1. This acquittal appeal at the instance of Chairman, National Accountability Bureau (hereinafter referred to as NAB) is directed against the judgment dated 10-8-2002 passed by the learned Judge, Accountability Court No,11, Sindh, Karachi, in Reference No,19 of 2002, whereby the respondents have been acquitted. Briefly stated the facts alleged by the prosecution, as gleaned from the Memo. Of Appeal, are that, in the year 1995, accused late Sajjad Hussain, while serving as Chairman, Pakistan Steel Mills, abused his official position as holder of public office. He granted unwarranted advance of Rs,40 millions to a Contractor co-accused M. Asif of Mercury Corporation. The respondents in this appeal were also holders of public office and were working as subordinates to the Chairman, Pakistan Steel Mills. They carried out the illegal order of the Chairman, Pakistan Steel Mills and thereby facilitated payment of Rs,40 million to co-accused M.Asif. In this manner the respondents, co- accused late Sajjad Hussain and M.Asif caused loss to Pakistan Steel Mills. All the five accused persons were challaned to face trial in the Court of learned Special Judge, Anti-Corruption (Central) Karachi, for the offences punishable under sections 409/109/34 P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The case was subsequently, transferred from the Court of Special Judge, Anti-Corruption to the Accountability Court No,II, Karachi. The beneficiary, namely accused M. Asif could not be arrested and was declared absconder by the trial Court.
2. Accused Sajjad Hussain, the then Chairman, Pakistan Steel Mills, who granted the advance of Rs,40 million to the absconding accused M.Asif, died during the pendency of proceedings, with the result that the case abated against him. After the transfer of case to Accountability Court accused M.Asif entered into a settlement with the Pakistan. Steel Mills and Chairman, National Accountability Bureau, whereby be agreed to refund/recompense the Pakistan Steel Mills, the amount of Rs,40 million along with penalty/mark-up. In pursuance of the deal struck between the co-accused M.Asif, who was beneficiary of the alleged corruption, the National Accountability Bureau Authorities and the Pakistan Steel Mills, the NAB Authorities withdrew the case against him under section 31-B of the National Accountability Bureau Ordinance. The learned Judge Accountability Court, after allowing the prosecution to withdraw the case against accused Muhammad Asif, acquitted the respondents as well, holding as follows:-- "Mere lapses attributed to officials in the absence of any gain, benefit or favour obtained for themselves or any other person do not fall in the ambit of offence or corruption but irregularities which could be dealt through departmental action as there is no link between the absconding accused Muhammad Asif and the officials accused receiving any undue benefit, gain or favour from him as the prosecution has not brought such evidence on record so also the Steel Mills had been compensated the loss caused by accused Muhammad Asif by the accused M.Asif therefore, application moved by the Deputy Prosecutor General Accountability Mr. Anwer Tariq under section 31-B of the National Accountability Bureau Ordnance, 1999, along with the settlement deal signed and executed on 13th June of 2002 by the parties is accepted consequent whereupon this point is adjudicated in negitive. The accused Syed Mazhar Alam son of Syed Badrul Waheed, accused S.N.
3. Abbassi son of Nabi Bux Abbassi and accused M.Israil Khan son of Muhammad Kafoor Khan are acquitted they are on bail their bail bonds are cancelled." Being aggrieved with the acquittal of respondents, the Chairman, National Accountability Bureau, has preferred this appeal. We have heard Mr.M.Anwar Tariq, learned DPGA for the appellant. Mr. M.Anwar Tariq has submitted that, the amount of Rs,40 million paid to co-accused Asif was sanctioned by late accused Sajjad Hussain, the then Chairman, Pakistan Steel Mills, Corporation and the respondents had facilitated the payment of said amount to co-accused Asif by obeying the orders of the then Chairman, Pakistan Steel Mills, without lawful justification. He is not able to deny that. The main accused were the then Chairman, Pakistan Steel Mills namely late Sajjad Hussain against whom the case has abated and M.Asif with . Whom the National Accountability Bureau Authorities/Pakistan Steel Mills have entered into settlement and the entire loss caused due to the compliance of illegal order on the part of respondents has been made good. In the application under section 31-B, NAB, Ordinance, at the instance of Prosecutor-General Accountability, seeking withdrawal against the absconding accused M.Asif, it is clearly stated that, M.Asif has made good loss caused by him to the Pakistan Steel Mills and since he has made good loss therefore, the Prosecutor General Accountability considers it to be in the interest of justice to withdraw from the prosecution of absconding accused M.Asif. The learned DPGA was confronted with the contents of F.I.R. According to which the respondents in this appeal are alleged to have facilitated the extending of advance payment of Rs,40 million to the absconding accused M.Asif. There is no allegation that, they themselves got any monitary benefit in the transaction. The main thrust of arguments advanced by Mr.M.Anwar Tariq is that notwithstanding, the payment of entire amount by absconding accused M.Asif and withdrawal of the case against him by the National Accountability Bureau, the respondents shall not be absolved of their criminal liability.
