THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 05 of 2012

 

               Present:                 Mr. Justice Naimatullah Phulpoto

                                                                                                    Mr. Justice Abdul Mobeen Lakho

 

 

 

Appellant                          :               The State/NAB through Mr. Riaz Alam Special Prosecutor NAB

 

 

Respondents                     :               Maqsood Ahmed and Muhammad Nadeem through Mr. Ghulam Sarwar Chandio advocate

 

Date of Hearing                :               27.10.2021

 

Date of decision                :              27.10.2021

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J. Respondents/accused Maqsood Ahmed and Muhammad Nadeem were tried by learned Accountability Court No.III, Sindh at Karachi in References No. 81 of 2007. After regular trial, vide judgment dated 20.01.2012, respondents was acquitted of the charges.

2.         Brief facts leading to the filing of the appeal against acquittal as mentioned in the impugned judgment are as under:

“Facts necessary for disposal of the present reference in brief are that the Managing Director of Thatta Cement Company Limited submitted a complaint to the Chairman NAB alleging therein that during the years 1996 to 1998 accused Maqsood Ahmed was authorized to sell the cement against the payment of cash, pay order or demand draft only, he however in connivance with other accused persons/ cement dealers in violation of instructions and policy and with the intent to provide gain to them allowed the sell of cement without receiving the sale proceeds, thereby caused loss to the TCCL. It has been further averted in the reference that pursuant to the cement sale policy, office orders of the Managing Director and procedure given by the State Cement Corporation of Pakistan (SCCP), whereby M/s. TCCL was restrained from selling cement on credit basis. It has been further alleged in reference that during the year 1996-1999 a loss of Rs.58.092 Million was caused on account of sale of cement on credit and non-payment of credit amount. It has also been stated in the Reference that during the course of investigation one Riaz-ul-Hassan Rizvi former Managing Director and some of the dealers admitted the outstanding amounts on their part for having sold/purchased cement on credit during the year 1996 to 1999 and as such applied for voluntarily return which was accepted and an outstanding amount in the sum of Rs.23,389,768/- was adjusted. However, a sum of Rs.35,702,743/- is still outstanding on account of sale of cement on credit. It has also been stated in the instant reference that accused No.1 in connivance with Syed Riaz-ul-Hassan Rizvi former Managing Director of M/s TCCL and accused No.2 to 10, misused  power  and  authority and  allowed illegal

 

credit to different cement dealers against booking on Customer Order Forms (COFs) and rendered undue benefit to them and thus misappropriated the funds of TCCL and caused loss to the company to the tune of Rs.35,702,743/- and thereby obtained pecuniary advantage for themselves or any other person and thus have committed an offence of corruption and corrupt practices as defined U/s 9(a)(iii)(iv)&(vi) punishable u/s 10 of the Ordinance, 1999.”

 

3.         After filing of the Reference, learned trial Court, framed charge against respondents at Ex.2, respondents pleaded not guilty and claimed to be tried.

4.         In order to prove its’ case, prosecution examined as many as 11 witnesses, who exhibited various documents in support of the prosecution case, where after the prosecution closed its’ side.

5.         Trial Court recorded statements of respondents/accused under Section 342 Cr.P.C at Ex.89 and 90 respectively, in which they denied prosecution allegations and claimed their false implication in this case. Respondent/accused Maqsood Ahmed examined himself on oath in disproof of the prosecution allegations. Both the respondents/accused did not produce witness in their defence.

