' ALI BAQAR NAJAFI, J. --- This appeal is directed against judgment dated 26.01.2002 passed by the learned Judge, Accountability Court No. 2, Rawalpindi/Islamabad, whereby the respondents were acquitted from the charges levelled against them in Reference No. 7 of 2000.
2. Brief facts leading to the present appeal are that Mr. Taj-ud-Din Sherwani, Acting Director General (Gas) Ministry for Petroleum and Natural Resources of Pakistan made complaint in 1997, containing the allegation that Anwar Saifullah Khan/respondent No. 1 as Minister for Petroleum and Natural Resources allocated gas from Dhodak Gas Field on personal selection, on the basis of pout al p'itronage and extraneous circumstances, to respondent No. 2 of Mehran Gas Company ignoring the public Sector Companies. Since respondent No. 1 was elected member of National Assembly of Pakistan as well as member Senate, and belonged to Pakistan Muslim League (Junejo Group), which supported Pakistan Peoples Party in the year 1993 in forming the coalition of Government of Ms. Benazir Bhutto as Prime Minister, the respondent No. 1 was appointed as Federal Minister Petroleum and Natural Resources from 1994 to 06.11.1996. The respondent No. 2 was elected member of Senate in year 1994.
3. The respondent No. 2, moved written application to the respondent No. 1 on behalf of Mehran Gas Company directly for allocation of gas, who being Minister for Petroleum and Natural Resources did not ascertain that accused No. 3 or Mehran Gas Company has necessary expertise, know-how, technical and financial competency for such gas supply which were necessary requirements under the rules for allocation of gas and grant of license. Interestingly, when the application was made by Mehran Gas Company, it was not in existence. Without considering the feasibility, technical and financial report and without satisfying as to skill, experience and financial soundness for allocation of Gas, 25 tons gas per day was allotted to Dr. Ashraf Abbasi and respondent No. 2/Safdar Ali Abbasi of Mehran Gas Company on 18.06.1996 against the public interest and just to enrich the other accused at the expense of public resources. During the investigation sufficient evidence has been collected to show that offence of corruption and corrupt practices as defined under Section 9 4c of the Ordinance, 1999 and punishable under Section 10 of the Ordinance, 1999 was committed by respondents and Sikandar Ali Abbasi, Deputy Director, CDA accused. It was alleged that by using the name of Gul Muhammad Khan Abbasi accused, Sikandar All Abbasi and other partner of Mehran Gas Company received Rs. 19, 693,7271- which benefit was derived by them illegally and through undeserved allocation of gas. However, Dr. Ashraf Abbasi, was not arrayed as accused, as evidence was weak against him. Accordingly the reference was submitted in the Court.
4. On the application of Gul Muhammad Abbasi accused, his plea bargain was accepted vide order dated 12.07.2000 and he was released under Section 25 of the Ordinance, 1999 and was disqualified under Section 15 of the NAB Ordinance and his name was deleted as an accused person.
5. The respondent No. 1 was arrested and produced before the Court; while respondent No. 2 was not arrested and his undertaking was accepted by the Court for his regular appearance in the Court. Sikandar Ali Abbasi accused has since been absconded and was declared proclaimed offender by the Court accordingly.
6. Respondents No. 1 and 2 were charge- sheeted in. This reference to which they pleaded not guilty and claimed trial. They were, therefore, put to trial and prosecution was directed to produce its evidence. Qazi Muhammad Saleem Saddiqui as PW-1, Muhammad Taj-udDin Sherwari PW-2, Munir Ahmed PW-3, lqbal Z. Ahmed Khan PW-4, Saqib Usman PW-5 and Abdul Jalil Khan, Assistant Director, FIA, I.O. PW-6 appeared as prosecution witnesses. Raja Muhammad Bashir, PG/Special Prosecutor vide his statement dated 25.02.2001 given up remaining PWs and closed the prosecution case.
