' M. TABASSUM AFTAB ALVI, J.--- The supra titled appeal has been directed against the impugned judgment of Judge Ehtesab Court Muzaffarabad, dated 18.05.2004.
2. The precise facts culminating into filing of the instant appeal are that through an education package a post of Junior Clerk B-07, was created in Girls High School Uttrasi. The appellant being qualified and hail from the concerned constituency was appointed against the aforesaid post by the competent authority vide order dated 14.01.1998. As per claim of petitioner, later on, he was confirmed against the aforesaid post on recommendation of respective selection committee vide order dated 24.01.1998. It is averred that appellant has continuously been performing his duties against the said post honestly and against his appointment neither any complaint was made from any corner nor his appointment order was challenged before any forum which has attained finality under law. However, one Ch. Muhammad Jamshaid, due to political victimization and with mala fide intention submitted a forged and malicious application before Ehtesab Bureau, that he applied for the disputed post who was also appointed vide order dated 11.08.1999 and when he went to join the institution, the concerned Headmistress told him that against the aforesaid post appellant was already working. As per direction of Ehtesab Bureau, a departmental inquiry was also held which was conducted by one Gohar Rehman Chughtai. After investigation of the matter, a reference was submitted before Ehtesab Court No.1 Muzaffarabad, against appellant and Kh. Khairullah Shakir, District Education Officer (Secondary) Muzaffarabad, under sections 467, 468, 471, 109/34 A.P.C., 5(2) P.C.A., 4, Official Misdemeanor Act and 11 of Ehtesab Bureau Act, 2001. After due process the learned Judge of Ehtesab Court Muzaffarabad through the impugned judgment dated 18-5-2004, although, exonerated appellant from all the charges, however, set aside his appointment order as unlawful, hence, the instant appeal.
3. Mr. Muhammad Yaqoob Khan Mughal, the learned counsel for appellant, vehemently argued that Ehtesab Court was having no jurisdiction under law to set aside appointment order of appellant, therefore, the impugned judgment is corum-non-judice to that extent, hence, prayed for acceptance of appeal.
4. Raja Ansar Tahir, Deputy Chief Prosecutor Ehtesab Bureau, however, submitted that appellant obtained an unlawful appointment order which was rightly set aside by the Ehtesab Court, while exercising powers as visualized under sections 10 and 11 of Ehtesab Bureau Act, 2001, read with section 5(2) of Prevention of Corruption Act, 1950 and submitted for dismissal of appeal.
5. After hearing the learned counsel for parties at length, we have perused the contents of appeal, examined the record and have giver our earnest thought to the points raised by the learned counsel for parties.
6. A contemplate perusal of record reveals that appellant was appointed on temporary basis against the post of Junior Clerk B-05, in Girls High School Uttrasi, by District Education Officer (Secondary) Muzaffarabad, vide order dated 14.01.1998. After about 08 days a corundum was issued by the same authority i.e. District Education Officer (Secondary) Muzaffarabad, whereby words "as per instruction" were modified in words "on recommendation of selection committee" through order dated 24.01.1998. Against the same post, after about 7 months without cancelling appointment order of appellant, one Ch. Muhammad Jamshaid, was also appointed by the same authority on recommendation of respective selection committee vide order dated 11.08.1998. It appears that the aforesaid temporary appointment order dated 14.01.1998 and confirmation order dated 24.01.1998, of appellant were not challenged by any one including Ch. Muhammad Jamshaid, before any forum, which attained finality under law. The sole point liable to be resolved in the instant appeal is that whether Ehtesab Court has got jurisdiction to set aside appointment order of appellant in a criminal case? Before embarking upon the controversial point it looks appropriate to reproduce sections 10 and 11 of Ehtesab Bureau Act, 2001, which speak as under:--
10. Corruption and Corrupt Practices.-- (I) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices.--
(a) if he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in Section 161 of the Azad Penal Code (Act XLV of 1860) for doing or forbearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person, or for rendering or attempting to render any service or disservice to any persons; or
(b) if he accepts or obtains or offers 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 likely to be concerned in any proceeding or 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 the person so concerned; or
(c) 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, or wilfully allows any other person so to do; or
(d) if he by corrupt, dishonest, or illegal means, obtains or seeks to obtain for himself, or for his spouse and/or dependents of any other person, any property, valuable thing, or pecuniary advantage; or
(e) if he or any of his dependents or benamidars owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for; or
(f) misuses his authority in any manner so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so or wilfully fails to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority; or
(g) he has issued any directive, policy, or any Statutory Regulatory Order (SRO) or any other order which grants or enables any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar or any other person; and
(h) if he commits an offence of willful default.
