JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, CJ. --Constitution Petition No. 20 of 2013 as well as a Human Rights Case have been initiated under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973.
2. Precisely stating facts of the case are that a news-item was published in the "Daily Times" dated 14.04.2013 in which it was reported that Raja Pervaiz Ashraf, the then Prime Minister, ten days after having completed his tenure doled out billions of rupees in the form of development funds. According to the report, amongst the beneficiaries were Syed Yousaf Raza Gillani, Ali Musa Gillani, Abdul Qadir Gillani, Moonis Elahi, Ch. Shujaat Hussain, Ch. Parvez Elahi, Wajahat Hussain, Sh. Waqas Akram, Sherazi family of Sindh and others. The report claims that official documents reveal that around Rs. 2.5 billion were transferred by Raja Pervaiz Ashraf to be spent in Gujjar Khan, his ancestral constituency. The office put up a note, highlighting the above news-item, upon which following order was passed:--- "In the first instance information be called about the news from the Chief Editor and Reporter of Daily Times. Similarly, the Principar Secretary to Prime Minister and Secretary Ministry of Finance shall submit reports to the Registrar of this Court. Put up Reports before Registrar for 15-04-2013."
3. In compliance with the above reproduced order, three letters were received on 15.04.2013. In the letter received from Ministry of Finance duly signed by Mr. Mansab Khan Awan, Joint Secretary M/o Finance it was stated that an amount of Rs. 22 Billion was allocated for People's Works Program-II (PWP-II) during financial year 2012-2013 for development schemes identified by the Parliamentarians and notables under demand No. 109-Development Expenditure of Cabinet Division. Subsequently, on the direction of PM Secretariat, an additional amount of Rs. 25 billion was allocated to the Cabinet Division's Demand No. 109-Development Expenditure of the Cabinet Division for PWP-II. As such, the total allocation under the said program for the year 2013-2014 comes to Rs. 47 billion. It is asserted further that the releases, out of PWP-II, are made by the Cabinet Division on the directions of the PM Secretariat and that the Finance Division through its Financial Advisor (Cabinet) only endorses the sanction letters issued by the Cabinet Division, after approval by the Principal Accounting Officer (PAO) i.e. Secretary Cabinet. It has been further stated that neither the Cabinet Division issued any sanction letter for release of funds under PWP-II nor did the Finance Division endorse any such sanction after 15.03.2013.
4. Mr. Tahir Maqsood, Additional Secretary (P-I) submitted a letter on behalf of PM Secretariat stating therein that no funds were released for development schemes under PWP-II after dissolution of the National Assembly i.e. 16.03.2013. He further stated that the exact amount of funds were issued against the names appearing in the news clipping out of PWP-II during the current financial year, under the directives of Prime Minster and prior to dissolution of National Assembly was annexed with the letter.
5. Mr. Rashid Rehman's, Chief Editor, Daily Times, also sent a letter in which he stated that the news clipping was a mere reproduction of publication and broadcast already made public by "Dunya"
Newspaper and Satellite TV Channel. The original source of news clipping in question are the column, story and talk on a number of shows by Mr. Rauf Klasra of Dunya Newspaper & Satellite TV Channel. He has further stated that the Monitoring Desk of Daily Times had been following the issue, and the very same was taken from Mr. Klasra's revelations.
6. The matter was put up in Chambers on 16.04.2013, when the following order was passed:- "A careful perusal of information collected from concerned quarters reveals that former Prime Minister Raja Pervaiz Ashraf spent/allocated/distributed various amounts. A sum of Rs. 22.0 billion was allocated for People's Works Programme-II during financial year 2012-2013 for development schemes identified by Parliamentarians and Notables under Demand No. 109-Development expenditure of Cabinet Division. Furthermore, an amount of Rs. 25 billions on the directions of the Prime Minister's Secretariat, was allocated to the Cabinet Division's Demand No. 109-Development Expenditure of Cabinet Division for People's Works Programme-II, break up of which is as follows:--- S.No. Amount Released Date Remarks 5 billion 06.11.2012 Though Adjustment in PSDP 2012-13.
5 billion 23.11.2013 Though Adjustment in PSDP 2012-13.
5 billion 28.12.2012 Though Adjustment in PSDP 2012-13.
5 billion 10.01.2013 Though Supplementary Grant.
3 billion 07.03.2013 Though Supplementary Grant.
2 billion 12.03.2013 Though Supplementary Grant.
Thus, the total amount of aforesaid two allocations under People's Works Programme:II for the year 2013-14 comes too Rs. 47.0 billion' (Rs.22.0 billion + Rs. 25 billion).
Above amounts have not only been distributed/ allocated to elected representatives including.
MNAs, MPAs but also to potables: There are a lot of speculations about the distribution of above amounts by the Prime Minister, prima facie, beyond his budgetary as well as discretionary powers.
Therefore, instant proceedings be registered as petition under Article 184(31 of the Constitution and be fixed in Court on 17.04.2013 as it gives rise to a question of public importance, involving enforcement of fundamental rights of the citizens guaranteed under Articles 9, 14, 19-A, 24 and 25 of the Constitution.
Notices to Secretary Cabinet and Secretary Finance, Government of Pakistan be issued with direction, to appear and explain:---
(i) As to whether the funds belonging to public exchequer have been albcated/distributed to MNAs/MPAs/Notables in accordance with the Constitution and the law?
(ii) Whth is the phenomenons or procedure to monitor the spending of amount and as to whether the details. Of such developments are available?
(i.e) Whether the contracts were granted to the contractors by following the PPRA Rules?
7. The matter was, thus, registered as Constitution Petition No. 20 of 2013 and was fixed in court'rt on 19.06.2013. In pursuance of the order dated 16.04.2013, the Secretary; Cabinet Division, Government of Pakistan, filed requisite reply through CMA No. 2222 of 2013: It would be appropriate to note hereinbelow the extract of original budget and supplementary additional amounts released as well as balance Of remaining budget of PWP-II for the year 2012, 2013.
S. No. Description and ID Budget!
Supplementary Grant Financial Amount People's Works Programme-II (PW P-II)- ID 5511 Original Budget 2012-13 22,000,000,000 People's Works Programme-II Technical Supplementary Grant-I 2012-13 5,000,000,000 People's Works Programme-11.
(PWP-II) - ID 5511 Technical Supplementary Grant-2.
2012-13 5,000,000,000 People's Works Programme-II (PWP-II) - ID 5511 Technical Supplementary Grant-3 2012-13 5,000,000,000 .
People's Works Programme-II (PWP-II) ID 5511 Technical Supplementary Grant-4 2012-13 5,000,000,00.0 People's Works Programme-II (PWP-II) - ID 5511 Supplementary Grant-1 2012-13 5,000,000,000 People's Works Programme-II (PWP-II) - ID Supplementary Grant-2 2012-13 3,000,000,000 5511 . .
8. People's Works Programme-II (PWP-II) - ID 5511 Supplementary ' Grant-3 '
' 2012-13 2,000,000,000 Sub-Total: 52,000,000,000 .
