The State (Appellant) VS Ghulam Hyder Memon & others (Respondent)

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IN THE HIGH COURT OF S INDH AT KARACHI

Present:

Mr. Instice Mohammad Katim Khan Agha Mr. Ittstice ZuWaar Ali Sangi,

CR. ACCOUNTABILITY APPEAL NO.O3 OF 2OO2

Appellant Zulfiqar Ali son of Karar Hussain (Now deceaied) through his Son Murtaza Zulftqar Ali.

Respondents/ State NAB through Mr. R.D. Kalhoro, Special Prosecutor, NAB

cR. ACCOUNTABILITY ACQUITTAL APPEAL NO.09 OF 2002 Appellant Chairman, NAB through Mr. R'D' Kalhoro, Special Prosecutor, NAB

For Respondents 1) Ghulam Hyder Memon 2) Kazi Khalilur Rehman 3) Shah Muhammad Balouch 4) Agha Muneeruddin ........,.......Nemo

Dates of hearing: 24.08.2020

Date of announcement 31.08.2020.

I UDGMENT

Mohammad Karim Khan Agha, |.- Appellant Zulfiqar AIi son of Karar Hussain, (now cleceased) has filetl Cr. Accountability Appeal No'03 of 2002 in Reference No.43 of 2002 whereby he was convicted on account of

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entering into a plea bargain vide impugned judgment dated 03'01'2002 passed by the Atlministrative Juclge, Accountability Court Karachi' Whereas National Accountability Bureau has filed Cr. Accountability Acquittat Appeal No.09 of 2002 against the acquittal of respondents namely Ghulam Hycler Memon. Kazi l(halilur Rehman, Shah Muhammacl Balouch and Agha Muneeruddin in Reference No'43 of 2002'

2.The brief facts of the case as disclosed in the FIR lodged by Inspector Anticorruption I.D. Mangi on23."1.1'997 at 5:30 PM are that he was conducting a direct inquiry regarding regularization/ allotment of

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amenity plots of KDA Karachi. It was found by him that amenity Plot No.ST-10 Block 14 Scheme 36 Gulistan-e-Johar Karachi admeasuring 8000 Sq. Yds was reserved as a Park but the concernecl officials of the KDA in collusion with Zulfiqar Ali regularized/allotted the said plot in favour of Zulfiqar Ali by arranging fictitious documents. The said regularization f allotment of the plot caused loss of Millions of rupees to the KDA as the regularization was, made against the allotment Policy and violation of Rules and Regulations. Four officials of KDA nominated in the FIR are (1) Agha Muneeruddin, Assistant Director, Company CeIl KDA (2) Naveed Alar-n office Superintenclent Company Cell KDA (3) Shah Nawaz Balouch Accounts Officer Recovery Branch KDA (4) Kazi Khalilur Rehman Executive Engineer Scheme 36, KDA and private person Zulfiqar Ali.

I 3. The Investigation Officer started the investigation and recorded the statements of 10 witnesses. He had secured the documents from the KDA office and Manager of Habib Bank Ltd Civic Centre Branch, Karachi' After completing the investigation he had submitted the charge sheet by adding the names of Pir Mazhar-ul-Hacl the then Minister for Housing and 'Iown Planning and Ghulam Hyder Memon Member Finance KDA Karachi.

4.After compliance of the provision of Section 265 (C) Cr.P.C. the Special Juclge Anticorruption framecl the charge against all the accused under Section 420, 467, 468, 471,, 409,120-8,1,61.,34 PPC read with Section 5(2) of the Prevention of Corruption Act, 1,947 on 18.8'1998' All the accused pleaded not guilty to the charge and claimed to be tried' Subsequently the accused Pir Mazhar-ul-Haque absconded therefore he was, declared absconder and an order was passed to proceed with the case in his absence uncler Section 512 Cr. P.C.

5.This case was then transferred to the accountability court by the Chairman NAB whilst exercising his powers under S.16 (A) NAO.

