Criminal Accountability Acquittal
Appeals No. 2 of 2014
Present
Mr.
Justice Naimatullah Phulpoto
Mr.
Justice Khadim Hussain Tunio
Date of Hearing: 29.09.2017
Date of
announcement of judgment: 06.10.2017
Appellants: The
State/NAB through Mr. Munsif Jan Special Prosecutor NAB.
Respondents: Ahmed
Yar Malik & Fazal-ur-Rehman are not present.
NAIMATULLAH PHULPOTO, J.- Respondents/accused
were tried by learned Judge, Accountability Court No.I, Sindh, Karachi, in Reference
No. 20 of 2006 arising out of the FIR No. 104/2000 for offence under Sections
409/420/468/471/34 PPC read with Section 5(II) of Anti-Corruption Act, 1947
registered at P.S Anti-Corruption Karachi. By separate judgments dated
06.11.2013, Respondents/accused were acquitted. The State/ NAB filed instant
Criminal Accountability Acquittal Appeal No.2 of 2014 against the acquittal
recorded by the trial Court.
2. Brief
facts leading to the filing of the appeals against acquittal are that a case
FIR No. 104/2000 was registered on 25.11.2000 against accused Ahmed Yar Malik
Chairman and Fazal-ur-Rehman Awan Secretary of Ex-Servicemen Cooperative
Housing Society, wherein it was alleged that complainant Maqsood Ali Khan and
others were the members of the Ex-Servicemen Cooperative Housing Society,
Karachi since 1969 and they had deposited all dues of the plots but no plot had
been allotted by the said society to them. It is further alleged in the FIR
that the officials of the society had misappropriated an amount of Rs.1,25,00,000/- of the society and prepared false and forged
leases of the government land and fraudulently allowed civilians to construct
their houses and thereby accused allegedly committed the offence of corruption
and corrupt practices as defined under Section 9(a) punishable under Section 10
of the National Accountability Ordinance, 1999.
3. Initially,
the challan was filed before the Court of learned Special Judge Anti-Corruption
(Provincial) Karachi, wherefrom the matters were transferred to learned Judge,
Accountability Court No.1, Karachi u/s 16-A of the NAB Ordinance, 1999 dated
23.08.2006 submitted by the Chairman NAB.
4. Charge
was framed against Respondents/accused by the learned Judge Accountability
Court No.1, Karachi, under the aforesaid section at Ex-4. Respondents/accused pleaded
not guilty and claimed to be tried.
5. At
the trial, prosecution examined eleven prosecution witnesses. Thereafter,
prosecution side was closed.
6. Statements
of the accused were recorded under Section 342 Cr.P.C, in which accused have
denied the prosecution allegations and stated that they have been falsely
implicated. Accused neither examined themselves on Oath in disproof of
prosecution allegations nor produced any evidence in their defence.
7. On
the conclusion of the trial, learned Judge Accountability Court No.1, Karachi,
after hearing the learned counsel for the parties, on the assessment of entire
evidence acquitted the accused by judgment dated 06.11.2013, mainly for the
following reasons:-
“Thus looking to the general
principle of law that no one should be put at trial for more than once in
respect of the one and same offence, for which he had already been tried and
acquitted/convicted, I am of the considered view that the trial of accused in
the present case would fall within the ambit of double jeopardy as contained in
section 403 Cr.P.C read with Article 13 of the Constitution of Islamic Republic
of Pakistan and that being so, I hereby acquit the present accused Ahmed Yar
Malik s/o Ghulam Hussain and accused Fazal-ur-Rehman Awan s/o Gul Zaman of the
charge accordingly u/s 403 Cr.P.C. They
are present on bail, their bail bonds stand cancelled and surety discharged.”
8. Mr. Munsif Jan, learned Special Prosecutor
NAB argued that trial Court acquitted Respondents/accused without deep analysis
of the evidence available on record. He has further contended that acquittal of
the accused was not warranted in law.
9. After hearing learned Special Prosecutor NAB, we have perused
the acquittal judgments passed by learned Trial Court. We have come to the
conclusion that trial Court rightly acquitted accused for the reasons that same
matters/offences against Respondents/accused were tried by learned Judge,
Anti-Corruption. After full-dressed trial, Respondents were acquitted by
learned Judge, Anti-Corruption by judgment dated 15.10.2010, on the same
allegations/charges, References were filed. It has been admitted by Special
prosecutor NAB that acquittal recorded by Anti-Corruption Court was not
challenged by the NAB before this Court. Trial Court has rightly recorded
findings that there was no probably of the conviction of the accused in the
cases as doctrine of double jeopardy is attracted in the cases. Judgments of
the Trial Court are neither perverse nor arbitrary. So far the appeals against
acquittal are concerned after acquittal Respondents/accused have acquired
double presumption of innocence, this Court would interfere only if the
judgment was arbitrarily, capricious or against the record. But in this case
there were number of infirmities and impugned judgments of acquittal in our
considered view did not suffer from any misreading and non-reading of the
evidence. As regard to the consideration warranting the interference in the
appeal against acquittal and an appeal against conviction principle has been
laid down by the Hon’ble Supreme Court in various judgments. In the case of State/ Government Sindh through Advocate
General Sindh, Karachi versus Sobharo (1993 SCMR 585), Honourable
Supreme Court has laid down the principle that in the case of appeal against
acquittal while evaluating the evidence distinction is to be made in appeal
against conviction and appeal against acquittal. Interference in the latter
case is to be made when there is only gross misreading of evidence, resulting
in miscarriage of justice. Relevant portion is reproduced as under:-
“14. We are fully satisfied
with appraisal of evidence done by the trial Court and we are of the view that
while evaluating the evidence, difference is to be maintained in appeal from
conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of
evidence resulting in miscarriage of justice. Reference can be made to the case
of Yar Muhammad and others v. The State (1992 SCMR 96).
In consequence this appeal has no merits and is dismissed.”
10. For the
above stated reasons, we hold that the acquittal recorded by the Trial Court
requires no interference by this Court and the impugned judgments are based
upon valid and sound reasons and are entirely in consonance with the law laid
down by the Honourable Supreme Court of Pakistan. Neither, there is misreading,
nor non-reading of material evidence or misconstruction of facts and law.
Resultantly, Criminal Accountability Acquittal Appeal No. 02 of 2014 is without merits and the same
is dismissed.
JUDGE
JUDGE