MUHAMMAD SALEEM JESSAR, J. By this single judgment we propose to dispose of above said two appeals as both appeals arise out of same judgment being impugned herein.
2. By means of Cr. Accountability Appeal No.D-42/2017 appellant Niaz Muhammad Jalbani son of Muhammad Bux has assailed his conviction and sentences awarded to him vide Judgment dated 31.03.2017 passed by learned Accountability Court Sukkur in Reference No. 20/2015 under sections 9 and 10 of National Accountability Ordinance 1999, whereby accused/appellant was convicted under section 10(a) of NAO, 1999 and sentenced to undergo R.I for 05 years and to pay fine of Rs.908,647/- (Rupees Nine Lacs Eight Thousand Six Hundred and Forty Seven Only) in terms of section 11 of NAO, 1999 and in case of default, the fine was ordered to be recovered as arrears of land revenue in terms of section 33-E of Ordinance ibid. It was also ordered by the trial court that since the accused Niaz Muhammad Jalbani has been convicted, as such he shall forthwith seize to hold public office, if any, held by him and the accused was further disqualified for a period of 10 years to be reckoned from the date he is released after his serving out the sentence from seeking or from being elected, chosen, appointed or nominated as member or representative of any public body or any authority or local authority or in service in Pakistan or any province as provided under section 15(a) of NAO, 1999. The accused was also prohibited to apply for or to be granted or allowed any financial institution in the public sector for a period of 10 years from the date of conviction as provided under section 15(b) of NAO, 1999. However, benefit under Section 382-B Cr.P.C was extended to him.
3. By the same judgment, accused Azizullah son of Abdullah Panhwar was acquitted by the trial court while extending him benefit of doubt. Through above said Cr. Accountability Acquittal Appeal No. D-74 of 2017, The State through Chairman National Accountability Bureau has challenged his acquittal.
4. Brief facts of the case, as disclosed in the reference, are that a pseudonymous complaint was received against accused No.1 Abdul Naeem Soomro and others, as shown in the reference.
Accused Abdul Naeem Soomro was subsequently discharged through Plea Bargain. It was alleged that said accused and other officials of Highways Division Kambar-Shahdadkot and government contractors, as shown in the reference, in connivance with each other, were involved in misuse of their authority and misappropriation of Government funds.
5. Upon receiving complaint and verification report, an inquiry was authorized by DG NAB Sukkur vide letter No. 720012/IW/COT/T-2/NABSK/2015/41 dated 1st April 2015 and during inquiry accused No. 3, 6, 8 and 10 (as shown in the reference) applied for VR for an amount of Rs.1,33,55,505/-. It is further stated that competent authority rejected the VR on the ground that it was made a practice that Government Officials used to opt for VR after committing embezzlement of huge amount.
Subsequently, inquiry was converted into an investigation vide letter No.720012/IW/CO/NAB Sukkur/2015/382 dated 25th June, 2015 and after filing of reference, all the accused persons entered into Plea Bargain and they were discharged through PB except accused Niaz Muhammad Jalbani and Azizullah Panhwar, whereas two other accused namely Qurbnan Ali and Muhammad Saleem were shown as absconders. During investigation, it revealed that accused Nos.1 to 14 (as shown in the reference) including absconding accused persons and accused persons discharged through PB were involved in misuse of their authority and misappropriation of funds amounting to Rs.15.913 Milli9n of Highway Division, District Kamber-Shahdadkot.
6. A formal charge against accused persons was framed at Ex. 10, to which they pleaded not guilty and claimed to be tried vide their pleas recorded at Ex. 11 to Ex. 13.
7. In order to prove its case, prosecution led evidence and examined PW-1 Abdul Jabbar Shah at Ex.14, who produced seizure memo in all 3 leaves as Ex.14/1 along with the vouchers in all 50 leaves.
PW-2 Muhammad Saleem, Accounts Clerk was examined at Ex, 15, who produced seizure memo in all 18 leaves along with the record which is in all 250 leaves as Ex.15/1.PW-3 Amir Hussain, Bank Manager was examined at Ex. 16, who produced seizure memo along with the bank document as Ex. 16/1 in all 56 leaves and one leave of seizure memo. PW-4, Sajjad Ali was examined at Ex.17: PW- 5, Qudratullah, .Bank Manager, UBL was examined at Ex.18, who produced the seizure memo along with the attested P.S. copies of bank documents in all 22 leaves as Ex. 18/1. PW-6, Abdul Muqeem XEN, Highway Division was examined at Ex. 19, who produced documents as Ex.19/2 in two leaves.
