' SAGHEER AHMAD QADRI, J.---Respondent Khalid Ahmad Khan Kharral, Ex-Minister for Information and Broadcasting and Chairman Monument Committee resident of 8-Bridge Colony, Abid Majid Road, Sharpao Bridge Colony, Lahore Cantt. Faced the trial in A.C. Reference No, 11 of 1999 .Before the learned Judge Accountability Court No, 2, Lahore and was acquitted vide judgment dated 22- 3-2001 Instant appeal under section 32 of the NAB Ordinance, 1999 was moved by NAB through Prosecutor General Accountability challenging the acquittal passed vide impugned judgment. The appeal was admitted for regular hearing vide order dated 7-11-2001 and notice was issued to the respondent.
2. Facts necessary to dispose of this appeal as disclosed in Para 2 of the impugned judgment are hereby reproduced:-- "As per reference the Ex-Prime Minister decided to erect a monument to commemorate the 50th anniversary of Pakistan Independence Day. The cost of which was estimated at Rs,500(M). The Committee consisted of Mr. Khalid Ahmad Khan Kharal Ex-Minister as Chairman of the Committee and Mr. Faiz Ullah, the Secretary P&D Division, Mr. Zafar Iqbal Ex-Chairman CDA, Mr. S.M.Ismail, Joint Secretary, Ministry of Environment, awarded the contract to Messrs Habib Rafique and Company for a sum of Rs,646(M). On a turnkey basis declaring them as the lowest bidder whereas the case of prosecution is that Messrs Glauser should have been the lowest bidder but through manipulation of the Dollar rate at a higher market rate because of its large foreign exchange component were declared as the highest bidder. It has also been alleged that 'Moeen Sons was the appropriate bidder for the award of the contract on the basis of local Design and construction which would have saved an amount of Rs,263.325 (M) to Public Exchequer. The matter was agitated by Messrs Glauser through French Embassy but Khalid Ahmad Kharal accused adhered to his verdict in favour of Messrs Habib Rafique and Company by way of bulldozing the objections of the members in the last meeting held on 14-2-1996. The accused in connivance with Mr. Zafar Iqbal, accused, (Since dead) influenced and pressurized the other members of the committee to sign the minutes of the meeting for awarding the contract to a less deserving party over and above the original estimate of Rs,500 million. Thus the accused allegedly committed an offence under sections 3 and 4 of the Ehtesab Ordinance, 1996."
3. After submission of the reference in the Accountability Court, Lahore following charge was framed, to which respondent pleaded not guilty:-- "That you Khalid Ahmed Kharal while holding the public office as Minister for Information and Broadcasting in the year 1996 and your co-accused Mr. Zafar Iqbal (since dead) allowed pecuniary advantage to Messrs Habib Rafiq Pvt. Ltd.Dishonestly by awarding the contract for the construction of monument to commemorate the 50th Anniversary of Pakistan and causing wrongful loss to the public exchequer and thereby you committed an offence punishable under sections 3 and 4 of the Ehtesab Act, 197 read with section 9(IV) punishable under section 10 of the NAB Ordinance, 1999, which is within the cognizance of this Court and I hereby direct that you be tried by this court on the said charge."
' The prosecution examined Anwar Said, Ex-Member Design CDA, Islamabad as P.W.1, Jafar Raza (R)
Member Engineering CDA P.W.2, Mr. Fazal Ullah Qureshi P.W.3, Muhammad Nazir, Assistant Director CDA as CW-1 and S.M. Ismail P.W.4. The learned Special Prosecutor while submitting the documentary evidence Mark-A to Mark-E vide statement dated 6-10-2000 and while giving up Abdul Hameed, Liaqat Ali and Tallat Javed being unnecessary witnesses closed the prosecution evidence. Statement of accused-respondent under section 342, Cr.P.C. Was recorded where he denied all the allegations levelled against him. However, he opted to lead the defence evidence as well as appeared under section 340(2), Cr.P.C. As his witness on oath in disproof of allegation levelled by the prosecution against him. He examined Syed Khursheed Ahmad Shah son of Zulfiqar Ali Shah the then Federal Minister for Education and Religious Affairs as DW-1, Sarfraz Ahmad son of Zafar Mand Ahmad DW-2; Faisal Saleh Hayat son of Syed Makhdoom Mehmood Hayat DW-3, Raza Rabani son of Mian Atta Rabbani DW-4 while respondent Khalid Ahmad Khan Kharal himself appeared as DW-5 and submitted his statement Exh. Annexures A to L and the defence evidence was closed. The learned trial court vide impugned judgment dated 22-3-2001 while extending the benefit of doubt, acquitted the respondent-accused which judgment is now being impugned before this Court.
