P L D 2019 Balochistan 51
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
CHAIRMAN, NAB through Prosecutor General Accountability NAB ---Appellant
Versus
SARFARAZ HUSSAIN MUGHAL and 2 others ---Respondents
Criminal (Ehtesab) Appeal No.2 of 2019, decided on 28th June, 2019.
(a) National Accountability Ordinance (XVIII of 1999) ---
----S. 9(a)(vi) ---Appeal against acquittal ---Appreciation of evidence ---Resiled witness,
evidence of ---Scope ---Filing of complaint ---Proof ---National Accountability Bureau (NAB)
authorities were aggrieved of acquittal of accused persons from charge of misuse of authority
and illegal gratification on purchase of government wheat and gunny sacks (Bardana) ---
Validity ---National Accountability Bureau authorities conducted inves tigation on complaint
of prosecution witness but when he appeared before court he did not support the case of
prosecution ---Prosecution witness categorically stated that he neither made any statement
before National Accountability Bureau Authority nor he h ad any knowledge of accused
persons ---Co-accused was co -complainant of joint complaint filed against accused persons
but subsequently co -accused was arrayed as accused rather than prosecution witness ---Co-
accused in his statement recorded under S. 342 Cr.P .C. in reply to question denied to have
made any complaint to NAB authorities ---Neither any other witness was associated nor
produced in court, who could depose that they paid any commission/bribe to accused persons
in connection with purchase and sale of wheat and provision of gunny sacks (Bardana) ---
Prosecution had not been able to bring sufficient evidence on record, which could indicate
that accused persons acquired ill -gotten money from wheat -growers and farmers of
concerned area regarding sale and pur chase of government wheat and distribution of gunny
sacks (Bardana) ---Accused in defence produced with documentary evidence that he sold out
a plot to co -accused thus justified amount lying in his Bank account ---High Court declined to
interfere in judgment passed by Trial Court ---Appeal was dismissed in circumstances.
Pir Mazharul Haq v. State PLD 2005 SC 63 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 417 ---Appeal against acquittal ---Principle ---Presumption of innocence lies in favour of
accused at trial stage and when a court of competent jurisdiction passes an order of acquittal,
presumption becomes double and to set aside the same, it requires unimpeachable evidence --
-Once a judgment of acquittal is passed by a competent court of jurisdiction after proper and
correct appraisal of evidence, same cannot be interfered with merely on ground that on re -
analysis of evidence, another view could be taken.
Jaffar Raza, Special Prosecutor NAB for Appellant
Date of hearing: 18th June, 2019.
JUDGMENT
ROZI KHAN BARRECH, J ---Impugned herein is the judgment of acquitta1 dated
15.11.2018 ("impugned judgment") passed by learned Judge Accountability Court -I, Quetta
(the "trial court") in Reference No.02/2013, whereby the accused/respondents were acquitted
of the charges levelled against them.
2. Briefly stated facts of the case are that a joint complaint was filed by one Asghar Ali
Bangulzai and Muhammad Hussain Raisani on 06.05.2011 with the allegation that one Sher
Zaman Tareen, Deputy Director Food Departmen t Government of Balochistan has obtained
illegal commission regarding the sale and purchase of Government wheat and provision of
empty gunny -sacks (Bardana) and that the said ill -gotton money was transferred in Account
No.011 -9086 -6 UBL Jinnah Road Branch Quetta, owned by the accused/respondent No.1
namely Sarfaraz Hussain Mughal. It was further alleged by the complainants that the amount
in the said account was in fact the bribe to be paid to the officers/officials of the Food
Department from the farmers a nd wheat -growers of Naseerabad Division. During the
investigation the investigating officer ("1O") collected evidence and compiled the same in
the shape of final investigation report, wherein detail of the bank accounts of the accused
were obtained. On com pletion of the investigation the I.O. submitted his final report to the
Director General NAB Balochistan, whereby the Reference No. 02 of 2013 was sent to the
trial court for adjudication.