PW-7 Abdul Hafeez, Manager, Bank Al Islami was examined at Ex.20, who produced seizure memo along with 128 leaves of Bank record as Ex.20/1. PW-8 Kashif Noor, Investigating Officer, NAB Sukkur was examined at Ex.21, who produced Athorization letter of the inquiry as Ex.21/1, Original complaint along with P.S. copies of its enclosures as Ex.21/2 and other relevant documents as Ex.21/3 to Ex.
21/9.
8. Accused Niaz Muhammad Jalbani and accused Azizullah Panhwar in their statements under Section 342 Cr.P.C at Exs.24 and 25 respectively denied allegations levelled against them by prosecution and professed innocence. However, neither they got examined themselves on Oath, as provided under Section 340(2) Cr.P.C, nor produced any witness in their defense.
9. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing learned Advocates for the accused persons as well as Special Prosecutor NAB, trial Court, vide impugned judgment, convicted and sentenced appellant Niaz Muhammad Jalbani, as stated above while other accused namely Azizullah son of Abdullah Panhwar was acquitted of the charge. Appellant/convict Niaz Muhammad Jalbani has challenged his conviction and sentence by filing above Criminal Accountability Appeal while The State through Chairman NAB has filed above noted Cr. Accountability Acquittal Appeal against the acquittal of accused Azizullah son of Abdullah.
10. We have heard the arguments advanced by learned counsel for the parties and have perused the material made available before us on the record.
11. Learned Special Prosecutor NAB submitted that respondent Azizullah Panhwar in Crl.
Accountability Acq. Appeal was working in the department as senior clerk; therefore, alleged vouchers were prepared and duly signed by him; hence, he was responsible for the misappropriation as well as misuse of his authority, as such the trial Court has wrongly acquitted him of the charges. However, he could not controvert the fact that besides respondent Azizullah Panhwar, one Ahmed Raza and Riaz Hussain were also working as senior clerks; however, Ahmed Raza was not arrayed as accused or witness in this case. However, he insisted that trial Court has wrongly acquitted the respondent of the charges. He; therefore, submitted that by allowing the appeal against his acquittal, respondent Azizullah Panhwar may be convicted for alleged offences.
He placed reliance on the cases reported in 2020 MLD 1676 (Altaf Ahmed v. National Accountability Bureau) and 2018 PCr.LJ 797 (State through Prosecutor-General Accountability, NAB v. Ghulam Mustafa Randhawa and another).
12. Learned counsel for appellant Niaz Muhammad Jalbani submitted that appellant was Divisional Accounts Officer and his duty as well as role in the office was to forward the vouchers, so also the bills duly submitted before him by the subordinates and consequently the same were to be approved by the Executive Engineer. They further submitted that nowhere prosecution has produced any single document, showing the transfer of funds from Government account to his personal account and even no evidence was produced, showing that his existing properties were beyond his means or the income. They further added that some of the vouchers have been adduced pertaining to the year 2011; though he was posted as Divisional Accounts Officer in the month of April 2013. As far as bills or vouchers are concerned, learned counsel submitted that he was not Sanctioning Authority nor was "competent to visit the construction work, purportedly assigned to the contractors and even measurement was made and the bills were prepared and recommended by the Assistant Engineer and the Engineer was required to submit the bills as per directions of Executive Engineer. They further pointed out that out of eight (08) PWs, PWs Nos. 1, 2, 3, 5 and 7 have not deposed against appellant Niaz Muhammad Jalbani; therefore, entire evidence adduced by the prosecution -against him has become doubtful. In the circumstances, he should have been acquitted by the trial Court but the trial court has wrongly convicted him. They further referred to page No.467 of the paper book, where the witness has clearly deposed in cross- examination that the vouchers printed over form No.28 either were forged, fictitious or bogus and most of these forms did not contain original signature of accused Niaz Muhammad Jalbani. The witness has also admitted that the vouchers adduced in evidence were of the year 2012. They further submitted that prosecution has adduced secondary evidence as most of the documents were Photostats copies; therefore, secondary evidence has no evidentiary value and conviction cannot be based on the same. They placed reliance on the cases reported as 2021 SCMR 408 (Utility Store Corporation of Pakistan, through Managing Director Islamabad and another v. The State and others), 2016 PCr.LJ 643 (Mansoor Ahmed v. The State), 2021 PCr.LJ 99 (Masood Alam Niazi and others v. The State, through Chairman NAB), 2022 PCr.LJ Note 67 Gul and another v.
