FAZAL-E-MIRAN CHAUHAN, J. - By filing the instant writ petition the petitioner has challenged the order dated 1.9.2003 cancelling the initial allotment of agricultural land allotted to the petitioner in which proprietary rights were intended to be transferred and order dated 5.1.102 dismissing the representation made by the petitioner to the competent authority.
2. Brief facts of the case are that on 24.2.1999 the petitioner being serving as Brigadier in the Army Air Defence while posted at Multan, applied for allotment of agricultural land and was allotted 40 acres of agricultural land in Tehsil Jaranwala under GHQ Settlement Scheme Phase-IV, Punjab. The possession of the land was given to the petitioner on 13.3.2000. The petitioner retired from the Pakistan Army and ceased to be subjected to the Pakistan Army Act, 1952. That some financial irregularities in the Headquarter of National Guard, Multan section were reported to have taken place during the tenure of the petitioner as Commander, thereof and a Court of inquiry was appointed to inquire in the matter. The said inquiry stood terminated by acceptance of proposal made by the petitioner, which contained an undertaking duly received by the competent authority and the inquiry so initiated was dropped by the respondents. The petitioner received a cancellation letter dated 1.9.2003 cancelling the allotment of 40 acres of agricultural land from the name of the petitioner. After receiving this letter, the petitioner made representation on 22.9.2003 to the Vice Chief of Army Staff (competent Authority) starting therein that he had deposited the amount agreed between the parties on clear understanding that no further adverse action would be taken against the petitioner, despite that, the agricultural land allotted to the petitioner had been cancelled which amounted to double punishment and requested that cancellation order be reconsidered and order for restoration of agricultural land may be passed. Petitioner received a letter from It. Col. Nasir Khan, dated 5.6.2004 informing the petitioner that his representation has been rejected by the competent authority. Hence this writ petition.
3. It is argued by the learned counsel for the petitioner that; impugned order has been passed by the respondents without affording an opportunity of hearing to show cause against cancellation of land allotted to the petitioner; since a right in the said land has accrued in favour of the petitioner and the same cannot be cancelled without affording an opportunity to the petitioner, no ground or reason had been stated in the cancellation- order or ir) the subsequent order, whereby the representation made by the petitioner was rejected, hence cancellation order dated 1.9.2003 and subsequent order dated 5.6.2004 are not speaking orders. Further submits that the petitioner was served with a notice and a Court of inquiry was appointed to conduct inquiry in the case of alleged embezzlement committed during the posting of the petitioner as In charge Air Defence Multan; that the inquiry was conducted beyond the period of 6 months after his retirement and in this view of the matter the inquiry so conducted under the Military Act after lapse of 6 months of the retirement of the petitioner was without lawful authority. Further adds that terms of Section 10(3) of Colonization of Govt. Land Act, 1912 was amended time to time; the allotment order is to be governed by the terms and conditions of Army Welfare Scheme as laid in the policy letter issued by the respondent Board of Revenue on 3.4.1999. The true interpretation of the policy letter is that the allotment was intended to culminate in a sale treaty on payment of the full price. The price so assessed by the competent authority of the allotted land had been paid in toto hence the proprietary rights already stood transferred in favour of the petitioner and not withstanding the failure on the part of the respondent Board of Revenue and the functionaries under its control to finalize the execution of sale treaty in favour of the petitioner. Only cause or basis of cancellation of the land was the findings of Court of inquiry, which were never conveyed to the petitioner and that Court inquiry stood terminated on the basis of mutual settlement on the undertaking given by the petitioner and an amount of Rs. 20,00,0000/- was deposited. Offer of the petitioner was accepted by the respondents and as logical result of 'the same the alleged charge should have been dropped. Further submits that; in case of undertaking given by the petitioner having been accepted by the respondents and the proceedings having been terminated, the Court of inquiry, as per settlement has no justification for taking any adverse action against the petitioner. The petitioner initially filed a suit for declaration in the Court of Civil Court but withdrew the same keeping in view the bar contained under Section 36 of Colonization of Govt. Lands Act. Further submits that the respondents had failed to place on record any order passed by the inquiry committee approved by the competent authority against the petitioner. Since a right had accrued in favour of the petitioner on payment of the price of the land allotted the petitioner thus same cannot be terminated by the respondents taking one sided action without affording opportunity to the petitioner. Finally argued .That since, the order passed by the Court of enquiry is not privileged document and respondent should have filed the same in the Court or should have produced the document and claim privilege under the law. Since the order has not been produced despite the undertaking of department. The presumption under Act 158 of Qanoon-e-Shahadat would go against the respondents.