At the trial, the accused/respondents were put on notice and requi rement of Section
265-C, Cr.P.C was complied with. The accused/respondents were charge -sheeted, wherein
they denied the allegations and claimed trial. In order to prove the allegations against the
accused/respondents, the prosecution produced thirteen witn esses in all. After completion of
prosecution evidence, the accused/respondents were examined under Section 342 Cr.P.C,
wherein they once again denied the prosecution allegations. The accused/respondents also
recorded their statements on oath as envisaged under Section 340(2) Cr.P.C and produced
twelve witnesses in their defense. After hearing the learned counsel for the parties and
appraising the evidence on record, the trial court acquitted the accused/respondents from the
charges levelled against them vi de impugned judgment, hence, this appeal.
3. The learned Special Prosecutor NAB contended that the prosecution produced
tangible evidence of disinterested witnesses against the accused/respondents in support of its
case, which has not been relief upon by the trial court for no good reason. The testim onies of
prosecution which supported the prosecution's case were discarded by the trial court and the
reasons rendered thereto by the trial court are not convincing and prudent to the judicial
mind; that the reasons recorded by the trial court through the impugned judgment are based
on surmises and conjectures, as the accused/respondents failed to bring even a small piece of
evidence to the effect that they were falsely implicated in the instant case with mala fide
intentions; that oral as well as documenta ry evidence produced by the prosecution has
established guilt of accused/ respondents, but the same has been discarded for no valid and
sound reason; that the evidence has not been appraised in a proper and legal manner as
prescribed by law, thus, the judg ment of acquittal is bad in law, which otherwise merits
reversal.
4. We have given our anxious considerations to the arguments advanced by the learned
Special Prosecutor NAB and have perused the available record with minute particulars.
5. Since, the acc used/respondents were charged under section 9(a)(vi) of the NAB
Ordinance, 1999, therefore it would be beneficial to give brief reference to section 9(a)(vi),
which reads as follows: --
" 9. Corruption and Corrupt Practices:
(a) A holder of a public of fice, or any other person, is said to commit or to have
committed the offence of corruption and corrupt practices,.
(i) ………….
(ii) …........
(iv)..…..…..
(v)……...….
(vi) if he misuses his authority so as to gain any benefit or favour for himself or an y
other person, or renders or attempts to render or wilfully fails to exercise his authority
to prevent the grant, or rendition of any undue benefit or favour which he could have
prevented by exercising his authority."
6. A bare perusal of aforesaid provis ion shows that the initial burden is on the
prosecution to prove that the accused/respondents were guilty of any of the offences for
which they are charged.
7. Let us first be very precise as to what exactly were the circumstances under which the
complaint was filed, the prosecution was prompted and the law was set in motion. Precisely
the allegation against the accused/respondents was that the accused/respondent No.1 Sarfaraz
Hussain Mughal, working as Assistant in the S&GAD Department had facilitated the illegal
transaction of bribe/commission to the accused/respondent No.2 Nazar Muhammad Kakar,
who was posted as Acting Chief Accounts Officer, Provincial Food Department, Governmeat
of Balochistan, by providing his bank account No.011 -9086 -6 of United Bank Limited,
Jinnah Road Branch Quetta to be used for to the said purpose in connivance with the
accused/respondent No.3 namely Muhammad Hussain Raisani in private capacity. Hence
respondent/accused No.2 Nazar Muhammad Kakar in connivance with accused/re spondents
Nos.1 and 3 by misuse of his official authority, committed an offence of corruption and
corrupt practices within the meaning of section 9 of the National Accountability Ordinance,
1999 (the Ordinance 1999").
8. It is quite evident from the record that during investigation, the I.O. collected
documents from UBL Jinnah Road Quetta, Muslim Commercial Bank, Shara -e-Iqbal Quetta
UBL Dera Murad Jamali, respectively relating to the accounts of accused/respondents
Sarfaraz Hussain Mughal, Nazar Muhammad K akar and Muhammad Hussain Raisani. The
said documents were produced before the court through PWs.