4. Learned counsel for the appellant vehemently argued that impugned judgment is against law and facts of the case; that learned trial court based its findings on surmises and conjectures unsupported by evidence rather contrary to the record. It was argued that no-doubt the offer by Messrs Glouser was higher than bid by Messrs Habib Rafiq Pvt. Limited but this fact was ignored that quality of work was offered to perform with 80% of imported material and the difference in these circumstances must have been ignored; that Messrs Habib Rafiq Pvt. Limited was never pre- qualified to submit the offer or enter into bid but the contract was awarded to that company without any justification; that the material evidence available on record and objections raised by the members of the committee although were brought on record but those were totally ignored by learned trial court while passing the acquittal in favour of respondent; that specific statement by P.W.4 wherein respondent requested to the other members of the monument committee to grant the contract to Messrs Habib Rafiq (Pvt.) Limited with the observation that opponent company would not complete the project within the stipulated period itself shows his inclination towards Messrs Habib Rafiq (Pvt.) Limited and this fact was totally ignored by the learned trial court; that Messrs Moeen Sons and its offer was also ignored although the contract on item price based was incurring less expenditures than contract granted to Messrs Habib Rafiq (Pvt.) Limited; that these pieces of evidence and record was totally ignored rather misread by the learned trial court and conclusion drawn in favour of respondent in acquittal is liable to be set aside; that the defence evidence led by the respondent was interested and without any basis having no supportive evidence, hence, the .Acquittal passed in favour of respondent was totally illegal against the settled principles of criminal jurisprudence. Prayed that appeal be allowed and acquittal passed in favour of respondent be set aside.
5. On the other hand, learned counsel for the respondent has vehemently opposed the arguments advanced by learned counsel for the appellant. It was argued that total four witnesses apart from a CW were examined by the prosecution. If the statements of all the four witnesses are seen, they have narrated the circumstances in which monument committee was constituted and contract was granted in favour of Messrs Habib Rafiq (Pvt.) Limited. Learned counsel while referring the statements of P.W.1, P.W.2, P.W.3 and P.W.4 argued that all these witnesses even did not utter a single word showing any mala fide on the part of the respondent in granting contract in favour of Messrs Habib Rafiq (Pvt.) Limited; that all these witnesses in their cross-examination have categorical admitted that all the members of the committee granted the contract in question although there were certain objections raised during the meetings but ultimate decision was unanimous. Learned counsel argued that all these witnesses admitted that the respondent was not inclined to grant contract to any specific company rather he was trying to complete the project within the stipulated period to achieve the object to get conducted the OIC meeting in said hall; that the criminal intent i,e, mens rea is the basic ingredient of such offences and prosecution miserably failed to prove the same thus charge was not -proved against the respondent; that the defence version argued by learned counsel for the appellant was not proved in these circumstances is irrelevant as prosecution first is to prove charge and then it is the duty of the accused to lead any defence evidence; that the conclusion drawn by learned trial court is unexceptionable and justified hence no ground for interference in the impugned judgment is made out. Prayed that this appeal be dismissed.
6. We have heard learned counsel for the parties and have gone through the record with their able assistance.
7. Reference submitted against the respondent if seen it contains the following allegations:- "(1) That the Ex-Prime Minister decided to erect a monument to commemorate the 50th anniversary of Pakistan Independence Day.
(2) That the cost of the monument was estimated at Rs,500 million. Various committees were constituted, consisting of high ranking. Government officials and public representatives, ultimately a committee consisting of Mr. Khalid Ahmed Khan Kharal Ex-Minister, as Chairman of the Committee and Mr. Faizullah, Secretary, P&D Division, Mr. Zafar lqbal, Ex-Chairman, CDA, Mr. S.M.
