QAZI FAEZ ISA, J. --- These two appeals arise out of a common judgment dated 25th August, 1997 of a Division Bench of the High Court of Balochistan in Ehtesab Reference No. 1/1997; whereby Abdul Karim Nausherwani (appellant in Criminal Appeal No. 202 of 1997) was convicted under Section 4(1) of the Ehtesab Ordinance, 1997 ("the Ordinance") for two years' rigorous imprisonment ("RI") and to pay fine of one million rupees and in default further RI of six months; and Ghulam Akbar Lassi (appellant in Criminal Appeal No. 203 of 1997) was convicted under Section 4 of the Ordinance for the period which he had already undergone and was directed to pay fine of one million rupees failing which to undergo six months' R.I. Both the appellants were also disqualified to hold public office or to be elected or chosen as members of Parliament or Provincial Assembly for a period of five years in terms of Article 63(1)(h) of the Constitution of the Islamic Republic of Pakistan, 1973. The third accused, namely Abdul Sattar Lassi, was acquitted.
2. The case of the prosecution was that Mr. Nausherwani. In his capacity as Food Minister to the Government of Balochistan had illegally issued orders to supply ten thousand metric tonnes of wheat to Bela Flour Mills (Pvt.) Ltd. The Managing Director of which was Mr. Ghulam Akbar Lassi, who was also a former Minister, and five thousand metric tonnes of wheat to the flour mills of Abdul Sattar Lassi, Neither side disputed the said supply of wheat. Both the appellants were convicted for the offence of "corruption and corrupt practices" under the Ordinance, relevant provisions whereof are reproduced hereunder:--- "3. Corruption and corrupt practices.-- (1) A holder of public office or any other person is said to commit the offence of corruption and corrupt practices:----
(b) if he accepts or obtains any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be likely to be, concerned in any proceeding of business transacted or about to be transacted by him, or having any connection with his official functions, or from any person whom he knows to be interested in or related to be person so concerned; or if he dishonestly or fraudulently misappropriates or otherwise converts for his own use or for the use of any other person any property entrusted to him or under his control as a holder of public office or wilfully allows any other person so to do; or if 'he, 'by corrupt, dishonest, improper or illegal means obtains or seeks for himself or for any other person any property, valuable thing, pecuniary advantage or undue favour; Explanation.-- For the purposes of this section, reference to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law; rule, usage or instruction having the force of law or by abuse of official position or by coercion, undue influence, fraud or misrepresentation within the meaning of the Contract Act, 1872 (IX of 1872)."
3. We heard Messrs Aitzaz Ahsan and M. Afzal Siddiqui for the appellants who contended as under:-
(a) It was alleged that the wheat was provided on credit as per practice and no violation of any rule/regulation took place and in any case the purported rule/regulation which was allegedly violated was not identified;
(b) The Secretary Food was the competent authority and responsible for releasing the said wheat, but he was not prosecuted;
(c) The wheat was handed over after obtaining an undertaking from the recipients as per the prevailing practice;
(d) The wheat, though in possession of the recipient flour mills, remained the property of the Government;
(e) The said wheat was imported at Port Qasim and was at risk of rotting if it had not been provided to the flour mills;
(f) The supply of the wheat to the flour mills was pursuant to the Prime Minister's directive;
(g) Mr. Nausherwani could not read or write English and merely signed documents, which were in English language, without knowing what they stated; and
(h) That no offence under the Ordinance was committed and/or there was no mens rea to do so.
The learned counsel for the State and NAB opposed the appeals and relied upon the impugned judgment which according to them had considered all the aspects of the case in detail, is well- reasoned and did not call for any interference.
4. That the Hon'ble High Court formulated the following points for determination:--- "(1) Whether accused-respondent Mir Abdul Karim Nausherwani, is guilty of an offence of Corruption and Corrupt practices, on account of which, he dishonestly allowed 5000 and 10,000 metric tonnes of wheat, on credit, to accused-respondents Abdul Sattar Lassi and Ghulam Akbar Lassi, respectively, which was entrusted to him and he had a control over it, being the Public Office Holder i.e. Minister for Food Department, Government of Balochistan, in 1992, and in this manner, huge amount of Public Exchequer was fraudulently misappropriated and the said amount was converted by accused-respondents 2 and 3 for their own use. If so, to what effect?
(2) If point No. 1, is answered in affirmative, then whether respondents Abdul Sattar Lassi and Ghulam Akbar Lassi being the beneficiaries of the Public Exchequer are equally liable for the offence of Corruption and Corrupt practices, falling within the mischief of Section 3(1)(c) & (d) of the Ehtesab Ordinance, 1997. If so, what effect?
(3) Whether in view of the fact that respondents Abdul Sattar Lassi and Ghulam Akbar Lassi, have refunded the Public money, before commencement of trial, still they are liable for conviction/sentence?
(4) If Points No. 1 and 2 are answered in affirmative and Point No. 3, is decided against respondents Abdul Sattar Lassi and Ghulam Akbar Lassi, what offence has been committed by them and what should be the quantum of sentence?"
