MUHAMMAD MOOSA K. LEGHARI, J.---The above titled two criminal accountability appeals are being disposed of by this single judgment as the facts and circumstances involved in both the appeals are almost common.
2. Vide judgment dated 22-1-2000 passed by the learned Judge, Accountability Court No,1, Sindh in Accountability Case No,1 of 1999, the appellant was convicted and sentenced to suffer R.I. For seven years and to pay a fine of Rs,1,00,000. In case of failure to pay the fine, the appellant was to undergo further S.I. For one year.
3. The appellant was also convicted in Accountability Case No,2 of 1999 by the same Accountability Court vide its judgment dated 22-1-2000 and was awarded similar punishment of R.I. For seven years plus a fine of Rs,1,00,000. In case of failure to pay the fine, the appellant was to undergo further S.I. For one year. However, in both the cases the appellant was allowed benefit under section 382-B, Cr.P.C.
4. Precisely stated the facts forming the background of Accountability Case No,1 of 1999 (Old Ehtesab Reference No,20 of 1997), are that at the relevant time, the appellant was serving as Secretary, Land Utilization Department, Government of Sindh, as such holder of a public office.
Pursuant to the orders passed by the then Chief Minister, Sindh i,e, accused No,1 on an application moved by accused No,3 for allotment of land in K.D.A. Scheme No,33, Karachi, the appellant after obtaining report from Deputy Commissioner, Malir, Karachi, directly floated a summary for the Chief Minister, accused No,1, without getting the N.O.C. From K.D.A. And proposed allotment at the rate of Rs,10 per sq. Yard, though the Government had imposed ban on the State land. Accused No,1, the then Chief Minister, Sindh approved the proposal and allotted 20-0 acres of land to accused No,3, thus caused a loss of Rs,95,832 millions to the exchequer by allowing the disposal of State land at Rs,10 against notified rate of Rs,1,000 per sq. Yard.
5. The facts and circumstances giving rise to Accountability Case No,2/1000 (Old Ehtesab Reference No,11 of 1997), are almost akin and similar to the above (including the accused persons) except that the area of the State land allotted to the accused No,3 by accused No,1, the then Chief Minister, Sindh, in the above case was 30 acres, which was disposed of at the rate of Rs,25 per sq.
Yard.
6. In both the cases, initial enquiry in the matter was conducted by the Chief Minister's Inspection and Evaluation Team, while final enquiry was made by Sindh Inquiries and Anti-Corruption Establishment.
7. On the basis of oral and documentary evidence so collected, learned Ehtesab Commissioner formed a view that the above acts were tantamount to corruption and corrupt practice within the meaning of section 3 of the Ehtesab Ordinance, 1997, as the accused Nos. 1 and 2 were holders of public office, while accused No,3 was a beneficiary. Accordingly the references were sent to this Court for proceeding with the same under the Ehtesab Ordinance, 1997.
8. After completion of all the required formalities accused No,1 Ex-Chief Minsiter, Sindh, was declared a proclaimed offender, while separate charges against the remaining two accused persons in both the references were framed to which they pleaded not guilty and claimed to be tried.
9. In Accountability Case No,1 of 1999, the prosecution examined six witnesses namely; P.W.I Abdul Jabbar, P.W. Janib Ali, P.W.3, Mushtaq Ahmed, P.W.4 Ghulam Rasool, P.W.5 Sherdin and P.W.6 Ali Khan, whereas in Accountability Case No,2 of 1999 the prosecution felt contended by examining only three witnesses namely, P.W.1 Abdul Jabbar, P.W.2 Janib Ali and P.W.3 Ali Khan out of the same lot.
10. In his statements recorded under section 342, Cr.P.C. The present appellant denied the prosecution allegations and claimed his innocence. He stated that the application was directly moved by accused No,3 to the absconding accused No,1 who passed orders for putting up summary. The appellant stated that he called the report from Deputy Commissioner, Malir Karachi, and incorporated all the facts in the summary disclosed by Deputy Commissioner, Malir, and did not conceal anything. The rates were given as per value of the land. The appellant denied to have violated the Rules of Business and asserted that he acted in bona fide manner in the discharge of his duties. The, appellant, however did not lead any defence.