People's Works Programme-II (PWP-II) - ID 5511 Surrendered (TSG- 4) Against Supplementary Grant-I 2012-13 5,000,000,000 ' People's Works Programme-II (PWP-II) - ID 5511 Surrendered (May 2013) 2012-13 4,513,501,000 People's Works Programme-II (PWP-II) - ID 5511 Surrendered to other Ministries 2012-13 1,258,375,000 Sub-Total: 10,771,876,000 (Released to Executing Agencies) Final Budge 41,228,124,000 Total: 52,000,000,000 {{TABLE}} It may also be noted that according to following para of the Special Audit Report by Auditor General of Pakistan, the saving identified by Economic Division were not surrendered by the respective Ministers:-
(h) Whether diversion of funds has been made into the schemes and from the schemes so approved?
The. Planning Division initially made provision of Rs. 22,000.00 million in PSDP budget 2012-13 for PWP- II. Later on, Planning and Development Division identified savings of Rs. 15,000.00 million from the PSDP projects of various Ministries Division which were subsequently diverted to PWP-II through Technical Supplementary Grant.
Audit noted that the saving identified by the Planning and Development Division against PSDP allocation of Ministries/Divisions was not surrendered by the respective Ministries/Divisions.
Moreover, the Cabinet Division has also surrendered funds of Rs. 1,258.375 million to other Ministries/Division into their demands/grants for execution of PWP-II. Detail is as under:--- S. No. PMD No. Sanction date DFA endorsement date Executing agencies Amount
1. 72 6.9.2012 7.9.2012 FATA 50,000,000
2. 115 11.9.2012 13.9.2012 M/o Comm unicati on 20,000,000
3. 208 11.9.2012 '13.9.2012 M/o Industries 6,500,000
4. 227 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
5. 228 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
6. 229 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
7. 231 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
8. 232 14.9.2012 18.9.2012 FATA Secretariat 100,000,000
9. 233 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
10. 307 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
11. 308 20.9.2012 21.9.2012 FATA Secretariat 100,000,000
12. 399 26.9.2012 26.9.2012 Ministry of National Food Security & 99,975,000 - Research, Islamabad 2657- B . 11.10:20.12 1110.2012 -Ministry of Comm unicati on ... ' 55,000,000 , 430 27,12.2012 28.1.2.2012 FATA , Secretariat 50,000,000 531 31.12.2012 03.01.2013 Ministry of Human Eights 2,000,000 - 543 03.12.2012 05.12.2012 Ministry of Industries 900,000 529 08.03.2013 08.03.2013 Ministry of Kashmir . Affairs and gilgit Baltistan 12,000,000 571 08.0.3.2013 08.03.2013 Ministry of National Food Security & Research, Islamabad 50,000,000 " .
12,0460,000 634 27.02.2013 27.02,2013 Ministry of Defence 997 08.03.2013 08.03.2013 . Ministry of Defence 100,000,000 Total 1,258,375,000
9. As per report submitted by the Prime Minister Secretariat, the then Prime Minster, periodibaily sanctioned the following amounts for his on constituency:--- S No. Dir No Issue date Subject Beneficiary Amount Appreved Released/ stuck. Up 13 0007 -27.07.2012 Supply of gas to yillages/loCali ties in NA- 51, Tehsit Gujjar Khan, District . RaWalpindi. Raja Reryaiz AshrWANA, NA-51, District Rawalpindi.
200.000 Released 14 0130 30.08.2012 . ' ,... . Supply of .b4o.,, ,:.::' to: Villa96/1beilli ' - - .. k: In - NA= '
51,. , ,Tehsil Gujjar Khan, , .
Bistrict howalpindi. Raja' Iservaiz Aihrit,iNA,., ;NA 'r1- -'- District Rawalpindi. 433.365 . .
P ReleaSed 15 0148 30.082012 _ . Provision .Of ' gas to forty (40)' viltdges . .. / seventeen . (1;7). - Union, Councils for on-going projects in - NA-51, District Rawalpindi Raja Pervaiz Ashraf,' MNA, NA-51, -District ,Ttawalpindi. .
49.Q00,. - Released . .
16 0776 Ct 30.11.2012 Supply of gas to Jungi Dam, Bains & Popur Khurd (en-route villages of operational line) in Tehsil Gujjar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA- 51, District Rawalpindi. . 29.895 Released
17. 0810 14.12.2012 Completion of on-going gas supply schemes in Raja Pervaiz Ashraf, MNA, NA-51, District 50.003 Released . 17 Union Councils and 40 villages of NA-51, Gujar Khan, District Rawalpindi. Rawalpindi. 18 0846 04.01.2012 Supply of gas to villages in NA-51, Tehsil Gujjar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi.
300.000 . Released 19 0848 ' 04.01.2012 Provision of electricity to the villages of NA-51, Tehsil Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 50.000 Released 20 0953 07.02.2013 Supply of gas to Jungi Dam, Bains & Popur Khurd (en-route villages of operational line) in Tehsil Gujar Khan, District Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 7.736 Released 2014Humain Right Case regarding alleged Corruption of Ex-Government 207 ikhar Muhammad Chaudhrv. C.J.
Rawalpindi. 21 1039 15.03.2013 ' Additional amount for completion of on-going gas schemes in NA-51, Tehsil Gujar Khan, District Rawalpindi. Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 300.000 Released 22 1040 15.03.2013 . Provision of electricity to the villages of NA-51 Tehsil Gujar Khan, District Rawalpindi. 22 Raja Pervaiz Ashraf, MNA, NA-51, District Rawalpindi. 40.000 Released Total: Rs. 1459.999 {{TABLE}}
10. Besides above schemes, another scheme was added for construction at Mandra-Chakwal Road and Sohawa-Chakwal Road in the PSDP 2012-2013 vide Prime Minister's directive dated 02.08.2012 and 31.08.2012. These schemes were accorded anticipatory approval for Rs. 2675.955 and Rs.
3300.00 Million respectively on 08.09.2012 vide Cabinet Division's U.O. Dated 8.09.2012. Accordingly funds amounting to Rs. 2301.00 million and Rs. 3675.00 Million were released to Pak PWD on 02.10.2012 & 16.03.2013 respectively. However the Prime Minister's Secretariat vide their order dated 2.10.2012 transferred funds as well as the execution of said development project from Pak. PWD to National Logistic Cell (NLC). It is pertinent to point out that Islamabad High Court Islamabad has suspended the operation of the order dated 2.10.2012 under its order dated 10.10.2012 but inspite of said order, the said amount of funds i.e. Rs. 5976 Million were transferred to M/s NLC vide Cheque. Nos. B0837/B 836966 dated 15.10.2012 for. Rs. .1.100 billion and B08502/B8550167 dated 30.01.2013 for Rs. 1.201 billion and Cheque No. B08534/B853331 dated 16.3.2013 for Rs. 3.675 billion for execution of works by ,them. However, the aforesaid last cheque dated 16.3.2013 amounting to its. 3.675 billion was not cleared by the Federal treasury Islamabad due to the said Court order. Now these funds amo.Unting to Rs. 3.675 Million. Were surrendered to Government vide Pak. PWD, letter dated 14.5.2013. However, the same was not returned to Pak. PWD by NLC despite repeated reminders.The Revised PC-I amounting to Rs. 4671.337 Million and Rs.
4789.404 Million in respect of said schemes were prepared by the National Logistic Cell (NLC).
However, revised approval of these schemes have not so far been accorded by the competent forum i.e. ENCEC. In compliance of the directions contained in the Islamabad High Court Islamabad's order dated 28.03.2013 under which, the transfer of work/kinds to M/s. NLC was declared illegal, M/s. NLC were asked to return the funds amounting to Rs. 2.301 billion to Pak. PWD, which have not been returned by them on the plea that they have filed an Intra Court Appeal in the Islamabad High Court, Islamabad against the Order of the Honorable Court as intimated by them vide their letter No. 27201/MCSRP/P&A/NLC, dated 26.04.2013.