5. That the points articulated by the learned counsel for the appellants were specifically attended to by the learned Judges of the Hon'ble High Court. That with regard to the above-mentioned first contention of the learned counsel for the appellants the following extract from the impugned judgment is material:--- "At this stage, it is to be noted that Provincial Food Department has its own procedure of procurement and distribution of the Food supplies including wheat. Originally the wheat is purchased from the growers on making them payments in cash, which is generally managed by the department, by taking loan from the National Bank of Pakistan and whenever the procured wheat or the wheat which has been imported from other countries, is sold to the private persons, they are required to make payment in cash, except where the supply of stock is issued to other official department from the Provincial Reserve Centres. Even in that case normally payments for the price of stock is made in advance but in case, where the department request to purchase the wheat from Food Department on credit then in that case, proper order is required to be passed by the competent Authority and the allocation of stock for sale is to be made on credit basis. Such facility, however, cannot be extended to a private person, as per the Manual of Food Accounts, relied upon by the PW-Abdul Aziz Lassi. We have gone through its Chapter XIII Para-146, which deals with regard to credit, sales, to the department. In the Manual, there is no such provision, which authorizes to competent Authority of Food Department, to allow supply of wheat on credit to a private person. This Manual is the compilation of the Instructions, invoked in the department since long, therefore, instructions incorporated therein, can be equated with the Policy of Food department. Thus we are inclined to hold that neither under any provision of Balochistan Government, Rules of Business, 1976 nor under the policy/Manual of Food Accounts, the accused- respondent No. 1 (Ex-Minister, Food) was empowered to allow wheat stock, on credit to accused- respondent No. 3."
"At this juncture, reference to Rule-45(1) of the Rules of Business, would also not be out of context.
"According to which in the event of difference of opinion between departments, the Minister of the department primarily concerned shall submit the dispute to the Chief Minister for direction.
Similarly sub-rule (2) speaks that, in case of difference of opinion between the Minister and the Secretary, the views of the Minister shall prevail if not inconsistent with the Government's sanctioned policy and the standing rules and regulations if the Minister's opinion be derogatory to such policy and rules etc. The Secretary shall be re-submitted [sic] the case to the Minister explaining the requirements of law and rules and, if the difference of opinion still persists, the case shall be submitted to the Chief Minister for orders. Admittedly in this case vide Ex. P/11, the Secretary, Food disputed the supply of wheat on credit to respondent No. 3, it would mean that there was no policy nor there are any standing Rules and Regulations, empowering the Minister to allow supply of wheat to a private person on credit, therefore, in such-like situation, it was not the Secretary, who would have referred the case to Chief Minister, but it was incumbent upon the Minister himself, in view of above-quoted provisions of Rules of Business, to have referred the matter to Chief Minister.
But instead of doing so, he insisted for implementation of his order. Thus under these circumstances, Secretary, cannot be held responsible for allowing the wheat on credit to respondent No. 3 Suffice it to observe, that when at all there is no policy or Rules and.
Regulations, to make supply of wheat on credit to a private person, then how the Minister was insisting for implementation for his orders."
The aforesaid discussion sufficiently addresses the said contention and we are not persuaded to take a different view from that of the Hon'ble High Court.
6. That as regards the contentions that the supply of wheat was in accordance with the Prime Minister's directive that, the wheat remained the property of the Government and that the Secretary was wholly responsible for releasing the same the learned Judges held:- ""As regards respondent No 3 [Ghulam Akbar Lassi], he submitted an application (Ex. P/10) on 1st October, 1962, addressed to the Minister, Food Department, mentioning therein that they intend to supply Atta to the people of Balochistan in general and the people of Lasbela in particular at subsidized rates as per the directives of the Honourable Prime Minster of Pakistan. In order to comply with the directives, they would be requiring a quantity of ten thousand metric tonnes of wheat to be issued from Port Qasim to their mills on this account. The cost of wheat delivered to them shall be deposited into Government treasury Quetta in the shape of monthly instalments of Rs. 1000000/- (Ten Lacs). This application was not referred by the Minister to the Secretary, Food, for purpose of obtaining report and also to ascertain; whether at all there. Are directives of the Prime Minister of Pakistan, to supply Atta at subsidized rates or what is the factual position. The application was submitted by accused-respondent No. 3, in capacity as M.D. Of Bela Flour Mills Pvt.
Ltd. The Minister passed order on the application which reads as under:-- Secretary Food, Please release ten thousand Mir of wheat to M/s. Bela Flour Mills in order to comply with the orders of P.M. They may be allowed to deposit the amount thereof in. Shape of Rs. 1000000/- per month.
An agreement to this effect may be executed.
Sd/- 1.10.1992.
Since in this application, order was passed by the Minister to allow wheat on credit to respondent No. 3, therefore, the then Secretary, Food, Mr. Abbas Siddiqui, objected on such supply and vide Ex.P/11, sent back the case to Minister, with following observation:--- The Government money involved would be to the tune of Rs. 3.5 million which, according to the application, would be refunded in the period of about three years. The amount is huge and the period of refund is too long. The Government should not take this risk. The Food Department therefore, do not recommend the case of Bela Flour Mills.
