' JAVED IQBAL, J.---The above captioned appeals are preferred against the judgment dated 20-11- 1997 whereby the appellants were sentenced to undergo rigorous imprisonment for five years each and further to pay a fine of rupees twenty lacs each or in default of payment of fine to suffer rigorous imprisonment for two more years each, which are being disposed of by this common judgment.
2. Precisely stated that facts of the cases are that Ehtesab Reference No,8 of 1997 was filed under section 14(1) of the Ehtesab Ordinance,1996 by the Chief Ehtesab Commissioner against the appellants which is reproduced herein below for ready reference: "IN THE SINDH HIGH COURT KARACHI STATE v.
1 Pir Mazharul Hach Ex-Minister for Housing, Town Planning Department, Government of Sindh.
2. Abdul Razzak son of Tar Muhammad Owner/Beneficiary, R/o H.No,30/3, Overseas Housing Society Alamgir New Town, Karachi.
3. Mr. Shah Mansoor Alam, Ex-Member (A&L) KDA, Karachi.
SUBJECT: REFERENCE UDNER SECTION 14(1) OF THE EHTESAB ORDINANCE, 1996 ' Respectfully Shewth:
(1) That, accused No,2 (beneficiary) disclosed himself as occupant of the amenity Plot Section No,St-3, Sector 12/C, North Karachi Township, applied for its regularization to KDA on 18-8-1993.
(2) That, the Director (Recoveries) KDA in his note opposed the regularization on the ground that conversion of amenity plots into commercial, residential or industrial use was strictly prohibited under Sindh (Amendment) Act, No,XVII of 1974 and clause-52 of the KDA Order No,5 of 1957.
(3) That, the Director General KDA, ordered to place the case before governing body, however, accused No,3 suppressing the facts and without recourse to governing body submitted the case for approval to Minister accused No,1) for regularization through Director General KDA which was accordingly approved by accused No,1 at the rate of Rs,200 per square yard.
(4) That, the market value of the plot at the relevant price was Rs,1,200 per square yard and there was complete ban imposed by Sindh Government for disposal of State land, therefore, accused No,1 and No,3 in connivance with accused No,2 have caused substantial financial loss to the State exchequer to the tune of Rs,2.7 millions.
(5) That, accused No,1 is holder of public office within meaning of Ehtesab Ordinance, 1996, while accused No,3 is abettor and accused No,2 is beneficiary.
(6) That, the enquiry was conducted by Enquiries and Anti-Corruption Establishment and on the basis of oral and documentary evidence collected, a prima facie case is made out against all the accused for trial under sections 3 and 4 of the Ehtesab Ordinance, 1996.
(7) That the relevant record with list of witnesses, gist of allegations with annexures are enclosed.
(Sd.)
CHIEF EHTESAB COMMISSIONER."
3. The charge was framed on 14-5-1997 which is reproduced herein below:-- "CHARGE ' We (1) Wajihuddin Ahmed,
(2) Saiyed Saeed Ashhad, and
(3) Mushtaq A. Memon, JJ ' Do hereby charge you accused:-- ( 1 ) Pir Mazhar-ul-Haq, Ex-Minister for Law and Parliamentary Affairs, Province of Sindh.
(2) Abdul Razzaq son of Tar Muhammad, House No,30/3, Overseas Housing Society Alamgir New Town, Karachi, and
(3) Shah Mansoor Alam, Ex-Member (A&L) KDA, Karachi ' as under:--- ' That you accused Pir Mazharul Haq, being holder of Public Office in your capacity as Ex-Minister for Law and Parliamentary Affairs H&TP of Sindh in abuse of your official position with mala fide, illegal and dishonest intention with a view to earn illegal gratification and money for yourself and for providing illegal and fraudulent gains and profits to other accused person, allotted/approved regularization of amenity plot in ST-3, Sector 12/C, North Karachi Township measuring in spite of ban on sale/disposal of State land except through public auction and at a throw away price of Rs,200 per sq. Yds as against the prevailing market price of Rs,120Q per sq yds in the area, thereby causing a loss of Rs,2.7 Millions to the Government of Sindh.
' AND that you accused Shah Mansoor Alam also being a holder of Public Office in your capacity as Ex-member, (A&L) KDA, suppressed the note of Director (Recoveries) KDA opposing the regularization with mala fide and dishonest intention recommended allotment and/or regularization of the said plot in favour of accused Abdul Razzaq at the rate of Rs,200 per sq.Yds as against the then prevailing price in the area of Rs,1,200 per sq. Yds with a view to obtain illegal gratifications and benefits for yourself and accused Pir Mazharul Haq and provide illegal, dishonest and fraudulent gains and profits to accused Abdul Razzaq and caused a loss of Rs,2.7 Million to the Government of Sindh.
' AND that you accused Abdul Razzaq requested for allotment of the above land on a meagre price by offering illegal gratification, benefits and favour to accused Pir Mazharul Haq and Shah Mansoor Alam and for earning illegal, dishonest and fraudulent gain and profits for yourself fell in line with and instigated and persuaded accused Pir Mazharul Haq to order the allotment/regularization of the above plot of land against the Government policy-relating to sale/disposal of State land and at a throw away price, thereby causing a loss of Rs,2.7 Million to the Government of Sindh.
