' MUHAMMAD NAWAZ ABBASI, J.--- These connected Criminal Appeals bearing Nos.439 to 442 of 2003 involving common questions of law and facts have been directed against two separate judgments rendered on 9-1-2002 by a learned Division Bench of the Lahore High Court, Lahore, in Criminal Appeals Nos.1913 of 2000 and 1914 of 2000 arising out of two independent references pertaining to the same transaction, filed by the NAB under section 18 of the NAB Ordinance, 1999, against Major (R) Tariq Javed. Afridi, appellant in Criminal Appeals Nos.441 of 2003 and 442 of 2003 (hereinafter to be called "appellant") and his co-accused Muhammad Idrees Ghauri, since acquitted.
2. The appellant has questioned the legality of the conviction and sentence awarded to him in the above references for committing an offence of corruption and corrupt practices under section 9(a)
(vi) read with section 10(a) of the NAB Ordinance, 1999 whereas the State has filed Criminal Appeals Nos.43 and 440 of 2003 for the enhancement of the sentence of the appellant and Criminal Appeal No,438 of 2003 (arising out of Criminal Appeal No,1915 of 2000 before the High Court) against the acquittal of Muhammad Idrees Ghauri, co-accused of the appellant and we intend to dispose of all these appeals together through this single judgment.
3. The charge against the appellant was that he while posted as Managing Director, Cholistan Development Authority, Bahawalpur, (hereinafter to be referred as the "C.D.A.") by misuse of his official authority, committed an offence of corruption and corrupt practices within the meaning of section 9(a)(vi) read with section 10(a) of NAB Ordinance, 1999 (hereinafter to be called as Ordinance). The co-accused of the appellant was tried on the basis of similar charge.
' The precise allegation against the appellant was that he having sent a reference to the Board of Revenue (B.O.R.), Government of Punjab, Lahore for conferment of the powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 (hereinafter to be mentioned as "Act") and without waiting for the formal sanction of B.O.R., proceeded to exercise .The powers of Collector. The appellant allegedly in collusion with his office Superintendent, Muhammad Idrees Ghouri, acquitted accused, without the knowledge and permission of B.O.R., created a new Chak No,68-Alif/D.B. Under Colonization of Government Lands (Punjab) Act., 1912, to accomplish the ulterior motive of making allotment of State land to the affectees of Lal Sohanra Park with dishonest intention for illegal gain and pecuniary advantage knowingly that there was no allotment scheme of B.O.R. In operation and ban was also imposed on the allotment of State land.
4. The charge against the appellant in the Reference (bearing No,22 of 2000), subject-matter of Criminal Appeals Nos.438, 439 and 441, was framed as under:- "Firstly that during the period from July, 1998 to March, 2000, you Major (Retd.) Tariq Javed Afridi, son of Malik Nadir Shah Afridi, resident of House No,48-A, Street No,16, Cavalry Ground Extension, Lahore Cantt., above-named accused No,1, while posted as Managing Director, Cholistan Development Authority, Bahawalpur, in collusion and in connivance with you, Muhammad Idrees Ghouri and Muhammad Boota, while posted as Superintendent, Cholistan Development Authority, Bahawalpur and Naib Tehsildar Cholistan Development Authority, Bahawalpur above-mentioned accused Nos.2 and 3 respectively, being holder of public office, knowingly and voluntarily made allotments of the plots which were under your administrative control, to persons who did not qualify the requisite condition for such grants as laid down by the Colonization of Government Land (Punjab) Act, 1912, by exercising powers of Collector under the Colonization of Government Land (Punjab) Act, 1912, which was never conferred upon you (accused, Major (Retd.) Tariq Javed Afridi), by corrupt, dishonest, illegal means and in abuse of your position/authority, and thereby you all above-named three accused acted deceitfully, fraudulently and dishonestly, caused colossal loss to the State exchequer Cholistan Development Authority Bahawalpur and as such committed the offence of corruption and corrupt practices as defined in section 9 punishable under section 10 of NAB Ordinance, 1999 read with schedule of offences appended to the NAB Ordinance read with all the relevant provisions of earlier enactments mentioned in its section 35, within the cognizance of this Court.