But surprisingly, the accused-respondent No. 1, instead agreeing with the note of Secretary, Food, made following endorsement, as per Ex.P/11, and sent back the case to him, for compliance of his orders:- Bold steps have to be taken for the implementation of political decisions. Prime Minister wants that atta should be made available to common man at cheapest possible rates. This cannot be done, unless we issue wheat liberally. We should work for successful implementation of PM's orders. My orders therefore, please be complied with. Sd/- 10.10.1992 (Abdul Karim Nausherwani)
Minister for Food.
Incidentally the Secretary, instead of implementing the order of Minister, again submitted case to him, vide Ex.P/12, with the following Note:- If the Minister Food insists for implementation of his decision, it is suggested that the period of payment be reduced to 24 instalments instead of 35 and an a formal agreement executed between the Directorate and M/s. Bela Flour Mills, the flour mill should he pledged as security.
Sd/- Secy: Food 18.10.1992 As it has been observed hereinabove, that neither respondent Ghulam Akbar Lassi nor the Minister or the Secretary, placed on record the directives of the Prime Minister, therefore, the foremost duty of the Minister 'was to first of all had obtained views of his department, with regard to the directives of Prime Minister and then he should have enquired from the Secretary of his department that; whether wheat can be released in favour of private person on credit or there is any such practice, on basis of which, such facility can be granted. But unfortunately he straightaway directed the Secretary for implementation of his order. It is also important to note that although the stock of 10,000 metric tonnes of wheat was released in favour of accused-respondent No. 3, but no agreement was executed with him nor his Mills was pledged, except obtaining an 'Undertaking' from him and thereafter the wheat was released to him. It may be observed that the Minister had not denied his signatures on Ex.P/10 and P/11 as well as P/12."
The evidence makes it clear that Minister Nausherwani was insisting and the Secretary was resisting, therefore, for the Minister to put the blame at the door of the Secretary is disingenuous.
The Minister also referred to the purported orders of the Prime Minister to give credibility -to his indefensible orders to hand over a huge quantity of wheat, however, the so-called orders of the Prime Minister do not exist. The learned Judges saw through the feeble defence that had been put up to justify the unjustifiable.
It is also significant that the Secretary wanted the said mills to be pledged and the amounts to be paid back soonest, but the Minister remained intransigent:--- "At this stage, it is also worth to note that in view of difference of opinion between the accused- respondent No. 1 and the Secretary, as per Ex.P/11, the Minister instead of insisting for implementation of his order, should have directed the Secretary to prepare a summary for the opinion of Chief Minister, because in view of the admitted fact that Food Minister was head of the department, being an elected Officer Holder, therefore, the Secretary was bound to obey his order but despite his pressure, the Secretary, re-submitted the summary requesting the Minister, that an agreement should be executed, the mill should be pledged and 35 instalments be reduced to 24, but still the Minister insisted for refund of amount in 30 instalments." [emphasis added]
7. The learned Judges of the High Court also considered Mr. Nausherwani's plea of illiteracy and not knowing English and rightly held, that:--- "However, he stated that he is an illiterate person, therefore, whatever order was written by the Secretary, on the application, he used to sign the same. We don't agree with his this plea because signing a document tantamaunts to accepting its substance, therefore, the objection raised in this behalf, has no force."
Even if for the sake of argument it be accepted that the Minister did not know, or understand English and therefore sought to be exonerated on this pretext it was for him to disclose the phantom that took to writing for him, overruling the Secretary and issuing specific directions
8. The impugned judgment specifically' attended to the case against Mr. Ghulam Akbar Lassi, as under:--- "Now turning towards the case of accused-respondent Ghulam Akbar Lassi, it is to be seen that when he submitted application (Ex.P/10) he requested for supply of wheat on credit, on the pretext that there are directives of the Prime Minister of Pakistan to supply wheat at cheaper rates. His application was accepted by the accused-respondent No. 1 without ascertaining, whether he has jurisdiction to allow such facility. In his application, he himself admitted to make payment in instalments of rupees ten lads per month. Subsequently in pursuance of the orders of Minister, he lifted wheat from Port Qasim, as per Ex.R/6 produced by PW-Abdul Aziz Lassi. No evidence has come on record, whether wheat was brought to the Province of Balochistan or not and flour was supplied to the people of District Lasbela and adjoining Districts of Kalat at cheaper rate or not. In this behalf, it was incumbent upon the accused-respondent No. 3, to have entered in witness-box, as his own witness, in terms of Section 21 of the Ordinance, to substantiate that he had not made any wrongful gain from the wheat taken by him on credit and he had supplied Atta on cheaper rates to the General Public of Batochistan, particularly the residents of Lasbela and Kalat. We have discussed his case at length, while answering Point No. 1, wherein we have held that accused- respondent No. 3 had no entitlement to claim the wheat on credit nor he produced any directives of Prime Minister, to substantiate his request, therefore, he fraudulently mis-appropriated the Government property with dishonest intention, for which, illegal manner was adopted by accused- respondent No, 1 to give him pecuniary advantage, without any legal justification."
