A miscarriage of justice, which may arise from acquittal of guilty, is no less than from conviction of an innocent

PLJ 2021 Cr.C. 1465 (DB)
[Balochistan High Court, Quetta]

Present: Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ.

CHAIRMAN NAB through Prosecutor General Accountability, NAB HQ, Shahrah-e-Jamhuriat, Islamabad--Appellant

versus

ZAHOOR TAJ etc.--Respondents

Crl. Acquittal Ehtesab Appeal No. 28 of 2019, decided on 26.10.2020.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 265-K & 249-A--Exercise of powers--There is no embargo on appellate Court reviewing evidence, upon which an order of acquittal is based--Generally, order of acquittal shall not be interfered with, because presumption of innocence of accused is further strengthened by acquittal--However, in appeal or revisional proceedings, order of acquittal of accused under Section 249-A or Section 265-K of Cr.P.C. would not have same sanctity as orders of acquittal on merits--Consequently, principles, which are to be observed and applied in setting aside findings of acquittal, or principles, relating to presumption of double innocence, when an accused is acquitted after a full-fledged inquiry and trial to acquittals under Section 265-K of Cr.P.C., would not be applicable--paramount consideration of Court is to ensure that miscarriage of justice is prevented--A miscarriage of justice, which may arise from acquittal of guilty, is no less than from conviction of an innocent--In a case, where admissible evidence is ignored, a duty is cast upon appellate Court to re-appreciate evidence in a case, where accused has been acquitted, for purpose of ascertaining as to whether any of accused committed any offence or not.    [P. 1468] A

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 265-K & 249-A--Exercise of power--Jurisdiction--Object of exercise of powers is to prevent abuse of law available to learned trial Court under Sections 265-K and 249-A of Cr.P.C., however, in a case where sufficient, prima facie, evidence is available, proceedings before Court would be futile exercise, wastage of time and abuse of process of Court or not--If on 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 prosecution to continue with trial. [P. 1469] B

Criminal Procedure Code, 1898 (V of 1898)--

----S. 265-K--Application for acquittal--White collar crime--If facts of present case are scrutinized on touchstones of above criteria, then it would be obvious that there was sufficient oral and documentary evidence--It is a white collar crime and same would be established on basis of oral, documentary as well as circumstantial evidence and no fair opportunity was provided to prosecution to prove it$ version by producing evidence-- We have also observed that trial Court had erred in entertaining application under Section 265-K of Cr.P.C. on behalf of accused/Respondent No. 1 and ordering his acquittal at a time, when prosecution evidence was yet to be recorded against accused/Respondent No. 1--There was no bar of limitation as to trial or stage of proceedings for filing an application for acquittal of accused, but propriety required that fair opportunity should be provided to prosecution to prove its case by producing evidence and matters should be decided on merits as envisaged under Section 245 of Cr.P.C. after providing proper opportunity to prosecution for producing its evidence and recording statements of accused persons under Section 342 of Cr.P.C.

                                                                                     [P. 1469] C & D

Corruption and misappropriation--

----In cases of corruption and misappropriation of public money, Courts were required to act with extreme care and caution in deciding such cases and should not proceed hastily in acquitting accused persons involved therein either under Section 249-A or 265-K of Cr.P.C., as case might be, but should provide prosecution every possible opportunity to prove its case and establish guilt of accused after a full-fledged trial--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 law provides a detailed inquiry into offences for which an accused has been sent up for trial, then ordinarily and normally procedure prescribed by law for deciding fate of criminal case should be followed unless some extraordinary circumstances are shown to exist to abandon regular course and follow exceptional routes.            [Pp. 1469 & 1470] E

Mr. Jaffar Raza, Special Prosecutor NAB for Appellant/State.

Mr. Muhammad Ali Kanrani, Advocate for Respondent.

Date of hearing: 20.10.2020.

Judgment

Rozi Khan Barrech, J.--This Criminal Acquittal Appeal 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.) had been preferred against the order dated 27.09.2019, passed by the learned Accountability Court-II, Baluchistan Quetta (the “trial Court”), whereby the application under Section 265-K of the Cr.P.C. brought by the Respondent No. 1 was accepted and was acquitted of the charge.

2. Relevant facts for disposal of the instant appeal are that the Reference No. 13 of 2014 was filed before the trial Court against the Respondent No. 1 and others with the allegation that the Respondent No. 1 as proprietor of Taj and Brothers contractors along with other co-accused persons Kashif Aziz (contractor/approver), Ali Muhammad. Saifullah, Hafeezullah Lehri, Ahmed Nawaz and Syed Mehboob Shah (contractors) in connivance with Meer Mohiuddin (Ex.EN) C & W Department Quetta and Abdul Rasheed Khan (Head Clerk C & W Department Quetta) staged a drama of false tendering on 24.4.2014 without possessing and investing any money, actively aided and abetted co-accused Kashif Aziz (approver) the beneficiary of contract awarded to M/s. Haji Agha Muhammad Khan. It is further alleged in the reference that the the co-accused Kashif Aziz (approver) beneficiary of the alleged contract in connivance with the accused/ Respondent No. 1 had used his firm’s name and letter pad for the purpose of getting illegal bogus bidding held on 24.04.2014 wherein the accused/Respondent No. 1 was shown to have participated and whereby the alleged contract was awarded to M/s. Agha Muhammad Khan owned by the co-accused Ali Muhammad. It is further alleged that the accused/Respondent No. 1 son of Haji Taj Muhammad in connivance with other accused persons, dishonestly and fraudulently aided and abetted the co-accused Meer Muhiuddin, Abdul Rasheed Khan, Ali Muhammad by pretending to be genuinely competing bidder committed the offence of corruption and corrupt practice as envisaged under Section 9(a) (iii) and (iv) of the NAB Ordinance and punishable under Sections 10, 11, 12 and 15 of the NAB Ordinance.

3. The Investigation Officer after completion of the investigation submitted the Reference No. 13 of 2014 under Section 18(g) read with Section 24(b) of the NAB Ordinance. The trial Court summoned the respondents to face trial. The accused/Respondent No. 1 appeared before the trial Court and after framing of the charge the accused/Respondent No. 1 filed an application under Section 265-K, Cr.P.C., which was allowed vide impugned order dated 27.09.2019. Now the state in appeal.

4. We have heard the arguments advanced on behalf of the parties and have also perused the material on record as well as the case-law relied upon by the learned counsel for the parties.

5. 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.

6. 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.

7. The impugned order shows that 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 against the accused/Respondent No. 1. It may be relevant to mention that besides the accused/Respondent No. 1 other co-accused 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 person are still facing trial. 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.

8. 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.

9. 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.

10. 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 oral and documentary evidence. It is a white collar crime and the same would be established on the basis of oral, documentary as well as circumstantial evidence and no fair opportunity was provided to the prosecution to prove its version by producing evidence.

11. We have also observed that the trial Court had erred in entertaining the application under Section 265-K of the Cr.P.C. on behalf of accused/Respondent No. 1 and ordering his acquittal at a time, when the prosecution evidence was yet to be recorded against the accused/Respondent No. 1. 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.

12. 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.

For the foregoing facts and discussion, this appeal is partly allowed. Consequently, while setting aside the impugned order dated 27.09.2019 passed by the trial Court in Reference No. 13 of 2014 the case of accused/Respondent No. 1 is remanded to the trial Court, which shall proceed from the stage, at which the case stood when the application of accused/Respondent No. 1 under Section 265-K of the Cr.P.C. was decided.

(A.A.K.)          Appeal partly allowed