["(2) All offences under this Act shall be non-bailable and only the Ehtesab Court shall have jurisdiction to grant bail to any person accused of any offence, including the High Court, shall have jurisdiction to grant bail, including bail before arrest, to any person accused of any offence under this Act.
Provided that nothing herein contained shall effect the powers of the High Court under the Azad Jammu and Kashmir Interim Constitution Act, 1974.
(2) Where the Chairman, decides to release from custody or detention a holder of a public office or any other person accused of an offence under this Act, he shall do so after considering the gravity of the charge against such person and the accruing quantum of loss involved in the offence alleged to have been committed and may impose any reasonable conditions for such release.
' Provided that the Chairman may impose other conditions for release from custody or detention.
(4) The amount deposited by the accused with the Ehtesab Bureau shall be transferred to the concerned bank or financial institution etc. Within month of the date of such deposit.
11. Punishment for Corruption and Corrupt Practices.-- (1) A person who commits the offence of corruption and corrupt practices shall be punishable with imprisonment for a term which may extend to 14 years, or with fine, or with both, and such of the assets and property of such person which is found to be disproportionate to the known sources of his income or which is acquired by money obtained through corruption and corrupt practices whether in his name or in the name of any of his dependents, or semidarkness shall be liable to be forfeited to the Government."
' Similarly section 5 of the Azad Jammu and Kashmir Prevention of Corruption Act, 1950, is essential, which is reproduced as under:-- "5.(1). A public servant is said to commit the offence of Criminal misconduct.
(a) if he accepts or obtains or agrees to accept or attempt to obtain from any person for himself or for any other person any gratification (other than legal remuneration) as a motive or reward such as mentioned in section 161 of the Azad Kashmir Penal Code; or
(b) if he accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, 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 or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows .Any other person so to do; or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both.
(3) In any trial of an offence punishable under subsection (2) the fact that the accused person or any other person on his behalf, is in possession for which the accused person cannot satisfactorily account of pecuniary resources or properly misappropriate to his known sources of income may be proved and on such proof the Court shall presume unless the contrary is proved that the accused person is guilty of criminal misconduct and his conviction, therefore, shall not be invalid by reason that it is based solely on such presumption.
(4) The provisions of this section shall in addition to and not in derogation of any other Law for the time being in force and nothing contained herein shall exempt any public servant from any proceedings which might, apart from this section, be instituted against him.] "
' The appellant-accused was also charged under section 4 of the Azad Jammu and Kashmir Official Misdemeanor Act, 1948, which is reproduced as under:--
5. Forfeiture of property.-- If a person is convicted of misdemeanor, the property involved in any gift, gratuity or illegal gratification or the full value thereof shall be forfeited to the Government but the Court may order the same or any part thereof to be restored to the person to whom it originally belonged or to be awarded to another person who in the opinion of the Court, was responsible for exposing the accused, whether he is a prosecutor, an informer or any other person; ' Provided that a similar order may be made by the Court in respect of the whole or any part of the fine that may be imposed under the foregoing section."