The referred to Section 21 of the Ordinance is reproduced hereunder:- "21. Accused to be a competent witness.-- Any person charged with an offence punishable under this Ordinance shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged together with him at the same trial: Provided that the accused shall not be compelled to be a witness against himself: Provided further that where an accused appears as a witness on his own choice and refuses to answer any question, the Court may draw such adverse inference from such refusal as it may think fit.
9. That it would appear that, until the reference was filed and heard by the High Court, Mr. Ghulam Akbar Lass' had no intention to pay the amount due from him with regard to the said wheat as the following portion from "he impugned judgment makes very clear:--- "When proceedings commenced against him accused-respondent No. 3, had a liability of Rs. 2,10,15 091i- He was arrested :n pursuance of the order dated 13th March, 1997, and during custody he agreed to return the amount. If opportunity is given to him. As such, on 19th March, before his release on interim bail and with regard to remaining amount of Rs. 75,00,000/- he gave an Undertaking to deposit the same within a period of 15 days from the date of order of his release. His request was accepted anti, he was directed to be released on interim bail. As per the export, he deposited the said amount, Similarly an amount of Rs. 15,00,000/- was recovered by the Food Department, on encashing the cheques, which were already delivered by him to the department, before his arrest. Likewise on 7th April, 1997, he expressed inclination to deposit remaining amount, if case adjourned till 5th May, 1997. His request was allowed and he was directed to deposit this amount and settling the accounts finally with the Food Department till the date, noted herein- above. Accordingly, vide a pay order dated 5th May, 1997, Rs. 95,15,091/- were deposited by him with the Registrar. No doubt the amount received by him from the Department has been returned within a period of four months, but as for as its benefits are concerned, he has already derived the same for a considerable long period, without any justification and legal entitlement. In our opinion, accused-respondent No. 3, is liable for offence of corruption and corrupt practices falling within the mischief of Section 3(1)(c) & .(d) of the Ehtesab Ordinance, 1997. Point No. 2, is accordingly answered in affirmative to the extent of accused-respondent Ghulam Akbar Lassi."
The aforesaid was tantamount to an admission of guilt. Undoubtedly, because payment had been made that the High Court as a matter of grace took a lenient view and sentenced Mr. Ghulam Akbar Lassi to the period already undergone.
10. With considerable care every aspect of the case was examined by the learned Judges of the High Court to determine whether the offence of 'corruption' and/or `corrupt practices' (above) had been committed: "Admittedly respondent No. 3, had not shown in the application (Ex. P/10) that what was his legal entitlement for 10,000 metric tonnes of wheat on credit, belonging to the Government, neither respondent No. 1 had bothered to examine, if any right is vested in respondent No. 3 to claim the supply of wheat on credit. It means that both respondents 1 and 3 with connivance of each other, gave wrongful loss to the Government/Public Exchequer and respondent No. 3, on basis of such loss, got a wrongful gain by utilizing huge Government Money for a period of more than four years, because its major portion has been deposited by him, after commencement of fraudulent transaction between respondents 1 and 3, cannot be over-looked, because he submitted application (Ex.P/10) on the pretext that Honourable Prime Minister of Pakistan have issued directives for the supply of wheat on cheaper rates, but such directives were not attached with the application nor subsequently it were brought in the notice of Minister. Similarly Minister, who had an obligation to enquire; whether at all there are such directives, instead stated that bold steps should be taken to implement the political decisions,"
"As it has been observed herein above that on record there was no directive of the Prime Minister to supply wheat at cheapest rate, as stated by respondent No. 3, in his application, as well as respondent No. 1 in his Note (Ex. P/11), therefore in the garb of such directives which otherwise, were not in existence, respondent No. 1, Mr. Abdul Karim Nausherwani, with an intention to deceive the Government, by causing injury in terms of loss of money, favoured the respondent No. 3, by allowing wheat on credit. If he had not passed order for supply of wheat on credit or after objection of Secretary not insisted to implement the order, there could have been possibility to hold, that respondent No. 1, had not intented to fraudulently misappropriate the property which was entrusted to him, but he exposed himself by insisting time and again that his decision should be implemented upon, because the principal object was to convert this money for the advantage of respondent No. 3, reason best known to him, and on account of such conduct of respondent No. 1, the respondent No. 3 had made a deceitful advantageous derive from the money of Public Exchequer and the Government was deprived of its property, as well as cash, without any legal justification. Thus in our opinion, on account of such acts, omissions and deeds respondents 1 and 3 dishonestly and with fraudulent intention, misappropriated huge amount, belonging to public Exchequer and its pecuniary benefits were willfully allowed by respondent No. 1 to respondent No. 3, on account of undue favour of which he was not legally entitled "
11. That the Ordinance defines the offences of corruption and corrupt practices in fairly wide terms and includes converting, "for his own use or for the use of any other person and property entrusted to him or under his control as a holder of public office or wilfully allows any other person so to do"
(clause (c) of sub-section (1) of Section 3) or by "corrupt, dishonest, improper or illegal means obtains or seeks for himself or for any other person any property, valuable thing, pecuniary advantage or undue favour'' (clause (d) of sub-section (1) of Section 3); the use of the word improper in clause (d) is significant as the word in its ordinary meaning does not include criminality or criminal intent. That for the removal of any doubt the Explanation to sub-section (1) of Section 3 states that, "reference to property acquired by improper means shall be construed as a reference to property acquired by means which are contrary to law, rule, usage or instruction having the force of law or by abuse of official position or by coercion, undue influence fraud or misinterpretation within the meaning of the Contract Act, 1872' again the noticeable use of expansive language and reference to civil legislation (Contract Act) is not without significance, The Legislature apparently realizing the difficulty in successfully prosecuting corruption and corrupt practice from public offices sought to attend to the problem by using wide-ranging terms and language. It is not for the Courts to disregard the clear language of the legislation, particularly when there is no challenge that it is unconstitutional. Therefore, there is no gainsaying by referring to the classic rules of mens rea by the appellant's learned counsel by disregarding the specific language that has been employed in the Ordinance.
