THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 03 of 2019

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

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

Respondent : N.R

Date of Hearing : 23.11.2021

Date of decision : 29.11.2021

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against impugned judgment dated 08.12.2018, passed by learned Accountability Court No.III Sindh at Karachi in Reference No. 02/2014 (The State vs. Muhammad Ayaz Khan and others), whereby, after regular trial, the respondent has been acquitted, whereas, co-accused were convicted and sentenced by learned Accountability Court.

2. The role assigned to the respondent in the Reference by the prosecution as mentioned in the impugned judgment is as under:

“It is further the case of prosecution that accused Suleman Ghani being Federal Secretary Commerce Government of Pakistan had abused his official position and abetted the illegal appointment of accused Muhammad Ayyaz Niazi as Chairman NICL with the connivance of deceased accused Makhdoom Amin Fahim, the then Federal Minister, who handed over C.V of the accused Muhammad Ayyaz Niazi to him and ordered to initiate the note/fulfill the post of Chairman NICL in the panel but neither the experience/credentials defined in the C.V were verified nor post was advertised/Departmental Selection Committee was constituted, which were pre-requisites for the selection of any candidate from the private sector, as envisaged in section 12 of insurance Ordinance 2000, Rules of Business 1973 and instructions of the Federal Government, he also committed violation of the rules/instructions when in a mixed panel of candidates from the public sector/Government Servants had to proposed and subsequently preconditions of advertisement/departmental selection committee were required but he moved summary under his signature without prescribing said rules/instructions, so also the name of accused Muhammad Ayaz Niazi was shown at Sr. No. 03 in the note sheet was malafidely placed at Sr. No.1 by him in his office by abusing his official position as Federal Secretary Commerce, he also kept on ignoring the observations made by the then Secretary Commerce and Section Officer, Establishment Secretary and Finance Secretary vide summaries dated 07.02.2009 and dated 11.04.2009 to the effect of appointment of accused instead of taking remedial measures he sent summaries to the Prime Minister for the grant of MP-1 scale to accused Niazi, which is sheer violation of law and rules and instructions of the Federal Government in active connivance and abetment of deceased accused Makhdoom Amin Fahim. As such all above named accused in connivance with each other have caused loss to the National Exchequer and committed offence of corruption and corrupt practices.”

3. Learned Special Prosecutor NAB contended that the learned Court below by the impugned judgment wrongfully and illegally acquitted the accused/respondent despite the fact that there was sufficient incriminating evidence against him on the record but the learned trial Court did not appreciate the evidence of the prosecution witnesses according to the settled principles of law and passed the judgment in slipshod manner to the extent of respondent, therefore, impugned judgment requires interference by this Court. Special Prosecution NAB frankly submitted that co-accused, who were convicted and sentenced by learned trial Court, challenged the impugned judgment by preferring Criminal Accountability appeals No.68 to 72 of 2018, which were allowed by this Court vide short order dated 08.10.2019 followed by detailed reasons dated 06.11.2019, and NAB has not filed any appeal against the said judgment.

4. We have heard learned Special Prosecutor NAB and have minutely perused the material available on record.

5. Evidence produced before the Trial Court finds an elaborate mention in the judgment dated 08.12.2018 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

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

7. The learned trial court while acquitting the respondent has rightly observed as under:

“It reveals that the summary/note sheet para-14 available at page-22 of (Exh.51/1) that Finance Division Government of Pakistan has concurred with Ministry of Commerce and support the proposal initiated by the Ministry of Commerce. The Hon’ble Superior Courts in various judgments have held that even mere flouting of summary in violation of Rules of Business would be an irregular exercise of the authority and at the most may call for appropriate action against the delinquents under the service rules thereby rendering him liable to disciplinary proceedings in his capacity as civil servant, but it would not fall within the mischief of corrupt and corrupt practices so also mere procedural irregularities in translation were insufficient to constitute an offence under NAO. It is further held that it is essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine the question of criminal liability. Procedural irregularities might bring an act done in official capacity under the ambit of misconduct, which was distinctionable from the criminal misconduct.

Prosecution has failed to prove that accused Suleman Ghani abetted in the illegal appointment of accused Ayaz Khan Niazi as Chairman NICL hence point is answered as not proved.”

8. Record reflects that co-accused, who were convicted and sentenced by learned trial court, were acquitted by this Court vide short order dated 08.10.2019 followed by detailed reasons dated 06.11.2019 mainly for the following reasons:

1. The various valuation reports and the testimony of the prosecution witnesses themselves created doubt as to the exact value of the land.

2. The requisite ingredients of the offences with which the appellants were charged were not proven especially with respect to the requirement of mens rea.

3. The principles laid down by the Honourable Supreme Court to determine misuse of authority were not fulfilled.

4. Evidence, which was not produced in accordance with the Qanoon-e-Shahadat Order, 1984 was taken into consideration by the learned trial court. Similarly, presumptions not warranted by law were also used as a basis for conviction.

5. The record reflects an incomplete, woefully inadequate and extremely negligent, investigation on the part of the investigating officer of the case.

6. No loss to the government exchequer or pecuniary benefit to any of the appellant was established.

7. There was substantial doubt in the prosecution case, the benefit of which doubt should have gone to the appellants in accordance with well established principles of law.

9. It has been candidly conceded by learned Special Prosecutor NAB, that no appeal has been filed by the NAB against the said Judgment, hence it has attained finality.

10. Case against respondent Suleman Ghani was identical to the case of co-accused Muhammad Ayaz Khan Niazi, Muhammad Zahoor, Syed Hur Raihi Gardezi, Zahid Hussain, Amir Hussain and Amin Qasim Dada who have been acquitted by this Court in Cr. Accountability Appeals No.68 to 72 of 2018 dated 06.11.2019. Special Prosecutor NAB failed to point out any additional evidence against the respondent to connect him in the commission of the offence. It is matter of record that evidence of prosecution witnesses has already been disbelieved to the extent of co-accused in appeal and on same set of evidence legally respondent cannot be convicted without additional material.

11. 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 shall 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.

12.     The Honourable Supreme Court in the case of 2021 SCMR 873 (The State through P.G Sindh and others vs. Ahmed Omar Sheikh and others) has held as under:

“Admittedly the parameters to deal with the appeal against conviction and appeal against acquittal are totally different because the acquittal carries double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rests upon impossibility. If there is a possibility of a contrary view even then acquittal could not be set aside as has been settled in the cases of The State v. Khuda Dad and others (2004 SCMR 425). Muhammad Nazir v. Muhammad Ali and another (1986 SCMR 1441), Rehmatullah Khan v. Jamil Khan and another (1986 SCMR 941), Mst. Daulan v. Rab Nawaz and another (1987 SCMR 497) and Gulzar Hussain v. Muhammad Dilawar and others (1988 SCMR 847).”

13.   The principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal are well settled. The powers of the appellate Court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate Court cannot substitute its view in the place of that of the trial Court. It is only when the approach of the trial Court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal.

14.   After perusing the impugned judgment of the trial court and the record of this case; we are of the considered view that the reasoning given by the trial court while acquitting the respondent is neither arbitrary nor perverse nor fanciful and the same does not call for any interference by this Court. This Acquittal Appeal having no merit is accordingly dismissed.

JUDGE

JUDGE