9. The NAB authorities conducted investigation on the complaint of Asghar Ali
Bangulzai, PW -9, but when he appeared before the court he did not support the pr osecution's
case as he categorically stated that he neither made any statement in the NAB office, nor he
has any knowledge about the accused persons. It transpires that accused/respondent No.3
Muhammad Hussain Raisani was the co -complainant of the joint co mplaint filed against
accused/respondents, but subsequently, said Muhammad Hussain Raisani was arrayed as an
accused rather than a prosecution witness. Muhammad Hussain Raisani (accused/respondent
No.3) in his statement recorded under Section 342 Cr.P.C in reply to a question denied to
have made any complaint to the NAB authorities. Even otherwise neither any other witness
has been associated nor produced in the court, who could depose that they have paid any
commission/bribe to the accused/respondents Nos. 1 and 2 in connection with purchase and
sale of wheat and provision of gunny -sacks (Bardana).
10. Moving on to the next crucial question, whether the alleged amount of Rs.60,00,000/ -
(rupees sixty lacs) deposited on different occasions in the Account No. 0 11-9086 -6 owned by
Sarfaraz Hussain Mughal, was the purported commission/bribe.
In this respect a thorough perusal of the record unveils that the distribution of empty
gunny -sacks was the duty of PR Center and the concerned Project Director, as is evident
from prosecution's exhibit Art.P/4. This fact has also been admitted by the prosecution
witnesses. during cross -examination that the accused/respondent Nazar Muhammad Kakar,
being Accounts Officer had no concern with the provision of empty, gunny -sacks to the
farmers. As far as the accused/respondent Sarfaraz Hussain Mughal is concerned, he was
neither an employee of the Food Department nor he participated in the process of sale and
purchase of wheat. Likewise, the accused/respondent Muhammad Hussain Raisa ni had also
no concern with the distribution of empty gunny -sacks or for that matter purchase and sale of
wheat, who is a private person and the prosecution also did not produce any documents
whatsoever to indicate that he is a farmer or a wheat grower in the said area. In the above
circumstances, both the said persons are not found to have been actively involved in the
process of sale and purchase of wheat and provision of gunny -sacks.
11. To dig deeper so as to unearth the truth, the record has been scrut inized with due care
and caution, which reveals that during the trial Shoaib Muhammad stenographer of the
Commissioner Naseerabad Division produced by accused as a defense witness, DW -9
produced exhibits Ex.D/78 to Ex.D/82. Ex.D/79 the Minutes of the Meeti ng held in the
Commissioner's office on 16.06.2010 which is clear on the fact that wheat was to be
procured only from Nasirabad Division. In the said meeting Deputy Commissioners of three
Districts, the Deputy Directors of Food Department for Naseerabad an d Sibi Divisions as
well as the Food Controller of Naseerabad Division were present, wherein the mechanism for
purchase of wheat and provision of empty gunny -sacks were finalized. Ex.D/80 is a letter
issued by Commissioner Naseerabad Division dated 24 -4-2010 whereby directions were
issued to the six project Directors of Naseerabad Division that gunny -sacks will be
distributed amongst the growers in consultation with the Deputy Commissioner and the
Deputy Commissioner should prepare the list in this respect. In view of the said directions,
the Deputy Commissioners of Naseerabad Division compiled the lists of farmers and wheat
growers for distribution of the gunny -sacks.
In view of the above letter the accused/respondents have no concern with the
distribution of gunny -sacks and provision of gunny -sacks, then how it is possible that the
accused/respondents obtained illegal commission regarding the sale and purchase of
government wheat and provision of empty gunny -sacks.
Now, as far as the amount of Rs.60,00,000/ -(rupees sixty lacs) lying in Account No.
011-9086 -6 of UBL Jinnah Road Quetta, which was owned by the accused/ respondent
Sarfaraz Hussain Mughal said to have been the bribe to be paid to the officers of Food
Department is concerned it may be seen that the accused/respondent Sarfaraz Hussain
Mughal took plea that he sold a vehicle to accused/respondent Muhammad Hussain Raisani.