6.Special Prosecutor, NAB in orcler to prove its case examined 08 PWs. The Statements of the accused were recorded under Section 342 of Cr.PC in which the accused denied all the allegations and claimed to be .

tried. Vide Judgment dated 03.01.2002 appellant Zulliqar Ali was deemed convicted after entering into a plea bargain where as the other respondents acquitted hence these appeals against conviction and .were

acquittal have been filed by he appellant and NAB. Since these appeals arise out of the same Reference, we intend to clispose of both these appeals by one common judgment.

Turning to the appeal against conviction of Zulfiqar Ali (now deceased)

8.The appellant (now deceased) through his son contended that his father had been convicted in the aforesaid reference on the basis of a plea bargain which should be set asid.e as the plea bargain was not made voluntarily and thus his deemed conviction should be set aside especially as the other co-accused had been acquitted in the same reference and as such he was also innocent.

9.On the other hand special Prosecutor NAB contended that the plea bargain had been made voluntarily by the appellant and since it had been approvetl by the Chairrnan NAB and the accountability court in accordance with law the same plea bargain should remain in the field and the appeal dismissed.

10.We have hearcl the appellant's son (who did not want to be represented by counsel) as well as speclal prosecutor NAB, gone through the record and considered the relevant larv

11.We have seen the application for plea bargain made by the appellant which was approvecl by the Chairman NAB ancl its approval by the court. Pursuant to this plea bargain the appellant admitted his guilt and paid the monies which he was required to and thereby fully accepted his plea bargain which lead to his cleemed conviction. In our view the plea bargain has been made in accordance with law and according to his son after taking legal aclvice and the fact that the appellant paid the amount which he agreed to in his plea bargain also points to its legality' There is no evidence to suggest that the plea bargain was not made voluntarily. It is also irrelevant that the other co-accused were acquitted on merits as the appellants plea bargain was accepted before the impugned judgment was hantlecl own. Aclclitionally any one of the acquitted co-accused could also have optecl for a plea bargain rather than stand trial but instead decided not to do so and thereby acceptec'l the risk that they may be convicted after the trial and sentenced to imprisonment. The fact that the co-other accused

who clid not enter into plea bargain who were later acquitted is therefore irrelevant. The appellant made a conscious clecision to enter into a plea bargain with the NAB ancl not run the risk of being convicted and sentenced to imprisonment at trial. It appears that the appellant only challenged the legality of his plea bargain once the other co-accused had been acquitted ar-rcl thus this appeal aPPears to be a belated attempt by him to get out of the plea bargain which he freely entered into once he found that the other co-accused had been acquittecl. Had the other co- accusecl been convicted and imprisoned we doubt whether the appellant would have challenged his plea bargain.

1.2. As such we fincl that since there is no illegality in the plea bargain which the appellant's father entered into the appeal has no merit and is hereby clismissed. If any monies arising out of the plea bargain are not alreariy with the NAB ancl held by some other entity or party, fot example the trial court or the Nazir of this court the same shall immediately be sent to the Chairman NAB.

Turning to the appeal against acquittal of the Respondents Ghulam Hyder i4"rnor,, t<azi t<naiitur Rehman, Shah Muhammad Balouch and Agha Muneeruddin.

13.It is well settlecl by now that the Parameters for an appeal against acquittal to succeecl are much narrower than in the case of an appeal against conviction. It is settled law that judgment of acquittal should not be interjected until findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous as held by the Honorable supreme Court in the case of The State v. Abdut Khaliq and others (PLD 2011 Supreme Court 554). Moreover, the scope of interference in appeal against acquittal -t is narrow and limited because in an acquittal the presumption of the innocence is significantly addecl to the cardinal rule of criminal jurisprudence as the accusecl shali be presumed to be innocent until proved guilty. In other words, the presumption of innocence is doubled as held by the Honourable Supreme Court of Pakistan in the above referred juc'lgment. The relevant para is reprocluced hereunder:- '16. We lnoe henrd tltis cnse nt a considernble length sfretching on quite n number of dntes, and toith tlrc able assistffice of the learned counsel t'or the parties, lnlte thorouglrly scanned euery mnterinl piece of et'idence nt,nilnile on the record; nn exercise primnnly necessitnted

