WAHID BUX BROHI, J.---Appellant Ramesh M. Udeshi has preferred this appeal against the judgment dated 15-7-2000 whereby the National Accountability Court No,1, Province of Sindh, Karachi found the appellant guilty of an offence under section 9 of the National Accountability Bureau Ordinance and awarded him punishment of rigorous imprisonment for 7 years and fine of Rs,200,000 under section 10 thereof. In case of non-payment of fine he was ordered to further undergo simple imprisonment for one year.
2. This case arises out of Reference No,21 of 2000 made by the Chairman, NAB. Facts of the case can, be gathered, inter alia, from the summary floated by the appellant on 22-3-1994 for the Chief Minister. The appellant, at the relevant time was Secretary, Land Utilization Department, Board of Revenue, Government of Sindh. He received an application from co-accused Noor Muhammad Dhari wherein the said applicant stated that an area of 63.6 acres of land had been leased to him for mining purposes for 30 years by the Land Department and he has picked up some limestone from there and levelled 50 acres thereof. Since he planned to establish a marble industry, he requested that 50 acres of land be converted to industrial/commercial purposes for 99 years. The appellant called for a report from the Deputy Commissioner, Karachi Central and on the basis of his report floated a summary for the Chief Minister in which he mentioned that the Deputy Commissioner has proposed that an area of 36 acres i.e, 5 acres of Block-A in Deh Babrano and 31 acres of Block-C in Deh Khari Lakki can be available for disposal after quarrying the limestone by the applicant, and that the rate of Rs,1,000 to Rs,1,500 per sq. yd. being the market value may be charged. The appellant proposed that the applicant's request may be considered at the appropriate rate to be fixed in consultation with the Finance Department, as provided under the Rules of Business.
3. With the above proposal the summary was routed, in due course, through all concerned. The Secretary, Industries Department, the Finance Secretary and the Advisor to Minister for Finance recorded, t r notes, en route, but the Chief Secretary marked the summary back to the appellant emphasizing that specific recommendation of Commissioner Karachi be obtained. The appellant again returned the summary on 27-4-1994 with his note that the Commissioner Karachi and Additional Commissioner-II, Karachi were approached by him, but they have not done the needful.
The Chief Secretary forwarded the summary to the Chief Minister with specific recommendation that para.6 of the summary read with par-a.10 be approved. Accordingly, the Chief Minister,' on 27- 4-1994 passed an order approving para.6 of the summary.
4. Later on, co-accused Noor Muhammad Dahri again approached the appellant with a request for reducing the rate as it was exorbitant. The appellant reprocessed the summary recording his note at paras.16 to 19 specifically mentioning that at least to four persons the land in adjoining locality has been granted at the rate of Rs,25 per sq. yd. The summary was routed through Chief Secretary,. who suggested that the price may be fixed somewhere in between. The Chief Minister fixed the rate at Rs,30 per sq. yd. in relaxation of rules and policy. Thereafter, on the request of Noor Muhammad Dahri the appellant allowed him the facility of payment in instalments.
5. The NAB was of the view that despite existing ban and in violation of Rules of Business of Government of Sindh and in collusion with the appellant the then Chief Minister had favoured the beneficiary Noor Muhammad Dahri, accused No,3 in getting conversion of mining lease from 33 years to 99 years for commercial and residential purposes and thereby caused loss to the National Exchequer to the tune of Rs,25,27,46,400 and as such committed an offence as defined in clauses
(i) and of clause (a) of section 9 of the National Accountability Bureau Ordinance, 1999 (hereinbelow to be referred to as 'NAB Ordinance'). Accordingly, a reference was filed on which the Accountability Court took cognizance.
6. The then Chief Minister, accused No,1 was declared proclaimed offender, while the charge was framed against the appellant and the beneficiary Noor Muhammad Dahri; the latter, however, entered into plea bargaining and made an application under section 25 of the NAB Ordinance which was allowed with the consent of the Chairman, NAB in consequence whereof the land in question viz. 36 acres was surrendered to the Government and the amount of Rs,26,13,600 deposited for conversion was forfeited and the accused, namely Noor Muhammad Dahri was disqualified for 21 years within the meaning of proviso to section 15(a) of the NAB Ordinance.
7. The trial proceeded against the appellant alone and the prosecution examined 3 witnesses namely: P.W.1 Abdul Jabbar, Assistant in the Board of Revenue (Land Utilization) Department, Government of Sindh; P.W.2 Sikandar Ali Noonari, Mukhtiarkar, District Central; and P.W.3 Syed Aftab Ali Shah, Inspector, Anti-Corruption Establishment, Karachi, the officer, who produced all the relevant documents. Statement of the appellant. was recorded under section 342, Cr. P .0 . wherein he denied the allegations of prosecution, but did not lead defence. The learned Accountability Court, after hearing the counsel for parties, passed the aforementioned judgment convicting the appellant and awarding him the sentences mentioned earlier.
8. We have heard Ms. Ismat Mehdi, learned counsel for appellant and Mr. M. Anwar Tariq, learned Deputy Prosecutor-General for NAB.
