P L D 2013 Balochistan 138 (PLP)

MUHAMMAD HASHIM KHAN KAKAR, J.

These Criminal Acquittal Appeals Nos.12, 13, 14 and 15 of 2009 under Section 32 of the National Accountability Bureau Ordinance, 1999 (the "NAB Ordinance") read with section 417(2) of the Criminal Procedure Code, 1898 (Cr.P.C.) have been preferred against the orders dated 30th April 2009, passed by the learned Accountability Court-II, Quetta (the "trial Court"), whereby the applications under section 265-K of the Cr.P.C. brought by the respondents Nos.1 to 5 were accepted and they were acquitted of the charge. Since all these appeals have common matrix, they are taken up together.

2. Accusations, which laid foundation of the prosecution case, reveal that on 3rd March 2004, miscreants made firing on Moharram procession, several shops, cinema houses etc. were set on fire and due to said incident many persons were died and huge damage caused to the general public and their properties. The Government of Balochistan released an amount of Rs.180 million for payment to the affectees and Rs.130.24 million were allocated for the loss of properties and remaining for the compensation to the legal heirs of the deceased and injured persons. As per prosecution, during disbursement of funds, the complaints were received with the allegation that accused persons had not processed the claim of the original affectees of the tragedy and cheques were paid to non-deserving persons. The investigating officer, after completion of the investigation, submitted Reference No.4 of 2008, under section 18(g) read with section 24(b) of the NAB Ordinance before the trial Court. The learned trial Court summoned the respondents to face the trial. The respondents appeared before the trial Court and submitted applications under section 265-K of the Cr.P.C, which were allowed vide impugned orders dated 30th April 2009. Now the State is in appeal.

3. We have heard the arguments of Syed Mansoor Shah, learned Special Prosecutor NAB on behalf of the State and Mr. Mujeeb Ahmad Hashmi, Advocate on behalf of the accused-respondents. We have also perused the material on record as well as the case-law relied upon by the learned counsel for the parties.

4. Learned counsel for the appellant/State, in support of the appeal, submitted that the approach of the learned trial Court was erroneous and the impugned orders suffer from legal infirmities, which require to be set aside and the respondents are liable to be convicted and sentenced for commission of the alleged offence. He further submitted that the main question, which requires determination, was whether this Court would take upon itself the task of appraisal, analysis and scrutiny of the prosecution evidence for determining whether the same was satisfactory, sufficient and of the quality to warrant conviction of the accused persons or, that on the basis thereof, there was no possibility of accused/respondents being convicted of the offence, for which they were facing trial.

5. Learned counsel for the accused/respondents submitted that there is no direct evidence to establish the connection of the accused/ respondents with the crime in question and the case of the prosecution mainly rests on circumstantial evidence and the chain of circumstances highlighted by the prosecution did not lead to the inevitable conclusion that ruled out others and established that respondents were alone responsible for the crime. It was further submitted that considering the fact that the appeal is against an order of acquittal, the scope for interference is very limited. The prosecution evidence has rightly been discarded by the learned trial Court and there is no reason as to why the well-reasoned orders should be interfered with.

6. There is no embargo on the appellate Court reviewing the evidence, upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with, because the presumption of innocence of the accused is further strengthened by acquittal. However, in appeal or revisional proceedings, the order of acquittal of the accused under section 249-A or section 265-K of the Cr.P.C. would not have the same sanctity as orders of acquittal on merits. Consequently, the principles, which are to be observed and applied in setting aside the findings of acquittal, or the principles, relating to the presumption of double innocence, when an accused is acquitted after a full-fledged inquiry and trial to acquittals under section 265-K of the Cr.P.C., would not be applicable. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice, which may arise from acquittal of the guilty, is no less than from the conviction of an innocent. In a case, where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case, where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.

7. Before analyzing factual aspects, it may be stated that for a crime to be proved, it is not necessary that the crime must be seen to have been committed and must in all circumstances be proved by direct ocular evidence by examining before the Court those persons, who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue, but consists of evidence of various other facts, which are so closely associated with the fact in issue if taken together they form a chain of circumstances, from which the existence of a principal fact can be legally inferred or presumed.

