(3)   The requisite ingredients of the offences with which the accused was charged not proved especially with respect to the requirement of mens rea.

(4)   Any pecuniary benefits to accused not established.

(5)   The record reflects inadequate and extremely negligent investigation on the part of the investigation officer of the case.

(6)   There is substantial doubt in prosecution case, the benefit of which should have gone to the accused in accordance with well established principles of law.”

2.         The Chairman NAB through Prosecutor General Accountability filed the appeal against acquittal recorded by the trial Court. Notice was issued to the respondent/accused.

3.         Special Prosecutor, NAB argued that trial Court failed to examine the evidence according to the settled principles of law and it requires re-examination/re-assessment. He has further submitted that principles laid down by the Hon’ble Supreme Court of Pakistan to determine the misuse of authority were not considered by the trial Court in its true perspective and the impugned is perverse and is against the law.

4.         On the other hand, Mr. Ravi R. Pinjani, Counsel for respondent, argued that the trial Court has rightly appreciated the evidence and held that the pecuniary benefit to the respondent has not been established and the requisite ingredients of the offences with which the respondent was charged have not been proved in respect of mens rea. He further submitted that principles of appreciation of evidence in appeal against acquittal are entirely different to the appeal against conviction. He further submitted that after acquittal, the respondent has double presumption of innocence. As regards to the compensation of land is concerned, the Counsel for respondent has relied upon the recent unreported judgment of Hon’ble Supreme Court of Pakistan in Civil Appeals Nos.2150 to 2263 of 2019 (Federal Government of Pakistan through Ministry of Defence, Rawalpindi and another vs. Mst. Zakia Begum and others).

5.         After hearing the learned counsel for the partiers, we have come to the conclusion that trial Court, while rightly appreciating evidence acquitted the respondent. No case of misuse of authority has been established before the trial Court and mens rea was also not proved. We agree with the defence counsel that principle of appreciation evidence in the case of appeal against acquittal are entire different from the appeal against conviction as held in the case of The State versus Abdul Khaliq and others (PLD 2011 Supreme Court 554). Relevant portion is reproduced as under:-

“From the ratio of all the above pronouncements and those cited by the learned counsel for the parties, it can be deduced 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 the 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. It has been categorically held in a plethora of judgments that 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. Moreover, in number of dictums of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous (Emphasis supplied). The Court of appeal should not interfere simply for the reason that on the re-appraisal 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. It is averred in The State v. Muhammad Sharif (1995 SCMR 635) and Muhammad Ijaz Ahmad v. Raja Fahim Afzal and 2 others (1998 SCMR 1281) that the Supreme Court being the final forum would be chary and hesitant to interfere in the findings of the Courts below. It is, therefore, expedient and imperative that the above criteria and the guidelines should be followed in deciding these appeals.”

 

6.         We agree with the findings of the trial Court that the requisite ingredients of offence with which the respondent was charged and tried were not proved, particularly mens rea. Acquittal recorded in favour of respondent is neither perverse nor arbitrary. Findings of trial recorded in favour of respondent/accused are based upon sound reasons, which require no interference.

 

7.         For the above stated reasons, the appeal against acquittal is without merit and the same is dismissed.

 

                                                                                                        J U D G E

J U D G E

Gulsher/PS