2023 PLP 882 (YLR)

ABDUL HAMEED BALOCH, J.

This criminal acquittal appeal is directed against the judgment dated 25th February, 2021 (impugned judgment), passed by Accountability Court-I, Balochistan, Quetta (trial court), whereby the respondents Nos. 1 and 2 were acquitted of the charge.

2. Precise facts of the case are that the NAB filed Reference No. 19 of 2002 against the respondents Nos. 1 and 2 and others with the allegation that they being holders of public office in connivance with each other misused their authority and by means of corrupt, dishonest and illegal means caused loss of Rs. 3,80,22,566/- to the government exchequer as in execution of the schemes they violated the procedure laid down by rules and received commission/illegal gratification from the contractors by making them advance in violation of the rules without obtaining security.

3. It appears from the record that initially the respondents could not be arrested and remained absconder. However, after their arrest challan was submitted, whereupon the learned trial court after observing legal formalities framed charge to which the respondents Nos. 1 and 2 denied. The prosecution in order to substantiate the accusation examined twenty one (21) witnesses, whereafter; the statements of respondents Nos. 1 and 2 were recorded under section 342, Criminal Procedure Code, (Cr.P.C.). The respondents Nos.1 and 2 did not opt to record their statements on oath as envisaged under section 340(2), Cr.P.C. On culmination of trial the trial court heard arguments and vide impugned judgment dated 25th February, 2022 acquitted the respondents of the charge, hence this acquittal appeal.

4. Heard learned Special Prosecutor NAB and perused the record. The record transpires that Reference No. 19 of 2002, under section 18(g) read with section 24 of the National Accountability Ordinance, 1999 was filed before Accountability Court-I, Balochistan, Quetta. In order to substantiate the accusation the prosecution produced twenty one (21) witnesses. As per prosecution the private respondents/ accused with the connivance of each other misused their authority and by means of corrupt, dishonest and illegal means caused loss of Rs. 3,80,22,566/- to the government exchequer as in execution of the schemes they violated the procedure laid down by rules and received commission/illegal gratification from the contractors by making them advance in violation of the rules without obtaining security. The case of prosecution hinges on the testimony of PW-1 to PW-5 who produced Art: A/1 to Art. A/536. Art.A/483 to Art. A/486 compiled and produced by PW-1 in respect of nine (09) development schemes. The witness compiled report without visiting the site. The witness stated that at the time of compiling report the files of schemes were not in his possession.

5. PW-2 Faisal Jamal compiled report without visiting the site. The witness in cross-examination stated that over payments were made by Wadera Khuda Bakhsh Chairman Town Committee Gaddani and admitted that the schemes were approved by the Secretary Local Government, Chairman and members of District Council. PW-3 Illahi Bakhsh Imran in cross-examination admitted that compilation of measure book is the duty of Sub-Engineer. The respondent No. 2 was posted as Assistant Engineer. The schemes were pertaining to year 1999, whereas PW-1 to PW-5 compiled their reports after lapse of two or three years of execution.

6. The allegation of 35% commission by the accused persons from the contractors is without any substance to the extent of private respondents. None of the prosecution witnesses stated that the accused persons/respondents have received commission from the contractors. PW-9 to PW-16 have categorically stated that they had paid commission to Muhammad Yaseen (PW-17). It is astonishing that PW-17 who had admitted receiving of commission from contractors has not been made accused. The prosecution has failed to collect direct evidence in regard of taking commission by the accused/ respondents from any contractor. The prosecution has also failed to collect any evidence regarding bank accounts of the accused/respondents to show that any commission was received by the accused/ respondent or deposited in their accounts.

7. The record reveals that Iqbal Khoso and Syed Zafar Ali Shah were convicted and sentenced by the Accountability Court. The convicts challenged their conviction and sentence by filing appeals before this court and this court vide judgment dated 22nd February, 2006 accepted the appeal of appellant Syed Zafar Shah and acquitted him from the charge. While the appeal filed by appellant Iqbal Khoso was accepted vide judgment dated 22nd February, 2006 and matter was remanded to Accountability Court with direction to reframe the charge. The appellant Iqbal Ahmed Khoso filed Criminal Petition No. 7-Q/2006 before Honorable Supreme Court of Pakistan which was accepted vide order dated 6th April, 2006 and impugned judgment of this court dated 22nd February, 2006 was set aside and case was remanded to this court for deciding afresh. This court vide judgment dated 24th August, 2006 accepted the appeal and acquitted the appellant. Another co-accused Khawaja Khalid was tried and acquitted by the trial court on application under section 265-K, Cr.P.C. vide order dated 30th September, 2009.

8. Mere fact that a person stand charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offence. The initial burden lies on prosecution to establish necessary facts to show that the accused had misused his authority so as to gain any benefit for herself or for any other person. Reliance is placed on the case Khan Asfandyar Wali v. Federation of Pakistan through Cabinet Division, Islamabad PLD 2001 SC 607, wherein it was held: "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. The above provisions do not, constitute ' a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and to the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of section 14(d): (1) The prosecution shall first make out a reasonable case against the accused charged under section 9 (a) (vi) and (vii) of the NAB. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."

9. The record reveals that on same set of evidence three accused have been acquitted. It is settled law that the evidence in cases of acquittal and conviction is apprised in different prospective. On perusal of record of the trial court we found that the trial court has properly appreciated the evidence. The trial court has considered the material produced before it and has discussed the evidence in detail and rightly came to the conclusion that the prosecution has failed to prove the accusation. In case of State through Prosecutor General Accountability v. Zakir Ullah 2012 PCr.LJ 904, it was held: "

6. The learned trial Court appraised the entire evidence in its true perspective, which culminated in acquittal of the accused/respondent. It is settled law that evidence in the cases of acquittal and conviction is appraised in different perspective. In the instant case benefit of doubt has been extended to accused/respondent, which is supported by material on record. The entire evidence was reappraised but nowhere it was found that the learned trial Court has misread the same or committed any illegality or irregularity through the impugned judgment. In appeal against acquittal liberty of person is involved and when anything to the contrary has not been brought on record, then the acquittal order cannot be interfered with by this court. The learned trial Court has dealt with the matter in a proper and reasonable manner. The learned trial Court referred to each and every document on record and discussed the same in a legal manner and drawn therefrom fair conclusion. The acquittal order is neither perverse nor illegal; hence the same warrants no indulgence by this court in appellate jurisdiction." The Honorable Supreme Court of Pakistan in case of Agha Wazir Abbas v. The State 2005 SCMR 1175 held: "

It is settled principle of law that the findings of acquittal can only be upset if the same are found perverse, arbitrary, foolish or based on misreading or non-appraisal of evidence.

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10. The learned Special Prosecutor NAB unable to show that the acquittal judgment of the trial court suffers from mis-reading or non-reading of evidence. It is settled principle of law that double presumption of innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal is arbitrary, fanciful and against the record. In view of above, the appeal being devoid of merit is hereby dismissed in limine. JK/16/Bal. ??