Ismail, Joint Secretary, Ministry of Environment awarded the final contract to Mr. Habib Rafique and Company for a total of 646 million on a turnkey contract, declaring them as the lowest bidder whereas Messrs Clouser International should have been the lowest bidder but through manipulation of the dollar rate at the higher market rate because of its large foreign exchange component were declared as the second lower bidder hence not qualified.
(3) That Messrs Moeen Sons were the appropriate bidders to be awarded this contract on the basis of local design and construction which would have saved an amount of Rs,263.325 million to public exchequer being the difference of tender cost as compared to Messrs Habib Rafique.
(4) That Messrs Glouser took up this matter through the French Embassy with the government of Pakistan but the accused No, 1, bulldozed their objection and adhered to his verdict in favour of Habib Rafique and Company in the last meeting held on 14-2-1996 the other committee members were made to sign the minutes of the meeting under his. Influence and pressure. The accused No,1 in connivance with accused No 2 by manoeuvering and influencing, awarded the contract to less deserving party, much over the original estimate of Rs,500 million and thereby indulged in illegal and malpractices and thereby awarded pecuniary advantage and undue favour to his favourite party.
(4) That on the basis of record and evidence collected prima facie case is made out against both the accused for trial under sections 3 & 4 of the Ehtesab Ordinance, 1996.
(5) Relevant record of the case is enclosed."
' Admittedly reference was submitted against the respondent Khalid Ahmad Khan Kharal and one Mr. Zafar Iqbal (since dead), therefore, the trial commenced and concluded only against respondent presently facing the appeal. Charge, which has already been reproduced, if seen, there were specific allegations that respondent in connivance with Zafar Iqbal (since dead) allowed a pecuniary advantage to Messrs Habib Rafique (Pvt.) Limited while dishonestly awarding contract for the construction of monument to commemorate 50th anniversary of Pakistan and thus causing wrongful loss to public exchequer has committed offence punishable under sections 3 and 4 of the Ehtesab Act, 1997 read with section 9(iv) punishable under section 10 of the National Accountability Ordinance, 1999. The factual aspects have already been reproduced in the earlier part of this judgment. The prosecution was obliged to prove the charge against the accused-respondent while producing evidence. As already mentioned that four witnesses in toto were examined by the prosecution. P.W.1. Anwar Said was member of" the monument committee who participated and granted contract to Messrs Habib Rafiq (Pvt.) Limited. He in his examination in chief has narrated the factual aspects how and in which circumstances committee was constituted, its meetings, different stages and ultimately grant of contract to Messrs Habib Rafique (Pvt.) Limited. He in his statement never uttered a single word against the respondent if he with any mala fides or showing any inclination towards a specific company issued any direction to any of the members to favour or disfavour any company entering into the bid etc. This witness admitted that initially it was the intention to grant specific item based contract but later on unanimously it was agreed that this contract should be on turnkey basis as it was required to be concluded within a stipulated period.
This witness during cross-examination by learned defence counsel clarified the above mentioned two kinds of contracts and stated: "In item rate contract the contractors are supposed to give their rates separately for all the items of works and material involved in the construction of the entire building. In a contract on Turn Key Basis contractor is required to hand over the Key after the completion of the entire project based on the agreed specifications and designs". He further admitted that "After the publications of the advertisement of the contract on item rate basis the committee decided to float the contract on Turn Key Basis because of shortage of time on their disposal. This decision was taken in the meetings held on 11/12-2-1996".
He further admitted that "since the committee decided to compare Gloussier's bid with the Bid-C Habib Rafique Private Ltd. In that context the figure of Messrs Habib. Rafique Private Ltd. On the face of it was lower than the bid of Gloussier." P. W. 1 further clarified "In the committee meeting when the two designs submitted by Gloussier and Habib Rafique Private Ltd. Were discussed, the monument committee asked the technical members and other members to give their opinions.
My remarks were that I felt that the roof structure proposed by Habib Rafique Private Ltd. Would not be practical since it involved local fabrication of 200 feet span trusses and pointed out certain other short-comings. Few other members also raised the same objection whereupon Habib Rafique Private Ltd. Was asked to provide an imported roof structure within the same price as committed by them in their letter dated 12-2-1996 addressed to the Director Special Project CDA.
