THE
HIGH COURT OF SINDH AT KARACHI
Criminal
Accountability Acquittal Appeal No. 02 of 2012
Present: Mr. Justice Naimatullah Phulpoto
Mr. Justice Abdul Mobeen Lakho
Appellant : The State/NAB through Mr. Riaz
Alam Special Prosecutor NAB
Respondent : Maqsood Ahmed through Mr. Ghulam Sarwar Chandio advocate
Date
of Hearing : 27.10.2021
Date
of decision : 27.10.2021
JUDGMENT
NAIMATULLAH
PHULPOTO, J. Respondent/accused
Maqsood Ahmed was tried by learned Accountability Court No.III, Sindh at
Karachi in References No. 12, 13 and 14 of 2005. After regular trial, vide
judgment dated 26.12.2011, respondent was acquitted of the charges.
2. Brief facts leading to the filing of
the appeal against acquittal a mentioned in the impugned judgment are as under:
“M/s. Thatta Cement
Company Limited is a State owned unit controlled and supervised by the Ministry
of Industries and Production, Government of Pakistan through State Cement
Corporation of Pakistan (SCCP) and the assets of the company are wholly and
solely owned by the Federal Government. At the relevant time, the accused No.1
was Managing Director and accused No.2 was Manager (Sales & Dispatch) of
M/s. TCCL and as such they come within the definition of holders of public
office. The accused No.3 is attorney/ authorized signatory of M/s United
Marketing Corporation, Hyderabad.
On receipt of
complaint from the Managing Director, TCCL, (Shaikh Merajudin Shamsi) that the
above accused in connivance with each other indulged in corruption and corrupt
practices by making unauthorized excess payment of rebate, an investigation was
authorized. The I.O has submitted his report. This reference pertains to excess
rebate payment during the period from 1997-98.
Investigation
report shows that during the years 1997-98, as per rebate policy/ procedure
given by M/s SCCP, M/s TCCL was permitted to allow payment of rebate in the
shape of cement to the stockists/ groups. In other words, against due rebate
amount earned in terms of money, equivalent quantity of cement against the said
rebate amount was to be issued. The following was the authorized procedure/
policy for payment of rebate:
|
To
whom allowed |
Booking
limit (M.Tons) |
Rebate
per M.Ton (in Rs) |
Period |
SCCP’s
letter No. & date |
|
|
Stockiest Govt. Parties consumers |
200 Any quantity |
50 50 50 |
24.07.96 |
31.10.96 |
MKT/Prices 22.07.96 |
|
Stockists if on cash Govt Agencies
Smaller Town Direct consumers |
200 200 500 100 200 |
30 80 50 80 50 |
01.11.96 |
31.12.96 |
MKT/Rebate 30.10.96 |
|
Direct consumers |
200 |
50 |
01.01.97 01.03.97 01.04.97 |
28.02.97 31.03.97 30.06.97 |
MKT/7/3109/31-12-96 MKT7/33996/05-03-97 MKT/4643/16-04-97 |
That as per policy, rebate was to be allowed
if the booking of cement was made on cash payment by bank draft or pay order but
no rebate was admissible on sale of cement on credit. In utter violation of
rebate policy/ procedure given by SCCP, accused No. 1 with active connivance
and collusion of accused No. 2 and 3 dishonestly or fraudulently allowed rebate
at the time of booking, either on customer order forms or against sale of
cement on credit, that provided undue favour and benefit to various dealers.
The unauthorized/ excess rebate allowed during the period 1996-97 is as under:
|
Party Name |
Rebate allowed as per books |
Actual rebate allowable |
Excess rebate allowed |
|
M/s Ahmed Khan |
Rs.8,38,540/- |
Rs.1,06,350/- |
Rs.7,32,190/- |
|
M/s Afghan Cement and M.C Quetta |
Rs.5,13,520/- |
Rs.4,17,350/- |
Rs.96,170/- |
|
M/s Haresh Kumar |
Rs.4,07,400/- |
Rs.1,84,700/- |
Rs.2,22,700/- |
|
M/s Haresh Kumar |
Rs.3,92,430/- |
Rs.2,64,840/- |
Rs.1,27,590/- |
|
M/s Qamer-ul-Islam |
Rs.1,37,680/- |
Rs.92,800/- |
Rs.44,880/- |
|
M/s Salamat Agency |
Rs.9,90,250/- |
Rs.7,16,180/- |
Rs.2,74,070/- |
|
M/s Techno Itern |
Rs.6,28,000/- |
Rs.2,68,900/- |
Rs.3,59,100/- |
|
M/s Unicom Cement |
Rs.2,30,170/- |
Rs.76,900/- |
Rs.1,53,270/- |
|
M/s United Marketing |
Rs.83,62,178/- |
Rs.80,52,960/- |
Rs.3,09,218/- |
|
M/s Uttam Perkash |
Rs.11,27,460/- |
Rs.8,67,650/- |
Rs.2,59,810/- |
|
M/s XEN, PWD |
Rs.4,62,400/- |
Rs.2,97,400/- |
Rs.1,65,000/- |
|
M/s Zahid Hussain |
Rs.1,96,750 |
Rs.1,85,600/- |
Rs.11,150/- |
|
Total |
Rs.1,42,86,778/- |
Rs.1,15,31,630/- |
Rs.27,55,148/- |
The small cement
dealers and arrested accused persons entered into voluntary return (VR) and
plea bargain (PB) respectively which was accepted by the competent authority.
