THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 01 of 2012

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

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

Respondents : Lutuf Ali Kalhoro and Muhammad Salik Nukraich through Mr. Ashok Kumar advocate

Iqbal Ahmed Mirani through Mr. Muhammad Ahmed Pirzada advocate

Ghulam Sarwar Kaladi and Ms. Lubna Salahuddin through Mr. Waseem Iqbal advocate

Date of Hearing : 24.11.2021

Date of decision : 24.11.2021

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against impugned judgment dated 22.12.2011, passed by learned Accountability Court No.I Sindh at Karachi in Reference No. 14/2009 (The State vs. Lutuf Ali Kalhoro and others), whereby, after full-dressed trial, the respondents have been acquitted. Appeal was admitted to regular hearing.

2. Learned Special Prosecutor NAB mainly contended that exchange of Government land was allowed by Revenue officials/respondents during ban period but the learned trial court had failed to appreciate such legal position. It is further stated that non-examination of complainant and PW Shafiq was not fatal to the prosecution as other P.Ws have fully supported the prosecution case. Lastly, it is submitted that impugned judgment is based upon speculations and prayed for allowing the acquittal appeal.

3. Learned advocates for the respondents argued that state land was exchanged according to law and there was no ban for such exchange at the relevant time. It is further argued that complaint of Col (Rtd) Zahid Aziz and P.W Muhammad Shafiq Siddiqui were the material witnesses of the prosecution and they were examined during investigation but they were not produced by the prosecution at trial. It is stated that non-examination of material witnesses at trial would be fatal to the case of prosecution and presumption would be that in case they might have been examined they would not have supported the case of prosecution. Lastly, it is 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 judgment dated 22.12.2011, passed by learned Accountability Court No.I, Sindh at Karachi. Relevant portion of the judgment is reproduced as under:

“It is also an admitted position that the proceedings relating to the inquiry and investigation were undertaken on the complaint of Col.(Retd) Zahid Aziz againt the official accused but the complainant namely Col.(Retd) Zahid Aziz ha snot been produced as witness to substantiate the contents of the complaint submitted by him and non-examination of the complainant by the prosecution is adversely reflected on the case of prosecution and inflict the material dent in the case of prosecution, which at this stage is also not curable. Similarly the exchange of 4 acres of land has been alleged on the application of Muhammad Shafiq Siddiqi from Deh Gadap to Deh Tore and the said Muhammad Shafiq Siddiqi either has not been cited as witness nor produced as witness nor has been cited as accused and no reasonable and plausible explanation has been brought on record to show that why the complainant Col. (Retd) Zahid Aziz and Muhammad Shafiq Siddiqi have not been examined in support of the case of the prosecution as such the whole structure based on the alleged complaint of Col. (Retd) Zahid Aziz collapse.

The case against lady accused has been brought on record as she being attorney of Muhammad Shafiq Siddiqi has disposed off the land of 4 acres for a consideration of Rs.800,000/- and has misappropriated the said money and has caused the loss of Rs.800,000/- to the public exchequer. It is admitted position that the lady accused has been implicated in her private capacity and not in her official capacity and she being the attorney of Muhammad Shafiq Siddiqi had all the rights and powers to maintain the property of the lessee for which the prosecution could not raise any objection. Even otherwise in her statement u/s 342(1) Cr.P.C she has stated that she has been exonerated by the board of revenue after conducting an inquiry and she produced a letter dated 28.03.2006 Ex.22/2 in support of her contention. A perusal of the said letter shows that the Secretary L.U government of Sindh after examination of the relevant record and authorities was of the view that she has not committed any offence nor her act is subject to disciplinary action and she was, therefore, exonerated form the alleged offence which has not been controverted by the prosecution. In such state of affairs no cause seems to have been made out against the lady accused.

The case law relied upon by the learned counsel for the accused to some extent support the case of the defence. Point No.1 and 2 are, therefore, answered in affirmative, point No.3 is answered in affirmative by holding that the accused No.1 exercised the powers vested in him as collector under the Act of 1912 and for such exercise of powers by exchange of the land from Deh Gadap to Deh Tore does not involved any monitory gain and any other official accused did not act contrary to the law.

After pondering the whole evidence available on record, as discussed above, it is established that 4 acres of land allotted to Muhammad Shafique Siddiqi in the year 1986 for 30 years, was exchanged with the similar measurement of the land in Naclass No.158 of Deh Tore and it is an admitted position by the prosecution witnesses that the accused had not obtained any monitory gain by such exchange of the land in question as such in view of the dictum laid down by the Hon’ble Supreme Court in the case of ‘The State Versus Muhammad Idrees Ghauri (NLR 2008 Criminal 555)’, the case for taking any action against the accused, therefore, has not been made out as the ingredients of section 9(a)(vi) of the Ordinance 1999 seems not to have been fulfilled. In such state of affairs the case against the official accused has, therefore, not been made out without any shadow of doubt. Similarly the case against accused Lubna Salahuddin has not been made out as she simply while acting as attorney of Muhammad Shafique Siddiqi had disposed off the land under the instructions of the lessee and the monitory compensation of Rs.800,000/- admittedly have also been received by Muhammad Shafique Siddiqi vide his affidavit sworn before this Court vide Ex.22/2. In such state of affairs the case against the accused has, therefore, not been made out.

The accused are, therefore, acquitted from the charge u/s 265-H Cr.P.C. They are on bail, their bail bonds stand cancelled.”

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

6. It is evident from the record that proceedings relating to the inquiry and investigation were initiated on the complaint of Col. (Rtd) Zahid Aziz against the official accused but the he was not examined by the prosecution. P.W Muhammad Shafiq Siddiqi, who allegedly made application for exchange of 4 acres of land from Deh Gadap to Deh Tore has also not been examined by the prosecution. There is no cavil with the proposition that the prosecution has the prerogative to examine witness of its’ choice but where a material witness is not examined and best evidence is withheld the Court may draw an adverse inference under Illustration (g) of Article 129 of the Qanun-e-Shahadat, 1984. Reliance is placed upon the case reported as 2011 SCMR 646 (Tahir Khan vs. The State). Record further reflects that lady accused being attorney of Muhammad Shafiq Siddiqi disposed of the land of 04 acres in her private capacity and she in her statement recorded u/s 342 Cr.P.C has stated that after conducting inquiry, she had been exonerated by Board of Revenue and produced such letter at Ex.22/2. It has also come on record that 4 acres of land allotted to Muhammad Shafique Siddiqi in the year 1986 for 30 years, was exchanged with the similar measurement of the land in Naclass No.158 of Deh Tore and it has been admitted by the prosecution witnesses that the accused had not obtained any monitory gain by such exchange of the land in question. The findings of the trial court recorded while discussing points No. 4 and 5 in the impugned judgment clearly show that prosecution had failed to establish its’ case against the respondent.

7. Findings recorded by trial court are based upon sound reasons and require no interference by this Court.

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 judgment 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/accused.  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 judgment 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.

12. These are the reasons for the short order announced by us on 24.11.2021.

JUDGE

JUDGE