9. "Learned counsel for appellant contended that the Accountability Court framed 5 points for determination out of which only points Nos.3 and 4 were relevant for the purpose of the case of appellant and both these points were answered and assessed wholly on miscalculation of legal position and in disregard of the evidence on record. She contended that the case entirely depended upon the summary floated by the appellant and a plain reading of the summary would show that no illegality was committed by the appellant. She further emphasized that the record bears the fact that no benefit was acquired by the appellant nor was he, in any manner, related to or interested in the beneficiary. Mr. M. Anwar Tariq, learned Deputy Prosecutor-General for NAB submitted that the appellant had failed to call for fresh report from Deputy Commissioner or to adopt the procedure of auction of the land as laid down in statement of conditions and that with the connivance of the appellant, despite the rate of Rs,1,500 per sq. yd., the conversion was allowed at the rate of Rs,30 only.
10. We have given our full and anxious consideration to the arguments made by the learned counsel and minutely perused the record. The points for determination framed by the learned trial Court related to all the accused persons and only points Nos.3 and 4 were relevant for the purpose of the case of appellant, which are reproduced below:-- "(3) Whether accused Ramesh M. Udeshi being responsible officer of Board of Revenue/Secretary Land Utilization in connivance with absconding accused Syed Abdullah Shah, the then Chief Minister, Sindh and with accused Noor Muhammad Dahri fraudulently and with criminal intent to provide wrongful gain to accused Noor Muhammad Dahri and to cause loss to the Government floated favourable summary dated 22-3-1994 for allotment/conversion of 36 acres of land into commercial/industrial in. violation of law/existing Government policy existing ban ant in violation of Sindh Government Business Rule 28, at the rate of Rs,1,500 per sq. yd. and then to further showering favouritism on accused Noor Muhammad Dahri resubmitted summary at his instance at the rate of Rs,25 per sq. yd. which was approved by absconding accused No,1 at Rs,30 per sq. yd. and accused Ramesh M. Udeshi then allotted the same vide order dated 21-7-1994 at the rate of Rs,30 per sq.yds.?
(4) Whether accused No,2 Ramesh M. Udeshi in connivance with absconding accused No,1 malafidely and dishonestly caused wrongful gain to the accused No,3 (beneficiary) through abatement and favouritism on one hand causing colossal loss to the National Exchequer amounting to Rs,25,87,46,400 which tantamount to the corruption and corrupt practices?"
11. A perusal of the above points, on a plain understanding, would lead to a definite conclusion that the case hinges only on the summary floated by the appellant and it is to be examined if it was in violation of the Sindh Government Rules of Business, 1986 or he had otherwise colluded in causing loss to the National Exchequer by getting an order from the Chief Minister allowing conversion at the rate of Rs,30 instead of Rs,1,500 per sq. yd. in favour of Noor Muhammad Dahri, the beneficiary. It is to be borne in mind that as already pointed out in the facts of the case, the land in question has already been surrendered by the beneficiary on plea bargaining under section 25 of the NAB Ordinance and one step further has been taken by forfeiting the portion of price of the land viz. Rs,26,13,600 deposited by Noor Muhammad Dahri. For all practical purposes, presently, there is no loss to the National Exchequer and even an additional amount of Rs,76,13,600 deposited by Noor Muhammad Dahri has been forfeited to Government.
12. The most debated document in the case is the summary which has been produced by the star witness of prosecution P.W.1 Abdul Jabbar as Exh.21/8. Thorough examination of the summary indicates that the appellant has annexed the application of Noor Muhammad Dahri with the summary and then has described the relevant facts concerning the lease of land made earlier. He has, initially, obtained a report from Deputy Commissioner, Karachi Central and then has fully reproduced the facts- communicated to him by the Deputy Commissioner. In para.2 of the summary each and every circumstance has been enumerated and there is mention of 4 blocks of the land in two Dehs of Babrano and Khari Lakki. It is clearly mentioned that Block-B is in the possession of Rangers and suits are pending in the High Court in respect of the said Block and that the Revenue Authorities are not party to the said suit. It has been mentioned in specific terms that Block-D of Deh Khari Lakki is a plain land, therefore, Mineral Development Authority has no concern with it. On the basis of the report of eputy Commissioner the position has been su imarized at the end of para.2 in following wards:-- ":...However, he (D.C,).has proposed an area of 36-0 acres (i.e, 5-0 acres of Block 'A', Deh Babrano and 31-0 acres of Block 'C' of Deh Khari Lakki) can be available for disposal after quarrying the limestone by the applicant from these pieces and suggested that the rate of Rs,1,000 to Rs,1,500 per sq. yard being the market value may be charged."