The details are as under:
|
S# |
NAME OF
PARTY |
AMOUNT
(RS) |
|
1. |
M/s Haresh Kumar, Thatta |
2,22,700/- |
|
2. |
M/s Mahesh Kumar, Thatta |
1,27,590/- |
|
3. |
M/s Uttam Perkash, Thatta |
2,59,810/- |
|
4. |
M/s Zahid Hussain, Thatta |
11,150/- |
|
5. |
M/s Afghan Cement, Quetta |
96,170/- |
|
6. |
M/s United Marketing Corp. Hyderabad
(50%) Muhammad Iqbal Zai) |
1,54,609/- |
|
|
Total |
8,72,029/- |
The above amount
which has been received when deducted from the outstanding amount comes to as
under:
Total amount outstanding : Rs.27,55,148/-
Received through VR & PB : Rs.8,72,029/-
Amount
outstanding as liability : Rs.18,83,119/-
That following is the breakup of outstanding liability
against accused No.3 and parties/accused who are not traceable, on account of
rebate for the year 1996-97 allowed/ extended by accused No. 1 & 2.
|
S# |
NAME OF
PARTY |
LIABILITY
(RS) |
REMARKS |
|
1. |
M/s XEN WAPDA, Thatta |
1,65,000/- |
Not traceable |
|
2. |
M/s Ahmed Khan, Karachi |
7,32,190/- |
Not traceable |
|
3. |
M/s Salamat Agency, Karachi |
2,74,070/- |
Not traceable |
|
4. |
M/s Techno International, Karachi |
3,59,100/- |
Not traceable |
|
5. |
M/s Qamar ul Islam Quetta |
44,880/- |
Not traceable |
|
6. |
i. M/s Unicon Cement, Hyderabad ii.
M/s United Marketing Hyderabad |
3,07,879/- |
Accused No.3 |
|
|
Total |
8,72,029/- |
- |
The total liability is as follows:
Liability created by accused No.3 : Rs.3,07,879/-
Liability of untraceable accused : Rs.15,75,240/-
Total : Rs.18,83,119/-
That the evidence collected during investigation
establishes that accused No.1 & 2 as holders of public office in active
connivance with each other and accused No.3 and others misused their authority
by allowing rebate which was not admissible and conferred undue benefit of
Rs.18,83,119/- to accused Nos. 3 & others and willfully failed to exercise
their authority. The funds of M/s TCCL were allowed to be misappropriated and
wrongful loss resulted to the Company. The accused thereby committed the
offence of corruption and corrupt practice as defined in Section 9(a),
punishable under Section 10 of National Accountability Ordinance, 1999 and
Schedule thereto.”
3. After filing of the Reference against
the respondent, learned trial Court, framed charge against respondent at Ex.2,
respondent pleaded not guilty and claimed to be tried.
4. In order to prove its’ case, prosecution
examined as many as 07 witnesses, who exhibited various documents in support of
the prosecution case, where after the prosecution closed its’ side.
5. Trial Court recorded statement of respondents/accused
under Section 342 Cr.P.C at Ex.31, in which he denied prosecution allegations
and claimed his false implication in this case. He did not lead evidence in his
defence, but examined himself on oath at Ex.32 and produced credit sale letter,
rebate allowed as Ex.35 and 36.
6. Learned trial court heard arguments
learned counsel for the parties and after assessment of evidence, vide judgment
dated 26.12.2011 acquitted the respondent 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 & 3 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 respondent filed above appeal.
8. We have carefully heard learned Special
Prosecutor NAB as well as learned advocate for the respondent 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. 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.
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 respondent/accused Maqsood Ahmed. 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. For the
above stated reasons, 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