' SARDAR MUHAMMAD RAZA KHAN, J.--- Pursuant to a reference tinder section 14 of Ehtesab Ordinance, 1996, Muhammad Shabbir son of Haji Qasim stands convicted under sections 3(1)
(d)/4(2) of the Ordinance read with sections 107/108, P.P.C. And sentenced to imprisonment for a period of three years along with fine of rupees ten million, by a learned Full Bench of Sindh High Court vide judgment, dated 11-7-1997. Muhammad Shabbir has come up in appeal.
2. The first and foremost objection by the learned counsel was that this case was registered under Ehtesab Ordinance of 1996 and the Ordinance having been promulgated on 18-11-1996 and the reference having been made on 16-1-1997, all the proceedings taken and the decisions made had become void ab initio, coram non judice and without jurisdiction because the aforesaid Ordinance got repealed by Ehtesab Ordinance of 1997 promulgated on 1-2-1997 subsequently, merged into Ehtesab Act (IX of 1997). Learned Deputy Attorney-General met this objection and we agree therewith that after the leave having been granted in this case a Full Bench (consisting of seven members) of this Court has already settled the controversy in case of M. Nawaz Khokhar PLD 2000 SC 26, holding briefly, that the instant one was not a case of simple repeal but a case of simultaneous repeal and re-enactment of a legislation. That Ehtesab Ordinance of 1997 was a verbatim reproduction of Ehtesab Ordinance, 1996 'which still was in force , and that, though Ordinance of 1996 was a temporary legislation yet the Legislature intended to provide continuity to its provisions by first repealing it by Ordinance XX and then converting the latter into Act of Legislature by passing it as Act IX of 1997. There was a clear intention on the part of the Legislature while promulgating Ehtesab Ordinance, 1997 to provide continuity to the provisions of Ehtesab Ordinance (CXI of 1996). The arguments of learned counsel for the petitioner, in this respect do not hold the ground.
3. The appellant was allowed to construct a building on Plot No,8/2, RY-4, with approval by Karachi Building Control Authority extending to the basement plus ground plus four floors. He eventually made an unauthorized construction extending to eleven floors. The criminal charge against him was that he obtained undue favor from the then Chief Minister, Syed Abdullah Shah (accused No,1) through the recommendations of Ghulam Mustafa Bozdar a former Member Sindh Provincial Assembly in getting the construction regularized.
4. The construction as such is an illegality/irregularity which can be fully dealt with under the provisions of the Sindh Building Control Ordinance, 1979. A detailed procedure is already laid down under section 19 of the Ordinance read with Karachi Building and Town Planning Regulations. A show-caused notice is given to such constructor and if he fails to show sufficient cause to the satisfaction of the authority, he can be required to demolish the building or part thereof or bring construction in conformity with the regulation or compound the offence and deposit composition fine whereafter the unauthorized construction gets regularized. As a Special Law already exists to deal with such matters, any violation can be referred to such law. The provisions of Ehtesab Ordinance, 1996 would be attracted only if, like in the circumstances of the present allegations, he happens to obtain undue favor by corruption or by corrupt means. It may be clarified at this juncture and before entering into further discussion that the unauthorized construction as such is not an offence under Ehtesab Ordinance, 1996 but if any undue advantage has been obtained within the contemplation of section 3 of the Ehtesab Ordinance, it would of course tantamount to an offence.
5. There is not an iota of evidence worth the name brought about by the prosecution on record that the appellant Muhammad Shabbir had resorted to corruption or corrupt practices or had bribed someone in order to obtain regularization of an unauthorized construction. That he had used the undue influence of Ghulam Mustafa Bozdar (accused No,2), is altogether out of question because the latter M.P.A. Stands acquitted on the ground that even the factum of his having made any recommendation is not at all proved by the prosecution muchless through the exercise of corrupt practices. This aspect of the charge is totally unproved.
6. The second aspect of the case could be that the appellant obtained an undue favor from the Chief Minister and was guilty of making application addressed to the Chief Minister bypassing the authority under the Sindh Building Control Ordinance, 1979. This situation is again two-pronged.
First, as to whether the appellant was justified in making an application before the Chief Minister and second, as to whether the Chief Minister had the authority to direct regularization of a building.
7. It is a fact commonly known by now and even has come on record of this case that the Chief Minister used to order regularization or to deny the regularization of different buildings from time to time against applications directly addressed to him In these circumstances mere filing of application by the appellant for regularization of his building could not be considered as an offence because of the precedents already in existence. Even otherwise the making of an application or even asking for the moon from an authority is not an offence by itself unless some corrupt practices have been used to achieve the unlawful object.