' AND that all of you three accused acting in collusion and connivance with each other with mala fide, illegal and dishonest intention conjointly committed the offence/offence punishable under sections 3 and 4 of the Ehtesab Ordinance, within the cognizance of the Ehtesab Bench, and we, hereby direct that you be tried by us for the aforesaid offence.
' Given under our hands and seal of this Court. This 14th day of May, 1997."
4. A careful scrutiny of the charges would reveal that following allegations were levelled against the appellants:--
(a) Allotment/regularization of amenity plot being holder of public office with a mala fide, illegal and dishonest intention for providing illegal and fraudulent gains and profits to the other co- accused.
(b) Allotment of amenity plot in spite of ban causing loss of Rs,2.7 million to the Government of Sindh as it was allotted on the throw away price of Rs,200 per square yard and against the then prevalent market price of Rs,1,200 per square yard.
5. In order to substantiate the allegations, the prosecution produced Tasawar Hussain, Additional Director (Lands), KDA (P.W.1) Abdul Karim, Assistant Director, KDA (P.W.2), Rana S. Ali Shahenshah, Additional Director (Lands), KDA (P.W.3), Najeeb Ahmed, Assistant Director, KDA (P.W.4) and I.D.
Mangi,' Inspector, Anti-Corruption Establishment/Investigating Officer (P.W.5).
6. The statement of appellant Pir Mazhar-ul-Haq, Ex-Minister Housing and Town Planning, Government of Sindh, was recorded under section 342, Cr.P.C. Who refuted all the allegations. He also got recorded his statement on oath under section 340(2), Cr.P.C., relevant portion whereof is reproduced as under:- "Summary pertaining to the plot in question was put up before me on 31-1-1994 by my office staff. It was sent by D.G., K.D.A. And was presented before me by my Private Secretary. In the summary there were only certain annexures mentioned in the summary and no other file was annexed with the summary. At no stage I had given any instructions or directions regarding disposal of this summary. Although, in the summary a fixed rate was mentioned but what was the rate prevailing at market value at that time was not mentioned in the summary. I had approved the proposal submitted by the then D.G., K.D.A. When I approved the proposal contained in that summary there was no ban on regularization of the plots. I produce photostat copy of the notification dated 20-3- 1994 regarding imposition of ban on regularization of plots as Ex.--.I have never met accused No,2 and I have never 'dealt with him in any manner. By my approval of the said summary no loss at all was caused to the National Exchequer. Neither I committed any illegality nor I caused any loss or gained anything or showed any favouritism while approving the proposal of the then D.G. K.D.A."
7. The statement of appellant Abdul Razzak (beneficiary) was also recorded under section 342 Cr.
P.C. Who denied all the charges and stated in a categoric manner that nothing was deposed against him by any of the prosecution witnesses. He also got recorded his statement on oath under section 340(2), Cr.P.C. Wherein he refuted in an, unequivocal manner the allegation of offering illegal gratification to Pir Mazhar-ulHaq, and Shah Mansoor Alam, Member (Admn. & Lands) K.D.A.
To obtain benefit, favour for earning illegal, dishonest and fraudulent gains or any profit for himself.
He also denied the allegation that due to his instigation or persuasion the allotment of plot was made. He also explained that the value of the plot in question, as per notification of the Collector/Chief Inspector of Stamps, Karachi dated 29-6-1995 was fixed as Rs,127 per square yard, hence the question of any loss to the public exchequer does not arise.
8. The statement of appellant Shah Mansoor Alam, Member (Admn. & Lands) K.D.A. Was also recorded who denied all the allegations. He however, did not prefer to get his statement recorded on oath. No defence evidence was led.
9. Ch.Aitzaz Ahsan, learned Advocate Supreme Court entered appearance on behalf of appellant Pir Mazhar-ul-Haq and argued strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended that no incriminating evidence worth the name could be led to prove the allegations of corruption, mal practice, fraudulent gains, illegal gratification or abuse of official position and misuse of authority. It is argued emphatically that on the basis of vague and sketchy evidence, the question of any conviction does not arise which aspect of the matter has been ignored without any rhyme and reason by the learned Ehtesab Bench resulting in serious miscarriage of justice. It is further contended that there was no ban on regularization of amenity plots at the relevant time but only a specific procedure was to be followed qua the regularization of plots for which a Regularization Committee was constituted. Had there been some ban the question of constitution of Regularization Committee would have not arisen and more so it was not a case of fresh allotment but on the contrary, it was a case of regularization which was pending with K:D.A since 1974 when appellant Pir Mazhar-ul-Haq was not a Minister. Mr. Aitzaz Ahsan learned Advocate Supreme Court argued that the prosecution has failed to prove the mala fide intent as mentioned in the charge sheet which is required to be proved under section 3(1)(c) of the Ehtesab Act, 1997. It is also argued that the learned Ehtesab Bench for the reasons best known to it failed to examine as to whether criminal intent was there and substantiated by any evidence or otherwise? In order to elaborate his argument, it is contended that there is complete lack of evidence regarding the mens rea which is one of the important ingredient of an offence and required to be proved before any conviction could be awarded which was never adverted to by the learned Ehtesab Bench. It is also argued that the Investigating Officer had conceded that no evidence could be collected to substantiate the factum of criminal intent on the part of the appellants. It is also emphasized that the summary presented to the appellant regarding regularization of plot had not contained the true picture of the facts and it was silent that any deviation from the prescribed procedure was made.