7. Qazi Muhammad Saleem, PW-1/Assistant Director LPG section of Directorate General Gas tendered documentary evidence in support of the reference. Muhammad Taj-ud-Din Sherwari, Director Gas/PW-2 and Muhammad Munir, Director General Gas/PW-3 stated that Mehran Gas Company directly made the application to respondent No. 1/Anwar Saif Ullah Khan, Minister for Petroleum and Natural Resources who without getting it processed from department violating the rules approved the allocation only for political consideration ignoring the public sector companies whose allocation was cancelled without any justification. Mr. Lqbal Z. Ahmed Khan, appeared as PW4, he is proprietor of Lub Gas Company stated that respondent No. 2/Safdar Ali Abbasi is known to him as he has got family relation with him. He had personal knowledge that allocation of LPG was made to Mehran Gas Company and he tried to contact and sought help of respondent No. 1 who introduced him to Sikandar All Abbasi son of GuI Muhammad Abbasi and he signed agreement with GuI Muhammad Abbasi through his son Sikandar All Abbasi. He proved certain documents in this regard that Mehran Gas Company was later on converted into limited company with different shareholder and Lub Gas Company made payment according to agreement.
Respondent No. 2/Safdar Ali Abbasi had relation with newly added shareholder. Saqib Usman Khan, PW-5 is General Manager Finance of Mehran Gas Company joined the investigation and produced documents Ex-P32/2 to Ex-P32/63 and stated that payments were made by Lub Gas Company to the partners of Mehran Gas Company through these documents. Abdul Jalil Khan, I.O. In this case appeared as PW-6 who investigated the case and recorded the statement of PWs collected evidence and submitted report to Chairman NAB.
8. The statement of respondent No. 1/Anwar Saif Ullah Khan, was recorded under Section 342, Cr.P.C.
And all the incriminating evidence was put to him to which he denied and contended that identical reference was brought against Ms. Benzair Bhutto in which she was acquitted through the reported Case 1994 M LD 1969. That in the past other Ministers incharge had been allocating the gas in the same manners as he did and till that date same procedure is being followed. He denied that application (Ex-P14) was submitted to him directly. He further stated that he is not party to plea bargain made by Gul Muhammad Abbasi. He stated that despite all allegations Mehran Gas Company has been granted additional LPG from PARCO by present Minister Mr, Usman Amin-ud- Din in the same manner and that he has not done anything unusual. He stated that he had made allocation to Lt. Gen. (R) lmtiaz Ahmed Warraich, Managing Director of Fuji Foundation who wrote a letter of thanks but same has not been objected. He stated that actual application (Ex-D31) was withheld which he duly marked for process to the then Secretary Petroleum and Natural Resources which travelled down to the lowest in the line and file was prepared. Ex-P14 is fake and dubious document and stated that allocation of LPG has always been policy issue and has never made by Director General Gas. He referred the statement of PWs and representation of Munir Ahmed Ex-D36.
He narrated the different instances and allocation on different occasions in detail. He denied that he did not ascertain about Mehran Gas Company from Directorate and gave a detailed answer of question No.
8. He denied that he has misused his authority by allocating LPG to Mehran Gas Company. He stated - that already Prime Minister's Secretariat had cancelled the previous allocation and fresh applications were invited and circumstances arisen where allocation was required to ensure gas supply to the common man and to protect the revenue of OGDC. That he allocated LPG to all the four provinces of Federation; stated that large number of complaints were coming from different companies, that the government was refusing to provide gas to remote areas and, therefore, by means of Petroleum Policy. 1994, the Government intended to privatize public sector companies hence allocation made to private companies. The Government has privatized public sector companies. He pleaded his innocence, narrated his achievements as Minister for Petroleum and National Resources getting foreign investment, signing different agreements to enhance the revenue of the Ministry and the Government as a result the profit of OGDC increased during his tenure. It was due to ma/a fide and animosity of Mr. Farooq Laghari the then President of Pakistan and Mr. Muhammad Nawaz Sharif, Prime Minister that this reference has been brought against him.
He is well-known politician belonging to a prominent family and has three master's degrees, and he served as D.M.G. Officer in different districts. He was arrested by the present Government qua its accountability process.
9. However, he did not produce evidence in his defence nor appeared his own witness.
10. Respondent No. 2 was examined under Section 342, Cr.P.C. Most of his answers to the questions is that he has got no knowledge about the alleged facts. However, he stated that GuI Muhammad Abbasi, accused was released under Section 25 of NAB Ordinance, who was the actual allottee and the original proprietor of Mehran Gas, partnership firm. He denied that he made application Ex-P14.
