ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 01 of 2013

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

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

Respondent : Abdul Majeed Khatri through M/s Shoukat Hayat and Abdul Hafeez advocates

Mr. Shafqat Zaman advocate for Ms. Zahira advocate for complainant

Date of Hearing : 29.11.2021

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 12.11.2012, passed by learned Accountability Court No.III, Sindh at Karachi in Reference No. 02/2009 (The State vs. Abdul Majeed Khatri), whereby, after full-dressed trial, the respondent has been acquitted.

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

3. Learned advocate for respondent argued that no direct or indirect evidence has been produced by the prosecution to show that the respondent was involved in corruption or corrupt practices; that no loss caused to the WAPDA due to respondent on alleged shortage and said material was available in the store of M/s Quality Steel Works Karachi as envisaged in the letter dated 11.10.1999 (Ex. F/A-2); that learned Accountability Court while assigning cogent reasons acquitted the respondent. Learned counsel for respondent 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 12.11.2012, passed by learned Accountability Court No.III, Sindh at Karachi. Relevant portion of the order is reproduced as under:

“The discussion of points No.1 to 4 reveals that the prosecution has failed to prove the charge levelled against the accused. No direct or indict evidence has been produced to show that the accused was corrupt official and was holding responsible position by misuse of authority. No evidence has been produced by the prosecution to show that the accused committed corruption or obtained any undue advantage for himself or supplied and wilfully failed to exercise his authority to prevent the grant for undue benefit to the contractor or he fraudulently misappropriated the material and by corrupt dishonest and illegal means obtained for himself pecuniary advantages and caused loss to the State Exchequer of Rs.100,189,536.16/-. From the prosecution evidence it is appeared that to arrange the transport to transport the material was the responsibility of WAPDA so also to release the funds was the responsibility of Chief Engineer ST&G who had signed the contract. An inquiry was conducted by the WAPDA in which a questionnaire was given to accused Abdul Majeed Khatri which is at page 241 of the I.R. Anex-I, its page 241 reveal that “No loss caused to the WAPDA due to accused on alleged shortage, in fact, there was no shortage but the said material is still available in the store of M/s Quality Steel Works Karachi, as they confirmed in their letter dated 11-10-1999 (F/A-2) that 65% material has been dispatched/lifted and the balance material is stored in their factory.”

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. In the present case after perusal of the evidence, we have come to the conclusion that no loss was caused to the WAPDA by the respondent, shortage was also not proved. Record shows that there was no shortage but said material was available in the store of M/s Quality Steel Works Karachi as confirmed in their letter dated 11.10.1999 that 65% material has been dispatched/lifted and the balance material was stored in their factory. Special Prosecutor NAB could not point that findings of trial court are perverse and ridiculous.

7. 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.

8. 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).

9. 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.

10. 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. These are the reasons for the short order announced on 29.11.2021.

JUDGE