MUHAMMAD SADIQ RAJAR S/O DIN MUHAMMAD (Petitioner) VS THE STATE (Respondent)

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IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mn Mohammail Karim Khan Agha Mr. Iustice Zulfiqar Ali Sangi

l Criminal Accountability Appeal No'13 of 2017

Appeltant Muhammad Sadiq Rajar S/o. Din Muhammad, presently confined I11 Central Prison, Karachi through IvIr. Farooq H Naek ancl Mr. Usman Shaikh, Acfi,oca tes.

Ilespondent/ State (NAB) Through Mr. R.D. Kalhoro, Special Prosecutor NAB assisted by the i.O. Waliullah.

Date of hearing: 10.09.2020.

Date of Juclgment 22.09.2020.

UDGMENT

MOHAMMAD KAI{IM KHA N AGH A. I.- The a ppellant Muhammacl Sadiq

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Italar S/o. Din Muhammad was convicted by Accountability Court No'IV' Sindh

KarachivideJuclgrnentdateclO?.08.201'TinNationalAccountabilityBureau (NAB)ReferenceNo.04-BofZ}T4MuhammedSadiqRaiarandothers'whereby the appellant was convictecl uncler section 9(a)(i)(ii)(iii)(iv)(vi)(ix)(x)(xi) and (xii) R'l' of National Accountability Orclinance, 1999 (NAO) anci sentenced to suffer fine for ten (10) years aucl fine of Rs.10 mitlion' In case of default in payment of was also he was orclerecl to suffer furtl-rer il.l. for two (02) years. The appellant reckoned elisqualified for a periocl of 10 vears untler section 15 of the NAO to be Iort.n the tlate clf release after serving the sentence for seeking or frOm being of any electecl, choseu, ap;rointed or notniuated as a member or representative of any public bocly or any statutory or local authority or in service of Pakistan or advance from Province and obtain any financial facility in the form of loan or any financial institutions controllecl by Government for the period of 10 years' against llence the appellant has filed the above Criminal Accountability Appeal l-ris conviction

2'Theverybrieffactsoftlrecaseasdisclosedinthereferencearethatsome scnior officials of the Central Infornratiot-t [nrployee's Cooperative Housing Adnan' Society (the Society) narrely Muhammacl Azam IJrohi' Syed Muhammad Muhammad Abdul Qadir, Abclul Malik, and Rasheerl Gut, Fahad Naseem Khan'

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Shoaib who were private persons in connivance and collusion with each other misusecl their authority by illegally cancelling plots of the Society and re allotting thern and illegally auctioning the lanci which belonged to the Society to the persons who were otherwise not entitled to such lancl which caused a loss to the .l Society. In respect of sorne of the accused illegally awarding contracts to their favor.ecl conhactors by misusing their authority in order to benefit those contractors whicl.r again caused a loss to the Society. That appellant Muhammad Satlit1 Ilajar who was the Registrar Co-operative Housing Societies deliberately misusecl his authority in connivance and collusion with the aforesaid co-accused by atlowing the society's land to be auctioned whilst ignoring a caution not to sell such land which hatl beerr placetl on such land by the NAB under s.23 (a) N A() which causecl a loss to the Society aucl as such tl-re appellaut and his co- accuseLl had cornmittetl acts of corruption and corrupt practices under S.9 of the NAO wlriclr lead to the filing of the aforesaicl Reference No, 04 8/201'4 befote accountability court No.lV irr Karacl-ri.

3.In order to Prove its case, the Prosecution examined 47 PWs and exhibited

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numerous clocuments. The appellant recorclecl his statement under Section M2 Cr.p.C., whereby he deniecl the allegations levelec-l against him and in particular statecl that he clicl not know that the land which was auctioned was cautioned ur-rcler S.23 (a) NAO and hence he hacl simplv marked on the request for the

auction by the Society "please attencl" and marked it to one of his subordinates' I le clid not give eviclence ou oath and clicl not call any DWs in support of his

rlefence case

4.After hearing the parties and assessing the evidence available on record t[-re learned accountability court convicted and sentenced the appellant as

mentiorred earlier in this ju<lgrnent and hence the appellant has filed this appeal

against conviction.