Some of the members were preferring Gloussier project for various reasons recorded in the meeting on 11/12-2-1996. The committee proposed to ask both the contractors to work jointly. Both the companies were asked to sit and take a decision for the joint venture. Messrs Gloussier refused to work in collaboration with Messrs Habib Rafique Private Ltd. According to the minutes of 14-2-1996 the committee unanimously decided to grant the contract to Messrs Habib Rafique Private Ltd. But before the signing of the minutes certain members proposed amendments in the minutes of 14-2-1996 volunteered, since the things were going on rapidly. I was asked by the Committee to issue letter of intent immediately to Messrs Habib Rafique Private Ltd. So that the work could be started forthwith. After issuing the letter of intent the Director Special Project asked repeatedly to have the minutes signed and forwarded to him, in order to avoid audit objection.
The minutes were ultimately signed by the members and forwarded in May, 1996. It is correct that Mott Macdonald was Management Consultant. As far as I recall it is correct that no payment could be made to the contractors without the clearance by Mott Macdonald. I was in fact not concerned with the payments to the contractors. It is correct that OIC conference was held in the convention centre on due date."
' P.W.2 Jafar Raza in his examination in chief giving the background stated:- "Simultaneously on 16-1-1996 the committee had decided to float tenders for the construction of the monument and Convention Centre on "Turn Key Basis". The tender notices were published in local and International newspapers such as the "the News International, Jang Rawalpindi, Quetta, Karachi, Asian Walls Street General and Financial Times London etc. In this notice Special features have been highlighted in para 2 for pre-qualification. The work was given on "Turn Key Basis". 13- firms applied for pre-qualification. Out of which six firms were pre-qualified. The papers were marked to me. Only two bids were received. One by Messrs Habib Rafique Private Ltd. h.
Collaboration with Bill Finger and Burger is P I. The other was submitted by Messrs Glauser in association with Messrs Samara Enterprises. The original tender submitted by Glauser is P2. On the basis of these two tenders comparative statement Exh. P0 (subject to objection) was prepared. On 3-2-1996 the tenders on the basis of item rate have been received along with comparative statement. On 4-2-1996 a meeting of the monument committee was held. I pointed out that bids to be received on "Turn Key Basis" may also be compared with the tenders on the basis of Item Rate already received from the local firms. My objection is incorporated in para 4. Certified copy of the minutes of the monument committee meeting dated 4-2-1996 is Exh.PC. The monument committee in its meetings held on 11/12-2-1996 finally decided to get the monument constructed on Turn Key Basis."
' This witness (PW-2) during cross-examination stated:-- "The monument committee in its meeting pre-qualified only 6-firms. Moeen Sons was rejected by the committee. Subsequently Moeen Sons and Technical Associates were included at the instance of the Chairman. Volunteered, the Chairman had told me that the Chairman monument committee had asked him to do so. The Chairman CDA had not instructed me in writing to include the names of the above two firms. However, I had informed him later on in writing about the compliance of his order. I had not received any written order of the Chairman Monument Committee for including the names of these two firms. The Chairman Monument Committee did not give even verbal order in my presence in this regard."
' At another place during cross-examination P.W.2 admitted:- "It is correct that the Monument Committee refused to consider Messrs Moeen Sons and Messrs Technical Associates on the ground that these firms had never pre-qualified. After the pre- qualification of the contractors Messrs Glauser and Messrs Habib Rafique Private Ltd. Submitted their tenders which were processed through my department. Notice for pre-qualification was given to National and International firms in order to ensure maximum participation and transpiracy. The contracts on Turn Key Basis and on Item Rate Basis were processed simultaneously in order to ensure completion of project before the target date which was short considering the nature of the work. It is correct that the committee unanimously rejected the construction of the project on Item Rate Basis and opted to give the contract on Turn Key Basis. I was also present in that meeting."