11. Similarly, there are numerous other MNAs/MPAs and Senators who were obliged by granting funds from PWP-ll as per following details:--- Party Name MNA Senatot Total Nos. Nos. Of Direct - Cost Nos Nos. Of Dircicti es Cost . Nos. Nos. Direct' yes ' Cost Ives'.. PPPP 113 352 18,998.735 5 11 446.803 118 363 19,446.536 PML(F) 1 1 100.000 1 1 100.00 MOM 19 19 1,900.000 19 , 19 1,900.00 ANP 12 29 1,252.478 2 2 100.000 14 31 1,352.478 PML(N) 11 X15 993.520 ' 11 15 993.520 MMAP 3 4 300.000 3 4 300.000 PML(Q) 27 . 61 3,890.400 4 4 209.500 31 65 4,099.900 IND 6 11 830.00 2 5 190.000 8 16 1,020.000 BNP(Awa , mi) 1 1 20.000 2 2 155.000 3 3 175.000 Total 193 493 28,285.133 15 24 1,102.303 208 517 29,387.436 Detail of Cost of directives issued to MPAs and others Party Name MNA Senators Total Nos. Nos. Of Direct Wes Cost Nos. Nos. Of Direct ives Cost Nos. Nos. Di recti ves Cost PPPP 158 149 3,942.458 I 25 44 2,577.762 183 193 6,520.220 PKMAP 1 2 123.000 1 2 123.000 ANP 1 1 50.000 1 1 1.500 2 2 51.500 PML(Q) 34 40 1,992.450 41 45 1,638.470 75 85 3,630.920 IND/Other 1 1 10.000 38 57 2,081.37839 39 58 2,091.378 National Alliance 1 2 80.000 1 2 8.000 JU IP , 1 1 50.000 1 1 50.000 Total 194 191 5994.908 108 152 6552.11 302 343 12547.018
12. Detail of some of the Notables who were also obliged in the same manner from PWP-I I is as under:- S.No. Dir No. Issue date Subject Beneficiary Amount Approve d Released/stuck Up 208 0567 12.10.2012 Electrification schemes in NA- 19, District Haripur. Sardar Mushtaq Ahmed 77.245 Released 209 0567 12.10.2012 Electrification schemes in NA-19, District Haripur. Sardar Mushtaq Ahmed 50.000 Released 210 0568 12.10.2012 Execution of misc.
Development schemes in NA-19, District Hanpur. Sardar Miishtaq Ahmed 16.025 Released 211 0569 12.10.2012 Provision of gas to two (02) villages of NA-19. District Haripur. Sardar Mushtaq Ahmed 6.730 Released 213 0945 31.01.2013 Village electrification schemes in District Hahpur Sardar Mushtaq Ahmed 85.000 Released Total: Rs. 235.000 214 0857 08.01.2013 Village electrification schemes in District Killa Abdullah, Baluchistan. Mr. Mehmood Khan Achakzai, Chairman. PKMAP. 100.000 Released 215 0845 04.01.2012 Supply of gas to village Inayatullah Khan karez, Tehsil Gulistan, District Kills Abdullah, Bilochistan. Mr. Mahmood Khan Achakzai, Ex-MNA, District Killa Abdullah. 23.000 Released Total: Rs. 123.000 {{TABLE}} Besides above, the funds were released to the following Notables:--- Dir. No. Dir. Date Dir. Cost S.No. Name of Scheme Executin g Agency Amount released (in Million) Exp.
Incurred (in million) Saving / excess (in Million ) Physical progress Notab le 506 30th Nov- 12 40.000 1 Construc do n of PCC Streets/ Roads, Nallah, Boundar y Walls & Brick Soling Streets at different Union Councils in District Chakwal 40.000 39.544 -0.456 100% 1 40.000 39.544 -0.456 Notab le 507 30- Nov- 12 50.000 1 Construc no n of PCC Streets/ Roads, Nallah, Boundar y Walls & Brick Soling Streets at different Union Councils in District Chakwal -- 50.000 44.980 . -5.020 85% 1 50.000 44.980 -5.02t 85% Notab le 508 30th Nov- 12 50.000 - 1 Construc no n of PCC Streets/ Roads, Nallah, Bounder y Walls & Brick Soling Streets at different Union Councils in District Chakwal 50.000 23.214 26.786 85% 50.000 23.214 26.786 Notab le 509 30th Nov- 12 50.000 1 Construc no n of PCC Streets/ Roads, Nallah, Boundar y Walls & Brick 50.000 18.510 31.490 85% {{TABLE}} Soling Streets different Wnion. Ouncils in District Chakwal at . - . 1 50.000 18.510 31.490 {{TABLE}}
13. The D.G. Pak. PWD, however, stated that Col.
(R) Saleem, Malik Muhammad Amir, Mr. Faisal Majeed and Mr. Basharat Mehmood, all belonging to District Chakwal, were the Notables to whom these funds were also given. Not only this, in one of the cases for purpose of furnishing the office of Aviation Squadron/Briefing rooms, an amount of Rs.
0.200 million was provided, detail of which is as under:--- Dire ctive No Direct ive Date Distn ctive cost S.No. Name of Scheme Executin g Agency Amount releaed (in million), Exp. 'floured (in million) Saving / excess (in million) Physical progress Maj. Usman Nawaz Kiyani Dated 11.3.13 975 11 Mar- 13 0.200 Renovati on of Aviation Squardo n Brefing Rooms. 0.200 -0.200 {{TABLE}}
15. Besides above notables and MPAs, there are numerous others of the identical status to whom funds from PWP-II were released. Details of which are available in the Audit Reports. But, no one has pointed out that what were the grounds for which Notables and MPAs were obliged by the Prime Minister. Similarly, a good number of MNAs and Senators who are entitled to identify the schemes under PWP-I, were also obliged from PWP-II as well.
18. This Court, vide order dated 19.07.2013, directed the Accountant General Pakistan Revenue
(AGPR) to ensure that pending decision of the matter, the funds which had already been released to the Executing Agencies, including for the schemes enumerated in the list appended with the letter dated 15.04.2013, referred to hereinabove, were not further distributed and the payments in respect of the schemes, details of which had been furnished by the Prime Minister's Secretariat would be stopped immediately A compliance report was also sought to be furnished within a period of, three days. Similarly, the Executing Agencies, to whom the work had been assigned or the process of assigning of work was yet to be completed, were directed not to proceed further with those schemes till further orders.
19. In view of the facts, which have been examined cursorily, it was deemed appropriate for conducting special audit of PWP-II, for which the funds have been released .In the year 2012-13 or onward, keeping in view the categories of the schemes.
In pursuance of the directions of the Court dated 21.05.2013, Special Audit was conducted and concise statement on behalf of Auditor General of Pakistan was filed, which pertains to the audit of following Ministry/Division/Department:---
(i) Ministry of Housing & Works (Pakistan Public Works Department).