10. Kh. Naveed Ahmed and Mr. Abdul Rahim Qazi, learned Advocate Supreme Court appeared on behalf of Shah Mansoor Alam (appellant in Criminal Appeal No,248 of 1997) and Abdul Razzak (appellant in Criminal Appeal No,260 of 1997) and adopted the arguments of Mr. Aitzaz Ahsan, learned Advocate Supreme Court with further submissions that the prosecution has failed miserably to prove the allegations beyond shadow of doubt and no evidence whatsoever is available on record showing that regularization of the plot was made mala fide or any loss whatsoever was caused to the public exchequer. It is mentioned that the allegation of illegal gratification and regularization of plot in persuasion of appellant Abdul Razzak with the connivance of appellant Shah Mansoor Alam could not be substantiated by leading any documentary or worthy of credence oral evidence.
11. Mrs. Naheeda Mehboob Elahi, learned Standing Counsel appeared for the State and vehemently controverted the view point as canvassed at bar by Mr. Aitzaz Ahsan, learned counsel for the appellant (in Criminal Appeal No,247 of 1997) and supported the judgment impugned for the reasons enumerated therein. She also argued that in spite of ban, amenity plot was allotted by appellant Pir Mazhar-ul-Haq in his capacity as Minister for Law and Parliamentary Affairs and H&TP with connivance of appellant Shah Mansoor Alam, Member (Admn. & Lands) K.D.A. And appellant Abdul Razzak (beneficiary) in flagrant violation of his official authority which is a classic example of misuse and abuse of authority whereby huge loss worth whereof runs into millions was caused to the public exchequer. Mrs. Naheeda Mehboob Elahi, urged with vehemence that the matters pertaining to allotment of plots should have been referred to Governing Body but the prescribed procedure was violated by appellant Shah Mansoor Alam the then Member (Admn. & Lands) K.D.A with whose active connivance the plot in question was allotted to appellant Abdul Razzak by appellant Pir Mazhar-ul-Haq who had no authority whatsoever to make such allotment which was done with ulterior motive and mala fide intentions.
12. We have examined the entire record, scanned the evidence with the assistance of learned counsel and also perused the judgment impugned carefully. First of all we intend to examine the evidence led by the prosecution to substantiate the allegations. Tassawar Hussain, Additional Director (Lands), K.D.A. (P.W.1) has stated nothing regarding illegal gratification, mala fide intention or persuasion of appellant Pir Mazhar-ul-Haq. He has however, mentioned that an application for allotment regarding the plot in question was received on 18-8-1993 when appellant Pir Mazhar-ul- Haq was the Minister of Law and Parliamentary Affairs. He also stated that the plot was amenity plot and the Director General, K.D.A. Has recommended to place the question of allotment before the Governing Body, which could not be done. He has further pointed out that there was a ban on the conversion of all categories of plots. He has also mentioned about a note of Director Recoveries in this regard which aspect of the matter went un-challenged. A careful scrutiny of his statement would reveal that appellant Shah Mansoor Alam (Ex. Member, Admn. & Lands), K.D.A. Put up a note which was approved by appellant Pir Mazhar-ul-Haq on the basis whereof allotment was made. It is however, important to mention here at the juncture that the Regularization Committee being the concerned committee has never raised any objection worth the name regarding regularization/allotment of the plot in question. It further reveals from the scrutiny of the statement of Tassawar Hussain, Additional Director (Lands), K.D.A. (P.W.1) that amenity plots and industrial plots were not set to auction. He stated nothing regarding any loss accrued to public exchequer. He however, stated in a categoric manner that the price for such plot was Rs,200 per square yard, which was received regarding the plot in question. He has made it further clear that during this period, no plot was sold beyond the above stipulated price i,e, Rs,200 per square yard. He further clarified that there was no Allotment Committee in existence at the relevant time. As mentioned hereinabove, he has said nothing about corruption, mala fides, illegal gratification, loss to the Government exchequer, connivance and collusion of the appellants. Abdul Karim, Assistant Director, K.D.A. (P.W.2) has stated that the plot in question was amenity plot. He has pointed out that the ban on regularization or allotment of plots was imposed with effect from 20-3-1994. It is curious enough to note that he could not mention exact price of the plot but on the contrary three different figures i,e, Rs,1,200 per square yard, Rs,1,000 per square yard and Rs,200 per square yard were mentioned. He has however, conceded that no such plot was ever sold for more than its fixed price i,e, Rs,200 per square yard. He showed his ignorance that any amenity plot was ever put to auction. A thorough scrutiny of his statement would indicate that it is silent regarding illegal gratification, mala fide or persuasion of the Minister and connivance of the official functionaries. It is notable that he has not pointed out any loss to the public exchequer. Rana S.Ali Shahenshah, Additional Director Lands, K.D.A. (P.W.3) has stated that the plot in question was amenity plot, which was never placed in any meeting of the Governing Body for any decision. The statement is demonstrative of the fact that he was not aware regarding any ban imposed by the Government on regularization or allotment of any plot. He has stated in a crystal clear manner that no direction was issued by appellant Pir Mazhar-ul-Haq in his capacity as Minister, Housing & Town Planning, for placing the case on file concerning allotment of the plot in question before him. It transpired from the scrutiny of the statement that Rana S. Ali Shahenshah (P.W.3) was member of Regularization Committee, who had never objected for the regularization of the plot in question and besides that no such objection was made by any member of the Regularization Committee. There was no objection whatsoever on Exp.P/8/1-4. It is significant to note that he has not mentioned even a single word about corruption, illegal gratification and loss to the public exchequer. He has not stated that any direction was or by the Minister for allotment/regularization of plot in question or any influence was exerted by the Minister in this regard. Najeeb Ahmed, Assistant Director, K.D.A.