11. In the meantime during pendency of the cases the proceedings against accused No,3 were dropped in view of the orders passed by the trial Court on the applications moved by him under section 17 of the Ehtesab Act, 1997.
12. On the basis of the evidence brought on the record, learned trial Court convicted the appellant in the terms as stated in the opening paragraphs, hence these appeals.
13. Ms. Ismat Mehdi, Advocate argued the case of the appellant while Mr. Muhammad Anwar Tariq, learned Dy_ P.G.A. Advanced arguments on behalf of NAB. It was contended by learned counsel for the appellant that there was absolutely no evidence to substantiate the allegations of corruption or corrupt practices against the appellant. It was emphatically argued that summaries in the two cases were floated by the appellant as per orders of the then Chief Minister which contained all the relevant facts and that no material fact was concealed. Nevertheless, mere bypassing of some one in correspondence would not attract criminal liability unless dishonest monetary benefit gained or extended was independently established. On the above premises, it was contended that there was no misuse of authority and that a mistake of civil law would not constitute an offence, in case the essential element of mens rea was absent.
In support of above contentions, learned counsel relied upon a number of precedents/reported cases. Learned Dy. P.G.A. Supported the conviction contending that the appellant was guilty of corrupt practice. The State land was allotted during the ban on disposal and that too on the price, much less than the market value. The act of the appellant of directly submitting the two summaries to.
The then Chief Minister, accused No,1, was tainted with malice and in flagrant violation of the Sindh Government Rules of Business. We have scanned the evidence, scrutinized the material placed on the record, examined the impugned judgments and carefully considered the contentions raised before us in the light of the case-law.
14. Precisely it is the case of the prosecution (i) that the appellant committed corruption and corrupt practice by floating summary directly the then Chief Minister Sindh, thus violated the Sindh Rules of Business and (ii) that the State land was allotted to accused No,3 despite ban on the disposal of State land due to concealment of this fact and (iii) that the land was disposed of on the value lesser than the market value, thus colossal loss was caused to State exchequer.
15. The most crucial documents in the two cases were the summaries moved by the present appellant for accused No,1, Ex-Chief Minister, Sindh. In the circumstances it seems appropriate to reproduce hereunder the contents of both the summaries extenso:-- Accountability Case No,1 of 1999 "SUBJECT: APPLICATION OF 20-0 ACRES OF LAND IN KDA SCHEME NO.33. DISTRICT MALIR-- APPLICATION FROM MR. GHULAM MUSTAFA MEMON.' Chief Minister, Sindh may kindly peruse his following orders/directives on the application preferred by Mr. Ghulam Mustafa Memon son of Haji Ahmed Ali Memon (Annexure) for allotment of 20-0 acres land in Scheme No,33, District Malir at the rate of Rs,10 per sq. Yard for low cost-housing Scheme:-- "Pl. Put up Sumary"
(Sd.)
Chief Minister, Sindh.
2. The Deputy Commissioner, Karachi Malir vide letter dated 19-8-1994 (Annexure-B) proposed 20- 0 acres out of Naclass No,434, Deh Mehran, Sector 40 of Scheme No,33 as per attached Revenue Sketch (Annexure C) in favour of the applicant, being Government available land. The said area falls within unplanned amenity Sector 40 reserved for Treatment Plant, hence before taking action, NOC from KDA may be obtained. He has further mentioned that at present, the Government of Sindh has imposed complete ban on allotment, lease, grant, exchangeetc. Of State land.