' Secondly, that you Major (Retd.) Tariq Javed Afridi, above-mentioned accused No,1, in collusion and in connivance with you, Muhammad Idrees Ghouri and Muhammad Boota, above named accused Nos.2 and 3, being holder of public office as aforesaid, respectively, knowingly and voluntarily allotted alternate land measuring 20 squares of land which were under your administrative control, to 40 persons, alleged to have been affectees of National Park Lal Sohanra, although they were not genuine affectees and were not entitled to the same by fraudulently and dishonestly changing the list of affectees, by corrupt dishonest illegal means and in abuse of your position/authority, and thereby committed act of corruption and corrupt practices as defined in section 9 and punishable under section 10 and the schedule appended to NAB Ordinance, 1999 read with all the relevant provisions of earlier enactments mentioned in its section 35 within the cognizance of this Court. And I hereby direct that you, above-named three accused, be tried by this Court on the aforesaid charge."
5. The Accountability Court at Lahore on conclusion of trial having found the appellant guilty of the charge under section 9(a)(vi) of the Ordinance, convicted and sentenced him under section 10(a) of the said Ordinance, to R.I. For 3 years with a fine of 2.000 million and in default of payment of fine, he was directed to undergo R.I. For a period of two years. In consequence thereto, the appellant also earned disqualification in terms of section 15 of the Ordinance for a period of 10 years to hold any public office. The appeal filed by the appellant in the High Court was partly allowed, in the following manner:-- "For the foregoing discussion, we hold that the trial Court has rightly convicted the appellant for the offence under section 9(a)(vi) read with section 10(a) of the NAB Ordinance as we uphold this conviction. As regards the question of sentence, we feel that balance must be struck between undue harshness and undue leniency. On behalf of the defence a chart has been placed on the record to show that counting the remissions granted to the appellant from time to time he has undergone sentence of 5 years, 5 months and 26 days. The chart submitted by the prosecution, which is duly attested by the Deputy Superintendent of District Jail, Lahore shows that till 20-9-2001 the appellant had undergone sentence of 4 years, 3 months and 17 days. Thereafter he remained behind the bars for a period of more than three months. As a result of conviction the appellant has already lost his job and otherwise stands disqualified for a period of 10 years to hold any public office as provided under section 15 of the Ordinance. Therefore, we feel that the sentence already undergone by the appellant is sufficient to meet the ends of justice. So far as the sentence of fine is concerned, the prosecution has not been able to show that the appellant had received any pecuniary benefit or advantage on the process of the conferment of proprietary rights of execution of conveyance deeds in favour of allottees. Further there is no evidence on the record to show that the appellant is living beyond his known sources of income, hence the sentence of fine is set aside.
The appeal is partly allowed with the above modification in the quantum of the appellant's sentence. He will be released forthwith from the jail if not required to be detained in any other criminal case."
6. In the connected Reference (Reference No,21 of 2000), out of which Criminal Appeals Nos.440 and 442 of 2003 have arisen, the charge was framed as under:- "That during the period from 13th July, 1998 to 20th March, 2000, you Major (Retd.) Tariq Javed Afridi son of Malik Nadir Shah Afridi, resident of House No,48-A, Street No,16, Cavalry Ground Extension, Lahore Cantt., above-named accused, while posted as Managing Director, Cholistan Development Authority, Bahawalpur, being holder of Public Office, knowingly and voluntarily granted 559 proprietary rights, 78 Conveyance Deeds and 168 Conveyance Deeds about the lands/plots mentioned therein and which were under your administrative control, in violation of Notification dated 19-3-1995, issued by the Secretary Colonies Department Government of the Punjab, by exercising powers of Collector which were never conferred upon you under the Colonization of Government Lands (Punjab) Act, 1912, by corrupt dishonest illegal means and in abuse of your position/authority and thus, allotted deceitfully and dishonestly, and thereby caused colossal loss to the State exchequer, Cholistan Development Authority, Bahawalpur, and as such committed the offence of corruption and corrupt practices within the meaning of section 9, and punishable under section 10 of NAB Ordinance, 1999 and schedule appended thereto read with all the relevant provisions of earlier enactment mentioned in its section 35, within the cognizance of this Court."