(P.W.4) has stated that the plot in question was amenity plot and moreso that the case of its allotment/regularization was not placed before Governing Body, on the contrary, regularization of the plot was approved by appellant Pir Mazhar-ul-Haq on the recommendation of appellant Shah Mansoor Alam, Ex. Member (Admn. & Lands) K.D.A. He however conceded frankly that regularization of the amenity plot was made and approved by the Regularization Committee. It is also pointed out that the Director General, K.D.A, has also agreed with the Regularization Committee and recommended for its regularization. It 'must not be lost sight of that the Director General, K.D.A. By whom recommendation for regularization/allotment of amenity plot was made, has been exonerated for the reasons best known to the NAB Authorities which however, is against the dictum a laid down in case title Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), relevant paragraphs whereof concerning corruption are reproduced herein below for ready reference:- "233. Corruption is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, Government and the people. Of late, the culture of corruption and bribe has embedded in our society to the extent that even routine works which should be done without any approach or influence are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. In Anatulay VIII (1988)2 SCC 602 where Abdul Rahman Anatulay, Chief Minister of Maharashtra was prosecuted for corruption Sabyasachi Mukharji, J. Lamented as follows:-- "Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is common place today. A new value orientation is being undergone in our life and culture. We are at the threshold of the cross- roads of.Values. It is for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters."
234. Although we are dealing with a case of intervention by the Armed Forces, yet it would be advantageous to allude, to the ground of corruption, which came up for consideration in the cases of Kh. Ahmed Tariq Rahim PLD 1992 SC 646, Mian Muhammad Nawaz Sharif PLD 1993 SC 473 and Benazir Bhutto PLD 1998 SC 388 (supra). In the first case, it was observed by Shafiur Rehman, J. That corruption may not have been independently sufficient to warrant such an action, but it can be invoked, referred to and made use of along with other more relevant grounds, which are by themselves sufficient to justify the action taken. In Mian Muhammad Nawaz Sharif's case (supra) it was observed that "if the corruption, nepotism and favouritism are of such a large scale that they have resulted in the breakdown of the Constitutional machinery completely, it may have nexus with the above provisions". In the third case of Benazir Bhutto, this Court took notice of enormous corruption and treated it as an independent ground on the basis of which an Assembly could be dissolved (Underlining is by way of emphasis). Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed. Recounting the instances of alleged corruption the Federation has pointed out Sharif's ownership of Cayman Island, and offshore company through Al-Towfeek Co. And the case of huge quantity sugar export to India-receiving heavy amounts in rebate. When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of corruption eruption, but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes."
13. The guidelines as provided in case titled Abdul Nabi v. State (2004 SCM R 1510) has been ignored which runs as under:-- "7. It is now the duty of NAB to ensure, indiscriminate criminal action against corrupt persons cross the board to establish its credibility amongst the masses, failing which, public exchequer once again shall be looted by the unscrupulous persons who have no interest at all in the well-being of the Nation."
14. The role played by Sabahat Ali Khan, Director General K.D.A. Was highly critical and objectionable. Had he not recommended and agreed with recommendation of Regularization Committee for the allotment/regularization of the plot in question, the position could have been different Sabahat Ali Khan, Director General, K.D.A. Should have been put to trial but he has been absolved as mentioned hereinabove which indicates the policy of pick and choose and it amounts to discrimination, benefit whereof can be given to other accused persons who played similar and equal role. Najeeb Ahmed (P.W.4) has also stated that industrial and amenity plots were not subject to auction. He however, pointed out that the rate of industrial plot for the purpose of sale was fixed as Rs,200 per square yard. He has conceded while answering one of the questions during the cross-examination that Abdul Razzak appellant (in Criminal Appeal No,260 of 1997) has submitted an, application to K.D.A. On 18-8-1993 for regularization of Plot No,ST-3, Sector 12-C, Karachi, in his name as the plot in question remained in his possession for a very long period, subject to payment of prescribed dues under the rules of the K.D.A. He also pointed out while answering one of the questions during the cross-examination that in the scheme where in the plot in question was situated, the rate was fixed Rs,100 per square yard for amenity plots which were not sold by K.D.A. At the market value and therefore, the question of assessment of market value of such plots does not arise. It is to be noted that Mr. Najeeb Ahmed (P.W.4) was Assistant Director, K.D.A. At the relevant time had recommended the regularization of the plot in question. He has conceded that noting in paragraphs No,43, 46, 51, 71, 73 and 79 were made by him in the office file (Exp.8/4). The scrutiny of record would reveal that he has recommended the regularization of plot in para No,46. He has conceded while answering one of the questions during cross-examination that there was no ban on the conversion of plots during the period with effect from September, 1993 to January, 1994. He has not stated any thing, about corruption, mal practice, connivance/collusion, loss to the public exchequer and mala fides.