4. Conversely, learned counsel for the respondents argued that; within 6 months of the retirement of petitioner some misappropriation of funds were unearthed and respondents served the petitioner with a show-cause notice to appear before Court of inquiry. Petitioner was heard and convicted through administrative action by the competent authority. Further submits chat; the allotment was made to the petitioner as a defence personal on merit. However after confirmation from personal services Directorate (PS Dte.) General Headquarters that the petitioner was found involved in misappropriation/embezzlement, therefore, the allotment of land has been cancelled by GHQ. Further submits that; petitioner provided wrong information in the application submitted for allotment of agricultural land in his name, the same later-on was rightly cancelled for providing wrong information. Further adds that; the petitioner has got no legal vested right to claim for the allotment of land. The land was allotted for his benefit according to the policy, but when he was found to be involved in embezzlement of Govt, funds, the allotment was rightly cancelled according to the rules. The petitioner, during his posting as Commander Headquarter Air Defence Force Section, Multan was found to be involved in financial irregularities, which were disclosed after his retirement and he confessed the guilt and agreed to deposit Rs. 20,00,000/-. The involvement of the petitioner in embezzlement of Govt. Funds created adverse reflection in the dignity of Pakistan Army so the competent authority cancelled the. Allotment of the petitioner in accordance with the rules. Further adds that, the petitioner was found involved in the embezzlement of Govt, funds, and the petitioner, himself offer to despite the embezzled amount, which amounts ta confession on his part accordingly he became disentitled to retain any benefit received by him from the respondent.
So the allotment made in his favour was cancelled according to the rules. Finally argues that respondents Claimed privilege against inquiry proceedings and order passed by the competent authority.
5. I have heard the learned counsel for both the parties at length.
6. During the course of arguments, the learned counsel for the respondents was directed to produce the order passed against the petitioner in the inquiry proceedings by the Court of inquiry, subsequently approved by the Competent Authority. The learned counsel claimed privilege to the production of the said document on the ground that the order was passed it an inquiry proceedings secretly conducted. On this stance taken by the respondents, the learned Deputy Attorney General was directed to show the documents to the Court and thereafter Court could decided as to whether respondents can claim privilege with regard to the document or not. Article 6 of the Qanoon-e-Shahadat Order deals with the evidence as to affairs of State. The principle of the article is that it is not all records relating to affairs of the State that are privileged but only those, the disclosure of which would result in an inquiry being caused to the public interest. The article gives effect to principle that, public interest must be paramount and private interest must give way when there is any conflict between, public and private interest. This article constitutes a serious departure from ordinary rules of evidence, since a document which is material and relevant is allowed to be withheld from the Court contrary to the general rule of presumption of Article 129 of the Qanoon-e-Shahadat Order.
158. Production of documents: - A witness summoned to produce a document shall, if it is in his possession of power, bring to the Court, notwithstanding any objection which there may be to its production or to its admissibility, thevalidity of any objection shall be decided or by the Court.
(2) The Court, if it seems fit, may inspect the document, unless it refers to matters of State, or the other evidence to enable it to determine on its admissibility.
(3) If for such a purpose it is necessary to cause any document to be translated the Court may, if it thinks fit, direct the translator to keep the contents secret, unless the document is to be given in evidence and if the translator disobeys such direction he shall be held to have committed an offence under Section 166 of the Pakistan Penal Code (Act XLV of 1860).
7. Article 158 of the Order authorizes the Court to decide whether the privilege claimed against the production of a document is well found or not. This could only be done on the inspection of the document by the Court. Under Article 158 of Qanun-e-Shahadat Order respondent or the person in possession of the order is bound to produce the document for inspection of the Court to decide whether privilege with regard to the same can be claimed or not. Reliance is placed on PLD 1969 SC 14 and PLD 1969 Lahore 928.
8. As per the contention of the learned Deputy Attorney General, the petitioner was convicted by the Court of inquiry, therefore, the benefit of allotment given to the petitioner was rightly withdrawn.