' During further cross-examination it was admitted by P.W.2:-- "Had the contract of Messrs Glauser been accepted the Government would not have paid more than 658.585 (M) and this was inclusive of 40% component of foreign exchange which was to be arranged by the Messrs Glauser himself. It is correct that the. Govt. Had not allocated any money in foreign exchange for this project. It is correct that according to the calculation made by the Engineering Wing 40% of the contract mohey was to be paid in foreign exchange at the rate of Rs,36.60 on the basis of market rate so calculated. In this way the contract amount came to Rs,676.249(M) the official rate at that time of the dollar was Rs,34.50. The conversion rate quoted by Messrs Clouser was 34.30. The official rate was also Rs,34.50. Had Messrs. Glouser been allowed eight instalments of the component the contract might have touched the figures Rs,669.337567."
' This witness during cross-examination admitted that after verification of the work completed by a consultant the payments were made to the contractor. In reply to question he stated:- "it is correct that Mott Macdonald was employed as Management Consultant to supervise and verify the work and its quality. It is also correct that all payments to the contractors were made on the certification of the work by the said Consultant. It is also correct that neither the chairman nor any other Member was concerned with the payments to the contractor. It is correct that the meeting of OIC was held on 23-3-1997 after the completion of the Convention Centre within the stipulated time and money."
' The 3rd witness Fazal Ullah Qureshi has also narrated the same factual aspects and he during cross-examination being a Specialist and working in Planning Department of CDA about 30 years stated:-- "I have been in the Planning Department for the last 30-years. It is correct that the project was to be completed in January, February, 1997 and the project was completed within a period of 11 months. The Monument Committee was required to submit fortnightly progress report to the Cabinet. The meetings of the monument committee remained in sessions very regularly and for hours together due to paucity of time. The committee floated the tenders on Item Rate Basis as well as on Turn Key Basis simultaneously and ultimately the committee decided to come for the contract on Turn Key Basis. The basic idea was to complete the monument on time. The Committee also considered it economically viable and better to get the work completed on turn Key Basis. It is correct that many things were missing in the tenders invited on Item Rate Basis. It is correct that the committee unanimously decided to get the work done on turn Key Basis.
(2) It is correct that in the next meeting of the committee held on 1-2-1996 the committee considered the proposal of Messrs Habib Rafique Private Ltd. And. Messrs Glouser was of the view that the proposal of Messrs Habib Rafique was comparable with the proposal of Messrs Glouser.
Volunteered I had expressed my views in the minutes which are contained in the minutes of 11, 12 and 14 February,
96. It is correct that the third offer made by Messrs Habib Rafique Private Ltd. Was found lowest as compared to Glouser proposal No, 2. 1 had expressed certain reservations regarding the quality presented by Messrs Habib Rafique viz-a-viz Messrs Glouser, therefore, the committee suggested both the parties to coordinate the work according to which the local work was to be done by Messrs Habib Rafique Private Ltd. And while the imported roof was to be provided by Glouser as per Glouser 's presentation. It is correct that Messrs Glouser declined to work in collaboration with Messrs Habib Rafique. The committee then decided to give the work to Messrs Habib Rafique who undertook to provide imported roof structure. I still had certain reservations which I expressed in the meeting about the improvement of the quality and technical aspects of the project. Messrs Habib Rafique agreed to meet the reservations expressed by me and certain other members of the committee. It is correct to the best of my knowledge that Habib Rafique complied with the reservations and did not claim escalation to the tendered price. It is correct that according to the Para No, 6 of the minutes of the meeting Messrs Habib Rafique agreed to the proposal of Chairman of the CDA that the committee would be permitted to substitute specifications given by Messrs Habib Rafique Private Ltd. In their proposal if the committee felt that the specifications were not up to the required standard. We were under the overall pressure to complete the project within time and according to the specifications. I was interested in the project, therefore, I made certain observations in the meeting and would sign the final part of the minutes. 1 was of the view that though full text of my observations was not recorded in the final minutes yet the best part of my observation which concerned to the quality and the technical aspects of the project were recorded. Therefore, I signed the minutes. Even otherwise I considered signing of the minutes more necessary to continue the process. I was not under any sort of threat. 1 must say that during the meetings and thereafter at the time of signing the minutes I did not have the slightest idea that someone was interested to give the contract to a particular firm/party. We all the members including the Chairman wanted to complete the project as early as possible. In view of the CIC meeting which was to be held in March, 1997."