The State), and AIR 1994 SC 591. Learned counsel for the appellant have also referred the Sindh Delegation of Powers under the F.R, and the Powers of Re-appropriation Rules, 1962 and submitted that appellant was not Sanctioning Authority to sanction the bills or issue cheque at his own; therefore, finding of trial Court that the appellant allegedly had issued cheques in favour of the contractors, was immaterial and cannot be made basis for maintaining the conviction against him. Learned counsel further submitted that on same set of evidence co-accused Azizullah Panhwar was acquitted while appellant has been convicted which is contrary to the well settled principle enunciated by the Superior Courts. Learned counsel finally submitted that by allowing instant appeal, appellant Niaz Muhammad Jalbani may be acquitted of the charges.
13. In the first instance, we would like to deal with Crl. Accountability Appeal No.D-42 of 2017 filed by accused Niaz Muhammad Jalbani.
14. PW-1 Abdul Jabbar Shah, who was Head Clerk, Highway Kambar-Shahdadkot at the relevant time, in his entire evidence has not nominated appellant Niaz Muhammad Jalbani in the commission of alleged offence, rather he has named other accused persons who were discharged on the basis of plea bargain. It would be appropriate to reproduce herein the relevant portions from his evidence: "...The vouchers which I produced were prepared by accused Riaz Hussain Kalhoro who was the Store Keeper and Tender Clerk in Highway Division Kamber Shahdadkot. The vouchers which I produced bear the initials of accused Riaz Hussain Kalhoro. The vouchers which I produced also bear the signatures of Divisional Accountant, Altaf Hussain Memon and XEN Abdul Naeem Soomro....... . This illegal payment was made by accused Abdul Naeeem Soomro, Altaf Hussain Memon and Riaz Hussain Kalhoro......... I know the accused Azizullah and Niaz Hussain present in the court but they are not involved in the vouchers which I produced in court."
15. PW-2, Mohammad Saleem, Accounts Clerk, has deposed that above said Abdul Jabbar has produced record/relevant documents to the 1.0 in his presence.
16. PW-3 Amir Hussain, who was Bank Manager of SUMMIT Bank, "Larkana has deposed to the extent of opening the bank accounts by accused Qurban Ali and Mohammad Saleem wherein the son of acquitted accused Azizullah namely Asif Ali was shown as their next of kin. In his entire evidence, this witness has, not named accused Niaz Muhammad Jalbani.
17. PW-4 Sajjad Ali deposed in his evidence that at the relevant time he was working as Sub- Accountant in Highway Division. According to him, his function while posted in DAO Kambar- Shahdadkot was to subtract from the budget of Highway Division Kambar-Shahdadkot, the amount bills which were used to be placed before him by Division Accounts Officer Highway Division Kambar-Shahdadkot. He further deposed that he used to punch the bills of Highway Division into the SAP system on the zero level and thereafter level one was used by Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani as IDs were allotted to them directly by the Accountant General Sindh into the SAP System. He further deposed that the contractors were paid through the bills for Highway Division Kambar-Shahdadkot during the tenures of the then Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani. In his cross-examination, he admitted, "it is correct to suggest that I have not stated in my 161 Cr.P.C. statement regarding the usage of level one by the then divisional accounts officers namely Altaf Hussain and Niaz Jalbani. I do not know that as to who used to prepare the bill of highway division Qamber Shahdadkot. It is correct to suggest that firstly the ID is applied by the office of DAO and thereafter the divisional accounts officer used to apply his ID.
18. PW-5 Qudruttalh Shah, who was Manager of UBL, Jealous Bazar, Larkana at the relevant time, has only produced the bank record of two contractors namely Munawar Ali and Riaz Ahmed before the IO.
19. PW-6 Abdul Muqeem, who was Chief Engineer, Works and Service Department, Karachi at the relevant time has deposed in his evidence about the procedure relating to payment in respect of contracts regarding the work of different categories and payment of security deposit. He; however, admitted in his cross-examination, "It is correct to suggest that the vouchers of 28 are forged and fictitious. Majority of these forms do not contain the original signatures of accused Niaz.... It is correct to suggest that accused Niaz taken over the charge as Divisional Accounts Officer in 2013. It is correct to suggest that form 28 vouchers are of 2012".
20. PW-7 Abdul Hafeez, who was Hub Operation Manager, Bank Al-Islami Latifabad Branch, Hyderabad, at the relevant time, has only produced the bank record of five contractors namely Mumtaz Ali, Riaz Ahmed, Junaid Ahmed, Nabi Bux and Maqbool Ahmed before the I.O.
21. PW-8 Kashif Noor, Deputy Director/Investigating Officer NAB Sukkur in his evidence has stated in detail about the entire investigation conducted by him in instant case. His evidence is not direct but is based on the information given to him by other prosecution witnesses.
