Islamabad: The Supreme Court of Pakistan has ruled that a conviction in a criminal case cannot be sustained on the basis of speculation, assumptions or incomplete evidence, holding that an offence of criminal breach of trust under Section 409 of the Pakistan Penal Code (PPC) can only be established if the prosecution proves that the disputed money or property had been entrusted to the accused or was under his lawful control.
On these legal grounds, the apex court accepted the review petition of Dr. Waqar Hameed and set aside his conviction.
Justice Shakeel Ahmad authored the judgment on Criminal Review Petition No. 122 of 2019 on behalf of a three-member bench comprising Justice Malik Shahzad Ahmad Khan and Justice Aqeel Ahmed Abbasi.
The court held that the prosecution had completely failed to prove that the disputed government funds had ever been entrusted to Dr. Waqar Hameed or had come under his lawful possession. It observed that “entrustment” is an essential and indispensable ingredient of an offence under Section 409 PPC, and in its absence the offence of criminal breach of trust cannot legally be made out.
The judgment further noted that a co-accused in the same case had already been acquitted by the Lahore High Court on the basis of the same evidence. It held that where the prosecution case against co-accused persons rests on identical evidence, and there is no independent and reliable evidence against the remaining accused, the principles of justice, equality and consistency require a fresh judicial assessment.
The Supreme Court also observed that the prosecution relied upon a challan bearing disputed signatures, but no forensic examination of those signatures was ever conducted. The investigating officer himself admitted that he had merely “assumed” that the accused had deposited the amount. The court held that criminal convictions must be based on solid, reliable and conclusive evidence rather than conjecture, assumptions or guesswork.
The judgment further stated that the prosecution failed to establish who had withdrawn the money from the government treasury, in whose name the treasury token had been issued, who had submitted the documents to the treasury, and who had ultimately received the payment. According to the court, the prosecution’s failure to prove these fundamental facts fatally weakened its case, entitling the accused to the benefit of doubt.
The court also held that, during the recording of the accused’s statement under Section 342 of the Code of Criminal Procedure, Dr. Waqar Hameed was not confronted with the crucial evidence and documents relied upon against him, thereby depriving him of a meaningful opportunity to present his defence. Such a course of action, the court observed, was inconsistent with the constitutional guarantee of a fair trial.
The Supreme Court further held that Section 5(2) of the Prevention of Corruption Act, 1947 creates a separate and independent offence, each of whose legal ingredients must be proved independently. However, the trial court as well as the High Court had failed to examine this aspect in accordance with the law.
The court observed that although the scope of review jurisdiction is limited, it may be exercised where there has been a manifest error in the application of law, disregard of material evidence, or a serious miscarriage of justice. On these grounds, the Supreme Court allowed Dr. Waqar Hameed’s review petition, set aside his conviction and held that maintaining the conviction on such evidence would be contrary to the requirements of law and justice.