(ii) Ministry of Petroleum and Natural Resources (SNGPUSSGC)
(i.e) Ministry of Water & Power (WAPDA)
(iv) Government of Punjab (Public Works and Local Government & Rural Development Department)
(v) District Governments Punjab (South) Multan
(vi) Provincial Government (Sindh)
(vii) Provincial Government (Baluchistan)
(viii) District Governments KPK, (17.Districts)
There are lengthy audit.. Objection which has been summarized in the following Executing Agencies No. Of. Schemes No. Of.
Schemes audited Total ' arneUnt audited (Rs No. Of sche mes !Ski. Of sche"' mes No. Of compl eted No. Of Sche mes Amount placed under in million) in -. When sche when observations which e mes e (Rs in- PPR rerea work million) , A- Rules not ses -rnede after progr ess is less follow ed ban by ECP than 10% Pak PWD/NLC 6,465 5,473 21,614.399 5,473 559 3,833 994 21,614.399 Provincial Governments 1,392 1,359 2,624.718 473 80 $27.- 362 2,745.277 District Governments 1,778 1,776 1826.441 939 57 787 63. 1,450.770 SNGPL Lahore 92 51 4,195.054 51 - 2 54 1,335.440 SSGCL Karachi 85 27 185.163 27 - 12 66 63.032 WAPDA 7,343 6,467 5,879.729 0 - 2.053 876 6,207.905 Total 17,155 15,153 36,325.504 6,963 696 7,110 2,415 33,416.823 {{TABLE}}
20. The material brought on record persuades the Court to infer that a criterion must have been laid down for allocation of funds for schemes under PWP-I1 and the Parliamentarians, Members of the Provincial Assemblies, functionaries/officers/officials, Notables and other persons who received such amounts in the name of development schemes are not required to enrich themselves from such funds; therefore, on 28.06.2013, following directions were issued:---
(i) Notice be issued to the former Prime Minister Raja Pervez Ashraf, whose name is appearing in the list of recipients of funds from PWP-II for development works in the Constituency from where he was elected as Member of the National Assembly with a view to providing him an opportunity of hearing in the matter;
(ii) Notices to all other beneficiaries of funds of PWP-II including the Parliamentarians, Members of the Provincial Assemblies, Notables, etc., be also issued after obtaining the list from Malik Manzoor Akhter, DG, Audit. The latter is also required to effect service upon all of them at their addresses separately through the executing agencies, details of which are available in CMA No. 3974/2013 furnished by him; (i.e) To ensure service upon all concerned, complete list of the beneficiaries including theirs names and details of the funds allocated to them be uploaded on the website of . Supreme Court of Pakistan (www.Supremecourt.Gov.Pk), enabling them to respond to the notices and put forward their viewpoint/defence, if they so desire;
(iv) Notices be also issued to Pak PWD, SNGPL, PEPCO as well as the Chief Secretaries of all the Provinces to effect service upon all the executing agencies which allegedly executed the works, after having collected the details from the office of DG, Audit in respect of the schemes executed at the Federal and Provincial levels. The representatives of the Chief Secretaries may, if need be, collect the relevant information from the office of DG, Audit;
(v) The executive agencies, both Federal and Provincial, shall also submit the details of the status/ performance/completion or otherwise of the development schemes, which have been executed out of the funds allocated for the purpose, enabling this Court to pass appropriate orders;
(vi) The executing agencies shall not release funds to the contractors/persons etc., who were deputed to execute such development works, etc., nor these funds shall be considered to have been lapsed on account of the close of Financial Year as it has already been ordered on 24.06.2013, pending decision of the case;
(vii) It is stated that the idea of allocating funds to the Parliamentarians, etc. Was introduced by late Dr. Mehboob-ul-Haq, a renowned Economist of his times when Members. Of the Parliament were elected in non-party elections. Such recommendations/report, if available, be submitted by the Planning Commission for our perusal and a copy thereof be also supplied to the learned Attorney General; and
(viii) The Secretaries Finance and the Economic Affairs Divisions and all other concerned are directed to provide assistance to the learned Attorney General for Pakistan, so that he may assist the Court in a befitting manner.
21. In response to the notices, M/s. Maula Bux Chandio former Law Minister, Senator Mushahid Hussain, Ghias Mela MNA, Anwar Ali Cheema MNA, Liaqat All Shabab MPA, Muhammad Hamayat Khan MPA, Syed Muhammad All Shah MPA appeared either in person or through their counsel and put forward their respective explanations/replies, whereas majority of the recipients did not opt to come forward and contest proceedings, despite service in the manner noted above.
22. Thereafter, all the above titled cases and Constitution Petition No. 115 of 2012 were taken uptogether and were disposed of by common short order dated 22.07.2013. However, in the' case of Abdul Raheem Ziaratwal v. Federation of Pakistan (Constitution Petition No. 115/2012), separate reasons have been recorded for sake of convenience.
23. Before proceeding further it is important to note that to attend one of the questions noted in order dated 28.06.20132, namely, "it is stated that idea of allocating funds to the Parliamentarians etc. Was introduced by late Dr. Mehboob-ul-Haq a renowned Economist of his times when Members of the Parliament were elected in non-party elections, such recommendations/report, if available, be submitted by the Planning Commission for our perusal and a copy thereof be also supplied to the learned Attorney General", the learned Attorney General while submitting CMA 4495/13, on behalf of Economic Affairs Division stated that, "ft is not within the Division's purview to deal with the disbursement/releases of development funds to the executing agencies as it deals with the matter pertaining to external assistance, from the foreign governments and multilateral agencies." However, it is pointed out by the learned Attorney General that the "Special Local Governments Programme" was renamed 'after 1988, end' since then the nomenclature of the same kept on changing depending on the Government in power. Since the expenditure was being charged to the Development Budget, the programme remained a component of PSDP. The Historical allocations for these programs have been shown by reproducing a table, which reads as under:--- Period Name of Program Allecation (Rs. In Million) , . r _ 1985-1988 Special , Local - Government Program 3,3001000 1988-1991 & 1994-1997 . W Peoples orld Program' 16,200 WO . , 1991-93 & 1998-2000 Tameer-e-Watan Program 9,700 000 2002-2005 Tameer-e-Pakistan Program 7,353.727 Total 36,553.727 ' {{TABLE}} Importantly, this summary also finds mentioned, with reference to the Planning Commission about the result or impact of schemes, executed under PWP-1"and PVVP-II that no impact evaluation of PWP-II has been carried out so far.
24. It is quite surprising that aforesaid programme continuously being followed from .1985 to onward but upto, the year of 2013 its impact has not been evaluated, which was necessary in the interest of general public for the reasons that, if on the one hand the tax payers' money is being spent through PWP-11 for the welfare of the society, the executive government must know about its Ampact as . Without its impact what is the justification/necessity to spend annually hundreds of thousands in the name of Development Programmes. A perusal of table reproduced above, also indicates that the names of these programmes had been changing in different eras depending upon the regime of different political parties.
