THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 67 of 2018

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Shamsuddin Abbasi

Appellant : National Accountability Bureau, through its’ Chairman through Mr. Muhammad Anwar Shaheen, Special Prosecutor NAB

Respondents : Nemo

Date of Hearing : 28.03.2023

Date of decision : 03.04.2023

JUDGMENT

NAIMATULLAH PHULPOTO, J.- Respondents/accused namely Masood Ahmed, Aftab Ahmed Lakho and Muhammad Haseeb Khan were tried by learned Judge, Accountability Court No. IV, Sindh at Karachi in Reference No.17 of 2014. After regular trial, the respondents were acquitted of the charge vide judgment dated 27.10.2018.

2. Appellant/Chairman NAB, being dissatisfied with the impugned judgment has filed this Criminal Accountability Acquittal Appeal.

3. We have hard Special Prosecutor NAB and re-examined evidence of the prosecution witnesses and the impugned judgment. Learned Judge, Accountability Court No.IV, Sindh at Karachi in paras-53 and 54 has assigned the following reasons:

“53. The prosecution also examined PW-25 Muhammad Arshad Ali, who conducted the investigation of fraud happened in NBP KDA Civic Center Branch Karachi. The investigation report produced by him is on record at Exh.16/A. He deposed that he found the payment receipts, which were almost signed by the accused Haseeb Ahmed and head cashier Hashim Raza, some receipts were signed by the absconding accused Kamran and few receipt were signed by accused Aftab Lakho and Masood. His investigation was based on the receipts, which were issued from the bank and reconciliation statements. The modus opperandi played by the accused that amount, which received by them was not accounted for in the bank books. During cross examination he admitted that accused Haseeb was not the key holder of cash of the branch as it was non cash branch. Manager of the branch also look after the affairs of the branch and he is responsible for all the happenings in the branch but he voluntarily stated that the responsibility of manager is available in his investigation report. He also admitted that 71 challans do not bear the signature of operational manager and those are not signed by any officer of the branch. He also admitted that he is not hand writing expert and the signature on Exh.15/1-1 to 15/1-99 were not signed in his presence. On the other hand, no other PW has supported his version and remained silent for issuance of receipt by the present accused persons namely accused Muhammad Haseeb Khan, Aftab Ahmed Lakho and Masood Ahmed.

54. It is a well settled principal of law that the prosecution has to prove the allegation against the accused through cogent evidence and reliable documents, which may constitute a solid based to proof the allegation against the accused. Only hearsay statements cannot be a base to award any conviction to the accused. In this case, all the prosecution witnesses have specifically and categorically confirmed that there is no direct or indirect proof of any misappropriation of corruption and corrupt practices on the part of the present accused persons. Here I guided from the case law reported in PLD 1956 SC (Pak) 417, where their lordship have been observed as under:-

"(a) Prosecution--to prove each ingredients of office-... Evidence Act (I of 1872), Ss. 101 and 105.

Subject to certain exceptions, the most important of which is to be found in section 105, Evidence Act, the admitted and otherwise firmly established principle is that, before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredients of the offence beyond a reasonable doubt."

4. Special Prosecutor NAB was asked to satisfy the court as to how impugned judgment is perverse in law, he could not satisfy the court about defects in the prosecution case highlighted in above referred paras. On our re-assessment of evidence, we have found that prosecution has failed to establish that the amount of alleged 99 challans was received by respondents. There is no direct or indirect proof of any misappropriation or corruption and corruption practices on the part of the respondents. Trial Court has mentioned the anomalies and weaknesses in the prosecution case, made the prosecution case doubtful. Attention of the learned Special Prosecutor NAB has been drawn to those contradictions but he could not satisfy the Court. Trial Court has rightly held that there are several circumstances in the prosecution case which have created reasonable doubt. A single doubt is sufficient for recording the acquittal. Reliance has rightly been placed on the case of Tariq Parvez vs. The State (1995 SCMR 1354).

5. 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 as held in the case of The State v. 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. For the above stated reasons, there is no merit in the appeal against acquittal. Finding of the innocence recorded against the respondents/accused by the trial Court are based upon sound reasons, which require no interference at all. As such, this Criminal Accountability Acquittal Appeal is without merit and the same is dismissed.

J U D G E

J U D G E