ROZI KHAN BARRECH, J---Impugned herein is the judgment of acquittal 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 06.05.201 1 with the allegation that one Sher Zaman Tareen, Deputy Director Food Department 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.01 1-9086-6 UBL Jinnah Road Branch Quetta, owned by the accused/resp ondent 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/of ficials of the Food Department from the farmers and wheat-growers of Naseerabad Division. During the investigation the Investigating officer ("10") 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 completion 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 requirement 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 witnesses 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 vide 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 testimonies of prosecution which supported the prosecution's case were discarded by the trial court and the reaso ns 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 documentary 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 appraise d in a proper and legal manner as prescribed by law , thus, the judgment 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 accused/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 "
9. Corruption and Corrupt Practices:
(a) A holder of a public office, 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 any other person, or renders or attempts to render or wilfully fails to exerc ise 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 provision shows that the initial burden is on the prosecution to prove that the accused/respondents were guilty of any of the of fences 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/respo ndent No.2 Nazar Muhammad Kakar , who was posted as. Acting Chief Accounts Officer, Provincial Food Departm ent, Government of Balochistan, by providing his bank account No.01 1-9086-6 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/respondents 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 Sarfar az Hussain Mughal, Nazar Muhammad Kakar 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 prosecution'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 complaint 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.0 in reply to a questi on 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. 011-9086-6 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 Raisani 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 scrutinized 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 Meeting held in the Commissioner's office on 16.06.2010 which is clear on the fact that wheat was to he procured only from Nasirabad Division. In the said meeting Deputy Commissioners of three Districts, the Deputy Directors of Food Department for Naseerabad and 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/responden ts 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 Muha mmad 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 Sarfara z Hussain Mughal. He stated that he drafted the agreement between the parties and attested the same. 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 accused/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 accused/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 Sarfaraz 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/respo ndent 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 22.1 1.2010.
Further , in the complaint it has been clearly stated that one Sher Zaman Tareen Deputy Director has acquired illegal 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 able to bring sufficient evidence on record, which could indicate that the accused/respondents acquired ill-got ten money from the wheat-growers and farmers of the concerned area regarding sale and purchase of government wheat and distribution of gunny-sacks and 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 Sarfaraz 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 Sarfar az 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 investigation 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 seen. 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 benefit 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 are afraid that the prosecution has miserably failed to discharg e 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 follows:-- "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 establi shment 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 consi stent with the innocence of accused, he should be given the benefit of it.
The proof of the case against accused must depend 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 and judicial consensus seems to be that "if on the facts proved no hypothes is 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 each 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 entail 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 corrupt 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 NAB 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 presumption 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, once 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 administration of criminal justice, which do not warrant interference by this court. Consequently , we find no merits in this appeal, which is dismissed accordingly .