5.I-earned couusel for the appellant Muhammacl Saetiq Raiar has contended that the appellant was completely innocent of any wrong doing; that there was no evidence that he was in collusion or connivance with any member of the

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society who hacl 1equested hirn to auction the lancl; that he was completely urlaware of NAB',s caution under s.23 (a) of the NAo over the land as he was not

I{egistrar when NAB's caution letter was issuecl to the office of the Registrar; that the caution hacl not been brought to his attention; that he had not given his prermission for the auction but had simply marked the concerned lettel with the,

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worcls "please attencl" and rnarkecl it to DDO Younis who was then responsible fol conducting the auction; that even if he hatl known of the caution it was rnerely a procedural irregularity and not a criminal act for which he had no r-ncns l'eai that he by letter orclerecl any further Proceedings taken pursuant to the ! auction to be imrnediately stoppecl and as such Plevented a much Sreater loss to the Society/Covernment anel that based on anv or all of the above grounds he was entitled to be acquitted basetl on hirn being extendetl tl-re benefit of the ckrubt. l{e also brought to our attention the fact that the appellant out of a L0 year senterlce which in his view was Palticularly harsh and disproportionate to his role in the offence the appetlarrt haci already served out almost 7 years including remissiorrs ancl the benefit of s.382 B Cr.PC. In suPPort of his contentions he placeci reliance on tht,cases of The State and others v, M. Idress Ghauri and others (200t1 SCMR 111t1), The State v. Anwar Saifullah Khan (PLD 2016 supreme Court 276) ancl Dr, Asghar AIi v. The state and others (2016 P. Cr.LJ r 93).

I 6. On the other hanci special prosecutor NAB has fully supported tl-re impugnecl juclgrnent a1d had contended that the prosecution has proved its case Lreyoncl a reasonable doubt tl1rough its eviclence and that the appeal be rlisrnissecl. In particular he has contendecl that the appellant was in full knou,leclge of NAll's cauti0n wl-rich hacl even been brought to his attention shortlv lrcfore the auctiot-t Lry I'W 33 Muhat-trmecl Akram'

7.We have hearel the arguments of the learned counsel for the parties, gone thlough the entire evirleuce which has been read out by the appellants, the ir-npugned judgment with tl-reir able assistance and have considered the relevant law including that cited at the bar.

8.After our reassessment of the evidence we find that the Prosecution has NOT provecl its case beyonc'l a reasonable cloubt against aPPellant Muhammad Sacliq Ilajar who is acquittecl of the charge based on the benefit of the doubt beirrg extenclecl to hinr who shall be released from custody unless he is wanted in f- alry other custocly case for the follclwing reasons;

(a)Ac.lmittedly the appeltant had no particular connection with any senior ofiice bearer/'member of tl-re Society ancl there is no evidence that he was aware of any wrorlg tloirrg which the society might have been involved in ancl there ii no evi.le.ce that he connivec'l or colluded with any of the Societv's office bearers or co-accuserl in any wav. His only interaction

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with the Society was in his official capacity as Registrar Co-operative Housing Society.

(b)T'hat he was not Registrar of the Co-operative Housing Society when NAts's letter of caution dated 20.01 .2012 was sent to Mr'Muneer Baig and tl-rere is no direct evidence that he was awale of NAB's caution over the ! land before marking on the society's request for auction, "please attend". Muneer Baig who appeared as PW 27 did not give evidence that he brought NAB's caution to the attention of the appellant and in cross examination sta tes as untlc'r,

"l rlo not knott' if nny letter was ruritten by Yottnis Bnloch' tle tlrcn DOC to tlrc Registrat acatsed Muhnnrmnd Sadiq Rnjar rlisclosing .factunl position of tlrc snid commercial plots, but during. nry postiig no trril, letter rL'as rt'ritten bU Younis Baloch to accused M mtnrnnd Sndiq llnjnr" 'fhis is important as Younis Baloch who was made a PW was the keeper of the recorr'l antl rt,as the person most likely to ktrow of NAB's caution over the lanrl. In his (PW 27 Murleel Baig's) evidence at best it might have been prexuned tlrat the appellant may have had some knowleclge of the caution' It is well settleLl thal presumptions cannot take the place of cogent evidence especially if there is-r-ro legal status given to such a presumption which there is not in this case.