25. It may be noted that such-like schemes are not applicable in our country alone as identical programmes have been introduced in India by the name of "Members of Parliament Local Areas Development Scheme" in the year of 1993 and Guidelines have also been issued, according to which the general public approach the Members of the Parliament for providing certain basic facilities including the community infrastructure in the area and according to these guidelines, the Members of Lok Sabha can recommend works for their respective constituencies. Elected Members of the Rajya Sabha can recommend for implementation of work for one or more districts as they may choose in their States of elections anywhere in the country. Under the guidelines there is a comprehensive mechanism to monitor the execution and implementation of the schemes. Similarly, such programme has also been introduced in various countries i.e. India, Kenya, Malaysia, Philippine, Sudan, Tanzania, Uganda, etc. In Kenya, the types of projects that may be funded from the development fund are clearly defined in policy or law, while in some other countries including Sudan and Malaysia, there is no restriction on choice of such projects. In India, as long as some basic guidelines are followed, the choice of projects is entirely at the discretion , of individual legislators; however, local administrative authorities are responsible for implementing the chosen projects. In Kenya and Uganda, committees constituted by legislators make the decisions. In Tanzania the composition of committees is prescribed by law but the legislator chairs his or her constituency's committee. In most of the countries, development fund spending is usually subject to the regular national auditing processes. Audit reports may be reviewed by the legislature, and in some cases the law requires that information about projects and their implementation be made public. In countries with access to information legislation there is generally greater transparency and, therefore, greater accountability for the use Of CDF money.
26. It is to be noted that on 10.12.2002 and 7.02.2003 the Ministry of Local Government and Rural Development circulated a well-defined course of action for smooth implementation of the Programme, contents whereof are reproduced hereinbelow:--- Formalities for the Special Local Development Programme: (i) On receipt of the schemes (suggested) by the Parliamentarians (as detailed on a prescribed proforma) from the Ministry of Local Government & Rural Development the concerned Ministry shall get the feasiLility/cost estimates/PC-I prepared from its executing department and accord Administrative Approval to the schemes as per procedure in vogue.
(ii) Then return the approved scheme to the Ministry of Local Government & Rural Development within 20 days of its receipt.
(i.e) The Ministry of Local Government & Rural Development shall release funds to the concerned Ministry/Department within 7 days of the receipt of approved scheme, for implementation.
(iv) Total cost of schemes selected for each constituency must not exceed the allocation of funds to each MNA. This is to ensure that work taken in hand will be completed within the allotted funds.
Each executing department/agency will follow tifs'' formalities -for :execution of the schemes for'eosuring-transparency. . . .
Above 'formulations were applicable both on PWP-.1 and,pWP-11,_However, it may be noted that according to the plea, whiCh has 'been placed on record by the government of Pakistan Cabinet Division through CMA 2222/13, after passing oil 8th Constitutional Amendment, in pursuance whereof the subject of Local Government and Rural Development has been transferred to Provincial Government, therefore, this Programme was assigned to the Cabinet Division in December, 2010 and according to the prevailing practice, the Prime Minister's directives are followed by priority lists issued to Cabinet Division for release of certain funds for development schemes identified by the Parliamentarians and other notables. The Cabinet Division prepares the sanction letter and submits its findings to the Finance Division (FA Office) for approval/endorsement. After approval/endorsement of Finance. Division, sanction letter is issued to AGPR as 'well as to the relevant executing agencies e.g.. PWP, SNIGPL, SSGPL, Baluchistan Development Authority, etc., ipso fecto. The AGPR releases the funds to the assignment accounts of the relevant executing agency.
The responsibility to ensure the transparent release of - these funds in accordance with the PEPRA Rules rests with executing agency and their - administrative Ministries/Divisions, Provincial Government and such conditions are clearly mentioned in the sanctioned, letter.
28. It would be appropriate to note that according to order passed by the Prime Minister for release of the funds under People's Works Programme-II during financial year 2012-18 it has been left at the discretion of the executing agency to use funds in' accordance with their departmental procedure/rules by fulfilling the codal/legal formalities.
Unfortunately, nothing has been done to follow 2014Huingin Rigid Casv regarding allqggd Corruption of Ex-Government 221 (Iftikhar Muhammad Chaudhrv, C ) the PEPRA Rules. It seems. That for such reasons in the SPecial AUdit Report, Contents whereof have been reproduced hereinabove, it has been observed that without Ow feasibility study/report or following PEPRA Rules, -amount allocated by the executive agencies has been used, essentially in - a pon-transpaient manner. One can understand at a glande after going through the detail of the schemes, which has been reproduced hereinabove from the audit report that PEPRA Rules were not followed in all the scheMes i.e.-6963.
29.E On 46.07.2013 learned Attorney General for Paldstan, M/s. VVasim Sajjad, lftkhar Hussain Gillani, Khavvaja Hails Ahmed and Asif Fasihuddin Vardag, learned senior counsel, formulated the following questions for determination by this Court:---
(1) Whether the National Assembly can assent to a grant which is to be utilized by the Executive at its discretion? If the answer is in the affirmative, whether such discretionary grant can be spent at the absolute discretion of the Executive or is the discretion to be exercised in a structured manner?
(2) Whether or not the Constitution permits the use/allocation of funds to MNAs/MPAs/Notables at the sole discretion of the Prime Minister or the Chief Minister? If yes, what has been or should be the procedure/criteria for governing allocation of such funds for this purpose?
(3) Whether such funds can be provided by way of supplementary grant?
(4) Whether such funds can be allocated by way of reappropriation?
(5) Whether a bulk grant can be made in the budget without giving detailed estimates under each grant divided into items and that every item has to be specified?
That if the amounts as approved in the budget passed by the National Assembly are utilized within the permissible limits of the budget, whether such expenditures are justified?
It is to be noted that Articles 80 to 84 of the deal with the Budget and Supplementary reference, said Articles are reproduced herein Annual Budget Statement. (1) The Federal Government shall, in respect of every financial year, cause to be laid before the National Assembly a statement of the estimated receipts and expenditure of the Federal Government for that year, in this Part referred to as the Annual Budget Statement.
(2) The Annual Budget Statement shall show separately
(a) the sums required to meet expenditure described by the Constitution as expenditure charged upon the Federal Consolidated Fund; and
(b) the sums required to meet other expenditure proposed to be made from the Federal Consolidated Fund; and shall distinguish expenditure on revenue account from other expenditure.
81. Expenditure charged upon Federal Consolidated Fund. The following expenditure shall be expenditure charged upon the Federal Consolidated Fund:---
(a) the remuneration payable to the President and other expenditure relating to his office, and the remuneration payable to--- the Judges of the Supreme Court and the Islamabad High Court;
(ii) the Chief- Election Commissioner; (i.e) the Chairman and the Deputy Chairman;
(iv) the Speaker and the Deputy Speaker of the National Assembly;
(v) the Auditor-General;
(b) the administrative expenses, including the remuneration payable to officers and servants, of the Supreme Court, the Islamabad High Court, the department of the Auditor-General, the Office of the Chief Election Commissioner and of the Election Commission and the Secretariats of the Senate and the National Assembly;
(c) all debt charges for which the Federal Government is liable, including interest, sinking fund charges, the repayment or amortisation of capital, and other expenditure in connection with the raising of loans, and the service and redemption of debt on the security of the Federal Consolidated Fund;
(d) any sums required to satisfy any judgment, decree or award against Pakistan by any Court or tribunal; and
(e) any other sums declared by the Constitution or by Act of Majlise- Shoora (Parliament) to be so charged.
82. Procedure relating to Annual Budget Statement. (1) So much of the Annual Budget Statement as relates to expenditure charged upon the Federal Consolidated Fund may be discussed in, but shall not be submitted to the vote of, the National Assembly.