13. Again, in para.4 of the summary it has been mentioned that the land in question was originally leased out to the Directorate of Mineral Development for the purpose of limestone quarrying from hilly track, therefore, no question arises as to its conversion for 99 years. It is further emphasized in specific terms that according to Condition No,14 of the Statement of Conditions notified on 12-5- 1995 commercial plots are to be disposed of through open auction. It is also stated, precisely, that Condition No,16 provides that industrial plots are to be disposed of through auction or private negotiation subject to N.O.C. of Industrial Department. The summary manifestly mentions that the Government has constituted a Price Fixation Committee and that the Government has imposed complete ban on disposal of Government land. However, referring to the powers of the Government within the meaning of section 10(1) of the Colonization of Government Lands (Sindh)
Act, 1912 it has been pointed out that the Government possesses the powers to grant land to any person as it thinks fit.
14. Para.5 of the summary speaks of the approval of the then Minister in favour of one Mr. Abdul Qadir Bux in respect of 2 acres and also allotment made by Chief Minister of 25 acres in Na Class 1982 Deh Khari Lakki. After highlighting the entire position, as discussed above, the proposal has-- been formulated at para.6 of the summary in following words:-- "6. In view of the position explained above, orders are solicited whether the request of the applicant may be considered under section 10(1) of the Colonization of -Government Lands (Sindh) Act, 1912, as a fresh grant for an area of 36-0 acres (i.e, 5-0 acres of Block, 'A', Deh Babrano and 31-0 acres of Block 'C' of Deh Khari Lakki) as suggested by the Deputy Commissioner, Karachi Central for industrial/commercial purposes in relaxation of existing policy/ban at the appropriate rate to be fixed with the consultation of Finance Department as provided under the Rules of Business."
15. The summary was marked to Secretary, Industrial Department; Secretary, Finance Department; Chief Secretary and then to Chief Minister, Sindh. The Industries Department put their note and forwarded the summary to Finance Department. The Finance Secretary recorded a note to the effect that the said Department was not in a position to make any recommendation so far price was concerned. The Advisor to Chief Minister for Finance, in his note, proposed that the highest limit of price of land i.e, to Rs,1,500 per sq. yd. be charged. It is also borne by record that the appellant approached the Commissioner, Karachi as well as Additional Commissioner-II, Karachi. but they failed to respond and only then he forwarded the summary second time to the Chief Secretary, Sindh. The Chief Secretary in his note, suggested that para.6 read with para.10 of the summary be approved and the Chief Minister by his order dated 27-4-1994, approved the summary to that extent, whereupon the appellant issued the letter (Exh.21/9) to the Deputy Commissioner intimating him about the grant at the rate of IF Rs,1,500 per sq. yd.
16. Evidence has been placed on record vide Exh.21/10 that the beneficiary Noor Muhammad Dahri again made an application quoting four instances of allottees Qadir Bux, Muhammad Ali, Ameer Bux and Arthur to whom the rate charged was Rs,25 per sq. yd. This application was processed again and the summary Exh.21/11 was floated by the appellant in continuation of the earlier one, highlighting the position as per record. No specific proposal was given, but it was suggested that appropriate rate may be considered. The summary was duly routed through Chief Secretary, who recorded his note at paras.20 and 21 stating therein that the price quoted by the Deputy Commissioner was quite exorbitant, while the rate of Rs,25 per sq. yd. was also on lower side, the price in between would be more feasible. He passed on the summary to the Chief Minister, who, by his order dated 20-7-1994, written in his hand, fixed the rate at Rs,30 per sq. yd. in relaxation of rules and policies. Consequently, letter (Exh.21/12) was issued by the appellant to the- Deputy Commissioner asking for compliance in usual manner.
17. Indeed, it can be visualized from the above process that hectic exercise was undertaken by the appellant in floating the summary each time with full observance of the prescribed procedure. He obtained relevant report of the Deputy Commissioner and brought every fact to the notice of his high-ups through the summary. Each time the Chief Secretary laid hands on the summary and recorded his note and even the final order was passed by the Chief Minister on the basis of the view taken by the Chief Secretary. On legal plain, it may be observed that no act was committed by the appellant in violation of rules. Under rule 17(i) of the Sindh Government Rules of Business, 1986 such cases were to be put up in the form of summary and the appellant followed this rule. Under rule 28 of the said Rules Finance Department was to be consulted in the matter, therefore, the summary was routed through Finance Department and the compliance of the rule was accordingly made, The Industries Department was also involved, hence in compliance with rule 25 of these Rules, the summary, in the first instance, was placed before the said Department. Nothing was concealed from the Chief Secretary and lastly, it was the Chief Minister who in his hand, passed the crucial order.
18. Thus, the documentary evidence including the summary tends to show that the compliance of rules was made meticulously. There is otherwise no allegation that the appellant was personally interested to derive any benefit for himself or intended to provide undue gains to the beneficiary.
There is no scope, under the circumstances to draw an adverse presumption under section 14 of the NAB Ordinance against the appellant.
19. We are, therefore, convinced that the entire evidence on record speaks of unblemished acts on the part of appellant and proves his innocence. Consequently, the findings of the learned trial Court cannot be sustained and are hereby set aside. The appeal is allowed and the conviction and sentences are also set aside.
20. These are the reasons for the short order announced in Court on 6-2-2003.