As discussed above the respondent is relying on the order of competent authority but the same was neither conveyed to the petitioner nor the same have been produced in this Court. Non- production by a party of material document placed him under the recognized prohibition of Law and the presumption under Article 129 illustration (G) "presumption for withholding the best evidence/document if produced would have been unfavourable to the party withholding it.
129. Court may presume existence of certain facts: - The Court may presume the existence of any fact which it thinks likely to have happened regard being had to be common course of natural events; human conduct and public and private business, in their relation to the facts of the particular case.
9. Since the. Inference from non-production of evidence is one of the strongest presumption known to law and the law allows it against the party who is withholding the evidence by which the nature of his case would be manifested. The learned counsel for the respondents was directed to show the order to this Court in order to rebute the arguments advanced by the learned counsel for the petitioner that no termination order was passed rather the matter was settled between the parties and it was agreed between the parties that if an amount of Rs. 20,00,000/- is paid by the petitioner the charges against him would stand dropped. As a result of that the petitioner deposited Rs.
20,00;000/- and petitioner offered to the respondents vide letter dated while appearing as PW.1.
The offer so made before the Court of inquiry was received on 23.4.2002 and as a consequence of that the petitioner deposited Rs. 20,0, 000/- with the respondents but violating the agreement proceeded against him. However any adverse order reflecting on the service of the petitioner has been passed by the respondent was pot conveyed to the petitioner. The learned Deputy Attorney General appearing on behalf of the respondents on one date undertook to produce the proceedings of the Court of inquiry and order passed in the said inquiry in the Court for judicial inspection. Despite this undertaking neither the proceedings nor any document has been produced rather learned Deputy Attorney General states that the respondents are not responding the letter issued by him for the production of the said document. However, on the request of the learned Deputy Attorney General vide order dated 10.10.2006 Adjutant General Headquarters AG's Branch (W&R Dte.) Rawalpindi was directed to supply the requisite' information sought by the DAG on the direction of this Court. The order was conveyed to the It.Colonel for Adjutant General but no action was taken. However, on the date of final arguments, the learned Deputy Attorney General after arguing the case concluded his arguments requesting that more time may be granted to him to produce the said proceedings before this Court for inspection. Further submits that since the respondent is claiming privilege against the production of said proceedings and order. It is the common practice that the privilege of certain documents not to be produced in the Court, but these must show during the proceedings of the Court; in confidence to show that such proceedings were conducted .And order was passed in the same. In the, instance case despite the direction of this Court nothing has been produced by the respondents for inspection. Letter dated 3.11.2006 from Col. Saddiq Ashraf has been placed on the record by the learned Deputy Attorney General. Again it was informed to the learned DAG that copy of Court of inquiry cannot be recorded due to service reason. Since the respondents have failed to produce the order of inquiry despite that direction. Thus a strong presumption is attached under Article 129 illustration (G) that the document has been deliberately withheld as the same would have been gone against the respondents if produced. In this view of the matter no penal action could be taken against the petitioner in the shape of cancelling his agricultural land.
10. As discussed above 40 acres of agricultural land was allotted to the petitioner on his retirement and cost of the said land was also deposited by him with the respondents thereafter he was served with a notice from the Court of inquiry to appear and explain his stand. A settlement was arrived at between the parties and the petitioner deposited Rs. 20,00,000/- to compensate the loss sustained by the respondents. As per contention of the petitioner on his deposit of Rs. 20,00,000/- he was given impression that inquiry would be dropped. However the said inquiry was not dropped and while ex parte adverse order was passed against him and consequence of that the benefit given to the petitioner for his services . Were drawn. Resultantly, cancellation order of 40 acres of land was passed by the competent authority. A valuable right in the property had accrued to the petitioner, and he cannot be deprived of the same by the respondents on the pretext that an adverse order has been passed against him holding him of the guilty of misappropriation which was proved by the competent authority when the same was never conveyed to him by the respondents. The said action on the part of the respondents appears to be one sided and if any order has been passed the respondents should have produced the same taking the Court in confidence. Non-production of the record/order by the respondent on the pretext of claiming privilege is not accepted. A valuable right had been accrued in favour of the petitioner and he cannot be deprived of the same by the respondents without affording an opportunity of hearing to him and conveying the order passed against him in any such proceedings.
11. For what has been discussed above, this petition is accepted and the impugned order dated 1.9.2003 cancelling the initial allotment of agricultural land of the petitioner is set aside. No order as to costs.