(2) So much of the Annual Budget Statement as relates to other expenditure shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to, any demand,' or to assent to any demand subject to a reduction of the amount specified therein; Provided that, for a period of ten years from the commencing day or the holding of the second general election to the National Assembly, whichever occurs later, a demand shall be deemed to have been assented to without any reduction of the amount specified therein, unless, by the votes of a majority of the total membership of the Assembly, it is refused or assented to subject to a reduction of the amount specified therein. '
No demand for a grant shall be made except on the recommendation of the Federal Government.
83. Authentication of schedule of authorised expenditure. (1) The Prime Minister shall authenticate by his signature a schedule specifying-
(a) the grants made or deemed to have been made by the National Assembly under Article 82, and
(b) the several sums required to meet the expenditure charged upon the Federal Consolidated Fund but not exceeding, in the case of any sum, the sum shown in the statement previously laid before the National Assembly.
(2) The schedule so authenticated shall be laid before the National Assembly, but shall not be open to discussion or vote thereon.
(3) Subject to the Constitution, no, expenditure from the Federal Consolidated Fund shall be deemed' to be duly authorised unless it is specified . In the schedule so authenticated and such schedule is laid before the National Assembly as required by clause (2).
84. Supplementary and excess grants. If in respect of any financial year it is found---
(a) that the amount authorized to be expended for* a particular service for the current financial year is insufficient, or that a need has arisen for expenditure upon some new service not 'included in the Annual Budget Statement for that year; or
(b) that any money has been spent on any service during a financial year in excess of the amount granted for that service for that year; the Federal Government shall have power to authorize expenditure. From the Federal Consolidated Fund, whether the expenditure is charged by the Constitution upon that Fund or .Not, and shall cause to be laid before the National Assembly a Supplementary Budget Statement or. As the case may be, an Excess Budget Statement, setting out the amount of that expenditure, and the provisions of Articles 80 to 83 shall apply to those statements as they apply to the Annual Budget Statement.
31. A plain reading of the aforenoted provision of the Constitution makes it abundantly clear that although in terms of Article 84 of the Constitution the Federal Government has the power to authorize the expenditure to meet the contingency noted therein, however, it is obligatory upon the Federal Government to lay before the National Assembly the supplementary Budget Statement so that it is subjected to the same scrutiny and procedure as is applicable to the Annual Budget Statement in terms of Articles 80 to 83 ibid. It is to be noted that there is nothing in Article 84 ibid, which suggests that such a Supplementary Budget Statement shall only be placed before the National Assembly at the time of consideration of the Budget for the next financial year rather the use of the word "and" before the word "shall" as well as use of the phrase "Supplementary Budget Statement" makes it abundantly clear that the supplementary Budget Statement, in the normal course, is to be placed before the National Assembly during the currency of the same financial year if the Federal Government has decided to authorize such expenditure. Since the provisions of Article 84 of the Constitution make the provisions of Article 80 to 83 specifically applicable to the Supplementary Budget Statement as well, the incurring of expenditure by the Federal ,Government without going through the procedure provided in 'Articles 82 and 83 of the Constitution would be tantamount to nullifying the said provisions of the Constitution.
So far as the question, as to whether the. Constitution provides for the.. Prime Minister exercising any discretionary powers ,in the matter of supplementary and excess grants, etc,., is concerned, it is to be noted that there is no such provision in, the Constitution which confers any SuCh discretionary,,power on. The Prime Minister. Contrary to it, with regard to supplementary grants, it is.. The Federal Government which, has the power to authorize expenditure, from the .Federal Consolidated Fund. As per Article 90 of the Constitution; the Federal Government includes the Prime Minister and the Federal Ministers. The said Article stipulates that the executive authority of the Federation shall be exercised in the name of the President by the Federal Government, consisting of the Prime Minister and Federal Ministers.
33. The Article 97 of the Constitution deals with the extent of executive authority of the Federation. It provides that subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Majlis-e-Shoora (Parliament) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan, provided that the said authority shall not extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws. Similarly, Article 129 ibid stipulates that the executive authority of the Province shall be exercised in the name of the Governor by the Provincial Government, consisting of the Chief Minister and the Provincial Minister which shall act through the Chief Minister. Reference may also be made to Article 164 ibid, which apparently extends the executive authority of the Federation or a Province to make grants for a purpose which may not be one with respect to which Majlis-e-Shoora (Parliament) or as the case may be, the Provincial Assembly may make laws. However, this provision is to be read with Article 97 ibid insofar as executive authority vested in the Federation or the Province is concerned. Be that as it may, it is noteworthy that here too, it is the Federation orthe Province, which is authorized to make the grants referred to therein and not the Prime Minister or the Chief Minister, as the case may be, on his
34. Now the question arises as to whether, and if so, what is the criterion laid down by the law for allocation, 'sanctioning and disbursement of supplementary grants and :Monitoring of works that may be undertaken pursuant thereto. In this regard reference may be made to Article 78 ibid which provides that all revenues received, all loans raised and air moneys received by the Federal Government in the repayment of any loan shall form part of a consblidated fund to be known as the Federal Consolidated Fund, while all other moneys received by or on behalf of the 'Federal Government, or received by or deposited with Supreme Court or any other Court established under the authority of Federal Government, shall be credited to the Public Account of the Federation. Whereas, Article 79 ibid stipulates that the custody of the Federal Consolidated Fund, the payments of the money into that Fund to withdrawal of moneys there from, the custody of other received by or on behalf of the Federal Government, their payment into, and withdrawal from, the Public Account of the Federation, and all matters connected with and ancillary to the matters aforesaid, shall be regulated by the Act of Majlis-e- Shoora (Parliament) or until provision in that behalf is so made, by rules made by the President.
Apparently, there is no Act of Majlis-e-Shoora enacted in terms of Article 79 of the Constitution.
However, there are GFR, which though were issued pre-independence but continued to be operative by virtue of Indian Independence Act, 1947 and later were adapted by means of Article 268 of the Constitution of 1973. Paragraph 1 of Chapter-I of the GFR provides that "the rules contained in this volume, which are essentially executive orders of the President describe primarily the financial powers of different authorities subordinate to the Federal Government and the procedure prescribed by the President which should be followed by them in the securing and spending of the funds necessary for the discharge of the functions entrusted to them.
Departmental authorities should follow these rules, it any, continued in their departmental regulations and other special orders applicable to them".
35. Rule 2(vii) of GFR defines "Controlling Officer" to mean a head of a department or other departmental officer who is entrusted with the responsibility of controlling the incurring of expenditure and or the collection of revenue by the authorities subordinate to the department. Rule 2(viii) ibid provides that all revenues received by the Federal Government all loans raised by that Government an all money received by it in repayment of any loan shall from part of a consolidated fund to be known as the Federal Consolidated Fund. All other money received by or on behalf of the Federal Government; or received by or deposited with the Supreme Court or any other Court established under the authority of the Federation; shall be credited to the Public Account of the Federation. Similarly, rule 2(xviii) ibid defines "re-appropriation" to mean the transfer of funds from one unit of appropriation to another such unit. The Standards of Financial Propriety expected to be observed by every public officer in the matter of expenditure and payment of moneys, are provided in rule 10 of GFR. The said rule mandates, inter a/ia that "every public officer is expected to exercise the same vigilance in respect of expenditure incurred from public moneys as a person of ordinary prudence would exercise in respect of expenditure of his on money" and that "public money should not be utilized for the benefit of a particular person or Section of a community unless the amount of expenditure involved is insignificant, or a claim of the amount can be enforced by the Court of law, or the expenditure is in pursuance of a recognized policy or custom".
