' MUHAMMAD MOOSA K. LEGHARI, J. This statutory appeal is directed against the judgment dated 5- 11-1998 passed by Sindh High Court Ehtesab Bench in Ehtesab Reference No,6 of 1997, whereby the appellant was convicted under section 4 of the Ehtesab Act, 1997 to undergo R.I. For two years plus fine of Rs,10,00,000. (Rupees Ten Lacs). In case of default in payment of fine the appellant was to suffer R.I. For six months more.
2. Briefly stated the facts forming the background of the case are that while holding the public office as Minister for Housing and Town Planning, Sindh, the appellant recorded minutes on a summary moved on the application of co-accused Tariq Qazi with regard to allotment of a plot bearing No, ST-4, Sector 15-A4, Buffer Zone, North Karachi Township, reserved for petrol pump. On the basis of an enquiry conducted by Enquiries and Anti-Corruption Establishment Government of Sindh a reference dated on 20th January,1997 was submitted by Chief Ehtesab Commissioner in the High Court of Sindh, whereupon proceedings were initiated against the appellant along with co-accused Syed Abdullah Shah and Tariq Qazi. Ultimately co-accused Syed Abdullah Shah was declared proclaimed offender and the case/ proceedings against him were kept dormant, while the appellant and co-accused Tariq Qazi were charged of the offences punishable under sections 3 & 4 of Ehtesab Ordinance. Both the co-accused pleaded not guilty and claimed to be tried.
3. During trial, prosecution examined four witnesses viz. Masood Haider, Project Director, Ahmed Hussain , Ex-Director General, Karachi Development Authority, Rafique Ahmed, Director Karachi Development Authority and I.D. Magsi, the Investigation Officer. The appellant and co-accused Tariq Qazi recorded their statements under section 342, Cr.P.C. In which they denied the allegations to be false and motivated.
4. On conclusion of the trial co-accused Tariq Qazi was acquitted whereas the appellant was convicted in the terms as stated above.
5. It was contended on behalf of the appellant that the reference against the appellant was motivated by malice. The appellant had no role in the allotment of the plot to co-accused. The element of mens rea on the part of the appellant was missing, and that the co-accused in whose favour the plot was allotted was acquitted by the Trial Court. In any case neither any loss was caused to the State exchequer, nor the appellant did obtain any material gain from the said allotment. It was vehemently argued that the Trial Court awarded the sentence to the appellant in a cursory manner ignoring all the settled principles of dispensation of Criminal Justice. It was contended that the judgment of the Ehtesab Bench of High Court was perverse and capricious being against evidence produced on the record as the prosecution has failed to prove the charges. As such the conviction was unsustainable in law. In support of above submission learned counsel placed reliance on a number of citations, which include Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 Supreme Court 63), Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others (PLD 2003 Supreme Court 46), Ramesh M. Udeshi v. The State (2005 SCM R 648) and Shafi Muhammad Sehwani and another v. The State (2004 SC" R 1178).
6. Conversely it was argued by learned Deputy Attorney General that the appellant failed in his duty to protect the interest of the Government. That the plot was allotted by co-accused Syed Abdullah Shah to-co-accused Tariq Qazi at throw away price and in relaxation of ban imposed by the Government on the recommendation of the appellant which caused huge national loss as such the appellant was rightly convicted by the Trial Court. It was strenuously argued that the decision of the Trial Court was based upon appreciation of evidence and was not vitiated in any manner as such there was no reason for Supreme Court to interfere in the matter. Reliance was placed on Malik Mughal Khan Noor v. The State (1969 SCM R 457).
7. We have considered the arguments advanced before us, examined the impugned judgment and with the assistance of learned counsel for the parties scanned the evidence produced by the prosecution.
8. It will be observed that co- accused No,3, Tariq Qazi, moved an application to co-accused Syed Abdullah Shah, the then Chief Minister for allotment of a plot. On the said application the summary was floated by the Department concerned to the Chief Minister through proper channel. The appellant being the Minister for Housing and Town Planning said summary had to be routed through the appellant. The appellant made the following noting on the said summary: "The Chief Minister may like to relax the ban as due to ban people are facing hardship and relaxation the rule".