15. We have also examined carefully the statement of Mr. I.D. Mangi (Investigating Officer), which reveals that the alleged price of Rs,1,200 per square yard could not be proved. The statements of the prosecution witnesses as discussed hereinabove would reveal that price was not more than Rs,200 per square yard in any case. It is not known how the price has been assessed by the Investigating Officer as Rs,1,200 per square yard and that which factors were taken into consideration in this regard. The statement of Investigating Officer however, reflects that one Abdul Karim Pathan was consulted in this regard but his statement has not been recorded and at the best, it can be considered as hearsay evidence which has no value whatsoever in the eye of law.
We may point out here that "the exclusionary rule of evidence may appear to be too formal and somewhat strict and inflexible, but it has its roots deep down in law while commenting on section 54, Evidence Act Monir mentions that 'it is no disproof of good character that a man has been suspected or accused of a previous crime'. Wharton Criminal Law Evidence, 9th Edition mentions the following principle: The only safe course, therefore, is to found the verdict exclusively on evidence duly received and on inferences logically to be drawn from such evidence'... And no evidence is to be received which is second hand rendering of testimony not produced, though producible, by which a higher degree of certainty could be secured', Wig more commenting on Theory of Hearsay Rule in section 1362 observes as follows:-- "The theory of the hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination".
' And quotes with approval the following remark of Kent, C.J. (in Coleman v. South wick, 9 John.50): "A person who related a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any embiguities, he 'entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author."
' Monir in his commentary on section 183 of the Evidence Act remarks 'where no opportunity to cross-examine the deponent has been given his testimony would be inadmissible. [p.17661 K".
(Muhammad Afzal v. Muhammad Altaf Hussain 1986 SMCR 1736).
16. It is not known what was the exact status of Abdul ,Karim Pathan, as to whether he had ever purchased any plot in the area, whether any such plot was ever allotted in his favour or whether any sale transaction whatsoever was made by Abdul Karim Pathan showing that market rate prevailing in the vicinity was Rs,1,200 per square yard? The Investigating .Officer has conceded that no effort worth the name was made to assess the exact price of the plot in question. Besides that he has not contracted- or consulted any estate agent or property dealer. A portion of the statement of Investigating. Officer would show that up to what extent the prosecution has proved the accusation, which is reproduced herein below:-- "None of the witnesses examined by me levelled any allegation of illegal gratification against any accused. None of he witnesses have stated that the accused No,1 had passed the orders for monetary benefit. It is correct to suggest that none of the witnesses examined by me have alleged in the statements that the accused No,1 passed the orders for fraudulent gains and profits. It is correct to suggest that PW Tassawar Hussain in his statement deposed that: ' A summary was floated to the former Minister HTP through the D.G. KDA recommending for regularization of the plot in favour of applicant Mr. Abdul Razzak at Rs,200 per square yards.' Similar statement was made by PW S.A. Shahanshah before me. Likewise, similar statement was made by Mr. Najeeb Mahar before me. Since the then D.G. KDA had given different recommendation, therefore, he was not made accused in this case. It is incorrect to suggest that at the time when the accused No,1 accorded his approval, there was no ban on regularization of the plots . It is incorrect to suggest that a false case was prepared by me on the pressure of the Government."'
(Emphasis provided).
17. The above-mentioned reproduced portion of the statement of the Investigating Officer reveals that the prosecution has failed to establish the allegations levelled against the appellants.
18. We may point out here after having examined the entire record that the factum of loss as alleged by the prosecution could not be proved. No evidence has come on record showing that any such plot was ever auctioned or sold in sum of Rs,1,200 per square yard. In fact, no such plot was ever put to auction and hence the question of fixation of price of plot as Rs,1,200 per square yard does not arise. The market price was never got assessed by any reliable means, on the contrary it has come on record that the fixed price for disposal of amenity plot in the vicinity in question was Rs,100 per square yard. In this regard the statement of Mr. Najeeb Ahmed, Assistant Director, K.D.A. (P.W4) can be referred. It may further be added that the proposal which was routed by Mr. Sabahat Ali Khan, the then Director General, K.D.A. Since absolved by the prosecution, has recommended the price of the plot in question as Rs,200 per square yard which was approved by the appellant Pir Mazhar-ul-Haq.