3. The specific views/comments of the Commissioner, Karachi are awaited.
4. According to Condition No,14 of the Statement of Conditions notified on 12-5-1975 the low cost housing/corr mercial purposes are to be disposed of through open auction. Presently, the Government has imposed complete ban on disposal of State land, conversion and exchanges etc. However, the Government/Chief Minister, Sindh by exercising powers envisaged under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 has granted land in Scheme No,33 to various persons at the rate of Rs,100 per sq. Yard for residential/commercial purposes. Later on in Deb Thoming Scheme No,33 the Government of Sindh has allotted land in favour of Messrs Ahmed and 5 others at the rate of Rs,25 per sq. Yard subsequently the same rate was reduced to Rs,10 per sq. Yard (Annexure D).
5. Under the circumstances, orders are solicited as to whether the request of applicant may be entertained under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912, at the rate of Rs,10 per sq. Yard in relaxation of existing policy/ban/rules of business.
(Sd.) 17-8-1994 (Ramesh Udeshi), Secretary to Government of Sindh, Land Utilization Department."
Accountability Case No,2 of 1999: "SUBJECT: ALLOTMENT OF 30-0 ACRES OF LAND FOR RESIDENTIAL AND COMMERCIAL PURPOSE IN SCHEME NO.33. Chief Minister, Sindh may kindly peruse his following orders/directives on the application preferred by Mr. Ghualam Mustafa Memon (Annexure A) for allotment of 30-0 acres of land from Naclass No,105 of Deh Morning Karachi Malir for residential/commercial purposes:-- "Pl. Put up summary for allotment."
(Sd.)
Chief Minister, Sindh.
2. The Deputy Commissioner, Karachi Malir vide letter dated 28-7-1994 (Annexure B) has proposed an area of 30-0 acres out of Naclass No,105, Deh Thoming as shown in Revenue Sketch (Annexure C) in favour of applicant. The area is in possession of the applicant on site, which is uncommitted and unallotted Government land. As regards market value, he (DC) has reported that Government of Sindh has recently granted lands in Naclass No,105, Deh Thoming at Rs,25 per sq. Yard in favour of Mr. Ahmed Khan and 5 others and Mr. Nazim vide orders dated 21-4-1994 and 11-7-1994, hence the D.C. Has recommended same rate in present case.
3. According to the Condition No,14 of the Statement of Conditions notified on 12-5-1975, the commercial/residential plots are to be disposed of through open auction. Presently the Government has imposed complete ban on disposal of land. However, the Government/Chief Minister, Sindh by exercising the powers envisaged under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 has granted land in the said locality to various persons at the rate of Rs,25 per sq. Yard in relaxation of existing policy/ban/Rules of Business, 1986, 1912 in relaxation of existing policy/ban/Rules, 1986 at the rate proposed/recommended by the D.C., Malir vide paragraph 2 above.
(Sd.) 2-8-1994 (Ramesh Udeshi), Secretary to Government of Sindh, Land Utilization Department."
16. The bare perusal of the above summaries would reveal that the factum of imposition of ban on the disposal of State land was specifically brought to the notice of the 'then Chief Minister, Sindh by the appellant. Appellant did not conceal this position, as such, could not be held responsible for concealment of any fact. Not only that but the appellant also pointed out in the summary that the lands for low cost housing/commercial purpose are to be disposed of in open auction. Despite that the orders for grant of land were passed by the then Chief Minister, Sindh i,e, accused No,l.
Regarding the price it was mentioned in the summaries that previously the State lands in the same Deh were allotted at the rate of Rs,10 per sq. Yard. Since the orders were passed by accused No,1, he alone was answerable for such acts/deeds.
17. The scrutiny of the evidence produced by the prosecution makes it abundantly clear that no material was brought on record to prove dishonest intention on the part of appellant in floating the summaries directly to the Chief Minister. There is absolutely no evidence to establish that either the appellant himself gained something or extended illegal gains to accused No,3 with malicious intention. Yet it is undeniable that the appellant directly processed the summaries for the Chief Minister.