7. The trial Court also having found the appellant guilty of the charge in this reference, convicted and sentenced him as under:-- "R.I. For 6 years With a fine of Rs,80,00,000 under section 10(a) of the Ordinance and in default of payment of fine, he was directed to undergo R.I. For a period of three years under section 9(a)(vi) of the NAB Ordinance, 1999, read with section 10(a) of the Ordinance and in default of payment of fine, he was directed to undergo R.I. For a period of three years and also was disqualified under section 15 of the Ordinance for a period of 10 years to seek any public office etc. With benefit of section 382-B, Cr.P.C."
8. The appellant on dismissal of the appeals preferred by him against the conviction and sentence awarded to him by the trial Court before the High Court, has 'filed two separate appeals before this Court and State also being not satisfied with the judgment of the High Court assailed the same before this Court. Leave was granted in this connected appeals vide order, dated 23-4-2003 as under:-- "Through the captioned petitions leave to appeal is sought against a common order, dated 19th of January, 2002, whereby a learned Division Bench of the Lahore High Court upheld the conviction of petitioner Major retired Tariq Javed Afridi for offences under section 9(a)(vi) read with section 10(b) of the NAB Ordinance but reduced his sentence to already undergone by him and the sentence of fine was set aside.
' The precise allegation levelled against petitioner Major retired Tariq Javed Afridi is that in his capacity as M:D. Cholistan Development Authority, Bahawalpur, he had granted proprietary rights/conveyance deeds in favour of as many as 800 persons while exercising powers of Collector which were never conferred upon in terms of Colonization of Government Lands (Punjab) Act, 1912, and in violation of Notification dated 19th of March, 1995. Case of the petitioner before the Accountability Court was that cases for the grant of proprietary rights were pending since long, and he had decided the dame in a bona fide manner on the basis of reports submitted to him from time to time by the concerned revenue field staff and the Colonization Officer/Collector who had endorsed their recommendations in favour of each allottee. As regards the exercise of Collector's powers by him, petitioner's assertion was that he had applied for the conferment of such powers by the Board of Revenue, and during the interregnum, he had been exercising those powers on the assumption that conferment of power was merely a formality which ultimately had to - be granted in his favour. It was contended that cases of entitlement of 805 persons had already been determined since 1980, and only consequential orders for the execution of sale- deeds remained to be accomplished. On the point of loss to the national exchequer, it was contended that admittedly an amount of Rs,70 million approximately was realized from aforesaid persons.Kh. Haras Ahmed, Advocate Supreme Court for the petitioner Major retired Tariq Javed Afridi contends that it was merely an irregularity and petitioner's act does not fall within the purview of section 9 of the NAB Ordinance at the most, he could have been proceeded under the Efficiency and Discipline Rules. He next argued that petitioner did not cause any wrongful loss to any institution or authority and did not derive any pecuniary advantage for himself.
After hearing the learned counsel in all these petitions, and going through judgments of both the Courts below, we are of the view that questions raised in the petitions filed by Kh. Haras Ahmed, Advocate Supreme Court and Mr. Shaukat Javed Malik, Advocate Supreme Court (Criminal Petitions Nos.63, 61, 64, 146 and 147-L of 2002) require reappraisal of the entire evidence, therefore, we grant leave to appeal in these petitions.
' As regards Criminal Petition No,170-L of 2002 Hussain and 74 others v. Major Retired Tariq Javed Afridi and another, let it be heard along with said petitions in which leave to appeal has been granted today."
9. Mian Muhammad Ilyas, learned Deputy Prosecutor-General, in support of Criminal Appeals Nos.438 to 440 of 2003, filed by State has contended that the High Court having taken a wrong view of the evidence, reduced the sentence of the appellant in improper exercise of jurisdiction and asserted that in the cases of corruption and corrupt practices falling under section 9(a)(vi) of the Ordinance, the insistence on direct evidence of high standard is not the requirement of law rather on discharge of initial burden by the prosecution, the onus is shifted to the accused to disprove the allegation and on his failure, Court can raise a presumption of his guilt under section 14(d) of the Ordinance and that once an accused facing the charge of corruption and corrupt practices is found guilty, the question whether the evidence of corruption was direct or circumstantial may not be a relevant consideration or a valid reason for taking a lenient view in the matter of sentence.