12. The learned Judges of the High Court were undoubtedly cognizant of the fact that the matter of sup* of wheat was not initiated by the Department/Secretary, that a benefit was given to specific persons, that there was no guarantee or security with the Government to ensure that the persons to whom the wheat was supplied would return it or pay for it, that this benefit was extended to a chosen few and not to all flour mills, that the matter was resisted by the Secretary and that the Minister time and again insisted. The alleged reason put forward by the appellants in their defence was that the wheat was rotting at Port Qasim, the 'directive' of the Prime Minster and the need to supply at cheaper prices flour to the people, but no evidence to support any of these aspects was produced. We may state that the burden of proving a circumstance/fact that is especially within the knowledge of a person is for him to establish and failing to do so the absence of the same is to be presumed (Articles 119, 121 and 122 of the Qanun-e-Shahadat, 1984).
13. That for the aforesaid reasons there is no reason for us to interfere with the conviction of the appellants. However, with regard to sentencing the Hon'ble High Court treated Mr. Nausherwani differently from Mr. Ghulam Akbar Lassi, therefore, whilst maintaining his conviction we modify the sentence of imprisonment awarded to Mr. Nausherwani also to the one already undergone.
14 That with the aforesaid modification in sentence these appeals are dismissed and the convictions awarded to the appellants maintained.
Criminal Appeals No. 202 and 203/1997 DOST MUHAMMAD KHAN, J. --- I have carefully perused the main judgment drawn by my learned brother (Qazi Faez Ise, J.) however, for legal and factual reasons I am unable to subscribe to the view held by him in maintaining the conviction of the appellants.
2. Some of the facts culminating in filing of the Reference under the provisions of Section 14(1) of repealed Ehtesab Ordinance, 1997 have been elaborately summed up in the said judgment.
However, there are some striking features in the shape of documentary evidence, which escaped the notice of the Hon'ble author Judge. My reasons for dissenting view are as follows:-
(i) The Reference was wrongly filed under Section 14(1) of Ehtesab Ordinance, 1997 as the relevant are Sections 3/4 of the Ehtesab Ordinance, 1997. The provisions of Section 3 of the Ordinance define corruption and corrupt practices
(ii) Now to see whether from the evidence furnished by the prosecution both oral and documentary, any offence is constituted as provided in the provision of Section 4(1) of the repealed Ordinance of 1997. The Reference available on record contains allegations that Abdul Karim Nousherwani (appellant in Criminal Appeal No. 202/1997) was holding the portfolio of Food Minister Baluchistan in 1992 when Ghulam Akbar Lassi (appellant in Criminal Appeal No. 203/1997) applied for release of wheat from Port Qasim P.R. Centre on credit basis for grinding in his Flour Mills.
(iii) It is alleged in the Reference that the appellant, Abdul Karim Nousherwani ('the then Food Minister'), in gross violation of rules/procedure on the subject allowed the release of 10,000 metric tons and 5,000 metric tons of wheat to Appellant Ghulam Akbar Lassi for grinding in his Flour Mills on credit. Another accused involved was Abdul Satter Lassi, co owner/proprietor of the Mills.
(iv) The entire fate of the case is dependent on the premises of practice and procedure as to whether the relevant rule regulating this process was not followed deliberately and it shall instituter a civil wrong and whether any wrongful gain or pecuniary interest was gained from the transaction by the then Minister incharge (the appellant) and whether any default in the payment of fixed instalments by the other appellant, namely Ghulam Akbar Lassi was an attempt to misappropriate public money, valuable property or whether the delay in the payment of last instalment was due to other factors. These three questions would go to the root of the case therefore, must be addressed first, being of vital consequences.