roith reference to tlrc conuiction nppeal, and also to ascertain if tlrc conchtsions of the Courts beloto are agninst \ the ettidence on the record nnd/or inoiolntion of the lmo' In nny ettent, before enrbnrkitlS upon scrutiny of the unriorts plins of lmo nnd fact rrtised from both the sides, it may be 'mentionerl thnt both the lenrned counsel ngreed that the criterin o.f interference in tlrc iuclgment ngninst acquittal is not tlrc snnrc, ns ngninst cnses int'oluing n conuiction' In this belml-f, it slnll be releunnt to mention thnt the follotoing settled nnd consistent oiew of tlu 'superior prottitle n fnir, precedenis Courts about tlrc rules tphich shouldbe t'ollorued in suclr cnses; tlrc dictn nre:

Bashir Ahmetl o. Fida Hussain antl 3 otlrcts (2010 SCMR 4g5), Noor Mali l{han u. Mir Shah lehan and another (2005 PCr.Ll 352), lmtiaz Asad a. Zain-ul' Abiitin and another (2005 PCT.LJ 393), Rashid Ahmed o. Muhammad Nautaz and others (2006 SCMR 1152), Batkat Ali a. Shaukat Ali and othets (2004 SCMR 249), Mulazim Hussain tt. The State and another (2010 I PCr.Ll 926), Muhanmmd Tnszueer zt' Hafiz Zulkarnain antl 02 others (PLD 2009 SC 53), Farhat Azeem a' Asmat Llllah and 6 otlrcrs (2008 SCMR 1285), Rehmat Shah anrl 2 others rt. Amit Gul and 3 others (1995 SCMR 139), The State o. Muhammad Shanf and 3 others (1995 SCMR 635), Ayaz Ahmed and another a' Dr, Nazir Ahmect and anothet (2003 PCr' Ll 1935), Muhammatl Aslam a. Muhammad Zafar ancl 2 others (PLD 1gg2 SC 1), Allah Bakhsh antl another a' Ghulam Rasool antl 4 others (1999 SCMR 223), Najaf Saleem a. Lady Dr. Tasneem and others (2004 YLR 407), Agha Wazir Abbas and others a. The State and others (2005 SCMR 1175), Mukhtar Ahmed a' The State (1994 SCMR 231L), Rahimullah lan a' Kashif and anotlrcr (PLD 2008 SC 298), Khan a. Sajjad and 2 others (2004 SCMR 215), Shafique Ahmail o' Muhammad Ramzan and another (1995 SCMR 855), The State o. Abclul Ghaffar (1996 SCMR 678) nnd MsL Saira Bibi tt. Muhammad Asif and othets (2009 SCMR Froru tle rntio of nll tlrc nbope pronouncements nnd tltose ) citerl by tlrc lenrned counsel for tlrc pnrties, it cnn be dedttcerl tlmt tlrc scope of interference in nppenl ngninst acquittal is nnst nnrroll and limited, because in nn ncqrittal tlw presumption of innocence is significnntly added to tlrc c,nrdinnl rule of criminal jurisprudence, that nn ncutsed shnll he prewmed to be innocent is doubled' The courts shall be aery sloto in interfering u.tith such an acquittal juilgment, unless it is shown to be pr*rrie, 'from passed in gross oiolation of lata, suffering the enors of graae misteading or non-teading of the eoidence; such judgments shoulcl not be lightly interfered anil heazty burden lies on the prosecution to rebtit the presumption of innocence which the accused lms earnitl ancl attained on accout t of his acquittal' It has been categoricallv held in a plethora of judgments that interference in a judgment of acquittal