In this regard the accused produced DW -2 Syed Abdul Rauf, who is the owner of a
showroom in his defense. He stated in his statement that on 16.03.2010 the
accused/respondent Muhammad Hussain Raisani purchased a Prado Jeep worth
Rs.32,50,000/ - (rupees thirty two lacs and fifty thousand) from the accused/respondent
Sarfaraz Hussain Mughal and that Rs.2,50,000/ - (rupees two lacs and fifty thousand) were
paid in advance and in respect of the remaining amount a cheque was issued to
accused/respondent Sarfaraz Hussain Mughal. Abdul Rehman Bangulzai, Advocate is the
Notary Public, who was examined thrice by the defense as DW -6, DW/7 and DW -9. He
produced the agreement Ex.D/2 executed in respect of purchase of a vehicle by accused
Muhammad Hussain Raisani from accused/respondent Sarfaraz Hussain Mughal. He stated
that he drafted the agreement between the parties and attested the s ame. The said stamp paper
was prepared on 16.03.2010, in the presence of DW -1 Ghulam Abbas and DW -2 Syed Abdul
Rauf. The accused/respondents Muhammad Hussain Raisani and Sarfaraz Hussain Mughal
also stated in their statements before the court that the accu sed/respondent Muhammad
Hussain Raisani purchased a vehicle from accused/respondent Sarfaraz Hussain Mughal.
This fact is also evident from the statements of DW -1, DW -2 and DW -6/7/9.
12. As regards the amount allegedly transferred from the account of accus ed/respondent
Sarfaraz Hussain Mughal from UBL Jinnah Road Branch Quetta to MCB Quetta, the
accused/respondent Nazar Muhammad Kakar stated that he sold out his plot bearing No.166 -
C situated at Chiltan Town Housing Scheme Quetta to accused/respondent Sarfa raz Hussain
Mughal in the year 2010 against the sale consideration of Rs.19,55,000/ - (rupees nineteen
lacs and fifty five thousand) through open transfer letter, out of which Rs.200,000/ - were
received as advance in cash while the remaining amount of Rs.17 ,55,000/ - was received
through cheque. The accused/respondent Sarfaraz Hussain Mughal reiterated the said fact in
his statement before the court. This fact was further admitted by DW -3 Muhammad Shoaib,
who stated that on 22nd November 2010 the accused/resp ondent Nazar Muhammad Kakar,
sold out the plot No. 166 -C against the sale consideration of Rs.19,55,000/ - (rupees nineteen
lacs and fifty five thousand) out of which Rs.200,000/ - were received as advance in cash
while the remaining amount of Rs.17,55,000/ - was received through cheque. He produced the
stamp paper Ex.D/1, which was attested by DW -6. The said stamp papers were attested on
22.11.2010.
Further, in the complaint it has been clearly stated that one Sher Zaman Tareen
Deputy Director has acquired i llegal commission in respect of sale and purchase of wheat
and provision of gunny -sacks but surprisingly neither the said Sher Zaman Tareen was
arrayed as an accused in the case in hand nor any investigation was carried out against him.
13. Moving on to the merits of the case against the accused/respondents, the court has to
juxtapose both conflicting evidence in order to arrive at conclusion as to which one of them
is to be chosen for reliance as true. In the instant case the prosecution has not been abl e to
bring sufficient evidence on record, which could indicate that the accused/respondents
acquired ill -gotten money from the wheat -growers and farmers of the concerned area
regarding sale and purchase of government wheat and distribution of gunny -sacks a nd the
accused in defense produced DWs with documentary evidence that the accused/respondent
No.3 purchased a vehicle from the accused/respondent No.1 and the accused/respondent
No.2 Nazar Muhammad Kakar sold out a plot to the accused/respondent No.1 Sarfa raz
Hussain Mughal thus the accused/respondent No.1 justified the amount lying in his bank
account. During investigation, the accused/respondents also disclosed about the transaction
between Sarfaraz Hussain Mughal and Muhammad Hussain Raisani and between Sarfaraz
Hussain Mughal and Nazar Muhammad Kakar by deposing that Muhammad Hussain Raisani
purchased a vehicle from Sarfaraz Hussain Mughal and Nazar Muhammad Kakar sold out a
plot to Sarfaraz Hussain Mughal to the investigation officer during investigatio n and the said
fact is also mentioned in the inquiry report prepared by the IO. Thus, it seems that the plea of
the accused is not an afterthought and same is plausible.