' A bare reading of section 10 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001, makes it abundantly clear that a holder of a public office, or any other person, who commits offence of corruption and corrupt practices i.e. If he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward, or if he accept A or obtains or offers 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 likely to be concerned in any proceeding or business transacted by him, or having any connection with his official functions, 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, or willfully allows any other person so to do, or obtains or seeks to obtain for himself or for his spouse and/or dependents, any property, valuable thing, or pecuniary advantage, or if he or any of his dependents or semidarkness owns, possesses, or has acquired right or title in any movable or immovable property or pecuniary resources disproportionate to his known sources of income, which he cannot reasonably account for, or misuses his authority in any manner so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so or willfully fails to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority, or has issued any directive, policy, or any other Statutory Regulatory Order or any other order in which grants or enables any undue concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a Benjamin or any other person, or commits an offence of willful default, shall be deemed as committed offence of corruption and corrupt practices. A person who commits the offence of corruption and corrupt practices, as per section 11 of Testable Bureau Act, 2001, shall be punishable with imprisonment for a term which may extend to 14 years, or with fine, or with both.
The assets and property of such person which is found to be disproportionate to the known sources of his income or which is acquired by money obtained through corruption and corrupt practices shall be liable to be forfeited to the Government. Similarly according to section 5(1) of the Prevention of Corruption Act, 1950, a public servant who commits an offence of criminal misconduct shall be punishable with imprisonment for a term which may extend to seven years or with fine or with both, as per subsection (2) of section 5, Prevention of Corruption Act, 1950. Likewise any person who commits misdemeanor shall be punished under section 4 of official Misdemeanor Act, 1948, with imprisonment of either description for a term which may extend to three years or with fine or both and shall in addition be liable to be dismissed from his office or appointment. The appellant-accused was acquitted from all the charges by the Court below, however, his appointment was set aside as obtained in an unlawful manner. A perusal of the aforesaid Statutes makes it crystal clear that no power pertaining to revocation of appointment of beneficiary was provided. The provisions of Azad Penal Code were at all not attracted in the given case. Therefore, as per our considered view, the impugned judgment to the extent of setting aside appointment order of appellant is corm-nonjudicial.
7. The appellant-accused and principal accused Kh. Khairullah Shakir, who was District Education Officer (Secondary) Muzaffarabad, at the then time, were charged with offences under sections 467, 468, 471, 109, 34,Azad Penal Code; 5(2) of Prevention of Corruption Act, 1950 and section 4 of Official Misdemeanor Act, 1948, read with section 11 of Ehtesab Bureau Act, 2001. The principal accused was sentenced to fine of Rs.50,000 recoverable from him as arrear of land revenue through impugned judgment dated 18-5-2004. The appellant, as observed earlier, was acquitted from all the charges. Against the aforesaid judgment the principal accused Kh. Khairullah Shakir filed an appeal before this Court, however, during proceedings he died, hence; the appeal was consigned to record as abated vide order dated 19-3-2014. A cross-appeal filed by Ehtesab Bureau, was also dismissed, as filed without sanction of Government, through even dated order 19-3-2014.
The learned counsel for appellant apprised that as impugned judgment was suspended by this Court vide order dated 9-6-2004, therefore, appellant is continuously holding the disputed post. It reflects from record that appointment order of appellant was not challenged by Ch. Muhammad Jamshaid, complainant before proper forum for redress of his grievance. Although we are not satisfied from the procedure adopted by District Education Officer (Secondary) Muzaffarabad, pertaining to appointment of appellant against the disputed post of Junior Clerk B-05, however, as the Court below was not empowered to set aside his appointment order, therefore, quashing the impugned judgment to that extant is demand of law and justice.
8. The nub of above discussion is that by accepting the instant appeal, the impugned judgment dated 18-5-2004, to the extent of abrogating appointment order of appellant, made against the post of Junior Clerk B-5 in Girls High School Uttrasi, Muzaffarabad, is hereby quashed as without lawful authority.