22. From the perusal of evidence of the prosecution witnesses, as narrated above, it seems that out of eight witnesses, in the evidence of four witnesses viz. PWs Nos.2, 3, 5, and 7, nowhere the name of accused/appellant Niaz Muhammad Jalbani finds mention, whereas PW No.1 namely Abdul Jabbar and PW No.6 namely Abdul Muqeem have made certain statements/admissions which are against the prosecution version and go in favour of the accused.
23. PW-1 namely Abdul Jabbar, who was working as Head Clerk in Highway Division, Kambar- Shahdadkot at the relevant time, does not say anything about accused Niaz Muhammad Jalbani, rather he has nominated three other accused namely Riaz Hussain Kalhoro, Abdul Naeem Soomro and Altaf Hussain Memon, who were discharged on the basis of plea bargain. According to him, the Illegal payment was made to the contractors by accused Abdul Naeem Soomro, Altaf Hussain Memon and Riaz Hussain Kalhoro. He has not named the present appellant/accused Niaz Muhammad Jalbani. He has clearly stated that the vouchers, which he had produced during his evidence, contained the signatures of accused Altaf Hussain Memon and Abdul Naeem Soomro. So far as the preparation of the vouchers in question is concerned, in this context, he has named accused Riaz Hussain Kalhoro who was store Keeper and Tender Clerk in Highway Division Kamber- Shahdadkot, the said vouchers also bear the initials of said Riaz Hussain. Not only this, but he has specifically exonerated appellant Niaz Muhammad Jalbani by deposing, "I know the accused Azizullah and Niaz Hussain present in the court but they are not involved in the vouchers which I produced in court."
24. Likewise, PW-6 Abdul Muqeem, who was Chief Engineer, Works and Service Department, Karachi has categorically stated in his cross-examination that the forms 28 vouchers in question were forged and fictitious. He further deposed that majority of the said forms did not contain the original signatures of accused Niaz. He also deposed that accused Niaz Muhammad Jalbani had taken over the charge in the year 2013 as Divisional Accounts Officer, whereas the said form 28 vouchers related to the year 2012.
25. In this view of the matte', it can safely be observed that the above said two witnesses i.e. PW-1 Abdul Jabbar and PW-6 Abdul Muqeem have not supported the case of prosecution so far as the allegations against appellant Niaz Muhammad Jalbani is concerned. Rather their evidence supports the version of the accused/appellant.
26. So far as the evidence of PW-4 Sajjad Ali, who was working as Sub-Accountant in Highway Division at the relevant time, is concerned, although in his evidence he has stated that level one was used by Divisional Accounts Officer namely Altaf Hussain and Niaz Jalbnani as IDs were allotted to them by the Accountant General Sindh into the SAP System. However, in his cross- examination this witness has admitted in clear terms that firstly the said ID was used to be applied by the office of DAO and thereafter the divisional accounts officer used to apply his ID, meaning thereby that said ID was also being in the knowledge and used of other persons working in the office of DAO. In this view of the matter, appellant Niaz Muhammad Jalbani alone, without inclusion of others, cannot be held to be responsible for using the said ID for any illegal purpose as alleged.
This witness has also improved/exaggerated his statement recorded under section 161, Cr.P.C. as he has himself admitted in his cross-examination that he did not state in his 161 Cr.P.C. statement regarding the usage of level one by the then Divisional Accounts Officers namely Altaf Hussain and Niaz Jalbani, whereas such fact has been stated by him in his deposition, which is also fatal to the prosecution case.
27. So far as the evidence of PW-Kashif Noor, I.O, is concerned, it may be observed that neither he was an eye-witness, nor was he working in the Highway Division but his evidence is based on the information given by the officials of Highway Division or bank employees. Furthermore, the trial court while dealing with the case of acquitted accused Azizullah, has disbelieved the evidence of this witness and has not given any weight to the same. In this view of the matter, suffice it to refer to the well settled principle of law that once the prosecution evidence is disbelieved with respect to a co-accused then it cannot be relied upon with regard to the other co-accused. In this connection, reference may be made to the cases reported as Muhammad Asif v. The State (2017 SCMR 486) and Umar Farooque v. State (2006 SCMR 1605).