Learned Deputy Prosecutor General argued that apart from the admission of appellant the prosecution has brought ample evidence, oral as well as documentary on the record to establish the charge and in the light thereof, the High Court in appeal in absence of very strong mitigation, was not at all justified to reduce the sentence awarded to the appellant by the trial Court. He asserted that the defence plea of appellant to have not acted in bad faith, would seriously reflect upon his bona fide as nothing is said to be done or believed in good faith, which is done or believed without due care and attention, therefore, the exercise of the power of the Collector by the appellant knowingly that he could not exercise such powers under the law, would give rise to a legitimate presumption that he acted for an ulterior motive and extraneous consideration. In short, the learned Deputy Prosecutor General argued that in the cases under the NAB Ordinance, in absence of any proof of 'bona fide, the presumption of guilt can be raised on the basis of evidence available on record and nominal sentence in'such cases, would defeat the purpose and spirit of law.
10. Sardar Muhammad Ishaq Khan, learned Senior Advocate Supreme Court, counsel for the appellant, on the other hand, has contended that the trial Court as well as the High Court without proper appreciation of the evidence available on record, by misinterpreting and misconstruing the provisions of section 14(d) of NAB Ordinance, raised a wrong presumption of guilt of the appellant and argued that there was no evidence direct or circumstantial of an illegal gain or pecuniary advantage which are essential component of an offence under section 9(a)(vi) of the Ordinance.
Learned counsel submitted that since an act in absence of element of bad faith and mens rea is not a crime therefore, the presumption of guilt under section 14(d) of the Ordinance, could not be raised for mere reason that appellant without formal authority of law, exercised the power of Collector under Colonization of Government Lands (Punjab) Act, 1912 and forcefully argued that High Court due to the misconception of law, despite having come to the conclusion that appellant did not obtain any illegal gain or pecuniary advantage, was misled in forming the opinion that he was guilty of committing an offence under section 9(a)(vi) of the Ordinance. Learned counsel added the BOR having not reversed the order passed by the appellant by virtue of which proprietary rights were given to the affectees of Lal Sohanra Park and conveyance deeds were executed in their favour, has virtually rectified the irregularity if any in the said orders with the result that the charge, stood vanished and submitted that the appellant on the basis of reports given by the subordinate staff proceeded to pass the orders in the cases, which were pending for grant of proprietary rights since long with the sole object to bring to an end the sufferings of the affectees of Lal Sohanra Park, but unfortunately the trial Court as well as the High Court taking an extreme perverse view of the law and facts of the case, held that exercise of power of Collector without formal approval of BOR was an act of misuse of authority in terms of section 9(a)(vi) of the Ordinance.
11. The leading facts of the case are that appellant while discharging the functions of Managing Director of Cholistan Development Authority (C.D.A.) also exercised the powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 without formal conferment of such powers in consequence to which he was put to face the criminal prosecution for the charge of corruption and corrupt practices. The defence plea of the appellant was that in view of the past practice, he being under the bona fide impression that M.D. C.D.A., was competent to exercise the power of Collector exercised such powers, which were also subsequently conferred on him, therefore, he committed no offence. In the light thereof, the real question for determination would be whether the appellant assumed the powers of Collector with mala fide intention and for some ulterior motive or he did exercise the power of Collector in good faith without any consideration of illegal gain or undue benefit. There is no cavil to the proposition that an illegal order in a particular set of fact, may have the penal consequence but the question required to be adhered in the present case, was as to whether the act of grant of propriety rights of the land without the power of Collector, VS/ itself would constitute an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance without proof of essential ingredient of illegal gain and undue favour to constitute such an offence and the answer would certainly be in the negative.