(v) It is on record that before filing of the Reference, the Board of Revenue, Balochistan issued Notification No. 43-19/81-Rev., dated 6th February, 1994, which reads as:-- "In exercise of the powers conferred under Section 119 of the Balochistan Land Revenue Act, 1967, the Board of Revenue, Balochistan is pleased to declare the under-mentioned amount, payable to Government of Balochistan in Food Department recoverable (by) the persons mentioned against each as arrears of land revenue:---
(i) Mr. Muhammad Rs.3,07.81,775/- Akbar Lasi, Managing Director Bela Flour Mills Hub
(ii) Mr. Abdul Sattar Rs. 1,42,00,000/- Lass! M/s. Balla Flour Mills Hub
2. The amount so recoverable on recovery shall be deposited in the Head:- VIII-Land Revenue Sd/- (Muhammad Yausaf Pathan)
Member-II Board of Revenue, Balochistan"
(vi) From the above letter it is clear than crystal that on the departmental side the competent authority of the Provincial Government described the liability of the appellants Ghulam Akbar Lassi and Abdul Satter Lassi as civil liability and the outstanding amount was construed as arrears of land revenue for the recovery of which elaborate procedure has been laid down in provisions of Land Revenue Act.
(vii) Now coming to the first point as to whether the then Minister involved himself in corruption or corrupt practices by directing the release of above quantity of wheat to the Mills of co-appellant in the connected appeal. The first application was submitted to the then Minister (now appellant) on 1.10.1992 (see page 116 of Paper Book in Cr1. A. 202/1997) wherein it is stated as follows:- "BFLA FLOUR MILLS IPVT.) LTD, Khas R. C. D. Road Tehsil Hub District Lasbella, Balochistan. Phone 32532 1st October, 1992 The Honourable Minister, Food Department. Balochistan, Quatta.
SUB:- RELEASE OF TEN THOUSAND METRIC TONES OF WHEAT TO M/$. QELLA FLOUR MILLS PVT. LIMITED, Sir, With due respect it is submitted that we intend to supply atta to the people of Baluchistan in general and the people of Lasbella in particular at subsidised rates as per directives of the Honourable Prime Minister of Pakistan.
In order to comply with the above directives we would be requiring a quantity of ten thousand Metric tones of wheat to be issued from Port Qasim to our Mills on this account. The cost of the wheat delivered to us shall be deposited into Government treasury Quetta in the shape of monthly instalments of Rs.1000000/- (Ten Lacs).
You are therefore, requested to kindly issue necessary instructions to the concerned authorities to release the said quantity of wheat to us and oblige.
Assuring you of our best cooperation at all times.
Thanking you, Yours Faithfully, Bela Flour Mills (Pvt.) Ltd."
On the said application a note had been written where Secretary Food was asked as follows:- "Please release ten thousand Mf Tonns wheat to M/s. Bella Flour Mills in order to comply with the orders of P.M. (Prime Minister). They may be allowed to deposit the cost thereof in the shape of Rs.
1,000000/- per month, An agreement to this effect may be executed.
1.10.92".
However, signature and stamp of the Minister is not available on it. The then Secretary Food, Muhammad Abbas Siddiqui vide letter dated 5.10.1992 (available at page 11'7 on the paper book) made suggestions, which read as follows:--- "GOVERNMENT OF BALOCHISTAN FOOD DEPARTMENT Subject:- RELEASE OF THE TEN THOUSAND METRIC TONES OF WHEAT TO M/S. BELA FLUOR MILLS (PVT.)
LTD.
M/s. Bela Flour Mills (Pvt.) Limited in their application addressed to the Minister Food have requested for ten thousand M.T. Wheat on credit basis cost of which would be refunded in 35.5 instalments of Rs. 10,00,000/- each.
Minister Food has already recorded the following orders on the application: "Secretary Food.
Please release ten thousand M/tones wheat to M/s. Bella Flour Mills in order to comply with the orders of P.M. They may be allowed to deposit the costs thereof in the shape of Rs. 10000001- per month. In agreement to this effect may be executed. 1.10.1992" Sd/- Mir Abdul Karim Nausherwani 1/10/92 The Government money involved would be to the tune of Rs. 3.5 million which, according to the application, would be refunded in a period of three years. The amount is huge and the period of refund is too long. The .Government should not take this risk. The Food Department, therefore, do not recommend the case of Bela Flour Mills.
Sd/- Muhammad Abbas Siddiqi Secretary Food"
(viii) Probably on receiving the suggestions of the Secretary Food, the appellant Mr. Abdul Karim Nousherwani on 10.10.1992 returned the same with the following remarks also quoting the then Prime Minister's desire that wheat Flour may be made available to common man at cheapest possible rate. The text of the endorsement of the Minister is reproduced below:- "Minister Food: Bold steps have to be taken for the implementation of political decisions. Prime Minister wants that atta should be made available to common man at cheapest possible rates. This cannot be done unless we issue wheat liberally. We should work for successful implementation of PMs orders.
My orders therefore please be complied with.