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I l-re only e,,'iclence that the arppellant might have hacl any knowledge of the caution before the auction is provicled by PW 33 Muhammed Akram who sent a letter to the appellant to this effect although the value of this letter is darnaged to a certain extent as no seizure lnemo was producecl in respect,of the salne. Significantly this letter is markecl to have been received in the a'pellarrt's,,ifi." u .lay after the auctio. which would tie in with him later ,i,ippir-rg a,y further actio. being take. in respect of the auctio. once he .lu.iii"i.th"'uctual positio^ frorn the recortl. Even otherwise, significantly PW 33 Muhammecl Akran-r states as follows in his cross examination' "lt is a fact that no separatc NOC was issued by accused Muhrzmitacl Sadiq Raiat nnd lv lurs recordetl ruords plense " nttenrl" on Society's letter dated 12.09,2013 u'lrcreby tlu Registrar rons requesteri to rlepute lis representntiue to nttend the nuction proceedrngs"

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"It is correct to silSgest that suction Proceedings were stopperl by acrlltsecl- Sadiq Raiar aiile his le.tter dated fi.1b.2013."Voluntmilt1 snys tlnt n C.P. benring No'4686 of 2013 rlrts .filed by nccused iyed Mulmnntnd Adnan ngainst Registrar I atttl'otlut's"slwoing tli tpprehensron of cnncellntion o.f auctron of 40 conmrercial plots on z'nrious Srounds" ,

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"lt is rcrrect to strggest thnt nccuserl Muhnnmmd Sndiq Rnjnr had no criminal inteii ttthile issuing dircctions to attend"'

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Wheu reacl rrr .r holrstic tllallner wc ftncl that the evtclence of PW 33 Muhammecl Akrarn suggcsts that (a) the appellant gave no specific NOC for- tl.re auctrorl to go a head (b) once the appellant realized that the .ruction was not permtssrl-rle he tmmediately prevented any further action berrrg taken pulsuant to the auctlon such as mutatlon of the plots which ) shttws that he f-,revente.l anY iurther unnecessarv loss and (c) he hacl no criurrual iute'nt ttr allowrng the aucttclu which in terms of trens rea is a esse'nttal elet-ttetrt of thc offeuce as was held rn the case of M' Idress Ghauri (supla) at Ir.112Ll .rs untlet,

"Thcrt ts no cntul lo tlrc prttposrtrtm tlnt nrt illegal order tn n pnrttculnr set ol .frtt't, ttttty ltitt( tlp ltcnnl co sequencc hut tlrc tluestn raquted to bt' ndlrt:rttl trt tfu prcsettl cnsL'., Pns as to it,hetlrcr tlt tct of grrttLt of proltru:ty rLglrts of the lnnl rL'iyout the yotocr of t.ollectir, bt1 ttsetf rpould constrtttte an offence o.f 'corrrtpltott und corrttltt prnctrtcs ttrtlttn llp nrcfintn8s of secttott- 9(t)(i,t) of llre C)r,httrnnca tutluttrt proof o.[ essctttml mgrcdrcnt of lcg'nl gnrn nnd urtt!ttc lru'ott to conshhtte such nn offencc nnd tle ,,,rri.,ci'u,u,,l,l terlrrrtrhl l.L' tn tlrt rtcgrthrc I'fu' contcpt oi t"rtn nfil rtrlututtstrntttttt of ltrrlice ts ltnst'd' tttt tltc nssrrtttptton thnt crtnnnnl ttt ts ullurtt)us trtl ltrsl ttt ntt rttdtltdunl hut socrcttl ns n u'lnle tnd tuolnltorr ttf tfu crtrtttttd lrttp u'lntlt rc btult upon corrsttttttionol Ttrnrctltlcs o.f tlte srtbstnnhal ns toell as lttocedurnl lnu', lns tlrc I 'rnnro,i1,,rr,rr:

of lttrttrsltrrtcrtt, thtelort, tlte prttscctttrcn tn tlu: hght ttI coitstrttrtrotui prtttc4tk' rs trtrdar ltmnl dut11 to t'stnhlLslt tltt orolntton ol'crmrtnnl lntLi' b arunrrl llrc, purrtshntent Tlu' stndnrg of lnta to brrng rur nt trtttt uuthttt rts contpass s ttt L:on.flrtt to tln' ,otu-ept of lntr tretlttl('ttl,'thr:rtlbrc tt ts pnntary dttttl of tlrc Court lt) ns(('t'lttttt tplrctltt, ltL' ttllegai oflcncc t0t1s ('t!trofirc o-f ntr nc.t rn utttlrtltrttt oI sotttc l,tto ,r'lnrli Lrttt ltt ltrtntrI s t1''ttts 77115 1tl'thc t rttttc (gutltry nct) trtrtl ti tlus t'ssctttral alL'ttrent of crtnte rc ntrcstfi4' rlre l.tt'r)'trclt ntt11l tutl srrhyct lo tlrc stnctton of cnnunnl lnto' llrcrelorc, rr pcrsctrt trln s ilnnt,:rl lo ltnt'c connrntteLl nn offcnce tf rc ttot nrcrt,rttttnhle ttt (t'ttttttLnl lnrr'litr lns nctLon, lrc cnrutot ltc subpct to tltL' prttsL't'rt ttttt . The ,fie,rc re.t (guiltrl rnind) is another t

cssetrtiol contptnrcrrt of ctime u'itlrout proof of ruhiclt a pelson cdflnoi bc heltt' guiLtlr of an offence and similarly Tttitho t the prool ol co'ncurrence to commit the crime' the offence is not comltlete. tn additiott to the abozte basic iotnponents of a crime, the hann caused in co seque'rce to an act is also consuleted sn essettial element of a crime becanse the act il is harmless it maq not constitute a crine' Tlrc abotte cotltponeflts ol an offence of cortuption and- corru1tt prrtctit''cs dle ,t'ot traceable in tlrc seties of transachttn itr tl:r. yresent casc". (bolcl aclclecl)

I (c) fhc fact tl-rat the appellarrt serrt a lettcr wrthrn 20 days of the auctron rvhtch Preventeci any furthcr actlon being taken pursuant to the auctlou such as lrutatlon o1 the plots shows that he pt'evented alry f urtller tlllllecessarv loss 'ruci fits in with the fact that ire.1,c1 not have the llecessarv mells rea fhrs ts because if he had the necessary rnells re.1 .rlltl was in league wlth the other co-accused he would not have issued any such letter whtch tn effect stopped

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the scam tn tts tracks If the appellant was in collusion and connrval'rce rt,rtlr the other co-accusecl lt also r-loes not appeal to Iogic, comtnon sense or reason that hc would have sent such a letter Rathel he wtrultl have kept quiet and allowed the ill gotten galn to be macle and possibly taken his share tn the same l (rl) I trat therc ts no evtcie rtce tlrat tlle a;rPellant macle any fruancial garn or receivc'cl anv lat,our o11 clcCoutrt ol the auctton takrng place'

(e)I he aPPellarlt's 5.342 Cr PC statemcnt is conststent with his .1"f"r't." iase tlrroughou t trtal which provrdes a behevable alternattve explanahon to the offence for which he is charged

(i)It is wcll settled law that Lhe benefit of doubt must go to the accuscd by way ol right as opposed to concesston In this respect reltancc rs placed on the case of Tariq Pervez V/s. The State (1995 SCMR 1345), wheretn Lhe Honourable Suprcme Court has obscrved as follows -

"lt rs settled law that tt $ not necessary that there should ma ny circum.sf ances creattng doubts If there s a single crcrimstance, u,hrch creates reasonctble doubt ut a prudent mnd obout the gutlt of the accusecl, then the accttsed utill be entttled to the beneft not as a matter of grace and concesston but as a matter of nght " t

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I'he appeal is allowed ancl cltsl-rosecl clf in tlre abovc terrns

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