2020 PLP 7 (YLRN)

MUHAMMAD IQBAL KALHORO, J.

This acquittal appeal has been filed by the Chairman, NAB under section 32 of National Accountability Ordinance, 1999 against a common order dated 22.12.2014 passed by the Accountability Court-III Karachi allowing two applications filed under section 265-K, Cr.P.C. by the respondents and acquitting them in a Reference No.1/2014 (The State v. Ayaz Khan Niazi and others) pending before it.

2. Brief facts of the case are that Mr. Zafar Muhammad, the then Secretary Commerce, Govt. of Pakistan made a complaint to FIA for probing purchase of land at various places and on different times by the National Insurance Corporation of Pakistan Limited (NICL), and registering a case against responsibles for embezzling NICL funds in a transaction of land of 27000 sq. ft. purchased for office space at different floors in Liberty Tower Dubai against an exorbitant price of 2700 UAE Darham per sq. ft. in July 2009 causing a huge loss to government exchequer. Accordingly, an FIR bearing crime No.14/2010 under sections 409,420, P.P.C. read with section 5(2). Prevention of Corruption Act, 1947 was lodged against the respondents and others at P.S. FIA Corporate Crime Circle, Karachi. In the ensuring investigation, it was found that NICL had purchased the said office space against an aggregate amount of UAED 75.539 which is equal to PKR 1.69 billion. The idea of purchasing property abroad was floated in 55th BOD meeting dated 09.04.2009 that was attended among others by the respondents. Statedly, advertisements in this regard were published and after enquiries from property dealers; NICL short listed four buildings and finally purchased the office space in Liberty Tower Dubai. It is alleged that gross irregularities and violations of Pakistan Public Procurement Rules, 2004 (PPRA) were committed by NICL in the said transaction.

3. Initially, interim charge sheet containing details in respect of above facts was filed in the court on 06.12.2010 which was treated as final challan on 12.01.2011 when FIA despite being given extension in time for filing final challan failed to do so. Record reflects that thereafter FIA moved an application under section 494 for withdrawal from the prosecution and dicharge of the accused persons on the ground that no loss in the subject transaction had been caused to the government exchequer. In support of such conclusion, FIA stated that in the investigation 21 witnesses were examined and relevant record secured which revealed that property before the transaction was got evaluated from renowned valuators. Five pre and post purchase valuations were done independently by NICL and Ministry of Commerce and then at the instance of FIA to determine exact value of the property, services of five (5) valuators were hired, all the reports so obtained invalidated the allegation that the property was purchased at exorbitant rate. Further it was found that Antoine Ronteix had purchased the said property from M/s ETA Star Properties for UAE 2950 per sq. ft. but sold it at lower price i.e. 2700 UAED per sq. ft.

4. Meanwhile, before the said application was decided by the Special Judge Anti-Corruption Central Karachi where the case was pending, on a report of Transparency International that subject office space was purchased by NICL for UAE Dhram 2,700 per sq. ft. against market price of UAED 1200 per sq. ft. which had caused a loss of Rs.900 million to the national exchequer, the Honourable Supreme Court of Pakistan took suo motu notice (Suo Motu case No.18/2010) and being dissatisfied with the investigation of FIA directed the Chairman NAB to have all such cases transferred on his file and proceed in accordance with law. Pursuant to which on an application under section 16-A of NAO, 1999, the case came on the file of Accountability Court-III Karachi and was admitted as reference No.1/2014. There the respondents filed two applications under section 265-K Cr.P.C. that were allowed vide impugned order and they were acquitted, hence this acquittal appeal.

5. Learned Special Prosecutor NAB contended that the trial court acquitted the accused without allowing NAB to produce relevant evidence, which has resulted in miscarriage of justice; that NAB was not given a proper opportunity to present its case and the trial court in a hasty manner allowed the applications under section 265-K, Cr.P.C. and acquitted the respondents; that the trial court misconstrued that there was no evidence against the accused, although sufficient documentary evidence was available on record to show that office space at Dubai was purchased by the respondents at a higher than market price; that learned trial court passed impugned order mainly on the basis of outcome of investigation by FIA losing sight of the fact that the Honorable Supreme Court had disapproved such investigation and therefore had ordered the chairman NAB to have such cases transferred to his file for proceeding in accordance with law. He next submitted that this was a case of white collar crime regarding which evidence was available at Dubai and therefore it took NAB some time to collect it but the trial court did not consider the same and acquitted the respondents in haste. He lastly prayed for remanding the case back to the trial court so that NAB could produce its evidence and the case is decided on merits. In support of his contentions, he relied upon a case law reported in PLD 2013 Balochistan 138 and a bunch of Photostat documents containing mainly valuation reports of the subject property.

