The Accountability Court No II, Rawalpindi/Islamabad, has acquitted the Chief Executive and two Directors of ARY Traders in Reference No 23/2000. The acquittal, on Wednesday was under section 265-K of the Criminal Procedure Code (Cr.P.C.).
The accused No 5 to 7 ie Abdul Razaq Yaqoob, Jan Muhammad and Abdul Rauf were acquitted for the following reasons: The case against the principal accused No 1 to 4, who included Asif Ali Zardari, Salem Hayat Qureshi and Jawed Talat, had been withdrawn and stood terminated under Section 33-F of NA Ordinance 1999.
-- MCB has already lost its case against ARY in a Dubai Court.
-- The Special Prosecutor on behalf of NAB, Abdul Baseer Qureshi, conceded that after withdrawal and termination of proceedings against the principal accused, the proceedings against the petitioners also stand abated.
THE TEXT OF THE ORDER IS AS FOLLOWS: State Vs. Abdul Razaq Yaqoob etc.
Reference No 23/2000
-- 14.05.2008 Present: Mr Abdul Baseer Qureshi, Senior Special Prosecutor for the State. Mr Muhammad Ashraf Khan, Advocate and Malik Pervez Akhtar, Advocate on behalf of the petitioners.
ORDER: The instant application has been moved by the accused No 5 to 7 ie Abdul Razaq Yaqoob, Chief Executive, ARY Traders, Jan Muhammad and Abdul Rauf, Directors, ARY Traders u/s 265-K Cr.P.C. read with Section 33-F NA Ordinance 1999. Arguments on the petition have been heard.
The learned counsel for the petitioners argued that in the instant case the proceedings against the principal accused Mr Asif Ali Zardari and the other holder of public office stand withdrawn and terminated u/s 33-F of NA Ordinance 1999. The petitioners are the co-accused in this case who are at the most beneficiaries.
There is no incriminating evidence on the record against the petitioners. The learned counsel also referred to the case of Mr Shafi M. Sehwani in which the Lahore High Court vide judgement dated 04.05.2005 had observed as under:
"Since the Chief culprit, namely Shafi M. Sehwani who by misusing his authority allotted the said plot, has since died on 01.01.2005 and reference against him and Mst. Saeeda Shaheen Naizi who died on 27.10.2003 stands abated by the Accountability Court. Though the petitioner have not been arrayed as respondent in the reference, however, if after the filing of the reference she has been implicated as co-accused, the reference to her extent shall also stand abated".
The learned counsel for the petitioners argued that there is no probability of the accused being convicted due to the fact that the principal accused have already been acquitted as a result of withdrawal and termination of proceedings against him by operation of law.
The learned counsel for the petitioners produced photocopy of the judgement passed by the court of competent jurisdiction at Dubai in respect of the disputed amount of 10 millions US$ allegedly received by Mr Asif Ali Zardari as kickbacks/commission from M/s ARY Gold for issuing a monopolistic license for import of gold. The learned counsel maintained that the said amount was declared, to be legal and the case was decided against MCB and in favour of ARY Gold by a Dubai Court.
He also referred to 1997 Supreme Court 275, 1994 SCMR 798 and 1993 SCMR 523 and maintained that the petition u/s 265-K Cr.P.C. can be moved at any stage and the petitioners are liable to be acquitted u/s 265-K Cr.P.C. In the instant case the proceedings have to be considered in totality and after withdrawal and termination of proceedings against the principal accused, the petitioners cannot be convicted for the offence.
It will be a futile exercise to proceed further with the case as there is no probability of the petitioners being convicted for the offence. No PW out of five PWs so far examined has implicated the accused/petitioners in the commission of offence. Those whose who framed the policy or who allegedly received the benefit have already been acquitted.
So it would be discriminatory treatment between the persons with similar allegations. The learned counsel prayed for acquittal of the accused u/s 265-K Cr.P.C. Mr Abdul Baseer Qureshi, learned Senior Special Prosecutor appearing on behalf of NAB has almost conceded the contention of the learned counsel for the petitioners and he argued that proceedings in the case against all the accused persons are inseparable whether the same are against the holders of public office or the private persons arrayed as co-accused.
He further conceded that after withdrawal and termination of the proceedings against the principal accused there is no probability of the conviction of the petitioners. Referring to the above mentioned Shafi Sehwani case he conceded that after the withdrawal and termination of proceedings against the principal accused, the proceedings against the petitioners also stand abated.
Keeping in view the contentions of the learned counsel for the petitioners and those of learned Senior Special Prosecutor there is no probability of the petitioners being convicted after the termination of proceedings against the principal accused. The result is obvious and there is no likelihood of the conviction of the petitioners as the prosecution is not going to contest the case seriously.
In such circumstances, when the prosecution considers the proceedings against the principal accused and the petitioners inseparable and does not want to prosecute them, it would be futile exercise to proceed further with the case because the evidence is to be produced by the prosecution to prove the offence against the petitioners. In these circumstance, the petition is accepted and the petitioners are hereby acquitted u/s 265-K Cr.P.C. in view of the contention of the parties and in the circumstances of the case.
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