Fake degree case: IHC allows FIA's appeal against acquittal of Shoaib, others

The Islamabad High Court (IHC) on Wednesday accepted Federal Investigation Agency's appeal against the acquittal of Shoaib Sheikh and other accused in the fake degree scandal and dismissed the trial court's verdict to acquit them. A division bench of IHC comprising Justice Athar Minallah and Justice Miagul Hassan Auranzeb announced its verdict in FIA appeal against acquittal of Axact officials and directed the sessions judge Islamabad to decide the matter afresh.
During the hearing, Babar Awan, Raja Rizwan Abbasi, Sher Afzal and Haroon Rashid had appeared before the court on behalf of Axact officials while Hamid Ali Shah represented the FIA before the court. It was October 31, 2016 when Additional Sessions Judge Pervezul Qadir Memon had acquitted the officials from the fake degree scandal and later the same judge was sacked on February 15, 2018 due to his admission of receiving five million rupees bribe for acquitting the accused persons.
Deputy Attorney General (DAG) Raja Khalid Mehmood representing the federal government submitted before the court that the judge who acquitted 27 Axact officials has been sacked due to his admission of receiving bribe and, therefore, the fake degree scandal needs to be tried afresh under the law. The DAG mentioned the Supreme Court judgments while saying that the apex court has ruled that in such circumstances where adjudication of a matter is not done as per law, it needs to be tried afresh.
In the present appeal, the FIA through its deputy director Cyber Crime Circle in February 2017 had challenged the acquittal of 27 officials of the Axact. The petitioner FIA cited Director/Chief Executive Officer (CEO) Axact Shoaib Sheikh, his wife Ayesha Shoaib and 25 others as respondents. The FIA in its appeal, filed under section 417 Criminal Procedure Code (CrPC) against the Additional Sessions Judge Islamabad Pervaizul Qadir Memon's judgment through which all the 27 persons were acquitted, maintained that the judgment was a result of misreading.
Deputy Attorney General Raja Khalid Mahmood and ASC Syed Hamid Ali Shah appeared on behalf of the state. They had mainly argued that since the major penalty of removal from service had been imposed upon the presiding judge, namely Pervaiz-Ul-Qadir Memon, for admitting his guilt regarding accepting illegal gratification which had led to the impugned judgment, therefore, the appeal on this sole ground was liable to be allowed.
They, however, have unambiguously stated that the trial proceedings, from the framing of the charge till the conclusion of the evidence, did not suffer from any illegality or irregularity. They have also explicitly stated that the proceedings to the extent of recording of evidence were not tainted with bias. They have urged that the proceedings may, therefore, remain protected in case the matter is remanded for decision afresh.
On the other hand, the learned counsel appearing for the respondents/accused, namely Dr Babar Awan, Raja Rizwan Abbasi, Haroon ur Rashid, and Sohail Akhtar were also heard at great length. It was their case that since the presiding judge who had conducted the trial and had rendered the impugned judgment has filed an appeal against notification, dated 15-02-2018, therefore, the instant appeal be decided on merit. They have strongly denied that the respondents had given or made any attempt of giving illegal gratification to the presiding judge for procuring an order of acquittal.
They have stressed that the proceedings against the respondents were initiated at the behest of other competitors of the company. It is their case that the respondents were victims of unfounded propaganda and, therefore, the remand of the instant matter to the learned trial court for decision afresh would prejudice their rights. They have contended that unless it could be established beyond doubt that the respondents had been guilty of giving illegal gratification to the presiding judge, this factor must not be taken into consideration for deciding the instant appeal.
The division bench noted in its verdict, "It is not denied that the presiding judge who had conducted the trial and thereafter had rendered the impugned judgment, dated 31-10-2016, was proceeded against and removed from service vide notification, dated 15-02-2018, pursuant to the imposition of the major penalty by the competent authority. The relevant portions of the notification, dated 15-02-2018, have been reproduced above.
The disciplinary proceedings which had led to the imposition of the major penalty were regarding the allegation of accepting illegal gratification for the acquittal of the respondents in the case titled "The State vs Shoaib Ahmad Sheikh and others." The presiding judge had admitted his guilt and, therefore, the major penalty of removal from service was imposed upon him."
It added, "There is no force in the argument raised by the learned counsels for the respondents/accused that the factor of pecuniary interest of the presiding judge must not be taken into consideration unless the same stands established, particularly when he has preferred an appeal contesting his removal from service. The notification, dated 15-02-2018, is in the field and, therefore, to the extent of the presiding judge who rendered the impugned judgment, his pecuniary interest in the instant case stands established."
The verdict said, "We, therefore, allow the appeal and consequently set aside the impugned judgment, dated 31-10-2016. The respondents/accused shall surrender before the learned Sessions Judge, (West) Islamabad. The learned Sessions Judge, (West) Islamabad is expected to afford an opportunity of hearing to the parties and thereafter decide the matter afresh.
It is obvious from the impugned judgment, dated 31-10- 2016, that the respondents were on bail and that their bail bonds were cancelled and sureties discharged. The respondents, therefore, shall remain on bail and furnish fresh sureties to the satisfaction of the learned Sessions Judge, (West) Islamabad." An FIR was lodged against all the respondents on June 7, 2015 under sections 419, 420, 468, 471, 473, 109/34 and section 4 of Anti-Money Laundering Act 2010.