8. Coming to the question as to whether the Chief Minister had the authority to do so. The proper authority to grant regularization etc. Is the authority defined under section 3(a)(d) read with section 4 of the Sindh Building Control Ordinance, 1979. It is to be appointed by the Government and hence it exercises the delegated powers of the Government. In Sindh Government's Rules Business, 1996, any order passed by the Chief Minister or any authority exercising delegated powers, shall be deemed to be the order passed by the Government. Thus, the Chief Minister in his capacity as the Government could pass any order which his delegatee could pass under section 4 of Ordinance, 1979. Provided always that it had to be within the limits of Law, Rules and Regulations on the subject. In the instant case it has to be under the G Sindh Building Control Ordinance, 1979 and the Regulations made thereunder. In our view, therefore, the Chief Minister could have passed the orders that he passed, in the instant case. In this view, we are fortified by a Full. Bench judgment of this Court rendered in the case of Multi Line Associate PLD 1995 SC 423. It may be recalled at this juncture that the appellant had applied to the Chief Minister and the latter had passed orders thereon on 28-9-1996, i,e,, after the judgment in Multi Line's case and hence the appellant was all the more justified in maintaining the view that the Chief Minister was authorized to pass orders.
Such authority, under the Rules of Business of 1986, section 4, sections 6(6) and 21-A, as amended by Ordinance III of 1990 of Building Control Ordinance of 1979, was rather more pronounced.
9. Learned counsel for the appellant argued that mere passing of an order on an application directly addressed to the Chief Minister was neither mala fide nor final because it was a routine of the department that even such direct orders passed by the Chief Minister were not considered final unless, in pursuance thereof, a summary was prepared and unless it again came to the Chief Minister through various tier of the hierarchy. That practically only that order is final which is passed pursuant to the summary prepared. As an example, the learned counsel referred to such summaries available on record as Exh.P.24 to Exh.P.33 (pp.88-97) where the Chief Minister having passed similar direct orders on the applications of the builders, a summary was prepared and eventually when it came back before the Chief Minister, the regularization or any other prayer was declined despite having previously made a direct order in positive.
10. The question arises as to whether in the instant case any summary was prepared pursuant to the order, dated 28-9-1996 of the Chief Minister. The witnesses of the prosecution have categorically stated that no such summary was ever prepared in the instant case and no regularization of the building had taken place in compliance with the disputed order, dated 28-9- 1996 of the Chief Minister. We are afraid as to how an act which did not materialize at all could be dubbed as criminal.
11. Certain documents have been filed by the learned counsel for the appellant on Paper Book-II which clearly indicate at pages 15 to 19 that on deposit of composition fee of Rs,24,85,014 the unauthorized construction of eleven storeys by the appellant has been regularized after obtaining all the necessary and technical reports from the Engineers concerned. This regularization happened on 17-9-2003. The purpose of referring to above documents is that the regularization has its own process and it is normally done by imposing a composition fee as the authority may deem fit provided the building otherwise does not violate any relevant laws and is not deficient structurally. Had any summary been prepared by the department pursuant to the order dated 28- 9-1996 of the Chief Minister, it might have been regularized on payment of composition fee.
12. The entire case seems to have started with a bang that ended into a whimper. The learned High Court has failed to appreciate the real nature of offence in the given circumstances. We are also skeptical about another circumstance that this much-ado-about-nothing might not have even been resorted to at all, had the then Government been not dismissed on 5-11-1996.
13. Mr. Muhammad Ibrahim Satti on behalf of National Accountability Bureau stated at the bar that the Bureau is not interested in the instant case and that this may be defended by the State through Deputy Attorney-General. The only reason for non-interest appears to be the reference having been made during the previous regime. If so, we are constrained to remark that corruption as such and if proved is a corruption by all means regardless of what, regime it had been committed in. It is a matter of not persons but institutions and hence should not have been taken with that shrug of shoulder.
14. As a sequel to what has been discussed above, we are of the view that no offence under sections 3/4 of Ehtesab Ordinance of 1996 has at all been proved against the appellant. The appeal is accepted, the impugned judgment, dated 11-7-1997 is set aside and the appellant Muhammad Shabbir son of Haji Qasim is hereby acquitted of the charge under sections 3(1)(d)/4(2) of Ehtesab Ordinance, 1996 and sections 107/108 of the P.P.C. The appellant is absolved of the liability under the bail bond furnished in compliance with the order dated 14-7-1997 of this Court.
' These are the reasons for our short order already passed on 14-12-2004.