19. It transpired from the record that the plot in question was not only in possession of Abdul Razzak, appellant (in Criminal Appeal No,260 of 1997) for more than three decades but he also made huge construction on it. This all was witnessed by the K.D.A. Like an unconcerned silent spectator for certain obvious reasons which hardly needs any elaboration. No effort whatsoever was made by the K.D.A. To remove the unauthorized construction made on the 'plot in question. No action whatsoever was taken against the encroacher. This all could: not have been done without active connivance of the concerned functionaries of the K.D.A. From top to bottom. The appellant namely Pir Mazhar-ulHaq was admittedly not Minister of Housing & Town Planning, at that time having no concern with the affairs of K.D.A. And cannot be held responsible for the illegal encroachment, unauthorized construction and mysterious silence of K.D.A. In the same wake of events, it has been observed that it is a case of sheer discrimination. The accountability must be transparent, fair, honest, across the board and irrespective of the fact that who is who. As mentioned hereinabove, the case for regularization was finally recommended by Mr. Sabahat Ali Khan, the then Director General, K.D.A. Whose recommendation in the summary is as follows:-- "May be approved per recommendations of Regularization Committee".
20. It is noteworthy that no objection whatsoever was made by the Director General, K.D.A. That the summary should be floated through Governing Body or recommendations of the Governing Body should be sought. No doubt the summary was approved by the appellant, Pir Mazhar-ul-Haq, but it was at the instance, behest and recommendation of Mr. Sabahat Ali Khan, the then Director General, K.D.A. Who has been absolved from his responsibility for some unknown reasons. Once it was done how appellant Shah Mansoor Alam, Member (Admn. & Lands) K.D.A. Who was admittedly in lower position and subordinate to the Director General, K.D.A. Could have been prosecuted as they are sailing in the same boat and thus cannot be meted with the different treatment as it would be violation of the principle of natural justice, fair play and equity. Nothing incriminating material has come on record inferring that any financial loss to the public exchequer was ever caused.
21. We have also adverted to the question as to whether ban was imposed on the allotment/regularization of plot in question? Is worth-mentioning that a line of distinction has to be drawn between allotment and regularization, as both are not interchangeable or synonymous terms. There is no evidence showing that the plot was allotted by the appellant Pir Mazhar-ul-Haq with the connivance of Shah Mansoor Alam, appellant (in Criminal Appeal No,248 of 1997) but on the contrary, the record reflects that the matter pertained to regularization which is supported by a letter dated 23-8-1993 written by the Executive Engineer (NKT), K.D.A. Which is reproduced here below for ready reference: -- "Subject: Request for Regularisation of Plot No,ST-3 ' Sector 12-C, North Karachi Township.
1. Placed below is the application of Mr. Abdul Razzaq s/o Tar Muhammad, addressed to the Director General KDA duly endorsed to this office by the D.D.(P) for report.
2. In compliance the site inspected and the report as desired is submitted as follow:
(a) The site report already given by the then Executive Engineer NKT; that Mr. Abdul Razzak has occupied the Plot No,ST-3, Sector 12-C, North Karachi Township since long. The said report was furnished on 24-10-1987 (photo copy enclosed) by the Executive Engineer. b) Further as per site inspection, the said plot which is for public building is still under occupation of the applicant and running factory business since long time.
3. This case may be considered for regularization as industrial Unit as per rules and regulations of K.D.A. (Emphasis provided)
(Sd.)
Executive Engineer (NKT) K.D.A.
22. A bare perusal would reveal that the plot in question was in occupation of Abdul Razzak, (appellant in Criminal Appeal No,260 of 1997) and a factory built thereon was functional. The letter further reveals that recommendation was made for the regularization of plot as an industrial unit which makes it abundant clear that it was not a case of fresh allotment. The noting made at paras.
4, 5, 6, 7 and 8 (Ex.8/P/4) further indicates that it was a case of regularization. It is worth- mentioning that this was not the first case of its nature as earlier in the similar circumstances, Plot bearing No,ST-3 Sector 12-C, NKT was approved by the K.D.A. Besides that para. 45 of the noting is also worth perusing which is mentioned herein below for ready reference: -- "45. In this regard, it is submitted that the said case was placed before the Regularization Committee in its meeting held on 16-11-1993. The recommendations of the Committee in this case are reproduced as under (p-20/C):-- "1. Regularization of ST-3, 12/C, North Karachi.
The case was discussed in detail. It was informed by the Member (A&L) that site visit has already been made by him and that the encroachment cannot be removed. Therefore the Regularization' of unauthorized possession was recommended and it was decided to place the same in the next G.B. Meeting." (Emphasis provided)
23. As the above-mentioned note would show that the case regarding plot in question was recommended for regularization as according to the Assistant Director, K.D.A., it was not possible to remove the encroachment. The said recommendation was approved by the Director General, K.D.A.
The summary prepared by Shah Mansoor Alam appellant in (Criminal Appeal No,248 of 1997) is also indicative of the fact that Abdul Razzak appellant (in Criminal Appeal No,260 of 1997) was in possession of the plot in question since long by whom construction was also raised and therefore, in view of the reports of the XEN and BPUD recommendation for regularization was made. Nothing has been mentioned in the summary that it was a case of fresh allotment. We have perused the summary wherein some previous examples have also been quoted wherein similar circumstances, a plot was regularized which was kept in view by the XEN while making his recommendation subsequently incorporated in the summary duly approved by the Director General, K.D.A. As well as Pir Mazhar-ul-Haq (appellant) the then Minister, Housing & Town Planning, Government of Sindh, who ordered as follows:-- "Approved as proposed"
24. The appellant Pir Mazhar-ul-Haq has not allotted the plot but on the contrary it was regularized.
For the sake of arguments even if it is admitted that the ban was imposed on fresh allotment, it could not have been made applicable in the case of regularization which was pending in the K.D.A.