Indeed there can be no two opinions that this act on the part of the appellant was in violation of Sindh Government Rules of Business. Now the point which needs to be examined is as to whether mere directly floating of summaries to the Chief Minister would constitute an offence of corruption or corrupt practices unless it is proved through unimpeachable evidence that the same was done with ulterior motives, and that it was supplemented by dishonest intention. Learned Division Bench of Peshawar High Court in the case of Aftab Ahmed Khan Sherpao PLD 2001 Pesh. 80 was persuaded to hold, "that mere irregularities in allotment of plots (which also is not proved) and mere bypassing of someone in correspondence, might be dubbed as irregularities but cannot attract criminal liability unless criminal mens rea, dishonest monetary advantage, extended or gained, is distinctly and independently proved". In somewhat similar circumstances a learned Division Bench of this Court in M. Siddique ul Farooque v. The State PLD 2002 Karachi 24, had observed as under:-- "Coming to the facts of the present case we find that the prosecution has at the most established some irregularity in making appointments by not taking prior approval of the Finance Division.
However, the offence under section 9(a)(vi) shall be made out if a holder of a public office, misuses his authority, so as to gain any benefit or favour for himself or any other person. Mere irregular use of authority may attract disciplinary action under the Service Rules, but in order to establish the offence of corruption and corrupt practices, mere irregularity on the part of holder of a public office or any other person is not sufficient. The prosecution must establish misuse of authority coupled with the intention to gain any benefit or favour for himself or any other person or to render or attempt to do so."
18. We are convinced that the above view is founded on logical dictates, and there is no justifiable reason not to follow the same. Now judging the facts and circumstances existing in the instant case on the touchstone of the above principle, we are of the view that mere floating of summary in violation of Government Rules of Business would be irregular exercise of authority and may call for appropriate disciplinary action against the appellant under the service laws, thereby rendering him liable to disciplinary proceedings in his capacity as a 'civil servant' but in no way, would it fall within the mischief of corruption or corrupt practice, as defined under the National Accountability Ordinance, 1999.
19. Nevertheless, at this stage we deem it appropriate to refer to another case of appellant which was decided by us by judgment dated 22-2-2003 reported as Ramesh M. Udeshi v. The State PLD 2003 Karachi 423. The said case had different features, in that, the summary bearing an order of Chief Minister disallowing the grant was resubmitted by concealing the aforesaid portion of the order and a fresh order favouring the allottee was obtained from the Chief Minister. For convenient understanding of the pertinent perspective the relevant observations from the said judgment are reproduced hereinbelow:- ...Illegal exercise of power is never permitted by the Constitution or any other law. It goes without saying that exercise of the powers by way of granting the allotment for a new purpose and for .a longer period on a plain calculation was to cause great loss to the national exchequer. Therefore, it was not a bona fide order and the Secretary who had concealed the earlier view manifestly approved by the same Chief Minister had undoubtedly, colluded with him later on and allowed the matter to proceed and bring the loss to the national exchequer by extending benefit to the beneficiaries in whose favour the subsequent order of Chief Minister was implemented with no loss of time. The advice of Law Department is of no avail in the instant case."
20. Obviously, the act involved in the above cited case had characteristics much different from the present one. Admittedly, the act of the appellant was much beyond mere irregularity or violation of rules for the reason that the said act, on the face of it, was tainted with malice, involving purposeful concealment and intentional collusion, entailing in loss to the national exchequer and benefit to the beneficiary, whereas the instant matter, on facts, is remarkably distinct from the cited case.
21. As observed earlier, there is no evidence to infer that the appellant made any attempt to obtain personal gain from the transactions and/or extended illegal gains to any one else. Besides, it has been brought in evidence that the land was neither demarcated nor possession thereof was handed over to accused/beneficiary. In both the cases, the land stood restored to the Government.
The orders for grant of the lands, were already cancelled. Additionally co-accused Ghulam Mustafa who was the beneficiary was adequately penalized by way of forfeiture of a considerable amount deposited by him in the Government treasury.
22. In the given circumstances, we have arrived at a conclusion that the prosecution has not been able to establish the charge of corruption and corrupt practices against the appellant in the cases in hand. The conviction of the appellant is, thus, not sustainable.
23. Resultantly both the appeals are allowed and the judgments of conviction and sentence are hereby set aside. The appellant shall be released forthwith if not required in any other case.