28. It is also worthwhile to point out at this juncture that the trial court while convicting the present appellant, on the basis of same set of the evidence, has acquitted accused Azizullah who was working as Senior Clerk in the Highway Division at the relevant time and against whom the allegation was that he has misappropriated government funds and his liability was calculated to be more than the liability of accused Niaz Muhammad Jalbani. Needless to emphasize here that rule of consistency demands that if the trial court has disbelieved the evidence in respect of a co- accused, the same cannot be relied upon for convicting other accused. However, before referring to the dictum laid down by the Superior Courts on this point, it would be appropriate to examine the evidence of prosecution witnesses with a view to see as to whether aforesaid acquitted accused has also been assigned any role in the commission of alleged offence or not? The allegations against acquitted accused Azizullah Panhwar is that he in connivance with other accused persons prepared security deposit vouchers and illegal payment in fake schemes for payment to the contractors who are accused Nos.7 to 14 as shown in the reference amounting to Rs. 12,763,210/-. It is further alleged that he also appended his initial on the security deposit vouchers which formed basis of payment to contractor which resulted loss to government exchequer. It is also alleged that he facilitated the fake contractors in withdrawing the amount of security deposit. For that purpose he also used his son namely Asif who according to the evidence of PW-3 Amir Hussain Bank Manager, Summit Larkana was shown as next of kin of accused Qurban Ali and Muhammad Saleem who both were Government Contractors, in the documents at the time of opening their Bank accounts. PW-3 Amir Hussain also deposed that accused Azizullah also accompanied accused/contractor Qurban Ali in the bank at the time of opening his bank account.
The relevant portion from the evidence of PW-3 Amir Hussain is reproduced as under: "One Asif Ali son of Azizullah is shown as next of kin in the bank account of accused Qurban Ali and the supporting documents viz, bill of electricity is in the name of Azizullah inthe bank account of accused Qurban Ali. The next of kin shown in the bank account of Mohammad Saleem is shown as Asif Ali son of Azizullah and the bill of Sui Gas is provided by accused Mohammad Sakem is of Azizullah with his bank documents".
29. The fact that the said Asif Ali, son of accused Azizullah, was used by accused Azizullah himself in order to facilitate illegal payment to contractors, is also supported by the fact that at the time of opening bank account of the contractor, accused Azizullah was accompanying them in the bank, which is evident from the admission of PW-3 Amir Hussain, to the effect, "Accused Azizullah himself came to the bank and produced the SSGC Bill. I stated that account holder viz. accused Qurban Ali and Azizullah both came to the bank together".
30. From above, it is clear that even acquitted accused namely Azizullah was also implicated by the prosecution witnesses. On the point of 'rule of consistency,' it would be advantageous to refer to a judgment of Honourable Supreme Court passed in the case of Muhammad Asif v. The State reported in (2017 SCMR 486), wherein it was held as under:- "It is a trite of law and justice that once prosecution evidence is disbelieved with respect to a co- accused then, they cannot be relied upon with regard to the other co-accused unless they are corroborated by corroboratory evidence coming from independent source and shall be unimpeachable in nature but that is not available in the present case."
31. In another case reported as Umar Farooque v. State (2006 SCMR 1605), Honourable Supreme Court has held as under: "On exactly the same evidence and in view of the joint charge, it is not comprehendible, as to how, Talat Mehmood could be acquitted and on the same assertions of the witnesses, Umer Farooque could be convicted."
32. Yet in another case reported as Muhammad Akram v. The State (2012 SCMR 440), the Apex Court while holding that same set of evidence which was disbelieved qua the involvement of co- accused could not be relied upon to convict the act. used on a capital charge, acquitted the accused. In view of this legal position, applicant/convict/accused should also have been extended same benefit as given to the acquitted accused which was not done.
33. It is now well settled that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused.In the instant case, prosecution does not seem to have proved the allegations against the accused/appellant by producing unimpeachable evidence; thus, there creates doubts in the prosecution version. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134), it was held by Honourable Supreme Court as under: "In the criminal trial whereas itis the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."
34. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377), it was held by Honourable Supreme Court as under: "The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal."
35. No doubt, section 14(c) of National Accountability Ordinance, 1999, provides that in any trial of an offence punishable under clause (v) of subsection (a) of section 9 of the N.A.O, 1999, the fact that the accused person or any other person on his behalf, is guilty of the offence of corruption and corrupt practices and his conviction,, therefore, shall not be invalid by reason only that it is based solely on such a presumption, meaning thereby that the prosecution was not under obligation to prove the case against an accused and it was obligatory upon the accused to disprove the charges levelled against him. However, such presumption is subject to the condition that the prosecution shall first make out a "reasonable" case against the accused, which is apparent from the language used in the proviso to Section 14 which says; "Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or cause (vii) of subsection (a) of section 9."
36. Hence, notwithstanding the presumption contained in section 14(c) of the N.A.O., 1999, the initial burden of proof always rests on the prosecution. The prosecution is not absolved, in any circumstances, from proving its case against the accused beyond shadow of reasonable doubt and burden shifts to the accused only after the prosecution has succeeded in establishing the presumption of guilt against the accused.