The concept of criminal administration of justice is based' on the assumption that criminal act is injurious not just to an individual but society as a whole and violation of the criminal law which is built upon constitutional principles of the substantial as well as procedural law, has the consequence of punishment, therefore, the prosecution in the light of constitutional principle is under heavy duty to establish the violation of criminal law to award the punishment. The striding of law to bring an action within its compass is in conflict to the concept, of fair treatment, therefore it is primary duty of the Court to ascertain whether the alleged offence was outcome of an act in violation of some law which can be termed as actus reus of the crime (guilty act) and if this essential element of crime is missing, the breach may not subject to the sanction of criminal law, therefore, a person who is blamed to have committed an offence if is not accountable in criminal law for his action, he cannot be subject to the prosecution. The mens rea (guilty mind) is another essential component of crime without proof of which a person cannot be held guilty of an offence and similarly without the proof of concurrence to commit the crime, the offence is not complete. In addition to the above basic components of a crime, the harm caused in consequence to an act is also considered an essential element of a crime because the act if is harmless it may not constitute a crime. The above components of an offence of corruption and corrupt practices are not traceable in the series of transaction in the present case.
12. The charge against the appellant was that he by misuse of his authority, committed an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) punishable under section 10(a) of the Ordinance. The misuse of authority in general, means wrong and improper exercise of authority for the purpose not intended by law, therefore, in order to prove the charge of misuse of authority, at least two basic ingredients i.e, mens rea and actus reus of the crime have to be necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of .Authority means to act in disregard of the law with the conscious knowledge that act was being done without authority of law and except in the case of strict liability, the element of mens rea is necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e, conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus reus of the crime to establish the charge, as without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices has not been as such defined in the Ordinance but in general terms, the corruption is an act which is done with intent to give some advantage in consistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices is series of depraved/ debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation- in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt. In the present case, the NAB authorities on the basis of order passed by the appellant by virtue of which land was allotted to the affectees of Lal Sohanra Park, launched prosecution against the appellant for the charge of committing an offence under section 9(a)(vi) of the Ordinance whereas the appellant in his defence plea asserted that he having found that the rights of allottees were acknowledgeable in iaw, exercised the powers of Collector in a good faith with bona fide intention and perusal of record would show that no direct or circumstantial evidence was brought on record to suggest that appellant exercised the power of Collector for the consideration of an illegal gain or an undue benefit for himself or for any other person and consequently, the case would not fulfil the test of section 9(a)(vi) of NAB Ordinance to justify the criminal prosecution.
13. The allegation without specific evidence that appellant in connivance with his co-accused acted for a dishonest or unlawful purpose or the land in question was allotted to the persons who were not entitled for such allotment under the law, would seriously reflect upon the truthfulness of the allegation and learned DPG has not been able to satisfy us that in such a case, mere use of authority contrary to law, is a wrong of the nature, which would necessarily entail the penal consequence under NAB Ordinance. The prosecution also has not been able to bring on record any evidence direct or circumstantial in proof of the fact that the appellant in collusion with his co- accused or in connivance with the allottees of the land by indulging in corruption and corrupt practices, extended undue favour to them for some personal gain or pecuniary advantage, therefore, the mere jurisdictional defect in the allotment without any motive, illegal gain or undue benefit, would not constitute an offence of corruption and corrupt practices within the meanings of section 9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999.
14. The prosecution of a person without distinction of criminal and civil liability in a transaction, is misuse of process of law and similarly stretching the law in favour of prosecution is unjust and unfair, therefore, the Courts without ascertaining the true character of the transaction and drawing the distinction in the civil and criminal liability, must not proceed to raise a presumption of guilt in terms of section 14(d) of the NAB Ordinance. This Court in Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607, observed as under:- "229. Viewed in the above context, although shifting of burden of proof on an accused in terms of section 9(a)(vi)(vii) read with section 14(d) may not be bad in law in its present form, but would certainly be counter productive in relation to the principle of good governance. If decision making level officials responsible for issuing order, S.R.Os. Etc., are not protected for performing their official acts in good faith, the public servants and all such officers at the level of decision making would be reluctant to take decisions and/or avoid or prolong the same on one pretext or another which would ultimately lead to paralysis of State-machinery. Such a course cannot be countenanced by this Court."
15. The presumption of guilt under section 14(d) of the NAB Ordinance, in respect of an offence can only be raised after prosecution has established preliminary facts and succeeded in making out prima facie a reasonable case to charge an accused for an offence under section 9(a)(vi) of the Ordinance. Therefore, notwithstanding the provision of section 14(d) of NAB Ordinance, this is settled law that unless the prosecution to the satisfaction of Court succeeds in discharging the initial burden of proving the allegation, no presumption of guilt can be raised to shift burden of disproving the allegation to the accused.