is rare and the proseattion must show that there are glaring errors of law and fact committeil by the Court \ in arriaing at the decision, whiclr would result into graae miscaniage of instice; the acquittal iudgment is perfunctory or uholly artificial ot a shocking conclusion has been drawn. Moreotter, in number of dictums of this Court, it has been categorically laid doton that such jtilgment should not be interjected until the findings are peroerse, arbitrary, foolish, artificial, speculatitte and ridiculous (Emphasis supplied). The Court of appeal shoulil not interfere siiply for the reason that on the te-appraisal of the epiilence a di/ferent conclusion coulil possibly be arriaed at, the factual concltrsions should not be upset, except uhen palpably peruerse, suffering from serious antl material factual infinnities. lt is nrerred in Tlp Stnte tt. Muhttnmrad Shnrif (1995 SCMR 635) nnd Mtlnnnnnd ljnz Ahnnd t'. Rnin Fnhim At'znl and 2 otlrcrs (1gg8 SCMR 1281) thnt the Suprenre Court being tlw fnnl 'fndingstoould be clnry nnd hesitnnt forunr to iierfere in tlrc 'and of tlrc Cottrts beloro. It is, thetefore, expedient imperatioe that the aboae ctiteria and the guidelin;es shottltl be followed in ileciding these appeals," (bold ndded)

1,1. Whilst acquitting the respondents the accountability court found as under at typed page 8 of the impugned judgrnent;

"Fronr tlrc nbot,e cornments, it is clenr thnt the steps tnken irr tlris cttse from tlrc Tery heginnirg tmto lnst ue in nccorrlnnce roith Rules, Regulntions and Laru applicnble at tlrc relettnnt tinrc, as sr.Lch tlrc nccused lutte committed no illegnlity. Etten otlrcnpise under ilhtstration (e) of Article 129 of the Qanun-c-shnlrndnt Order, the court can presume tlutt nll o.fficinl ncts nre regulnrly, Tterforned unless contrnry is proued. As sttch in the present cnse, nll the nctions of the official fimctionnries are, deemed to be in nccor dnnce tuith Rules nnd Lnw ttnless tlrc sanle are contrnry prot ed. Hotrtel.ter, no et idence whntsoeper lns been, le'tl by tlrc prosecution to shotu ttiolntions of any Rules or Article 52(A) of KDA Orders 1957. On tlrc contrnry ,l P.W Murncl Ali Junejo lrr,s stnted tlmt the Minister for Housing nnd Torpn Plnnning runs the competent nutlroity to pnss ortlers of regulnrizntion of plots nnd tlrc plot in ryestion tons regulnrized by the tlrcn Minister on the recomntendntions o.f tlrc Director Genernl KDA nnd Merrtber Lnnrl KDA. He htts ndrtritted tlnt tlrc transfer of tlrc plot in question nnd tlrc chnllnn pnid ruere in accortlnnce ruith Inru."

15.When confronted b), the cour.t to point out any illegalities in the impugned judgment despite his best efforts special prosecutor NAB was unable to do so. We have consiclered the record including the evidence recorded at trial especially that of PW Murad Ali Junejo and have not been

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able to find any glaring illegality in the irnpugned judgment wl-rich would \ warrant its interference. Thus, keeping in view the extremely narrow scope of appeals against acquittal as mentioned above and the fact that the respondents are entitled to the clouble presumption of innocence since we have found no glaring illegalitv in the impugnecl judgment we find that the respondents are entitlecl to the benefit of the doubt and that the impugned judgment has rightly acquitted the respondents and as such the appeal against the respondents (Ghulam Hyder Memon, Kazi Khalilur Rehman, Shah Muhammad Balouch and Agha Muneeruddin) acquittal is dismissed.

16.The above appeal against conviclion and appeal against acquittal are clisposed of in the above terms Hl* luDdE =tl-r u;,

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