RAZA ALI KHAN, J. The captioned appeals have been directed against the consolidated judgment of the High Court dated 29.02.2024, passed in Criminal Appeals Nos. 110 and 121 of 2023.
2. The consolidated facts of the appeals are that, following a complaint lodged by certain employees of the Local Government and Rural Development Department, a departmental inquiry was initiated against Muhammad Toufeeq Kiani, Senior Scale Stenographer, regarding his promotion to the said post based on an allegedly fabricated intermediate certificate. A fact- finding report was subsequently prepared and submitted to the Secretary, Local Government, on 09.12.2016. Thereafter, on 22.02.2017, pursuant to an application filed by two employees of the department, namely Shoukat Ali and Muhammad Mumtaz Awan, a case was registered with the Ehtesab Bureau against the appellants herein and Muhammad Toufeeq Kiani (respondent No. 3).
Following an investigation, the Ehtesab Bureau filed a reference before Ehtesab Court No. 1, Muzaffarabad, under sections 419, 420, 467, 468, and 471 of the Azad Penal Code (APC) and sections 10 and 11 of the Ehtesab Bureau Act, 2001. The trial Court, after conducting necessary proceedings, rendered its judgment on 22.07.2023, acquitting the appellants herein while convicting Muhammad Toufeeq Kiani under sections 420, 467, 468 and 471 of the APC, sentencing him to seven years of simple imprisonment for each offense, imposed a fine of Rs. 100,000/- and ordered additional one-year simple imprisonment in case of default. The Court further directed the recovery of Rs. 17,60,579/-representing the salary received by him from the Government Exchequer.
Dissatisfied with the judgment, Muhammad Toufeeq Kiani and the Ehtesab Bureau separately filed appeals before the High Court. The learned High Court, after hearing the parties, clubbed the appeals, accepted them, and remanded the case to the trial Court for a fresh decision through the impugned consolidated judgment dated 29.02.2024.
3. Ch. Shoukat Aziz and Ch. Shabir Ahmed, learned counsel for the appellants in both appeals, argued that the impugned judgment of the High Court is contrary to the law and facts of the case.
They submitted that the initial appointment of Muhammad Toufeeq Kiani as Junior Clerk/Telephone Operator was based on his Intermediate Certificate, which was subsequently recorded in all official documents. They further contended that Kiani's promotion to Senior Scale Stenographer was recommended by the Project Director, CISP, and approved by a Selection Committee comprising three members: Secretary Local Government (Chairman), Director General Local Government (Member), and Deputy Secretary Local Government (Member/Secretary). They emphasized that the Selection Committee merely issued the approval, and one of the appellants, Manzoor Hussain Awan, in his capacity as Section Officer, issued the promotion order based on this approval. The appellants were neither members of the Selection Committee nor responsible for verifying the academic qualifications after the Committee's approval. The learned counsel for the appellants argued that the appellants had no direct role in Kiani's promotion and no evidence was presented during the trial implicating them in any wrongdoing. They emphasized that all witnesses testified before the trial court, and none attributed any charges to the appellants, which justified their acquittal. They contended that the High Court unlawfully remanded the case to the trial court with directions to reconsider the matter and determine whether the appellants knowingly facilitated Kiani's promotion despite his fake certificate, making them liable for conviction. They further argued that the promotion was based solely on the selection committee's approval and appellants acted merely in administrative capacity. They concluded by praying for the acceptance of the appeals and reinstatement of the trial Court's decision acquitting the appellant.
4. The learned Deputy Chief Prosecutor, Ehtesab Bureau, argued that the appellants in both appeals were members of the Selection Board and actively participated in the promotion of the main accused, Muhammad Toufeeq Kiani, despite being aware of the fact that he held a fake and fabricated Intermediate Certificate. He further contended that the trial court acquitted the appellants without providing sufficient and justified reasons, thereby failing to properly address their role in the matter. The learned prosecutor maintained that the High Court correctly remanded the case to the trial court for a fresh decision. He submitted that the appellants, alongside the main accused, are liable for conviction due to their significant involvement in facilitating the promotion of the main accused.
5. Syed Zulqarnain Raza Naqvi, learned counsel for the main accused, Muhammad Toufeeq Kiani, contended that the trial court's judgment lacked proper judicial scrutiny. He argued that the accused was convicted under sections 420, 467, 468, and 471, APC and sentenced to a uniform seven years of imprisonment for each offense without specifying distinct punishments for individual charges. This failure to delineate punishments was particularly significant given that section 471 of the Azad Penal Code does not prescribe a seven-year sentence. The learned counsel asserted that this oversight rendered the trial court's judgment legally deficient, and therefore, the High Court correctly overturned it for non-compliance with legal standards.