Sd/- Mir Abdul Karim Nausherwani Minister for Food 10.10.1992"
(ix) On receiving back the direction of the then Food Minister (now the appellant), the Secretary Food on 18.10.1992 vide his remarks suggested that beside executing written agreement, the Flour Mills should also be pledged as a security, to which the Minister Food agreed on 20.10.1992, which is to the following effect:- "lf the Minister Food insists for implementation of his decision it is suggested that the period of payment be reduced to 24 instalments instead of 35 and in a formal agreement executed between the Directorate and M/s. Bella Flour Mills, the Flour Mills should be pledged as security.
Sd/- Secy. Food 18.10.92 Minister Food: The proposal is agreed. The refund should be taken in 30 instalments.
20.10.1992 Please issue necessary instructions to D.F.O.
Sd/- 21.10.1992"
(x) The inter department corresponding suddenly erupted on the issue when the previous government had been replaced by its successor and secretary food too was a new successor-in- office namely Abdul Ghaffar Nadeem.The correspondence is reproduced as under:---- Subject: "Release of 15000/ M.T of Wheat"
A summary on the subject noted above is placed below for the information of Minister for Food.
Sd/- Abdul Ghaffar Nadeem Secy. Food.
Minister for Food: 12th Sept., 1993 The present Secretary Food Department may please resubmit the case/Summary with his views/Comments.
Sd/- Nawab Abdul Rehman Nosherwani M/Food.
Secretary Food Debtt. This is in gross violation of existing rules. Govt. Exchequer has been defrauded of 15000/- M.T.Of Wheat, which has no precedent.
Not only has the Hon. Minster Food exceeded his authority, but the then Secretary Food and Director Food have failed to protect Govt. Interest. Under the circumstances the case may be submitted to the C.M. Advising action against the officials and recovery of the said amount.
Sd/- 14-5-1993"
(xi) On 1.1.1997, the proprietor of M/s. Keach Flour Mills (Pvt.) Ltd. Turbat also submitted an application for release of 30,000 tons of wheat to its Flour Mills for regular grinding and distribution of "Atta" at a rate less than prevailing open market rate, the case was recommended by all in the Food Department and a summary was prepared for the Chief Minister. Balochistan. New Minister Food recommended the summary to the Chief Minister on 1.1.1997 which was approved by the then Chief Minister Balochistan on 2.1.1997. The same is available at pages 125 and 126 of the paper book and is reproduced below:- "SUMMARY FOR CHIEF MINISTER SUBJECT: ISSUE OF WHEAT FOR GRINDING M/s. Kach Flour Mills (Pvt.) Limited, Turbat have submitted an application requesting provision for 30,000 tonnes wheat to this Flour Mills for regular grinding and distribution of atta at a rate less than prevailing open market rate. (F/A).
2. The Food Department to release wheat from Government Godowns to the Flour Mil/son other Consumers at the fixed issue price of Rs. 515, PP per bag of 100 Kgs. The releases were however, cut down by 50% to curtail the off-take. The prices of atta in Melo an are most affected due to the cut.
The atta price in Quetta is Rs, 6.90 per Kgs whereas in Mekran the price is Rs.8.00 per Kgs (F/B). The Flour mills management have stated that they will provide to the General Public atta at less rate if the wheat is provided to them as requested.
3. The case has been processed by the Department. The Deputy Director Food Mekran and the Director Food Balochistan have supported the need for steps taken to curtail the open market prices of atta in Mekran and bring the rate near to that prevailing in other parts of the Province/Country (F/C & D). There is only one Flour Mill in whole of Mekran which can supply atta at reasonable rate provided wheat is made available. Atta brought on open market account from Karachi and Punjab is sold at higher rates obviously because of higher Transportation costs on longer distance which adds to the cost.
4. The Food Department is of the view that the request of M/s. Keach Flour Mills may be considered provided the mills management ,takes;
(i) of Government stock stored in the Flour Mills premises.
(ii) Takes responsibility for any damages/losses.
(iii) Ensure to credit the cost as per sanctioned monthly quota of wheat i.e. 1331,200 tonnes in he Treasury/Bonk through cash sale challans on monthly basis.
(iv) ;Provide Bank Guarantee equivalent to the COST of wheat at the prevailing ra;e of Rs. 515.00 per 100 Kgs with bag from a recognized Bank.
(v) An other surety which may be required to safeguard the Government interests."
5. Approval of the Chief Minister is requested for the arrangements as proposed in para-4 above with a view to reducing the open market prices of atta in the public interest.
Sd/- (Abdul Aziz Lasi)
Secretary Food.
1.1,1997 Minister for Food: Recommended please Sd/-
1. 1.1997 Chief Minister: Approved as recommended Sd/- 2.1.1997
(xii) There is a certificate issued by Director Food Balochistan stating that Mr. Ghulam Akbar Lass/ appellant in the connected appeal had so far deposited an amount of Rs. 145,00,000/- while an amount of Rs. 3,55,15,091/00 was the total, hence, the outstanding arrears/balance amount was Rs. 2,10,15,091/, The Director Food further certified that the Government of Balochistan had fixed a monthly instalment of Rs. 5 lacy as per order No. 8/94/wheat/SD-II/5752, dated 6th May, 1996 and that Bella Flour Mills was remitting the monthly instalment of Rs. 5 lacs since May, 1996 regularly.