6. On the other hand learned counsel appearing for respondents Nos.1 and 2 supported the impugned order. They further contended that this was a case of no evidence as FIA failed to collect any material against them so much so even the final challan was not submitted in the court; that FIA finding no evidence against the respondents had filed an application under section 494, Cr.P.C. for withdrawal from the prosecution and such application was filed after obtaining necessary approval from Ministry of Interior, Govt. of Pakistan; that valuators' reports obtained by FIA in investigation indicated that allegation of purchasing the office space at Dubai by respondents at higher than market price is not correct; that after transfer of the case the I.O. was given ample opportunity by the Accountability Court to present any further evidence but he miserably failed to do so; that any evidence collected by NAB post acquittal is not relevant and cannot be looked upon because it was not confronted to the respondents during the investigation; that valuators' reports determining value of the property in the year 2009, which NAB is seeking to rely upon now, were prepared in the year 2017 after acquittal of the respondents; that prices of the property tend to fluctuate downwards and upwards, and hence what was valuation of the property in the year 2009 cannot be precisely determined in the year 2017; that the respondents have already suffered protracted trial for 4 years from the years 2010 to 2014 but nothing was found against them and now on the basis of irrelevant reports, they cannot be made to suffer trial again; that there is double presumption of innocence in favour of the respondents; that findings of acquittal are not to be interfered with unless the same are shown to be perverse, shocking or impossible. Learned counsel in support of their contentions relied upon the case law reported in PLD 1985 SC 11, PLD 2003 Karachi 122, 2005 SCMR 1175, 2007 MLD 1926 and PLD 2001 SC 60, and an unreported judgment of Learned Lahore High Court in Cr. Appeal No.425/2018 (NAB v. Syed Hurr Rahi Gardezi and others) upholding order of acquittal under section 265-K, Cr.P.C. in favour of the respondents in similar circumstances.

7. We have considered above submissions of the parties, have gone through the material available on record and taken guidance from the case law cited at bar. At the very outset we may observe that this acquittal appeal has been filed by NAB against six (6) respondents, of whom 1 and 2 are represented by their respective lawyers who argued the case on their behalf. Respondents 4 to 6 appeared in person and adopted the arguments of learned counsel for the respondents 1 and

2. Whereas respondent No.3 meanwhile expired and to his extent the appeal was dismissed as not pressed vide order dated 13.06.2018. As the above discussion would show, the respondents were acquitted under section 265-K, Cr.P.C. before the charge was framed and any evidence produced on the ground that no incriminating material was available on record against them. This view the Accountability Court has drawn mainly on the basis of two factors that NAB despite being afforded ample time has failed to produce any incriminating material to support the allegations against the respondents, and that FIA on the basis of reports of five (5) valuators, hired in investigation for determining the exact value of the property, disclosing that the property was more or less of the same value against which it was bought by NICL, has rightly concluded that no loss has been caused to national exchequer to justify further proceedings against the respondents.

8. In forming such an opinion, the Accountability Court, in our humble view completely lost sight of the facts and circumstances under which the Honorable Supreme Court was pleased to direct the Chairman NAB to have these cases transferred on his file and proceed with them according to law vide order dated 22.11.2013 in Suo Motu case No.18/2010. In the said order, the Honorable Supreme Court, after noting in detail how due to transfer of Mr. Zafar Ahmed Qureshi, the then Additional DG FIA, and other hindrances, obstacles, etc. erected in his way departmentally and otherwise the recoveries and investigation in the NICL cases supervised by him have suffered a setback, has observed in Para 51 of the said order as under:-- "