36. It is to be noted that the principles governing the Standards of Financial Propriety to be observed by the public officers associated with the various Ministries/Divisions, Attached Departments and Subordinate Offices of the Government, generally as also with respect to matters pertaining to Supplementary Grants and Re-Appropriation, are also provided in the System of Financial Control and Budgeting introduced by the Finance Division, Government of Pakistan, Islamabad through an Office Memorandum dated 13.09.2006. In terms of para 3 of the said Memorandum, the predominant onus to observe these standards of finical propriety rest squarely on the shoulders of the Principle Accounting Officer of the Ministry/Division, etc. Similarly, the Rules of Business, 1973 provide that the Secretary of the concerned Ministry/Division/Department shall be its Principal Accounting Officer, and "shall ensure that the funds controlled by him are spent in accordance with the rules laid down by the Finance Division". It is in this manner that the provisions of the aforenoted System of Financial Control and Budgetary mandatorily apply to him. As regards the duties and responsibilities of the Principal Accounting Officer and Financial Advisor, same are enumerated in paras 4 and 9 of the said Memorandum. Amongst the responsibilities and duties of Financial Advisor and Deputy Financial Advisor, in respect of Ministries/Divisions to which they are attached, include Proposal for Supplementary Grant in respect of Unexpected Expenditure, which are to be dealt with by the Financial Advisor concerned as per the instructions contained in Annexure-II to the said Office memorandum and re-appropriation of funds, as set out in Annexure- I of the Office Memorandum.
37. It is of significance to note that para 2 of the Annexure-Il stipulates that "the request for a supplementary grant should be made in a summary to be signed by the Principle Accounting Officer". The summary should contain the information as indicated in the enclosed Performa. It is also noteworthy that the information solicited in appendix to Annexure-li requires, inter alia, that the detailed information offering reasons for the demands for supplementary grants must include reasons why provisions were not made in the original budget, reasons as to why the proposed expenditure can be postponed to a subsequent year, and the detailed justification of the proposal.
38. Reference in this behalf may also be made to rules 94 to 96 of GFR which deal with the principles governing surrender of anticipated savings, rules 99 to 101 which deal with the principles and procedure governing re-appropriation of funds, and rules 102 to 104 which govern Supplementary Grants. Rule 104 ibid stipulates "expenditure on a new service, in the technical sense, and on new items, such as, new buildings new roads, etc. For which no provision exists in the budget, may be incurred in the middle of the year only in exceptional cases". The said rule, in unequivocal terms, asserts that the Government is indisposed on general principles to admit such demands in the course of year. In case, however, the necessity to incur such expenditure is urgent, the administrative department should explain clearly why it was not provided for in the 2014Humain Right Case regarding alleged Corruption of Ex-Government' 231 (Iftikhar Muhammad Chaudhry, C J ) original budget and it cannot be postponed for consideration in,connection with the next budget, and that the cases which involved the supplementary grant will normally be accepted by the Ministry of Finance only if they relate to the matters of real imperative necessity, or to the earning or safe-guarding the 'revenue. In such cases the demand for supplementary grant, or for a token grant in respect of a new service if the 'expenditure can be met by re-appropriation, will be presented to the legislature as soon as practicable after the need arise.
39. Reference may also be made to The Assembly Debates of the National Assembly of Pakistan held on ThurSday, March 22, 1973 with respect tdArtiale 87 of the Draft Constitution at pages 1787 to 1793 (culminating in a brief summing-up of rationale for provisions of Artiale 84 .By Dr. ^IVlobasilar Hassan, the then Finance wherefrom it is evident that the wisdom of thd traMers of The i:4ConstitutiOn was that, moneys by way ,of SuPpleri-,tentary 4..,,neoppt wopid,dnly:be.Provided in 'exceptional circumstances.
It is pertinent to -rherition that in the concluding paragraph of his debate,',1111k)bashar- Hassan, has referred': iclewthd, ic=414arliarneil/acryz-,,:lPractice-,,in other counties .Tot !Apparently '-'xiiWPreSerlf 'that5-tine sUpplementary, budgetary' t statements 'icfrIt6riar4d in terms of Artiele 84 bid are to be Jaid-b-eforei. The 'fatiqnal FA4sertliblY The Budget Sessiorvi.Of the :folio ring m"yeat'.. Ittrhayalselbo'hdtedThat inlerMst of Article 84 ibid 'he Libh=if oddrseimay be,perMissible, but it isAot imperative. In rreference'May' be made to rule 104 of the :GFR a8lvvell-a 'rule `1'97'0f the:'Rules of the'Procedurec2/2007. In eiliF61197:indidates that In the case , of supplementary ht: brgritliie'-anbilt of the National Assembly is to be obtained before tfieee kind are Made available.
40. With regard to question as to whether or not the. Constitution permits the use/allocation of funds to MNAs/MPAs/Notables at the sole discretion of the Prime Minister or the Chief Minister; if yes, what has been or Should be the procedure/criteria for governing allocation of such funds for this purpose, -it is to be noted that under the Constitution there is no provision whatsoever that permits to use allocation of ,funds at the discretion of the prime Minster/Chief Minster. However, as discussed hereinabove, with regard to supplementary grants, the Federal Government, which includes the Prime Minister and the Ministers, has the power to authorized expenditure from the Federal Consolidated Fund. Further. There is also no provision in the Constitution that mandates use/allocation of funds to MNAs/MPAs or Notables. Infect, the very use of the term 'Notables' is abhorrent to the Islamic ethos. Both Holy Quran and Last sermon (Khutba) of the Holy Prophet Muhammad (PUBH), which envisages that all distinctions on basis of caste, race and colour stand abolished, and the only distinction which remains is that of piety.
41. Article 80 of the Constitution provides for the Annual Budget Statement whereby, for each financial year the Federal Government is required to cause to be laid before the National assembly a statement of the estimated receipt and expenditure of the Federal Government for that year. This Statement, insofar as expenditure is concerned, is required to show separately funds required to meet expenditure charged upon the Federal Consolidated Fund and funds required to meet 'other expenditure' proposed to be made form the federal Consolidated Fund. While Clause (2) of Article 82 of the Constitution stipulates that so much of the Annual Budget Statement as relates to "other expenditure" shall be submitted to the National Assembly in the form of demands for grants, and the Assembly shall have power to assent to, or to refuse to assent to. Any demand, or to assent to any demand subject to a reduction of the amount specified therein. Significantly, Clause (3) of Article 82 specifically mandates that "no demand for a grant shall be made except on the recommendation of the Federal Government". As to how a demand for the grant is to be made -is provided, inter alia, in rule 183 of the Rules of Procedure and Conduct of Business in National Assembly, 2007, which reads as under:- "183. Demands for grants: (1) A separate demand shall be made in respect of the grant proposed for each Ministry or Division: Provided that the Government may cause to be included in one demand, grant proposed for two or more Ministries or-Divisions or a demand to be made in respect of expenditure, which cannot readily be classified under a particular Ministry or Division.
(2) Each demand shall contain a statement of the total grant proposed and a statement of the detailed estimate under each grant divided into items."