37. In this context, reliance may be placed on the case reported as Mansoorul-Haq v. Government of Pakistan (PLD 2008 SC 166), wherein it was held as under: "The National Accountability Bureau Ordinance, 1999, no doubt a special law and prosecution having the advantage of the provision of section 14(a) of the Ordinance may not under heavy burden to discharge the onus of proving the charge as the Court may on discharge of initial burden of proving prima facie case by the prosecution raise a presumption of guilt but in the light of concept of criminal administration of justice, the prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under NAB Ordinance as the burden of proof is only shifted on the person facing charge if the prosecution succeeds in making out a reasonable case by discharging the initial ,burden of proving the charge. The provision of section 14(d) of the said Ordinance envisages that burden of proof is only shifted to the accused to rebut the allegations if the prosecution succeeds in establishing the preliminary facts to raise the presumption of guilt".
38. The Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607) having examined the provisions of section 14(d) of the Ordinance held as under:- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This interpretation appears to be reasonable in the context of the background of the Ordinance and the rationale of promulgation the same notwithstanding the phraseology used therein. The above provisions do not constitute a bill of attainder, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set up, it is necessary to issue the following directions for effective operation of section 14(d):
(1) The prosecution shall first make out reasonable case against the accused charged under section 9(a)(vi) and (vii) of the National Accountability Bureau Ordinance, 1999.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt".
39. Similarly, in the case of Pir Mazharul-Haq v. The State (PL) 2005 SC 63), the Hon'ble Supreme Court has held that section 14 of the Ordinance cannot be used, to undermine the well-established rule of law that burden to prove guilt of the accused initially is on the prosecution and it never shifts to the accused unless discharged through cogent and reliable evidence. The section does not affect the onus of proving the guilt of an accused which always rests on the prosecution and does not cast any burden on the accused to prove that no crime was committed, nor does it warrant the conclusion that if anything remains unexplained, then the accused to be held guilty. The relevant relevant extract from said judgment is reproduced herein below:- '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 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 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."
40. In the case reported as Rehmat v. State (PLD 1977 SC 515), it was held as under:- "Needless to emphasize that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. I' 's only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
41. It is also now well settled principle of law that for extending benefit doubt, presence of multiple circumstances creating doubt is not necessary and if there is a single circumstance, creating a reasonable doubt in prudent mind about the guilt of an accused, the accused will be entitled to its benefit as a matter of right. In the present case, there are various admissions in the evidence of the prosecution witnesses which create doubts and put dents in the prosecution case. Even an accused cannot be deprived of benefit of doubt merely because there is only single circumstance which creates doubt in the prosecution story. In this connection, reference may be made to the case of Muhammad Mansha v. The State reported in 2018 SCMR 722, wherein the Honourable Supreme Court held as under: "Needless to mention here that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt, if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of accused, then accused would be entitled to the benefit of such doubt, not as a matter of grace and concession but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervaiz v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)".
42. In view of above, we are of the opinion that prosecution has not been able to prove its case against appellant Niaz Mohammad Jalbani beyond shadow of reasonable doubt, as such he deserves to be acquitted of the charges levelled by the prosecution against him.
43. Now, adverting to the case of acquitted accused Azizzullah Panhwar against whom Cr.
Accountability Acquittal Appeal No.D-74 of 2017 has been filed by the State. It seems that the role assigned to him by the prosecution is that he in connivance with other accused persons prepared security deposit vouchers and illegal payment in fake schemes for payment to the contractors amounting to Rs. 12,763,210/-. It is further alleged that he also appended his initial on the security deposit vouchers which formed basis of payment to contractors which resulted loss to government exchequer. It is also alleged that he facilitated the fake contractors in withdrawing the amount of security deposit.
44. From bare perusal of the evidence of prosecution witnesses, it seems that out of eight witnesses; PWs No. 1, 2, 4, 5 and 7 have not deposed anything against the respondent (acquitted accused). So far as the evidence of PW No.3 namely Amir Hussain, Bank Manager, Summit Bank, Larkana, where accused/contractors namely Qurban and Muhammad Saleem got opened their bank accounts allegedly with the facilitation of accused Azizullah is concerned, it seems that in his cross-examination this witness has made certain admissions/contradictions which are fatal to the prosecution case and go in favour of the accused. In his examination-in-chief, he deposed that while opening the bank account, accused Qurban Ali and Muhammad Saleem produced Sui Gas Bills pertaining to accused Azizullah, whereas in his cross-examination he admitted that in his 161 Cr.P.C. statement he had mentioned that said two accused had produced electricity bills and not Sui Gas Bills. He further admitted that there was no written consent of accused Azizullah for production of gas bill in the bank account of accused Qurban and Muhammad Saleem and that he did not obtain the copy of CNIC of accused Azizullah for opening of the bank account of aforesaid two accused persons. He has also admitted in his cross-examination that there was no bank account of accused Azizullah in said bank.