He denied that he has got any interest or share in Mehran Gas Firm and Company. That note dated 18.06.1994 (Ex.P-18) is expression/opinion of co-accused which has no relevancy. He quoted the different portion of statement of PW-1 to PW-6 in his statement and contended that their such statements have shattered the prosecution case. He admitted his relation with Awais Ali Abbasi and Uma Rooma but stated that they are not depended upon him rather Munawar Ali Abbasi is father of Uma Roorna who himself is prominent leader of Pakistan. Peoples Party and former Minister of Province of Sindh who has influence and status in the party. While Awais Ali Abbasi is son of ljaz Ali Abbasi his cousin and not his real nephew. He denied that he as a partner of Mehran Gas Company used influence on the Minister for allocation of LPG. He referred the statement of lqbal Z.
Ahmed Khan PW-4, Saqib Usman PW-5, and Abdul Jalil Khan, PW-6 had contended that charge and allegation have been disapproved by their statement. He has also relied upon PWs who have deposed that he has not received any payment nor they mentioned him as owner or partner and that he has got no concern with Mehran Partnership Firm or Mehran Gas Company Ltd.
11. He did not produce any evidence in his defence nor appeared as his own witness. He stated that this case was fabricated during the second tenure of Mr. Muhammad Nawaz Shard as Prime Minister, by the then Ehtesab Cell chaired by Saif-ur-Rehman Khan and was made only to falsely involved him. He stated that he neither applied for allocation nor signed any document nor he had any share in the business of Mehran Gas Company. He denied that he ever received any payment.
That Senator Saif-ur-Rehman Khan ensured his false involvement for these reasons.
12. We have heard the learned counsel for the parties and perused the available record.
13. PW-1 to PW-3 are responsible officers of Directorate Gas who admitted that nowhere they found any signatures or initial of Anwar Saifullah Khan/respondent No.
1. The Trial Court has rightly observed that Anwar Saifullah Khan, being Minister tried to accommodate different federating units to cater the requirements of remote area and that the Government revenue did not suffer in any way. The appellant has not done anything unusual and has followed the past practice. The allocation of Gas was a policy decision and no rules were referred which were allegedly violated by the respondent No.
1. As far as allegations against Safdar Ali Abbasi/respondent No. 2 that he applied for the quota without having experience in the LPG field as Mehran Gas Company was a newly born company are concerned, suffice it to say that PW-1 to PW-3 had not stated a word that he in the capacity of Senator of ruling party exercised his influence upon the Minister to get quota who in fact had never applied for the issuance of said quota.
14. Besides, at the most it may have been a procedural lapse, and where there was any violation of the rules, the offence under KAB Ordinance, 1999 is not made out in the absence of mess red. Our reliance is upon Mansur-ul-Haq v. Government of Pakistan PLD 2008 Supreme Court 166, relevant extract of para 9. Is reproduced below:--- " ....... This is essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine the question of criminal liability in the transaction. The procedural irregularities may bring an act done in the official capacity within the ambit of misconduct which is distinguishable- from criminal misconduct or an act which may constitute an offence and thus unless it is established through the evidence that an act or series of acts done in the transaction constituted an offence, the criminal charge would be groundless ...........
15. In the identical reference reported in The President of Pakistan v. Mrs. Benazir Bhutto 1994 IUD 1969, the accused was also acquitted. Relevant extracts are reproduced below:- "It may be prominently emphasized here that the respondent as Prime Minister was the head of the Federal Government as such she was to decide all the matters regarding citizens in general of the country coming before her and neither she was legally debarred from dealing with the cases of her relatives and friends nor her relatives or friends were disqualified from getting their cases as regards their rights determined by her as citizens alongwith others and merely because a decision taken or an order passed by the respondent was favourable to any of her friend or relative was not by itself the evidence of the fact that it was a case of nepotism and favorite unless it was established through evidence that:---
(a) the order was passed by bypassing the provisions of law which if followed would not have entitled said relatives or friends to a relief
(b) that any other person who was more deserving to get allocation was ignored for such relative or friend; and
(c) that application of any other person made earlier was pending but the relative or friend was given priority over the same;
(d) that favour was shown to a friend or relative with a motive to derive personal benefit.
16. As the impugned order does not appear to be shockingly perverse and was based upon evidence and correct appreciation of law, we do not find any exception in the order of acquittal passed by the learned Trial Court and, therefore, dismiss the appeal. Criminal .