THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 11 of 2007

 

               Present:                 Mr. Justice Naimatullah Phulpoto

                                                                                                    Mr. Justice Abdul Mobeen Lakho

 

 

 

Appellant                          :               The State/NAB through Mr. R.D. Kalhoro, Special Prosecutor NAB

 

 

Respondent                       :               Dr. Mirza Raza Ali, Muhammad Moiz Kashmiei, Syed Mumtaz Ali Shah Qadri and Shahad Ali Khan through Mr. Nisar Ahmed Tarrar advocate

 

Date of Hearing                :               26.11.2021

 

Date of decision                :              30.11.2021

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.-  The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against impugned order dated 27.06.2007, passed by learned Accountability Court No.I Sindh at Karachi in Reference No. 22/2006 (The State vs. Dr. Mirza Raza Ali and others), whereby,  the respondents have been acquitted. Appeal was admitted to regular hearing.

2.         Learned Special Prosecutor NAB has contended that the learned Court below by the impugned order wrongfully and illegally acquitted the accused/respondents despite the fact that there was sufficient evidence against them on the record. It has been further argued that learned trial Court did not evaluate the material available on record and passed the order in slipshod manner. He, lastly submitted that instant acquittal appeal may be allowed as prayed by setting aside the impugned order.

3.         Learned advocate for respondents argued that prosecution had withdrawn case against main accused which was pending before trial Court, hence the learned Accountability Court while assigning cogent reasons acquitted the respondents; that Article 25 of the Constitution also guarantees that citizens are equal before law and entitled to equal protection of law; that the instant appeal is incompetent as it was not filed on direction of the Chairman NAB. Learned counsel for respondents further argued that scope of appeal against acquittal is narrow and limited and after acquittal of respondents, presumption of innocence is doubled.

4.         In order to appreciate the contentions of learned counsel for the parties, we have carefully gone the impugned order dated 27.06.2007, passed by learned Accountability Court No.I, Sindh at Karachi. Relevant portion of the order is reproduced as under:

“After hearing the DPGA and Mr. Anwar Tarique and Mr. Kazi Muhammad Ashraf Advocates and the other advocates for the other co-accused I have come to the conclusion that if the application U/s 31-B of NA Ordinance 1999 is allowed there will be a dent in the case of the prosecution which goes to the root of the case as there are specific allegations of preparation of indent, invoice and bills in collusion with Dr. Mirza Raza Ali and Para No.4, 7 and 8 of the reference are reproduced as under:

“4. That accused No.2 who was Additional Medical Superintendent (Zakat) & Member of Health Welfare Committee (Civil Hospital Karachi) deliberately assisted accused No.1 by giving approval for the issuance of Cheque against fake/fictitious/forged invoices/ bills/indent forms.”  

“7.       That the evidence collected during investigation establishes that by misusing their authority, accused fraudulently or dishonestly have misappropriated Zakat funds and thus by corrupt, dishonest or illegal means obtained for themselves pecuniary advantage. The accused thereby committed the offence of corruption and corrupt practices as defined in clauses (ii), (iv) and (vi) of section 9(a) punishable under Section 10(a) of National Accountability Ordinance and Schedule thereto.”

“8.       That on the appraisal of material and evidence placed before me, I am of the opinion that it is just and proper to proceed further as there is sufficient incriminating material to justify the filing of this reference. The matter is referred to the Hon’ble Court within the meaning of section 16(c) National Accountability Ordinance 1999.”   

As regards the observation made in the Order of Supreme Court of Pakistan that there is no corruption in the Zakat funds and the amount have been disbursed amongst the mustahiqeen and have not been converted to the personal gain of the accused. The relevant paras of Order of Honourable Supreme Court of Pakistan are reproduced as under:

“5.       On the other hand, Mr. Ainuddin, learned Deputy Prosecutor General, vehemently opposed this petition. However, he could not deny that the purchase of the relevant items was made with permission of the Committee and that cheques were issued with joint signatures of petitioner of Hakim Maulana Muhamad Akbar Dars who was ot joined as a co-accused. He also admitted that the alleged misappropriated amount was not converted to personal use of petitioner but the same was used for distribution amongst Mustahiqeen, although, in violation of prescribed rules meant for disbursement of Zakat.

6.         We have given due attention to the oral submission of learned counsel for both the parties and with their assistance we have seen the available record referred to by them. The case as it , prima facie, appears is that the relevant times were purchased with the permission of the Committee, cheques were issued by petitioner with joint signature of petitioner as well as that of Hakim Dars who was not joined as an accused. As per statement of learned Additional Deputy Prosecution General the petitioner was not himself a beneficiary of the alleged misappropriated amount, Mustahiqeen benefited largely.”

As regards application U/s 265-K Cr.P.C is concerned the same has become infructuous as the prosecution has filed application U/s 31-B of Ordinance.

In view of the above position, the application U/s 31-Bof Ordinance is allowed while application U/s 265-K Cr.P.C having been anfractuous is disposed off.”

 

5.         A careful perusal of the impugned order shows that trial Court has discussed in detail all material produced by the prosecution at trial.

6.         At the very outset, learned advocate for the respondents emphatically argued that instant Acquittal Appeal was incompetent as the same was filed without any specific direction from the Chairman NAB to the Prosecutor General NAB. Reliance is placed upon an unreported decision of the Honourable Supreme Court dated 08.04.2009 in the case of State through Prosecutor General Accountability Bureau, Islamabad vs. Muhammad Akbar Khan (Criminal Petition No.55/P of 2006). Mr. R.D. Kalhoro, Special Prosecutor General NAB could not convert the submission made by learned advocate for the respondents. In the present case it a matter of record that prosecution had withdrawn case against main accused Dr. Allah Nawaz Kazi pending before Accountability Court. So far the respondents are concerned, Special Prosecutor NAB could not point out any misappropriation on their part. Trial court had observed that misappropriated amount was not converted to the personal use by the respondents, but it was used for distribution amongst deserved persons, although it was in violation of the prescribed rules. Once the prosecution had withdrawn the case against main accused, the respondents, similarly placed, were also to be treated alike as provided under Article 25 of the Constitution of Islamic Republic of Pakistan, which describes that all citizens are equal before law and entitled to equal protection of law, however, it would be applicable on the persons similarly placed or similarly situated.

7.        The order of acquittal recorded by the learned Accountability Court appears to be in consonance with the principles of justice and therefore, we are not inclined to interfere with the order which does not suffer from any illegality or mis­carriage of justice. In case of PLD 2001 SC 607 (Khan Asfandyar Wali vs. Federation of Pakistan), the Hon'ble Supreme Court has taken notice of the fact that "in the interest of good governance the officials performing their acts in good faith should be protected otherwise they would be reluctant to take decision and/or avoid or prolong the same on one pretext or another, which would ultimately lead to paralysis of State-machinery and such a course cannot be countenanced by the Supreme Court". The Hon'ble Supreme Court further expressed need for protection to such officials where there was no direct evidence of any corrupt motive or of any illegal gain. In the present case, the prosecution has no evidence direct or indirect to establish any personal gain on the part of the respondents.

8.         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 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 order 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.

9.         So far appeal against acquittal is concerned, it appears that trial Court has assigned sound reasons for recording acquittal in favour of respondents.  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).   

10.     For the above stated reasons, we have no hesitation to hold that order of acquittal passed by the trial Court is based on reasonable possible view, this Court should not disturb the acquittal.

11.       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