4. We have considered the contentions of Mr.M.Anwar Tariq, learned DPGA, in the perspective of established principles pertaining to the admissibility of appeals against the acquittals. The established principle which governs the acquittal Appeals is that, with the acquittal of an accused person by the trial Court, a double presumption of innocence accrues in his favour. The consistent view of the superior Courts is that. Prosecution is required to show very strong reasons before an appeal against acquittal is admitted to regular hearing. After hearing the learned DGPA and giving a very anxious consideration to his contentions and the material placed on record, we are not persuaded to agree with the contention of learned counsel for the NAB Authorities that, it is a fit case for admission. The reason being that, the purpose of enacting National Accountability Bureau Ordinance as contained in the preamble of the Ordinance itself, is to eradicate corruption and corrupt practices and to hold accountable all those persons accused of such practices and matters ancillary thereto. The National Accountability Bureau has been set up to achieve the above purpose and with the aim of recovering outstanding amounts from those persons who have committed default in the payment of amounts to banks, financial institutions, Government and other agencies and the recovery of State money and other assets from those persons who have misappropriated or removed such assets through corruption, corrupt practices and misuse of power and/or authority. Keeping these aims and proposes in view, a plea was taken by the Federation of Pakistan before the Hon'ble Supreme Court in the case of Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 that, "One of the objectives of the National Accountability Bureau Ordinance, is the retrieval of the looted public money". It appears that keeping this purpose in view the National Accountability Bureau Authorities, submitted before the Accountability Court in the application under section 31-B Ordinance, that accused M.Asif has made good the loss caused by him to the Pakistan Steel Mills, therefore, the Prosecutor General Accountability, considers it to be in the interest of justice to withdraw from the prosecution of the case against M.Asif. We find, no reason as to why this principle of interest of justice should not be extended to the respondents who neither sanctioned the advance nor they were beneficiary of the money advanced by the then Chairman, Pakistan Steel Mills to the co-accused M.Asif. The National Accountability Bureau Authorities have gone to the extent of withdrawing the case and securing the discharge of 'absconding accused M.Asif without asking him to surrender before the Accountability Court, which by any stretch of imagination, is a matter of great favour to him. If such magnanimity can be shown to an accused person who is the actual beneficiary of the alleged corrupt practices and is fugitive at law having remained absconder till conclusion of case, there cannot be any earthly reason for denying the benefit of acquittal to the respondents who have at the most complied with the orders of their superior without any allegation whatsoever, of deriving any monetary benefit. The law of consistency and the rule of justice and equity requires that, the Court should act in furtherance of justice without any discrimination. The order of acquittal recorded by the learned Accountability Court appears to be in consonance with the principles of justice and therefore, we are, not inclined to interfere with the order which does not suffer from any illegality or miscarriage of justice. In case of Khan Asfandyar Wali (supra) the Hon'ble Supreme Court has taken notice of the fact that, "in the interest of good governance the officials performing their acts in good faith should be protected otherwise they would be reluctant to take decision and/or avoid or prolong the same on one pretext or another, which would ultimately lead to paralysis of State-machinery and such a course cannot be countenanced by the Supreme Court".
5. The Hon'ble Supreme Court further expressed need for protection to such officials where there was no direct evidence of any corrupt motive or of any illegal gain. In the present case, the prosecution has no evidence direct or indirect to establish any personal gain on the part of the respondents. For the foregoing reasons, the judgment of acquittal recorded by the learned Accountability Court in respect of the respondents is hereby upheld and the acquittal appeal at the instance of National Accountability Bureau, stands dismissed in limine. After hearing Mr.M.Anwar Tariq, learned DPGA on 30-8-2002, the appeal was dismissed by short order. These are the detailed reasons in support thereof.