6.         Learned trial court heard arguments learned counsel for the parties and after assessment of evidence, vide judgment dated 20.01.2012 acquitted the respondents mainly for the following reasons:

“The entire case revolves around the policy of rebate issued by SCCP because it has been stated that the said policy has been violated under which the rebate was allowed only on cash payment, by bank draft or pay order, as it is also alleged the rebate was allowed on sale of cement on credit. The prosecution witnesses have also failed to produce the alleged policy and PW-1 Syed Qasim Raza has stated that Exh-8/1 is the policy. Charge against accused is that he in active connivance and in collusion with Syed Riaz-ul-Hassan Rizvi Ex-Managing Director of Thatta Cement Company Limited dishonestly and fraudulently allowed rebate and caused loss to the Government Exchequer. As I have discussed in above that the accused was not authorized to approve the rebate to stockists, as Exh-8/1 reveals prior approval from the competent authority was must for allowing the rebate. The actual culprit was Syed Riaz-ul-Hassan Rizvi, who indulged in corruption and corrupt practices by making unauthorized and excess rebate in shape of cement to the stockist/group. As per policy of SCCP the rebate was to be allowed and the booking of cement, which was to be made on cash payment instead of cheque, bank draft or pay order, thus no rebate was admissible on sale of cement on credit. Said accused has filed an application for return of illegal gain and offer was accepted by the Chairman NAB vide letter No.7(1027)/2005-S/Adl.Dir(IM-4) dated 26-08-2005 for Rs.21.854 Million exclusive 15% and payment in lump sum in shape of 400 acres of land situated in Thatta district. The accused Syed Riaz-ul-Hassan Rizvi on acceptance of plea bargain was released. In view above it is clear that real culprit was Syed Riaz-ul-Hassan Rizvi Ex-Managing Director. Accused Maqsood Ahmed was not authorized to allow the rebate hence whatever loss was caused to the public exchequer was by Syed Riaz-ul-Hassan Rizvi and it has been returned by the accused No. 1 Syed Riaz-ul-Hassan Rizvi. It will be relevant that the application U/s 25(b) of NAO, 1999 was approved by the Chairman NAB with direction that “accused should complete the transfer of land through mutation of 400 acres land situated in Thatta district in favour of Thatta Cement Company Limited, in case of default or refusal the above land in favour of the said company (TCCL), the accused will again be arrested to face the trial of the instant references.” All this shows that prosecution has miserably failed to prove point Nos. 2 & 4 against accused Maqsood Ahmed, I hold these points in negative.”

 

7.         NAB/Special prosecutor being aggrieved and dissatisfied with the acquittal recorded by the trial court in favour of the respondents filed above appeal.

8.         We have carefully heard learned Special Prosecutor NAB as well as learned advocate for the respondents and perused the findings of the acquittal recorded by the trial court. Trial court rightly held that accused was not authorized to approve the rebate to stockists, as Exh-8/1 revealed prior approval from the competent authority was must for allowing the rebate. The main accused Syed Riaz-ul-Hassan Rizvi, who was indulged in corruption and corrupt practices by making unauthorized and excess rebate in shape of cement to the stockist/group had filed an application for return of illegal gain and offer was accepted by the Chairman NAB for Rs.21.854 Million exclusive 15% and payment in lump sum in shape of 400 acres of land situated in Thatta district. Accused Syed Riaz-ul-Hassan Rizvi on acceptance of plea bargain was released. Prosecution had failed to establish that Respondents/accused Maqsood Ahmed in connivance with co-accused Muhamad Nadeem sold cement on credit in violation of policy. Whatever loss was caused to public exchequer by Syed Riaz-ul-Hassan Rizvi who had returned the same.

9.         We agree with the findings recorded by trial court. So far appeal against acquittal is concerned, it appears that trial Court has assigned sound reasons for recording acquittal in favour of respondents/accused Maqsood Ahmed and Muhammad Nadeem.  Moreover, after acquittal, acquitted accused have 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 complainant’s Counsel on any score.  Reliance is placed on the case of The State v. Abdul Khaliq, (PLD 2011 SC 554).   

10.     In view of above, we find no merit in the acquittal appeal, which is accordingly dismissed.

11.       These are the reasons for the short order announced by us on 27.10.2021.

 

JUDGE

JUDGE

 

 

 

 

 

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