3. On consideration and careful perusal of the relevant rules including the Provincial Government Business Rules, it appears that there was no prohibition of a kind divesting the then Minister of Food to issue an order of release of wheat to the Mills of the co-appellant moreso, when it had been released subsequently to other. Flour Mills as well therefore, it is neither a case of misuse of authority nor a single iota/shred of evidence is available on record to slightly indicate that the then Minister (appellant j Abdul Karim Nousherwani was in any manner a beneficiary of the said transaction nor it has been established that Ghulam Akbar Lassi the CEO of Bella Flour Mills in any manner was related to' him much less dependent upon him or he was acting as his benamidar.
4. It is of considerable importance that right from the very inception/initiation of this case by the Minister on the application of appellant Ghulam Akbar Lassi in Crl. A. 203/1997 it has squarely been communicated to the Secretary Food and all relevant authorities that it was the then Prime Minister's directives desiring to manage the crises of shortage of wheat Flour (ata) in open market in relaxation of rules steps are requires to be taken, subject of course to secure the interest of public exchequer. This stance was not taken by the appellant for the first time during the trial but it has gleaned out from the record right from the first directive he had issued. No one from the Food Department,' Chief Minister and the then Chief Secretary raised a pointing finger that there was no directive of the then Prime Minister to that effect therefore, in my opinion, the view held by my brother Judge that this defence regarding the desire and directive of the then Prime Minister was bereft of any substance is based on misconception and non-reading of the relevant record.
5. From the different letters/correspondence made by different authorities of the Food Department it is well-established fact that there were serious crises of shortage of wheat Flour in the Province and to silence the rising protests of the poor people and to minimize their miseries the old policy was relaxed in this manner.
6. Again some amount outstanding against Bella Flour Mills, the subject-matter of this case, was deposited during the proceedings of this case before the Ehtesab Bench and once that amount was accepted by the NAB authorities without any exception or reservation then, in my view, the very trial of both the appellants was not warranted under the law. Although the Plea Bargain Arrangements machinery provision was not inserted in the repealed law but for the reasons that the entire outstanding arrears were paid to the government exchequer and not a single penny was misappropriated so no wrongful loss was caused to the public exchequer nor the accused had gained anything illegal from the transaction. The delayed payment of outstanding arrears would attract civil liability of Bella Flour Mills for compensation through damages if any but in no manner it would constitute an offence under Section 3 or 4 of the repealed Accountability Ordinance.
7. The approval of the last summary submitted by the then Secretary Food that the instalments period shall be curtailed in the interest of public exchequer and the Flour Mills be pledged with the Government, loudly speaks that the appellant (the then Minister Food) has acted with much clarity and bona fidely while taking each successive step. If he was having any mens rea, he could have conveniently used his political weight and influence by giving direction to release the wheat without securing the ultimate interest of the public exchequer.
8. True that elected governments are required to follow the policy once formulated by it for the benefit of public-at-large but policy cannot be placed on high pedestal than a binding law moreso, such policies are framed and formulated so that the public at large get the benefit of the same. If at any point of time the policy becomes neck breaker or absolute hurdle to manage the crises like situation where public-at-large is the victim of the policy in a newly emerged situation, then such government has a right and privilege to make a departure from the policy and even to suitably amend the same. For this very reason if any departure has been made from the policy then laid down, it would not attract the penal provision of Ehtesab Ordinance in any manner.
Moreover, the then Secretary Food did not resist the approval of the appellant nor had sent the case/summary to the then Chief Secretary to be placed before the then Chief Minister for final opinion but instead he agreed to it, with the suggestion that the period of payment be reduced and the entire Flour Mills be pledged with the Food Department. These recommendations were faithfully approved by the Minister (now appellant) readily n writing firmly securing the interest of public exchequer.
9. Similar issue came up before the Lahore High Court in the case of The President of Pakistan v.
Mrs. Benazir Bhutto (1994 MLD 1969) and it was answered in the same way I have already answered above however, the most elaborate judgment on the point in issue given by a Division Bench of the Lahore High Court is in the case of M. Anwar Saifullah Khan v. The State (PLD 2002 Lahore 458) where it was held in unequivocal terms that every mistake ofcivil law or procedure would not constitute offence because mens rea is an essential ingredient of a crime unless of course it is an offence of strict liability. Simple misuse of authority due to ignorance or for other justifiable reason would not make liable the doer to be prosecuted and convicted under the provision of Ehtesab Ordinance.
10. For what has been discussed above. Both on factual and legal plane, I am unable to endorse and agree with the view held by my lord brother therefore, the appellants have made out a strong case for acquittal.
Accordingly, both the appeals are allowed, conviction of both the appellants and the sentences awarded to them are held to be without lawful authority and in disregard of law, the same are thus set aside and both the appellants are acquitted of all the charges levelled against them.
By majority of two to one these appeals are dismissed.