45. So far as evidence of PW-6 Abdul Muqeem, who was Chief Engineer, Works and Services Department, Karachi, is concerned, in his examination-in-chief in the first instance he deposed, "The Divisional accounts were Altaf Memo' n and one Jalbani by caste whereas the senior clerk was Azizullah Panh war and Raza", however, in the same breath he contradicted himself by again saying. "Riaz Kalhoro and Ahmed Raza", meaning thereby that along with Raza (Ahmed Raza) the other senior clerk was Riaz Kalhoro and not accused Azizullah. In addition, in his cross-examination he made following admissions: "It is incorrect to suggest that there are no signatures of accused Azizullah in the documents which I produced but his initials are in the documents. Voluntarily say that there is no need of the signature of accused Azizullah in the documents which I produced. It is correct to suggest that I was not posted in District Kamber Shahdadkot at the time of incident. I am not expert to verify the signatures. I do not know that accused Azizullah was neither a bill clerk nor budget clerk and nor a account clerk at the time of incident. It is correct to suggest that there is no concerned of accused Azizullah Panh war with the transaction of amount involved in this reference. It is correct to suggest that accused Azizullah had not put his initial in my presence. It is correct to suggest that at the time of incident the DDO powers were not with accused Azizullah".
46. As per his own admission he was not posted at District Kamber-Shahdadkot at the time of incident. In this view of the matter, as to how it was possible for him to recognize the initial in the vouchers in question to be that of accused Azizullah. If he would have worked in District Kamber- Shahdadkot where the accused Azizullah was working then it could be presumed that he might have conversant and familiar with his signature/initial but when as per his own admission he was not posted in District Kamber-Shahdadkot then how could he verify the initials in question to be that of accused Azizullah.
47. This witness has also showed his ignorance as to whether accused Azizullah was or was not bill clerk, budget clerk or account clerk. He also admitted that there was no concern of accused Azizullah Panhwar with the transaction of amount involved in instant reference. Such admission on his part amounts to exonerating the accused of the charge/allegations levelled by the prosecution against him.
48. So far as the evidence of PW-8 Kashif Noor, Investigating Officer is concerned, be is not an eye- witness, nor was he working in the Highway Division but his evidence is based on the information given to him by the officials of Highway Division or bank employees. However, from perusal of his cross-examination, it seems that he has also made similar admissions with regard to the initial of accused Azizullah as made by PW-3 Amir. In addition, he also admitted that neither he is expert of recognizing the initials, nor he sent the initial, purportedly to be of accused Azizullah, to any expert for verification.
49. In view of admissions/contradictions made by above three witnesses as narrated above, their evidence does not come under the category of "unimp'eachahle evidence" which, as per settled principle enunciated by the Superior Courts, is the requirement to prove/establish the case against the accused beyond shadow of reasonable doubt. In this connection, reference may be made to the case of Muhammad Asif (supra).
50. Yet, there is another legal aspect of the case. The criteria for deciding an appeal against conviction and an appeal against acquittal of an accused, is totally different from each other, inasmuch as, it is settled principle of law that an accused before his conviction is presumed to be innocent and if after trial, he is acquitted, in such an eventuality he earns double presumption of innocence, thus, an acquittal judgment or order normally does not call for any interference and the same could be interfered with only in exceptional cases. In the case of Ahmed Omar Sheikh and others (2021 SCMR 873), it was held by a Full Bench of Honourable Supreme Court as under: "33. Admittedly the parameters to deal with the appeal against conviction and appeal against acquittal are totally different because the acquittal carries double presumption of innocence and same could be reversed only when found blatantly perverse, illegal, arbitrary, capricious or speculative, shocking or rests upon impossibility. If there is a possibility of a contrary view even then acquittal could not be set aside as has been settled in the cases of The State v. Khuda Dad and others (2004 SCMR 425). Muhammad Nazir v. Muhammad Ali and another (1986 SCMR 1441), Rehmatullah Khan v. Jamil Khan and another (1986 SCMR 941), Mst. Daulan v. flab Nawaz and another (1987 SCMR 497) and Gulzar Hussain v. Muhammad Dilawar and others (1988 SCMR 847)."