6. We have carefully heard the learned counsel for the parties and thoroughly examined the record made available in this case. The record reveals that the trial court, after completing the necessary proceedings, convicted the accused, Muhammad Taufeeq Kiani, under sections 420, 467, 468, and 471 of the Azad Penal Code. He was sentenced to seven years of imprisonment for each offense and fined Rs. 100,000/-, with an additional one year of simple imprisonment in case of default on payment of the fine. Furthermore, he was directed to repay Rs. 17,60,579/-received as salary from the government exchequer, however, the co-accused, appellants herein, were acquitted of all charges by the trial court benefiting from the principle of doubt. On appeal, the learned High Court set aside the entire judgment of the trial court and remanded the case for a fresh decision, instructing the trial court to reappraise the evidence thoroughly and address each argument raised by the parties in light of the observations recorded in the High Court's judgment. The appellants have now challenged the legality and correctness of the High Court's decision, arguing that there is no evidence on record to substantiate their alleged involvement in extending undue benefits to the main accused or deriving any personal advantage from his promotion. They contend that the promotion of Muhammad Taufeeq Kiani was processed routinely based on the recommendations of the duly constituted Selection Committee. Upon examining the case record alongside the arguments presented, it is evident that the main allegation against the appellants is that they abetted the main accused in securing a promotion based on a forged Intermediate Certificate. However, the record indicates that the main accused was initially appointed in 2003 as a Senior Clerk based on the same Intermediate Certificate. His subsequent promotion to the post of Senior Scale Stenographer (BS-14) was also based on the same Intermediate certificate. His subsequent promotion to the post of Senior Scale .Stenographer also based on the same certificate, this promotion was granted on the recommendations of a Selection Committee comprising the Secretary Local Government (Chairman), Director General Local Government (Member), and Deputy Secretary Local Government (Member/Secretary). The appellant, Manzoor Hussain, merely issued the promotion order in routine after receiving approval from the Selection Committee. In criminal cases, particularly those involving allegations of corruption and corrupt practices, the existence of mens rea (criminal Intent) is an essential element. The prosecution bears the burden of proving not only the involvement of the accused but also any illegal gain they may have received, either for themselves or for others, as a result of their actions. In this case, the prosecution has failed to prove any credible evidence to establish that the appellants gained any benefit for themselves, directly or indirectly, from the promotion of the main accused or that they acted with any unlawful intent. The trial court correctly observed that the prosecution did not meet its burden of proof with respect to the appellants. Without evidence of deliberate involvement or conscious wrongdoing cannot be held criminally liable. The mere issuance of a promotion order or the appellants' act to follow the procedural requirement in the matter, without any proof of corrupt intent or personal gain, does not fulfill the essential criteria for establishing criminal liability under the relevant statutes. Thus, the trial court's acquittal of the appellants appears to be well-founded, and the prosecution's failure to substantiate its allegations cannot justify interference with their acquittal.
7. It is pertinent to note that the learned High Court, while setting aside the trial court's judgment failed to articulate clear and well-reasoned findings to substantiate its conclusion that the trial court had wrongly acquitted the appellants. The appellants, having been acquitted by the trial court, now enjoy the double presumption of innocence, a principle deeply rooted in criminal jurisprudence. Superior courts have consistently held that interference in an appeal against acquittal is subject to strict limitations due to the reinforced presumption of innocence following an acquittal. This principle dictates that the presumption of innocence, which applies to every accused until proven guilty, becomes significantly strengthened upon acquittal. Courts are, therefore, cautious and reluctant to overturn acquittal judgments unless it is unequivocally demonstrated that the judgment is fundamentally flawed, patently unjust or devoid of logic. The burden of rebutting the presumption of innocence in such cases rests heavily on the prosecution. It must be shown with clarity and certainty that the trial court's judgment was not only legally unsound but also resulted in a grave miscarriage of justice. The mere possibility of a different conclusion upon reappraisal of the evidence is insufficient to warrant interference. The appellate court must be satisfied that the trial court's decision suffers from glaring legal and factual errors that render the acquittal unsustainable. The same principle has been laid down in the recent case of this Court titled M. Arshad and another v. M. Mushtaq and others[1], wherein, it has been held as under:"
"We have heard this case at a considerable length with the able assistance of the learned counsel for the parties and have thoroughly examined the evidence available on the record; an exercise primarily necessitated with reference to the acquittal appeal, and also to ascertain if the conclusions of the Courts below are against the evidence on the record and/or in violation of the law. In any event, before embarking upon scrutiny of the various pleas of law and facts raised from both sides, it is to be stated that the criteria of interference in the judgment against acquittal is not the same, as against cases involving a conviction. From the ratio of pronouncements of Superior Courts, it can be deduced that the scope of Interference in an appeal against acquittal is mostly narrow and limited, because in an acquittal the presumption of Innocence significantly added as per cardinal rule of criminal jurisprudence, that an accused shall be presumed to be Innocent until proven guilty; in other words, in cases of acquittal the presumption of innocence becomes double.
The courts are very diligent in Interfering with such an acquittal judgment, unless it is shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non- reading of the evidence; such judgments should not be lightly interfered with and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. It has been categorically held in plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must slow that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would have result into grave miscarriage of justice; the acquittal judgment is perfunctory or wholly unjust or a shocking conclusion has been drawn. Moreover, In number of dictas of this Court, it has been categorically laid down that such judgment should not be interjected until the findings are perverse, arbitrary, foolish, artificial, speculative and ridiculous. The Court of appeal should not interfere simply for the reason that on the re-appraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusions should not be except when palpably perverse, suffering from serious material factual infirmities[2]. The same view has been taken in judgment titled Muhammad Aslam v. Zaffar and others[3], and Ghulam Rasool and others[4], Yasmeen Ashraf and others v. Abdul Rasheed Garesta and others[5] and Abdul Majeed v. Muhammad Azmat and another."[6]
8. In light of the foregoing reasons, this appeal is partly accepted. The impugned judgment of the High Court is set aside to the extent of the appellants, who were acquitted of the charges levelled against them by the trial Court. Resultantly, the judgment of the Ehtesab Court No. 1, Muzaffarabad is upheld to the extent of acquitted appellants. However, with regard to Muhammad Taufeeq Kiani, the case has rightly been remanded to the trial court for a fresh decision. The learned trial court is directed to decide the matter independently, uninfluenced by the observations made in this judgment or those contained in the judgment of the High Court.
1. Crim. Appeal 32/2022, decided on 31.03.2023.
2. Agha Wazir Abbas and others v. The State and others [2005 SCMR 1175]
3. [PLD 1992 SC 1] [4][1999 SCMR 223]
5. [2018 SCR 661]
6. [2018 SCR 206]