Criminal Accountability Acquittal
Appeal No. 1 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. 18 of 2006 arising out of the FIR No. 11/2001 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. 1 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. 49/2001 was registered on 12.02.2011 accused Ahmed Yar Malik Chairman
and Fazal-ur-Rehman Awan Secretary of Ex-Servicemen Cooperative Housing Society
and others at Police Station Gulzar Hijri, Karachi, which was referred to
Anti-Corruption Establishment, Karachi for want of jurisdiction wherein it was
alleged that complainant Bashir Ahmed Khan s/o Abdul Aziz Khan was a member of
the society and he booked a plot in Gulshan-e-Ghazian, KDA Scheme No.33, Sector
51-A, and paid all dues of the society amounting to Rs.81,120/- and inspite of
entire payment, the said Society unnecessarily issued him notices for balance
payment. It is alleged that society allotted the plot to non-members of the
society/civilians and also constructed a “Khanqah” within the area of society
and thus misused 114 commercial plots and also illegally demanded additional
amount of Rs.650/- per Sq. yard from the complainant and other members of the
society towards the development charges. It is further alleged that the accused
illegally cancelled the plots of the complainant and other regular members of
the society on the ground of non-payment of development charges and allotted
the same to others in order to benefit themselves and thus misappropriated an
amount of Rs.1,25,75,744/- of the society 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 17.08.2006 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 seven 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 judgment 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 Appeals No. 01 of 2014 is without merits and the same is
dismissed.
JUDGE
JUDGE