51. In the case of Sher Muhammad Khaskheli v. 2nd Assistant Sessions Judge and 6 others reported in 2021 YLR 1759, a Division Bench of this Court, while quoting various decisions of Honourable Supreme Court, has held as under: "8. The principles for appreciation of evidence in appeal against the acquittal are now well settled, for, an accused is presumed to be innocent and if after trial, he is acquitted, he earns double presumption of innocence and acquittal judgment or order normally does not call for any interference unless it is found arbitrary, capricious, fanciful, artificial, shocking and ridiculous and while evaluating the evidence, difference is to be maintained in an appeal from conviction and an acquittal appeal and in the latter case the interference is to be made only when there is none reading and gross mis-reading of the evidence, resulting the miscarriage of justice and on perusal of the evidence no other decision can he given except that the accused is guilty. Reliance in this context is placed on the case of Yar Muhammad and 3 others v. The State (1992 SCMR 96). The Hon'ble apex Court of Pakistan has observed that: "Unless the judgment of trial Court is perverse, completely illegal and on perusal of evidence no other decision can be given except that the accused is guilty or there has been complete misreading of evidence leading to miscarriage of justice, High Court will not exercise jurisdiction under section 417, Cr.P.C." It was further held that "in exercising this jurisdiction, High Court is always slow unless it feels that gross injustice has been done in the administration of criminal justice".
52. In the case of Muhammad Shafi v. Muhammad Raza and another (2008 SCMR 329), the Hon'ble Supreme Court of Pakistan has held that; "An accused is presumed to be innocent in law and if after regular trial he is acquitted he earns a double presumption of innocence and there is a heavy onus on the prosecution to rebut the said presumption. In view of the discrepant and inconsistent evidence led, the guilt of accused is not free from doubt, we are therefore, of the view that the prosecution has failed to discharge the onus and the finding of acquittal is neither arbitrary nor capricious to warrant interference.
The petition having merit is dismissed and leave is refused."
53. In the case of State/Government of Sindh through Advocate General, Sindh, Karachi v.
Sobharo (1993 SCMR 585), the Hon'ble Supreme Court of Pakistan has held that; "while evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice."
54. In the case of Muhammad Yaqoob v. Manzoor Hussain and 3 others (2008 SCMR 1549), the Hon'ble Supreme Court has held that; "It needs no reiteration that when an accused person is acquitted from the charge by a Court of competent jurisdiction then, double presumption of innocence is attached to its order, with which the superior Courts do not interfere unless the impugned order is arbitrary, capricious, fanciful and against the record. It was observed by this Court in Muhammad Mansha Kausar v.
Muhammad Asghar and others 2003 SCMR 477 "that the law relating to re-appraisal of evidence in appeals against acquittal is stringent in that the presumption of innocence is double and multiplied after a finding of not guilty recorded by a competent Court of law. Such finding cannot be reversed, upset and disturbed except when the judgment is found to be perverse, shocking, alarming, artificial and suffering from error of jurisdiction or misreading/non-reading of evidence ....... .law requires that a judgment of acquittal shall not be disturbed even though second opinion may be reasonably possible."
55. In the case of State and others v. Abdul Khaliq and others (PLD 2011 SC 554), Hon'ble Supreme Court has held that; "The scope of interference in appeal against acquittal is most narrow and limited, because in an acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty; in other words, the presumption of innocence is doubled. The courts shall be very slow 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 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 a plethora of judgments that interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and fact committed by the Court in arriving at the decision, which would result into grave miscarriage of justice; the acquittal judgment is perfunctory of wholly artificial or shocking conclusion has been drawn. Moreover, in a number of dictums 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 upset, except when palpably perverse, suffering from serious and material factual infirmities".
56. In view of above, it can safely be held that the trial Court has rightly acquitted the accused namely Azizullah; thus, the acquittal order does not call for any interference by this Court.
57. The upshot of above discussion is that;
(i) Criminal Accountability Appeal No.D-42 of 2017 is allowed, consequently, impugned Judgment dated. 31.03.2017 passed by learned Accountability Court Sukkur in Reference No. 20/2015 for Offences under sections 9 and 10 of National Accountability Ordinance 1999, whereby appellant Niaz Muhammad Jalbani was convicted and sentenced, as stated above, is hereby set aside.
Resultantly, the appellant Niaz Muhammad Jalbani is acquitted of the charges. He is on bail, his bail bond is forfeited and surety stands discharged;
(ii) Criminal Accountability Acquittal Appeal No.D-74/2017 filed by the State through Chairman NAB is hereby dismissed and the acquittal order passed by the trial court vide impugned judgment to the extent of accused Azizullah Panhwar is hereby maintained.