16. The examination of the evidence in detail would show that the trial Court as well as the High Court by raising adverse presumption under section 14(d) of the Ordinance, drew an inference of guilt of the appellant without realizing that prosecution has not been able to discharge the initial burden of proving the charge of undue favour of dishonest purpose or pecuniary advantage. This is settled principle of criminal administration of justice that unless prosecution succeeds in discharging the initial burden of proving the guilt of an accused on the basis of evidence to the satisfaction of Court notwithstanding the special provision in law, the presumption of guilt cannot be raised to shift the burden of disproving the allegation upon the accused. This may be noted that the plea of good faith and bona fide intention taken by the appellant, sought ample support by the fact and circumstances of the case and in addition thereto the High Court on the basis of analysis of the evidence also held that appellant did not obtain any personal gain or pecuniary advantage.
In view thereof, the conclusion qua guilt of the appellant, without any evidence of obtaining any illegal gain or pecuniary advantage for himself or for any other person by dishonest and illegal means, was the result of misconception of law.
17. In the light of facts and circumstances of the present case and the evidence brought on record, we have not been able to find out the basic elements of an offence of corruption and corrupt practices in the transaction in question within the meanings of section 9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999 which provide as under-- "9. (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices--
(vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or wilfully fails to exercise his authority to prevent the grant, or rendition of any undue benefit or favour which he could have prevented by exercising his authority.
10.(a) A holder of public office or any other person who commits the offence of corruption and corrupt practices shall be punishable with rigorous imprisonment for a term which may extend to 14 years and with fine and such of the assets and pecuniary resources of such holder of public office or person, as are found to be disproportionate to the known sources of his income or which are acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or Benamindars shall be forfeited to the appropriate Government, or the concerned bank or financial institution as the case may be."
18. The plain reading of the above provisions would show that without discharge of initial burden by the prosecution, the presumption of guilt cannot be raised and trial of a person on vague allegation is misuse of process of law and Courts. The prosecution must discharge its duty fairly, justly and in accordance with law and since any lapse of prosecuting agency in respect of the right and liabilities of a person facing prosecution, is not condonable, therefore, the Courts must be vigilant about the right of such a person to save him from incarceration of unjustified prosecution at the cost of his honour and reputation. In Islam right to honour was declared a sacred right, which means not only the violation of such right is punishable and to be compensated but the violation is also to be prevented and thus on one hand protection is to be provided to the victim and on the other hand, one who violates such right is made accountable. In criminal administration of justice, this is common principle that in case of liability with penal or quasi penal consequence, the oppressive use of law in respect of honour and reputation of a person is not justified and denial of safeguard of just and fair treatment must be prevented in the larger interest of justice which is the most fundamental of all the rights in Islam and cannot be abridged by any limitation. The NAB Ordinance is a special law and use of this law in oppressive manner must be tested on the touchstone of fundamental right of a person as guaranteed under the Constitution.
This Court in Asfandyar Wali case, (supra), no doubt held that the NAB Ordinance is not discriminatory or un-Islamic law but in view of its oppressiveness, it was observed that legislature can completely amend the law or make new law on the subject. Be that as it may, the misuse of law, cannot be overlooked or ignored by the Superior Court being the custodian of the Constitution.
Since the Courts are under legal duty to defend, preserve and enforce the rights of people and their Constitutional guarantees, therefore, notwithstanding the protection provided to the NAB authorities under the law in respect of their functions, the use of power by them in an unbridled manner for prosecution of innocent persons in disregard to their constitutional guarantees, rights, liabilities and duties must not be allowed and Courts must prevent such oppressive use of penal law through judicial determination. This may be relevant to point out at this juncture that certain provisions of NAB Ordinance, 1999, are unjust, harsh and oppressive and also to some extent discriminatory but in the light of doctrine of severability, it is not possible to separate these provisions from other provisions, therefore, the legislature should suitably amend the law to remove the disparity and discrimination for the sake of fair and equal treatment in the interest of justice.