' The Chief Minister on the said summary passed the following orders: "Please transfer the plot at the reserve price of Rs,300 per square yard, in relaxation of ban on allotment."
' Consequent upon above noted approval of the Chief Minister, the Housing, Town Planning and Environment Department vide letter dated 11-7-1994 directed Director General, Karachi Development Authority to allot the plot in question to co-accused No,3 at the reserve price of Rs,300 per square yard, consequently a challan of Rs,2,70,000 was submitted and allotment order dated 22-8-1994 was issued. It will be noted that what the appellant observed in his note was to the extent that the Chief Minister may like to relax the ban as it was causing hardship to the people.
The above noting was in general terms and not specifically meant for the plot in question. It was the Chief Minister who allotted the plot and also fixed the price of the land, which was in fact the reserve price. Nothing has been brought on record by the prosecution to show that the appellant obtained any material and pecuniary gain by the allotment in question. There is absolutely no evidence to disclose that the appellant acted with the intention to achieve wrongful gain for himself or with the purpose of causing loss to the national exchequer. On scrutiny of the evidence produced on the record nothing has surfaced to reveal that any of the prosecution witnesses has implicated the present appellant. The perusal of the impugned judgment reveals that co-accused Tariq Qazi in whose favour the plot was allotted was acquitted by the Trial Court. The judgment of Trial Court with regard to acquittal of co-accused Tariq Qazi attained finality, as the same was not challenged in appeal as confirmed by learned Deputy Attorney General. It is evidently obvious from the record that the allotment order of the plot was surrendered by co-accused No,3 and thus it would be apparent that no loss was caused to the exchequer. The appellant was acquitted by this Court in a Reference arising in a similar circumstance. The case is reported as Pir Mazharul Haq and others. v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 Supreme Court 63). The judgment of this Court in the case of Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others (PLD 2003 Supreme Court 46) relied upon by the appellant's counsel is fully applicable to the facts and circumstances of the instant case. In the case of Ramesh M. Udeshi. Vs. The State (2005 SCM R 648), it was observed that the conviction cannot be based on surmises and conjectures and that the Ehtesab Bench of the High Court failed to appreciate that no conclusive evidence had been produced to show any material gain or advantage obtained by the appellant. It was further observed that there is no evidence of illegal gratification and pecuniary benefit by the appellant. In the case of Shafi Muhammad Sehwani and another v. The State (2004 SCM R 1178) the appellant was acquitted observing that the element of mens rea was missing in the said case.
9. Reverting to the case of Malik Mughal Khan Nom (Supra) relied upon by learned Deputy Attorney General it must be observed that there is no cavil with the proposition that where a decision is based on proper appreciation of evidence and is not vitiated in any manner, no interference is warranted by the Supreme Court. However, it will be seen that in the case in hand, it was quite clear that the Trial Court passed the judgment without properly appreciating the evidence available on record and proceeded to award the sentence on the basis of conjectural and hypothetical reasons. It was quite unfortunate to note that though the trial Court observed that it is correct that accused No,2/appellant has not recommended any price on which the land was to be sold, yet he was held guilty as he recommended the relaxation of ban because the people were facing hardship, grossly ignoring the fact that a provision under section 15 of the Ordinance, 1980 itself was made for relaxation of rules, coupled with the circumstance that there was no evidence at all to the effect, that such recommendation was tainted with malice or that the reason of hardship was concocted and/ or beyond the scope of statute itself. The haste and shallowness displayed on the part of the trial Court, could well be noticed from the fact, that though the appellant, at the relevant time was holding the office of Minister Housing and Town Planning yet in the charge, he was indicted and mentioned as Minister Law and Parliamentary Affairs. In such situation it became inevitably unavoidable to interfere as no conviction of any sort was -warranted in the circumstances of the case.
10. As a result of above discussion, we have arrived at a definite conclusion that the conviction awarded to the appellant is not sustainable and the judgments must be set aside. We accordingly allow this appeal Lnd set-aside the impugned judgment. The appellant is on bail, his bail bond shall stand discharged.
11. These are the detailed reasons for short order dated 10-12-2007.