Since 24-10-1998 when admittedly appellant Pir Mazhar-ulHaq was not a Minister. In such view of the matter, it can be inferred safely that no role for initiation of allotment regarding the plot in question was played by appellant Pir Mazhar-ul-Haq. Survey Report of the plot in question was prepared on 24-10-1987 which is reproduced herein below for ready reference: -- "Office of The Executive Engineer North Karachi Division-1 K. D . A.
E/NKDI/AE/1050 Dated 24-10-1987 ' Assistant Director, Commercial, KDA, Karachi.
' Subject: Regularization of Plot No,ST.3, Sector 12/C North Karachi Township ' With reference to the application of Mr. Abdul Razzaq son of Tar Muhammad, received in this office for regularization of Plot No,St.3, Sector No,12/C, North Karachi, which is addressed to the Director General KDA.
' The report submitted by the concerned staff of this division inspected the site and found that Mr. Abdul Razzaq son of Tar Muhammad has occupied the Plot No,St.3, 12/C, North Karachi Township.
' The occupant has constructed shades with boundary wall and running the business since long time also the said site. Survey report in detailed has already been sent to Assistant Director Amenity vide this Office Letter No,NKD/SDI/03/153 dated 12-3-2003 (copy enclosed for ready reference with original applications).
' This case may be regularized as per rules and regulation of KDA.
' The detailed site position shown in site sketch.
(Sd.)
Executive Engineer, North Karachi Division-I, KDA."
25. A bare perusal of the survey report (Ex.8/3) would show that appellant Abdul Razzak was in occupation of the plot in question by whom heavy construction was made on the plot and some factory was also functional. In this regard all the details were furnished by the office of the Executive Engineer to K.D.A. By means of letter No,NKD/SDI/83/153 dated 12-3-1983 which means that the dispute qua the plot in question arose in the year 1983 when admittedly it was in the occupation of the appellant Abdul Razzak and appellant Pir Mazhar-ulHaq was not Minister at that time. It may be mentioned here that appellant Pir Mazhar-ul-Haq was appointed as Minister on 24- 11-1993 and Ministry of Housing & Town Planning was allocated to him. The above letter makes it further clear that the case was recommended for regularization and not allotment.
26. What has been discussed hereinabove, we find much force in the contentions of Mr. Aitzaz Ahsan, learned Advocate Supreme Court that the regularization of plot in question was in consonance with the earlier precedents and prescribed price as determined by the Regularization Committee itself and recommendation for the regularization was made by the Regularization Committee and the Director General, K.D.A. On the report of XEN and other concerned functionaries as such no illegality whatsoever has been committed by the appellant Pir Mazhar-ul-Haq.
27. It must be noted that a Minister has no legal right whatsoever to make allotment of any plot at his own whims and wishes and the question of any deviation from the prescribed policy does not arise. No Minister has any right to oblige the persons of his own choice at the cost of public exchequer to earn popularity and to increase his vote bank. It is however, not a case of fresh allotment but the plot in question was regularized at the recommendation of the Director General, K.D.A. Who was exonerated by the prosecution for the reasons best known to it. The plot in question was in the occupation of Abdul Razzak (appellant in Criminal Appeal No,260 of 1997) for more than three decades and a factory was also functional on the said plot and therefore, recommendation for its regularization was made by the Regularization Committee of K.D.A. Which was approved by the Minister and no offence whatsoever has been committed.
28. In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused, the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." In this. Regard reference can be made to the cases titled PLD 1956 FC 123, AIR 1956 SC 316, Phipson Evidence 7th Ed. Page 33, Jagdish Ram v. Mukand Lal, 1928 L.763, Hem Chandra De Sarkar v. Amiyabala De Sarkar, 52 C. 121, Muhammad Tahir v. Raghubar Dayal, 11 IC 761, Pankjammal v. Secretary of State, 40 I.C. 516, Pandurang v. Tukaram, 1934 N. 253, Peddi Reddy Fagi Reddi v. Panem Chinnabbi Reddi 56I. A. 6, Chainta Dasya v. Bhalku Das, 1930 C.591, Ganga Ram v. Rulia, 2 L.249, Rangavva Hanmappa Bidri v. Sheshappa Bidri 51 B.258, Pandurang v. Tukaram 1934 N 253, Bishambar Das v. Telu Ram 1934 L.1019, Pokhar Day v. Thakar Das, 1930 L. 213(2), Jadu Nath v.
Ramun Mal, 1921 L.284, Ruthna Gramany v. Veerabudra Aiyar, 21 IC 96, Sita Ram v. Haidar Khan, 25 I.C. 138, Makund v. Bahori Lal, 3 A. 824, Muhammad Tahir v. Raghubar Dayal 11 I.0 76, Hajee Lin v.