42. The above-referred rule shows that each demand for a grant should contain "details of estimate" and, furthermore, the demand should also show "the various items comprising the subject of the grant". In other words, item-were estimate of the grant is required to be placed before the National Assembly for discussion in terms of rule 186 ibid. When the above-cited rules are read in juxta position with rules 186 to 193 and especially rule 194 ibid, it become quite evident .That discussion and voting on the demands for grants in the Budget cannot take place unless the details of each grant in terms of its items-were estimate is included the demand. It is to be noted that these rules are made under Article 67 of the Constitution and, as such, have the status of law deriving direct mandate from the Constitution.
43. The above analysis of the provisions of the Constitution read with the Rule .Procedure, 2007 clearly indicate that qua "other expenditurek there is no provision which mandates the demand for block allocation of funds, inasmuch as, under the rules each demand is required to give items- were detail. Importantly, if the Budget Statement includes demand for grant for use/allocation of funds to MNAs/MPAs/Notables, it would necessarily be a demand for block allocation, as it involves request for placing at the disposal of the MNAs/MPAs/Notables a Certain sum of money as grant to be utilized by or at their request as and when they may identify the schemes of development required for their constituency. Such a demand, if included in the budget, appears to be contrary to the constitutional provisions, which require that each expenditure to be specified with'sufficient particularity, in the Annual Budget Statement, so that it can be considered and voted upon by the National Assembly. Besides, it is also in derogation of rules framed by the National Assembly which require demand for each grant to be specified alongwith detailed est I mateVe ms-were AS`'rebarAs the question whether any such discretionary funds ,pan be placed at the disposal of the Prime Minis.Te;r/Chief:Nlinisters for use of/allocation to the MNAS/MPAS/Notables, neither the Constitution provides for the same nor the Rules of 'Procedure indicate' that such a course for demanding a grant from the;,Natiohal'ASSerti131Yis open to the Prime Minist- lii factjf any discretion' fprids are allowed:10 be -placed at the disposal of the Prime Minister by the National Assembly in the Annual Budget Statement', it shalt be ultra vires the proyisionsof the Constitution in the samei, manner sTp the case of MNAs/MPAs/Notables, discussed 0,.thepievAQ,k4 paraorapn.
45. It is pertinent to menti6n 'nette that the 'very propose of preparing the Annual !Budget ,,StatemeRt know and apprise the National Assembly beforehand-:as to what expenditure is to be incurred F during the ensuing 4 financial year and the precise purpose/schemes insofar as 109,velopment fund is concerned to which such expenditure relates.
For that matter, to leave or earmark any amount of money 'to be used/allocated at some subsequent stage during the' financial year at the discretion of the Prime Minister/Chief Minister is also repugnant to the very concept and connotation of the Annual Budget Statement.
46. In fact, expenditure envisaged to be incurred under the Constitution is not "person specifie"; rather:it' is "grant specific", that is to say, the Constitution envisages provisions of fuhds for eXpenditure to be specified in the Annual Budget Statement vis-a-vis "Schemes ' for Development" and not fdr placing these funds in the hands of any person (be- the Prime Minister or MNNM PA/Notable or any other) for purpose of 'expending asper his Whims and wishes.
47. In this regard it is to be noted that a policy or , practice may have been adopted by the parliamentariant to place funds in the hands of the Prirhe Minister to. Be USed/allocated at his discretion to MNAs/MPAs/Notables. However, if any such policy/practice is in existence,' it too is repugnant to the aforenoted provisions of the Constitution.'
48. It is, however, another 'matter if prior to the preparation Of the Annual Budget - Statement 'the MNAs/MPAs/NGOs and/or , any other person ''irbrh the cOnstitUencies throughOut the country are called upon to , identify schernes or expenditure that may 'be required" `for effecting necessary development in their area of 'concern. Such an exercise, however, will have to be acrott the bCrard, irrespective of the ,political party or parties .(when Ahem is coalition) that may be in-power: Moreover; -it sbe.c.Arrled -out-rnuch before- the: preparation of .- the AnnualT,:fikidget ``'R'Statement so that if the relevant scheme, or expenditure la to cbe inCluded in the-Annual Budget Statement; it qlouiclitiave passed ithrough- the 'process of due consideration; by the 1Planning Commission for purposes of. Ascertaining, - its hecestity and efficaby and-conducting its appraisal, technical analysis, feasibility and :econorriic cost before it ts inclu5led as a:demand tor grant in the Annual Bu'dRet Statement. However, there is no Constitutional provision which permits inclusion, of, any such scheme or expenditure at the behest or any ,MNA/MPA/Notable/any other person d6rihg!The currency of a financial year, unless it is necessitated 'by 'a totally unforeseen contingency arising out of extraordinary circumstances which needs to be met on urgent basis.
49. As far as the question that since there is no specific prohibition in the Constitution qua allocation of funds to MNAs/MPAs/Notables etc. Hence the same is permissible, is concerned, it is to be noted that the language employed in the above referred provisions of the Constitution i.e. Articles 80 to 84 ibid, implicitly excludes such person-specific allocations.
50. So far as the actual exercise of discretionary powers, if any, of the Prime Minister are concerned, even if they be presumed to exist, they cannot be exercised for personal or for parochial benefit, rather they are to be exercised in the light of his oath as incorporated in the Third Schedule to the Constitution as well as Article 38, which mandates the State to promote social and economic well being of all the people/citizens of Pakistan and no just any segment or community thereof.
51. So far as the question if the amounts as approved in the budget passed by the National Assembly are utilized within the permissible limits of the budget, whether such expenditures are justified, it is to be noted that in the light of the declaration made hereinabove that funds cannot be placed at the sole discretion of Prime Minister/Chief Minister as the expenditure envisaged to be incurred under the Constitution is grant specific and not person specific, the allocation of funds for development schemes has to be made following the procedure provided in Articles 80 to 84 of the Constitution and the rules/instructions noted hereinabove.
52. For the foregoing reasons it is held as under:---
(1) The National Assembly, while giving assent to a grant which is to be utilized by the Executive at its discretion, has to follow the procedure provided in Articles 80 to 84 of the Constitution as well as the Rules of Procedure 2007. However, such discretionary grant cannot be spent at the absolute discretion of the Executive and the discretion has to be exercised in a structured manner;
(2) The Constitution does not permit the use/allocation of funds to MNAs/MPAs/Notables at the sole discretion of the Prime Minister ur the Chief Minister. If there is any practice of allocation of funds to the MNAs/MPAs/Notables at the sole discretion of the Prime Minister/Chief Minister, the same is illegal and unconstitutional. The government is bound to establish procedure/criteria for governing allocation of such funds for this purpose;
(3) Though funds can be provided for development schernes by way of supplementary grant but for that purpose procedure provided in Articles 80 to 84 of the Constitution and the rules/instructions noted hereinabove has to be followed strictly;
(4) Funds can be allocated by way of re-appropriation but the procedure provided in the Constitution and the rules has to be followed in its true perspective;
(5) No bulk grant can be made in the budget without giving detailed estimates under each grant divided into items and that every item has to be specified?
(6) The amounts as approved in the budget passed by the National Assembly have to be utilized for the purpose specified in the budget statement. Any re-appropriation of funds or their utilization for some other purpose, though within the permissible limits of the budget, are not justified. In such circumstances, the'r supplementary budget statement has to be' placed before the Parliament following the procedure provided in Articles 80 to 84 of the Constitution and the rules/instructions noted hereinabove.
53. Petition stands disposed of in view of the findings given hereinabove. .