P L D 2013 Balochistan 138
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
THE STATE through Prosecutor General Accountability, Pakistan ---Appellant
Versus
TARIQ NOUMAN and another ---Respondents
Criminal Acquittal Ehtesab Appeals Nos.12, 13, 14, 15, of 2009, decided on 19th March, 2013.
(a) Criminal Procedure Code (V of 1898) ---
----Ss. 249 -A & 265 -K---Acquittal of accused ---Scope ---Order of acquittal of accused under
S.249 -A or 265 -K, Cr.P.C. in appeal or revisions pro ceedings has not the same sanctity as orders
of acquittal on merits ---Principles which are to be observed and applied in setting aside findings
of acquittal or principles relating to presumption of double innocence, when accused is acquitted
after full -fledged inquiry and trial to acquittals under S.265 -K, Cr.P.C., are not applicable ---
Paramount consideration of court is to ensure that miscarriage of justice is prevented, which may
arise from acquittal of guilty and is no less than from conviction of an inn ocent ---Where
admissible evidence is ignored, duty is cast upon appellate court to re -appreciate evidence in
case, where accused has been acquitted for the purpose of ascertaining as to whether any of the
accused committed any offence or not.
(b) Eviden ce---
----Circumstantial evidence ---Scope ---Such evidence is not direct to point in issue but consists of
evidence of various other facts, which are so closely associated with fact in issue, if taken
together they form a chain of circumstances, from whic h existence of principal fact can be
legally inferred or presumed.
(c) Administration of justice ---
----Law favours disposal of cases on merits ---Interest of justice demands that both parties be
provided opportunity to prove their versions by producin g evidence ---Duty of court is not only to
protect innocent but also to punish the guilty.
(d) Criminal Procedure Code (V of 1898) ---
----Ss. 249 -A & 265 -K---Acquittal of accused ---Object, scope and purpose ---Object of exercise
of powers under S.265 -K & 249 -A, Cr.P.C. available to Trial Court is to prevent abuse of law ---
Where sufficient prima facie evidence is available, powers may not be exercised as to throttle
process of justice ---Main consideration to be kept in view is whether continuance of proceedings
before 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 prosecution to continue with trial.
(e) National Accountability Ordinance (XVIII of 1999) ---
----Ss. 9(a), 25 (b) & 32 ---Criminal Procedure Code (V of 1898), Ss.249 -A & 265 -K---
Corruption and corrupt practices ---Acquittal of accused ---Availability of incriminating evidence -
--Scope ---Accused were acquitted by Trial Court under S.265 -K, Cr.P.C. ---Plea raised by
authorities was that there was sufficient evidence against accused which could have resulted in
conviction of accused ---Validity ---In case of corruption and misappropriation of public money,
court was required to act with extreme care and caution in deciding such case and should not
proceed hasti ly in acquitting accused persons involved therein either under S.249 -A or 265 -K,
Cr.P.C., as the cases might be ---Prosecution should provide every possible opportunity to prove
its case and establish guilt of accused after a full -fledged trial ---Besides ev idence of two
witnesses, record was also indicative of the fact that two accused who were holders of public
office while taking benefit of S.25 of National Accountability Ordinance, 1999, voluntarily
returned embezzled amount acquired by them ---Most of bog us claims were submitted by
employees of accused and whole embezzled amount of Rs.52 million along with interest was
also deposited by co -accused, who happened to be nephew of principal accused ---Such evidence
required explanation from accused without whic h it could not have been ignored or discarded
from consideration ---Orders of acquittal passed by Trial Court were set aside and cases of
accused were remanded to Trial Court to proceed from the stage at which the case stood when
application of accused pers ons under S.265 -K, Cr.P.C. were decided.
The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul
Rehman 2005 SCMR 1544 rel.
Syed Mansoor Shah, Special Prosecutor (NAB) for Appellants.
Mujeeb Ahmed Hashmi, Rauf Ahmed Hashmi and Bahadur Khan for Respondents.
Date of hearing: 31st October, 2011.
JUDGMENT
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 u nder
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 Go vernment 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 pros ecution, 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, aft er
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 befo re 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 NA B
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 appell ant/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 circ umstances
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 acq uittal. 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.,
woul d 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, wher e 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 pers ons, 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 existenc e 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 obse rvations
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 innoce nt, 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 wh o 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, evidenc e 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 pro cess 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 scruti nized 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 ex treme 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 oppo rtunity 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 t he 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 circumsta nces 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 Distri ct 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 emplo yees 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 S yed 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 accuse d/respondents under section 265 -K
of the Cr.P.C. were decided. Appeals are, accordingly, disposed of.
MH/38/Q Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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