8. The impugned orders show that learned trial Court has given the findings on the merits despite the fact that no evidence has been recorded so far as at the time the trial had not commenced. It may be relevant to mention that besides the respondents, one Qayyam-ud-Din and Imdad Ali were also facing the trial on the basis of the same evidence and material, thus, there was no occasion for the trial Court to make or express adverse remarks and observations relating to the antecedents, credibility and reliability of the prosecution evidence, as it was not a case of single accused and needless to observe that some of the accused persons are still absconding. We find that in this manner, the appellant has been condemned unheard. Moreover, law favours the disposal of cases on merits. It is in the interest of justice that both the parties be provided opportunity to prove their versions by producing evidence. Duty of the Court is not only to protect innocent, but also to punish the guilty.

9. Perusal of the available record in the light of arguments advanced before us show that the jurisdiction under section 265-K of the Cr.P.C. has not been exercised properly by the trial Court; chances are that those who are alleged in the offence might go scot free.

10. The object of exercise of powers is to prevent abuse of law available to the learned trial Court under sections 265-K and 249-A of the Cr.P.C., however, in a case where sufficient, prima facie, evidence is available, the powers may not be exercised as to throttle the process of justice. The main consideration to be kept in view would be whether the continuance of the proceedings before the Court would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.

11. If the facts of the present case are scrutinized on the touchstones of the above criteria, then it would be obvious that there was sufficient, prima facie, evidence to establish the complicity of the respondents with the crime in question in the shape of oral, documentary as well as circumstantial evidence and no fair opportunity was provided to the prosecution to prove its version by producing evidence.

12. We have also noticed that the learned trial Court had erred in entertaining the applications under section 265-K of the Cr.P.C. on behalf of accused/respondents and ordering their acquittal at a time, when the prosecution evidence was yet to be recorded. We are conscious of the fact that there was no bar of limitation as to the trial or the stage of the proceedings for filing an application for acquittal of the accused, but propriety required that fair opportunity should be provided to the prosecution to prove its case by producing evidence and the matters should be decided on merits as envisaged under section 245 of the Cr.P.C. after providing proper opportunity to the prosecution for producing its evidence and recording the statements of the accused persons under section 342 of the Cr.P.C.

13. In cases of corruption and misappropriation of public money, the Courts were required to act with extreme care and caution in deciding such cases and should not proceed hastily in acquitting the accused persons involved therein either under section 249-A or 265-K of the Cr.P.C., as the case might be, but should provide the prosecution every possible opportunity to prove its case and establish the guilt of the accused after a full-fledged trial. The Hon'ble Supreme Court has held in a case of "The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman", 2005 SCMR 1544, that when the law provides a detailed inquiry into offences for which an accused has been sent up for trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes. It would be relevant to mention here that besides the evidence of P.Ws. Muhammad Arshad and Rehmatullah, the record is also indicative of the fact that the then District Coordination Officer and District Nazim, while taking the benefit of section 25 of the NAB Ordinance, voluntarily returned the embezzled amount acquired by them. It would also suffice to add here that most of the bogus claims were submitted by the employees of respondent Syed Amar-ud-Din Agha. The record is also indicative of the fact that the whole embezzled amount i.e. 52 million along with interest was also deposited by the co-accused Qayyam-ud-Din, who happened to be the nephew of principal accused Syed Amar-ud-Din Agha. Such evidence required an explanation from accused/respondents Syed Amar-ud-Din Agha, without which it could not have been ignored or discarded from consideration. For the foregoing facts and discussions, the impugned orders dated 30th April, 2009, passed by the trial Court are set-aside and the cases of accused/respondents Tariq Noman, Sikandar Khan, Ehsanullah, Amar-ud-Din lAgha and Farooq Tareen shall proceed from the stage, at which the case stood when the applications of accused/respondents under section 265-K of the Cr.P.C. were decided. Appeals are, accordingly, disposed of. MH/38/Q Case remanded.