51. There is another important question. This Court tried to ensure that FIA should conduct investigation in NICL scam honestly through an independent officer but attempts were made to abort all such efforts. Thus, this Court had to exercise jurisdiction in the light of the law laid down in a number of judgments wherein it has been held that this Court is not debarred from ensuring fair investigation of the case, without any other intention except with object to bring to book the persons who were involved in corruption and corrupt practices, whosoever or how influential he may be, without any discrimination." And has further observed in clause (d) of concluding clauses as under:-- (d) FIA after transfer of Zafar Ahmed Qureshi failed to retrieve the outstanding amounts which were frozen, but were illegally activated without following the procedure, during the period he remained disassociated from the investigation of the case w.e.f. 19.04.2011 to 13.08.2011. Therefore, Chairman NAB is directed to have all these cases transferred on his file and proceed in accordance with law, take necessary steps to effect recovery of outstanding amount noted above and also effect the arrest of Mohsin Habib Warraich, Amin Qasim Dada, Khalid Anwar, etc., as early as possible. It can easily be gathered from above observations that FIA were illegally activated without following the procedure in the cases pertaining to NICL during the relevant period and resultantly the investigation in such cases which include the present case was seriously compromised, and which ultimately led to filing of an application under section 494, Cr.P.C. in the court by FIA seeking withdrawal from the prosecution of the respondents. This was done despite the fact initially in the interim charge sheet, which was submitted on 07.12.2010 after carrying out preliminary investigation, FIA had concluded that "during investigation gross irregularities and violations of PPRA Rules, 2004 were found in purchase of Office space in Liberty house DIFC Area Dubai UAE by M/S NICL". It is also worth noting that later on said interim charge sheet was treated as final challan by the trial court, which would manifestly imply that the trial court found the material sufficient to take cognizance of the offences against the respondents. Entire such material was available with the Accountability Court, which coupled with the compromised conduct of FIA in the investigation and the reasons of transfer of the cases to NAB recorded by the Honorable Supreme Court in its aforesaid order provided sufficient substance to it to commence the trial and to afford a reasonable time to NAB to present evidence, if any, before concluding that this was a case of no evidence. The Accountability Court, however, chose to proceed in haste and acquitted the respondents on the very day of filing of applications under section 265-K, Cr.P.C. Such haste on the part of the Accountability Court does not seem justified, it completely missed the point the allegations against the respondents constitute a white collar crime and in such cases collecting the evidence requires special expertise, relentless efforts and considerable time. And that in this particular matter FIA's role in finding incriminating evidence was already compromised. In our view the court's approach in white collar crimes shall be dynamic and it should ignore technicalities for deciding such cases on merits. In support of such a view, we can rely on the case of Muhammad Ali v. The State (PLD 2004 SC 667) in which the Honourable Supreme in respect of white collar crimes has observed in Para No.5 of its judgment that "it is worth mentioning here at this juncture that the alleged offence and its mode of commission fall within the ambit of 'white collar crime' which has its own salient features and peculiar characteristic and therefore, a line of distinction is to be drawn between an ordinary offence and that of a 'white collar crime' which is to be kept in view while evaluating the evidence and approach for such evaluation must be dynamic so that conjectural presumptions and hyper technical hitches having no nexus with the merits of the case could be eliminated.". Our above observations and citing the above decision of Honourable Supreme Court in support thereof is not to suggest the court shall remain blind to the merits of such cases and despite the charge being evidently groundless or there being no probability of the accused being convicted on the basis of available material, it shall hold a full-fledged trial before acquitting the accused. Rather, our concern is that in white collar crimes the courts shall not show undue haste in acquitting the accused under section 265-K or 249-A, Cr.P.C. and provide a reasonable opportunity to the prosecution to present its evidence.

9. From the record it is obvious that learned Accountability Court has acted in hasty manner to acquit the respondents under section 265-K, Cr.P.C. The relevant applications were filed on 22.12.2014 and on the same day, they were allowed. We are at loss to understand why such haste was enforced by the trial court and why the prosecution was not afforded a proper time or opportunity to prepare its case and rebut the said applications accordingly, when there was no apparent urgency in this respect. The case diaries show that from the day of transfer of the case i.e. 17.01.2014 to the date of impugned order i.e. 22.12.2014 always on one pretext or the other some of the respondent(s) or his or their counsel were absent before the trial court on the dates of hearing, and this reason was also causing delay in framing of the charge or making further progress in the trial. We are mindful that there is no bar in law to decide such application before or after framing of the charge at any stage. But we want to emphasize that the case pertaining to a white collar crime, already spoiled by FIA, was being delayed owing to absence of the accused or their counsel, and NAB in such a scenario tellingly not requiring any urgency was seeking time to present its evidence that was not available in the country but in Dubai and therefore needed time and efforts to come by, yet the learned trial court ignoring all such factors proceeded in haste and allowed applications 265-K, Cr.P.C. on the day of filing and acquitted the respondents. In our humble view, such a hasty approach has not served any cause of justice; rather it amounted to throttling prosecution to produce the evidence against the respondents.