' The last prosecution witness S.M. Ismail in his cross-examination specifically admitted:-- "It is correct that the bid of Messrs Habib Rafique was lowest. The only anxiety of all the members including the Chairman was to get the project completed within a period of 11-months and in order to have good products. We asked both the parties to join hands. In my view no one including the Chairman was interested in one or the other party. Although I was not associated with the implementation of the project but I saw the project was completed with foreign imported roofing system within time."
8. If the above mentioned evidence led by prosecution to prove charge against respondent/accused is seen, admittedly, all the witnesses although have given the factual history of the meetings of the monument committee headed by respondent Khalid Ahmad Khan Kharal being its Chairman but all the witnesses have not even raised any suspicion about the involvement of the respondent with any of the companies specifically with Messrs Habib Rafique Private Ltd. Nor have shown his any criminal intent to extend any unlawful monetary benefit to the company.
Admittedly, the offences under National Accountability Ordinance, 1999 are the offences which require proving of mens rea on the part of accused by the prosecution. These are the offences not covering under the category of strict liability offences. In order to prove the offences and specifically the offence under section 9(a)(iv) of the National Accountability Ordinance, 1999 punishable under section 10 of the Ordinance, ibid, the wording of which for further facilitation purpose is hereby reproduced:-
9. Corruption and corrupt practices: (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- (1)
(ii)
(iii) --------------
(iv) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself or for his spouse or dependents or any other person, any property, valuable thing or pecuniary" advantage; or"
If the above mentioned wording is seen, it is mandatory for the prosecution to prove the intention on the part of an accused that he by playing corrupt, dishonest or illegal means obtained for himself, or for his spouse, dependent or for any other person any property, valuable thing or pecuniary advantage, all these acts or omissions, if constituting an offence are essentially required proving of mens rea on the part of accused by the prosecution. No doubt in section 14(a) of National Accountability Ordinance, 1999 certain presumptions are provided against an accused for certain acts or omissions constituting the offences but initial burden to make out a reasonable case against an accused charged under any of the offences under the Ordinance, ibid always lies on the prosecution and thereafter it shifts towards the accused. In a recent judgment cited as "Mansur-ul-Hague v. Government of Pakistan" (PLD 2008 Supreme Court 166) at pages 176 and 177 following the law laid down by the Hon'ble Supreme Court of Pakistan in case reported as "Khan Asfandyar Wall and others v. Federation of Pakistan through Cabinet Division Islamabad and others" (PLD 2001 Supreme Court 607) their Lordships of Hon'ble Supreme Court of Pakistan observed:-- "Prosecution having advantage of provisions of S. 14(a) of National Accountability Ordinance, 1999, may not be under heavy burden to discharge onus of proving the charge as the court may, on discharge of initial burden of proving prima facie case by prosecution, raise a presumption of guilt----In the light of concept of criminal administration of justice, prosecution is not absolved of its duty to prove the charge beyond reasonable doubt under National Accountability Ordinance, 1999---Burden of proof is only shifted on person facing charge if prosecution succeeds in making out a reasonable case by discharging initial burden of proving the charge."
9. If leaving aside the defence evidence, the prosecution evidence is seen, as discussed above, none of the prosecution witnesses ever stated even a single word against the conduct, behavior as well as criminal intent of the respondent, if he ever tried to oblige the contractor in any manner while granting the contract. There is not an iota of evidence available on record if any monetary benefit ever was extended by the respondent in favour of the contractor or he himself got any such illegal gains as a result of grant of the contract, hence, charge under section 9(a)(iv) of National Accountability Ordinance, 1999 was rightly held not proved by the learned trial court.
10. It is admitted fact that presumption of innocence always lies in favour of an accused at the trial stage and when a court of competent jurisdiction passes an order of acquittal this presumption becomes double and to set aside the same it requires unimpeachable evidence which is lacking in this case. In view of the- above, we believe that the learned trial court after applying its judicious mind acquitted the accused-respondent. Furthermore, once a judgment of acquittal is passed by a competent court of jurisdiction after proper and correct appraisal of evidence as held in Tariq Pervez v. The State (1995 SCM R 1345) the same cannot be interfered with merely on the ground that on re-analysis of the evidence another view could be taken.
11. Resultantly, as a result of what has .Been discussed above, we find no merit in the appeal in hand, which is accordingly dismissed.