19. Adverting to the present case, we may observe that an act done in good faith, which is not in violation of criminal law and also is not result of criminal motivation, has no penal consequence and if a person is prosecuted for such an act, there is no repair to the loss caused to him in his body and mina but this is not difficult to give positive answer to the question that why a victim cannot be compensated in the same manner and why in the light of exclusionary rule, the motivated information should be allowed to be used as incriminating evidence for prosecution of a person. The violation, of criminal law with consequence of some penalty and an action as a result of criminal motivation, is called a criminal act whereas wrong exercise of power or an act without lawful authority which is not result 'of any bad motivation is not an act actionable in criminal or administrative law. ##TE#The appellant while assuming the powers of. Collector, proceeded to pass the order of allotment of land on the basis of revenue record and the reports submitted by the subordinate staff with no other purpose, except to provide the affectees of Lal Sohanra Park just and fair treatment with the object to facilitate them in respect of their rights without any personal interest, has committed no actionable wrong as the orders passed by the appellant were not beyond the powers of Collector under the Colonization of Government Lands (Punjab) Act, 1912 which was also subsequently conferred on the appellant vide notification dated 5-5-1991, in consequence to which these orders, would be deemed to have been regularized.
20. In the light of detail scrutiny of the record and the evidence, the defence plea of the appellant that he while acting in good faith exercised the powers of Collector in aid of justice without any personal interest and gain is found based on truth and in that we are of the considered opinion that the exercise of power of Collector by the appellant under Colonization of Government Lands (Punjab) Act, 1912, and grant of propriety rights to the affectees of Lal Sohanra Park, Bahawalpur, was not a criminal act to constitute an offence under NAB Ordinance, therefore, the conviction of the appellant under section 10(a) of the NAB Ordinance for the alleged commission of offence under section 9(a)(vi) of the said Ordinance was not legal.
21. In the connected Criminal Appeal No,438 of 2003, respondent Idrees Ghauri, was tried along with Major (R) Tariq Javed Afridi, on the allegation that they in collusion with each other, while holding public office, allotted State land to the affectees of National Park Lal Sohanra, Bahawalpur and thereby committed an offence of corruption and corrupt practices as defined under section 9(a)
(vi) punishable under section 10(a) of the NAB Ordinance. The precise allegation was that the accused illegally and unlawfully, facilitated the allotment of alternate land to alleged affectees of Lal Sohanra Park by concealing the true facts as there was no scheme of Board of Revenue in operation under which the alternate land could be earmarked for allotment and the fact relating to the ban on the transfer of State land was deliberately concealed. It was stated that Muhammad Idrees Ghauri, at the instance of his co-accused allegedly kept with him certain files of affectees of Ladansar in his custody which as per prosecution, should have been in the custody of one Khadim Hussain and at the instance of accused Allah Yar, Patwari, created Chak No,68 Alif/DB whereas Muhammad Boota Patwari (acquitted accused) on their instructions, prepared fictitious reports to facilitate the order of allotment of alternate land. In this background, respondent Idrees Ghauri was tried along with Major (R) Tariq Afridi for the offence of corruption and corrupt practices under the NAB Ordinance and on conviction was sentenced to two years' R.I. With fine of rupees one million or in default of payment of fine to undergo R.I. For 18 months. The conviction and sentence awarded to him however, was set aside in appeal by the High Court and he was acquitted from the charge. The present appeal is connected with Appeals bearing Nos.39 to 441 of 2003 in which the evidence in its entirety has been discussed, therefore, there is no need to again dilate upon the common facts and evidence in all the appeals. In the light of foregoing reasons and the analysis of evidence made hereinabove, we without taking any exception to the finding qua acquittal of Muhammad Idrees Ghauri, respondent herein, dismiss this State appeal.
22. In consequence to what has been discussed above, the conviction and sentence awarded to Major (R) Tariq Javed Afridi.Is set aside and he is acquitted of the charge in both the references with the result that Criminal Appeal Nos.441 and 442 of 2003 are allowed whereas the Criminal Appeal Nos.438, 439 and 440 of 2003 filed by the State, are dismissed.##TE#