10. There is no cavil to the proposition that the principles governing acquittal appeals are different than the ones regulating appeals against conviction, and just because a contrary view is possible on reappraisal of the evidence by the court hearing appeal would not be sufficient to justify interference in the findings of acquittal and that after acquittal double presumption of innocence runs in favour of the accused. But the facts here are entirely different; the respondents were acquitted prior to framing of the charge before any evidence was recorded. The prosecution was not even afforded a fair chance to defend applications under section 265-K, Cr.P.C. which were allowed in hasty manner on the day of filing. In such a situation, the above propositions cannot be emphatically urged in favour of the respondents. In our view in a appeal, an order of acquittal of the accused under section 249-A or under section 265-K would not have the same sanctity as an order of acquittal on merits after full-fledged trial and therefore the principles including the principle of double presumption of innocence which otherwise would be applicable to the orders of acquittal on merits after a full-fledged trial would not be strictly observed or followed in the orders of acquittal under section 249-A or under section 265-K. If any reference is required in support of such a view, an earlier unreported judgment dated 26.02.2018 of Division Bench of this court in the case of The State v. Muhammad Shoaib Shaikh and others (Cr. Acquittal Appeals Nos. 390 of 2016 and 60 of 2017) can be cited.

11. During the arguments, learned Special Prosecutor NAB submitted a bunch of Photostat documents containing valuation reports of the property including four (4) such reports by Land Sterling Property Consultants, prepared at the request of NICL on different dates in the years 2016 and 2017, determining valuation of the property prevalent in different years including the relevant year i.e. 2009 to demonstrate difference between actual price at the relevant time and the price NICL allegedly purchased the property for. Learned counsel for the respondents strongly opposed filing of these valuation reports and further submitted that the same were irrelevant and could not be treated as incriminating evidence against the respondents for a simple fact these reports were prepared in the years 2016 and 2017 on the basis of inspection of the property carried out after acquittal of the respondents. We, however, are not persuaded by such contention, there is no bar in law that any evidence either against or in favour of the accused found during pendency of the trial or in appeal, which is considered continuation of original proceedings. cannot be produced or considered. Law favours decisions on merits rather than on technicalities, and therefore there would appear no bar in producing the additional or further evidence subject to it being relevant and necessary in the trial or appeal as the case may be for doing a complete justice. An approach not allowing necessary evidence to be brought on record would be opposed to such proposition and would result into miscarriage of justice. This, if acquiesced, would prove to be very disastrous not only for the prosecution but for the accused also in many cases. Aforesaid discussed concept of producing evidence or additional evidence in appeal or for that matter in the trial is not alien to law. Under the provisions of section 428 of Criminal Procedure Code, the Appellate court has been given ample powers to take further evidence or direct to it be taken by the court subordinate to it, if such evidence appears to it to be necessary. The divisional bench of this court in the case of Nasir Khan and others v. The State (2005 PCr.LJ 1) while describing object of this provision of law has observed that "a perusal of section 428, Cr.P.C. further reveals that its main object is that a guilty person should not be escaped through carelessness or ignorant proceedings of the trial Court, or innocent person should not be wrongly accused when the Court through the same carelessness or ignorance has omitted to record the circumstances essential to explain or reach at the truth. Another object of the section is to save public time by taking only additional evidence necessary instead of remanding the whole case for examining again the witness already examined. This section meant for neither of the parties to a criminal case but its object is to see that justice is done. Therefore, this section can be pressed into service for the ends of justice whenever it is required either for the prosecution or for the defence, keeping in view the requirement of the society because before a Criminal Court there is always a third party namely society". For the fact that no evidence at all was taken in the trial and the respondents were acquitted under section 265-K, Cr.P.C. even before framing of the charge, the above provision of law stipulating recording further or additional evidence does not seem to be strictly relevant here. The purpose, however, of citing above provision of law by us is to show that if prosecution brings evidence even in appeal either in favour or against the accused, it would not be brushed aside of withheld on the ground that since it has been discovered during pendency of the appeal, it could not be considered. The only test prescribed by law in allowing such evidence to be taken is that it shall appear to the court to be necessary. We would not like to make any comment on evidentiary value or otherwise of the valuation reports filed here in this appeal and which NAB intends to submit before the trial court as evidence against the respondents, lest it may cause prejudice to either party on merits in the trial, but feel obliged to state that these reports do not seem to be irrelevant or unnecessary to the charge and they coupled with the conclusion drawn in the interim charge sheet are sufficient to justify a trial on merits to determine veracity of allegations against the respondents.

12. For the foregoing discussion, we allow the appeal in hand. The impugned order dated 22.12.2014 acquitting the respondents is set aside. The case against the respondents shall be deemed to be pending before the trial court viz. the Accountability Court-III Karachi, which shall frame the charge against the accused/respondents and proceed with the trial in accordance with law. This acquittal appeal stands disposed of in above terms. JK/S-24/Sindh Appeal allowed.