ORDER SHEET

THE HIGH COURT OF SINDH AT KARACHI

Criminal Accountability Acquittal Appeal No. 06 of 2014

Present: Mr. Justice Naimatullah Phulpoto

Mr. Justice Abdul Mobeen Lakho

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

Respondent : Abid Majeed

Date of Hearing : 08.12.2021

Date of decision : 08.12.2021

JUDGMENT

NAIMATULLAH PHULPOTO, J.- The State through Chairman NAB has filed this appeal under Section 32 of NAO 1999 against impugned judgment dated 27.03.2014, passed by learned Accountability Court No.I Sindh at Karachi in Reference No. 01/2012 (The State vs. Abid Majeed and another), 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 impugned judgment in slipshod manner. He, lastly submitted that instant acquittal appeal may be allowed as prayed by setting aside the impugned judgment.

3. Main allegation is against S.M. Sajjad who has been declared proclaimed offender. Trial court in the impugned judgment has mentioned that prosecution failed to prove its’ case against the respondent at trial. Trial court while acquitting the respondent has assigned sound reasons, which are reproduced as under:

“It is also one of an essential aspect of the present case that prosecution could not produce a single witness or any other evidence in order to show that a single penny has been received by the accused Abid Majeed, therefore, it cannot be termed that accused Abid Majeed received any type of benefit out of an alleged scam.

As discussed above, many officials of Directorate of Central Health Establishment, AGPR and Bank Officials have aided and abetted the commission of the crime but strangely enough their role appears to have been hushed up either with design or by default. Many allegations have been leveled against many other officials of Health Department, AGPR and Bank but the nabbing hands of the NAB were never laid down on their shoulders notwithstanding even a single penny could not have been drawn from the AGPR or the bank without their consent, connivance or complicity. Why this pick and choose, is the most nagging question, which has not been answered by the Prosecution. Why these people have not been taken on the board for being interrogated. In case they have been interrogated, why did they remain behind the scene with their faces and names veiled and covered? When no explanation comes forth, the only tenable deduction in the circumstances would be that the case was not investigated fairly and faithfully. It looks as if actual players have been let off and only figure heads have been brought forth to bear the burnt. The entire exercise seems to be an eye wash.

I am very much clear in my mind that for the commission of an offence two necessary ingredients are required to be proved by the prosecution i.e Mens rea and Actus rios, however, the evidence led by the prosecution in the present case is not sufficient to determine the criminal mind and criminal act of the present accused Abid Majeed. I therefore, do not hesitate to say that the case of Prosecution is highly doubtful and the benefit of such doubt is always the right of accused.”

4. Moreover, it has been clearly mentioned by trial court that this was a case of pick and choose by the NAB. Ahmed Shoaib Zaidi (PW-01) had submitted facts finding report (Ex.5/2), which shows that Committee recommended that the employees of Directorate of Central Health Establishment Karachi and HBL Jamshed Road Branch/Bank Authorities were directly involved in these fraud cases because all the sanctions had been signed by the Director and bills signed by the DDO of the Department concerned and all cheques issued by DGPR Karachi were credited into the accounts of absconding accused S.M Sajjad on endorsement of the Bank authorities. Letter of Director of Directorate of Central Health Establishment depicted that all the requisites formalities for grant of sanction of the said bill were completed by absconding accused S.M. Sajjad, who submitted the said bills for sanction thereof before DGPR Karachi. Ahmed Shoabi Zaidi (P.W-01) has not stated that respondent was sole authority for allowing the said payments, rather Branch Superintendent, Accounts Officer and other officials’ signatures were required for the said purpose, however, this witness further stated that respondent Abdul Majeed was posted as Senior Auditor AGPR at Karachi and that nowhere it has been found that respondent was the only authority to process, sanction and pass the applications for advance G.P. Funds. Record further reflects that prosecution could not establish that respondent received any amount or benefit out of such scam. 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 judgment which requires interference by this Court.

5. 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 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.

6. 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).

7. 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.

8. 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