Maung Ba 5 R. 822, Jadu Nath v. Ramun Mal 1921 L. 284, Peddi Reddy Jogi Reddi v: Panem Chinnabbi Reddi 56 I.A. 6, Uttam Chand Ishwar v. Hakim Muhammad Sharif 1932 L. 417, Phipson, Ev., 7th Edn. 33, Taylor and 371, Over v. Harwood (1900) I QB 803, Bindra v. 1934 0. 485, Deputy Legal Remembrancer, Behar and Orssa v.Mathukdhari Singh 32 IC 137, Shahzad Khan v. E, 1933 P.513, 515, Robert Strari Wanchoe v.E. 161 C. 168, Wolmintton v. The Director of Public Prosecutions 1935 AC 462, Nannhum v. E 165 IC 458, Muhammad Rah v. E 1933 P. 598, Mohidin Karim v. E 551 IC 849, Gendan Lal v. E. 1930 0.
460, Basudeb Mandar v. E 1929 P. 112, Lila Ram v. E 1927 L. 862(2), Surat Singh v.Crown 1923 L.42, Mst.Jahura Bibi v. E 1931 C. 11, Rannum v. E 7 L. 84, Ghauns v. E 7 L.561, Dinamani Udaipal Ram Twary v.
E 98 IC 241, Nur Khan v. E. 1927 0. 611,Muzaffar v. E 99 IC 322, Bishambar Nath Baijpai v. E 1925 0. 676, Robert Stuart Wanchope v. E 61 C. 168 Woolmington v. The Director of Public Prosecutions 1935 AC 462, E. v. Damapala 14 R. 666, Nannhun v. E 165 IC 458, Bai Mani v. Usafali Bhudar 1931 B. 229, Muhammad Luqman v. State PLD 1970 SC 10, Shamoon v. State 1995 SCM R 1377, Wali. Muhamamd v.
The State 1969 SCM R 612, Khushi Muhamamd v. Muhammad Hanif PLJ 1980 SC 478, Ali Sher v. State PLD 1980 SC 317, Hakim Ali v. State 1971 SCM R 432, Rab Nawaz v. State PLD 1994 SC 858.
29. We are not persuaded to agree with learned Deputy Prosecutor General NAB that conviction could have been awarded in view of the provision as contained in section 14 of NAB Ordinance, 1999 for the simple reason that "the section cannot be used to undermine the well-established rule of law that save in very exceptional class of cases, the burden to prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of providing the guilt of an accused which always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty." The above view finds support from the authorities mentioned herein below: -- ' Shambu Nath Mehara v. State (1956 SC 404), E v.. Santa Singh (1944 L 339), State v. Pranjivan Gandalal (1952 Sau. 35), J.A. Humphrey v. Crown (PLD 1952 L 632), E v. Damapla (1937 R 83), E v.
Santa Singh 1944 L 339, Kanakasabai Pillai v. E. 1940 M 1, Senerviratue v. R 1936 PC 289, Attygalie v. R 1936 PC 169, Raghunath Gope v. E 1941 P 175, Mattial Chakravarty v. The King 1949 C 586, Lachman Singh v. The King 1949 C 235."
30. It hardly needs any elaboration that "the ordinary rule that applies to criminal trials, viz., that the onus lies on the prosecution to prove the guilt of the accused, is not in any way modified by the rule of evidence contained in this section which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances -necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, that such inference can be negatived by proof of some fact which, in its nature, can only be within the special knowledge of the accused. If the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
(Narayanan v. Executive Officer, ILR [1964] 1 Ker. 177).
31. It would be a misconception of law that every accused who faced trial in the Accountability Court or against whom a reference has been sent the "presumption as envisaged in section 14 of the NAB Ordinance, 1999" would start running against him Where the prosecution has failed to discharge the onus of "proof" by adducing cogent, concrete and forthright evidence the presumption of guilt would not arise against him and thus the question of conviction would have not arisen. The said proposition has been clarified by this Court in case titled Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), operative portion whereof is reproduced herein above for ready reference: -- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the following directions for effective operation of section 14 (d).
(1) The prosecution shall first make out a reasonable case against the accused charged under section 9 (a) (vi) and (vii) of the NAB.
(2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."
' Moonda v. The State PLD 1958 SC [Pak.] 275, Farman Ali v. The State 1992 SCM R 2055, C.S.D. Swami v. The State AIR 1960 SC 7, Rameswa r Prasad Upadhya v. State of Bihar, AIR 1971 SC 2474, Javed v.
The State PLD 1994 SC 679, Mst. Amir Khatun v. Faiz Ahmad PLD 1991 SC 787, Rashid Ahmad v. The State 2001 SCM R 41, Mir Abdul Baqi Baluch v. The Govt. Of Pakistan PLD 1968 SC 313, Syed Saeed Hassan v. Dayar Ali PLD 1976 SC 6, Mir Ahmed v. The State PLD 1962 SC 849, Syed Ali Nawaz Shah v.
The State PLD 2003 SC 837.
32. In no circumstances the defence should be expected to prove the accusation. In a similar wake of event while discussing the question of presumption it was held in Rehmat v. State PLD 1977 SC 515 as follows: -- "Needless to emphasise that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence."
33. In the light of what has been discussed herein above we are of the view that prosecution has failed to establish the guilt beyond shadow of doubt. The appeals preferred on behalf of appellants are hereby accepted and the judgment passed by learned High Court of Sindh Karachi in Ehtesab Reference No,8 of 1997 is set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.
…and 1 more citing case