THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 24 of 2019

 

               Present:                 Mr. Justice Naimatullah Phulpoto

                                                                                                    Mr. Justice Abdul Mobeen Lakho

 

 

 

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

                                                           

                                                            Mr. Muhammad Irfan Memon D.A.G

 

 

Respondent                       :               Masroor Ahmed Khan

 

Date of Hearing                :               06.12.2021

 

Date of decision                :              06.12.2021

 

JUDGMENT

 

 

NAIMATULLAH PHULPOTO, J.-  The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against impugned order dated 30.03.2019, 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 respondent has been acquitted.

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.         In order to appreciate the contentions of learned Special Prosecutor NAB, we have carefully gone through the impugned order dated 30.03.2019, passed by learned Accountability Court No.I, Sindh at Karachi. Relevant portion of the order is reproduced as under:

“Moreover the role of acquitted accused Shahzad Ali Khan being joint proprietor with the applicant/accused of M/s Start Distributor is undeniable and as such the same cannot be distinguished to deny the relief granted to co-accused Shahzad Ali Khan and Dr. Mirza Raza Ali as such there is no probability of accused being convicted. The learned prosecutor when confronted with this situation and scenarios, could not reasonably explain the distinctions between the role of accused Shahzad Ali Khan and Dr. Mirza Raza Ali and I myself am unable to find any lawful reason to dismiss application of the accused u/s 265-K Cr.P.C and resultantly the same is allowed and accused is acquitted accordingly.”

 

4.         It is pertinent to mention here that in the same Reference, co-accused had been acquitted by learned trial Court vide order dated 27.06.2007, which order was challenged by filing Criminal Accountability Acquittal Appeal No.11/2007 (The State/NAB vs. Dr. Mirza Raza Ali and others), but the said Acquittal Appeal was dismissed by this Court vide judgment dated 30.11.2021 mainly for the following reasons:

“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.”

 

5.         Perusal of record reflects that co-accused Shahzad Ali Khan who was joint proprietor with the respondent of M/s Star Distributor has already been acquitted by learned trial court and the acquittal appeal filed against such order has also been dismissed by this Court. It appears that trial Court has discussed in detail all the material produced by the prosecution at trial and learned Special Prosecutor NAB has failed to point out any infirmity in the impugned order which requires interference by this Court.

6.         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 of 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.

7.         So far appeal against acquittal is concerned, keeping the above in mind, it appears that trial Court has assigned sound reasons for recording acquittal in favour of respondent.  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).   

8.     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.

9.         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