14. For a while leaving aside the defense evidence, the prosecution evidence may be se en.
As discussed above none of the prosecution witness had uttered an iota of word against the
accused/respondents that they obtained the commission from wheat -growers. There is
absolutely no evidence available on record to establish that any monetary bene fit was ever
extended by the accused/respondents Muhammad Hussain in favour of accused/respondent
Nazar Muhammad Kakar. Therefore, the charge under Section 9 of the National
Accountability Ordinance, 1999 was rightly held not proved by the trial court.
15. It is settled law that the accused is the favorite child of the law and is presumed to be
innocent unless proved otherwise, which means that the onus of proof initially lies upon the
prosecution to prove the guilt of the accused. In the instant case we ar e afraid that the
prosecution has miserably failed to discharge the initial burden so as to shift the onus on the
defense, consequent upon which the only inference that can be drawn is none other than that
the accused/respondents were not proved guilty. In rendering this view we have been
fortified by the dictum laid down by the Hon'ble Supreme Court in the case of Pir Mazharul
Haq v. State (PLD 2005 SC 63), whereby the Hon'ble Supreme Court while dealing with the
proposition "onus of proof " observed as fo llows: -
"28. In criminal cases the general rule is that the accused must always be presumed to
be innocent and the onus of proving everything essential to the establishment of the
offence is on the prosecution. All that may be necessary for the accused is to offer
some explanations of the prosecution evidence and if this appears to be reasonable
even though not beyond doubt and to be consistent with the innocence of accused, he
should be given the benefit of it. The proof of the case against accused must d epend
for its support not upon the absence or want of any explanation on the part of the
accused but upon the positive and affirmative evidence of the guilt that is led by the
prosecution to substantiate accusation. There is no cavil with the proposition a nd
judicial consensus seems to be that "if on the facts proved no hypothesis consistent
with the innocence of the accused can be suggested, the conviction must be upheld. If
however, such facts can be reconciled with any reasonable hypothesis compatible
with the innocence of the accused the case will have to be treated as one of no
evidence and the conviction and the sentence will in that case have to be quashed".
16. It may be observed that the allegation of accused/respondents being in connivance
with eac h other, without production of specific evidence, would seriously reflect upon the
truthfulness of prosecution case and the learned Special Prosecutor NAB has not been able to
satisfy us that mere use of authority in absence of criminal intentions, would e ntail penal
consequences under the NAB Ordinance. The prosecution has also not been able to bring on
record any evidence direct or circumstantial to prove that the accused/respondent No.2 in
collusion with his co -accused was indulged in corruption and corr upt practices, for some
personal gain or pecuniary advantage, therefore, in the absence of the incriminating, cogent
and confidence inspiring evidence, the question of an offence of corruption and corrupt
practices within the meaning of section 9 of the NA B Ordinance, 1999 absolutely does not
arise in the instant case.
It is well settled that, presumption of innocence always lies in favour of an accused at
the trial stage and when a court of competent jurisdiction passes an order of acquittal this
presumpt ion becomes double and to set aside the same, it requires unimpeachable evidence,
which is lacking in this case. In view of the above, we believe that the trial court after
applying its judicious mind had acquitted the accused/respondents. Furthermore, onc e a
judgment of acquittal is passed by a competent court of jurisdiction after proper and correct
appraisal of evidence the same cannot be interfered with merely on the ground that on re -
analysis of the evidence another view could be taken.
Having regard to the above mentioned factors and circumstances of the case, we of
the view that the prosecution has failed to discharge the onus of proof, thus the findings
arrived at by the trial court are based on sound, safe and settled principles of administratin of
criminal justice, which do not warrant interference by this court. Consequently, we find no
merits in this appeal, which is dismissed accordingly.
MH/52/Bal. Appeal dismisseThis 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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