MOHAMMAD AZAM KHAN, C.J.--The titled appeal by leave of the Court arises out of the judgment of the High Court dated 19th March, 2013, whereby revision petition filed by the appellant herein, has been dismissed.
2. Necessary facts for disposal of the appeal are that Ehtesab Bureau filed three references under sections 467, 468, 419, 420, 471, 109 APC, 5(2) PCA, 4 Ehtesab Commission Act, 1997; and 10/11 Ehtesab Bureau Act, 2001 against the appellant, herein, in Ehtesab Court, Muzaffarabad. After framing the charge, the appellant filed three applications under sections 265-K, C.P.C. For acquittal in the Ehtesab Court No,2, Mirpur. The Ehtesab Court dismissed all the three applications through consolidated judgment on 22nd March, 2007. Dissatisfied, the appellant filed a revision petition in the High Court. The High Court through judgment dated 19th March, 2013 dismissed the revision petition, hence this appeal by leave of the Court.
3. Mr. Mushtaq Ahmed Janjua, Advocate, the counsel for the appellant argued that the judgment of the High Court is against law and the record. The case against the appellant is false and fabricated. No offence is constituted against the appellant. The prosecution evidence, collected by the prosecution, if produced, then too, no case is established against the appellant and conviction cannot be based upon such allegations and evidence which form part of the references.
The.Learned counsel submitted that the allegation against the appellant is that he procured allotment of evacuee property by misusing his authority as public servant by concealing previous allotment made in his favour and in the name of his father by making false statement. The learned counsel submitted that under section 15 of the Pakistan Rehabilitation Act, 1956, if a refugee procures an allotment in excess of scale then the case is one of multiple allotments and only Multiple Allotment Judge, which is a Judge of High Court, has power to hear and determine the cause. The learned counsel argued that under section 15 of Rehabilitation Act, 1956, if it is proved that the appellant procured allotment by concealing the true facts then he may be convicted for the sentence of three years. The Pakistan Rehabilitation Act, 1956 is a special law and in presence of special law, the provisions of Ehtesab Act are not applicable. The Ehtesab Bureau has no jurisdiction to inquire into the matter. It was further argued that all the allotments alleged to be procured by the appellant have been cancelled. No monetary loss has been caused to the State Exchequer. The learned counsel further argued that under clause (o) of section 4 of Ehtesab Bureau Act offence, means the offence of corruption and corrupt practices punishable under schedule I, or under any of the laws mentioned in schedule II of this Act. The offences under Pakistan Administration of Evacuee Property Act, 1957 or Pakistan Rehabilitation Act, 1956 are not made part of schedules of Ehtesab Bureau Act, therefore, any offence committed by any public servant under Pakistan Rehabilitation Act, 1956, doesn't fall in the jurisdiction of Ehtesab Bureau. The learned counsel relied upon the case titled Malick Hussain Shah v. S.P. Rangers and others (Civil Appeal No,90/2007, decided on 7th April, 2014). The learned counsel further argued that the allotment is alleged to have been procured in the year 1982, while Ehtesab Bureau Act is made applicable from Ist January, 1985. He. Referred to section 2 subsection (3) of the Ehtesab Bureau Act. The learned counsel relied upon the case reported as Muhammad Munir Awan v. AJ&K Ehtesab Bureau (2011 SCR 407). Lastly, the learned counsel submitted that the appellant has not gained any illegal benefit. The High Court has not applied the correct law. The learned counsel also argued that the prosecution has withdrawn the charges against Raja Amjid Pervaiz Khan and Kh. Pervaiz Ahmed, who have issued the allotment orders, therefore, after withdrawing the charges against the said two officers, the appellant cannot be proceeded against.
4. While controverting the arguments of the learned counsel for the appellant, Mir Khalid Mehmood, Chief Prosecutor, argued that the judgment of the High Court is perfectly legal. The appellant procured the allotments of evacuee land showing himself as refugee of 1947 and 1965. His father got allotment of land measuring 13 acres, 4 kanals as refugee of 1965 in the year 1973 and in the Ration Card produced by his father, the age of appellant is shown as 13 years. The date of birth of the appellant is entered in his Identity Card as 1954. A person who born in 1954, how can be a refugee of 1947. The learned counsel submitted that only those refugees have right to procure allotment in Azad Jammu and Kashmir, who are the refugees of 1947 and the refugees of 1965 have been allotted land in Shorekot, District Jhang, Pakistan. The appellant is not a refugee of 1947. The learned counsel referred to a certification forming part of the record of reference that the appellant migrated to Azad Kashmir in the year 1966. The learned Chief Prosecutor submitted that under section 10(1)(d) of Ehtesab Bureau Act, any civil servant who misuses his authority for gaining undue benefit, he is guilty of corruption and corrupt practices and Ehtesab Bureau has jurisdiction in the matter. The learned counsel submitted that section 15 of Rehabilitation Act, 1956 is not applicable in the case. The provisions of Rehabilitation Act are attracted only in those cases where a person is entitled for allotment, but he procures the allotment in excess of scale while concealing the allotment which already exists in his favour. The appellant was born in 1954, he migrated to this part of Kashmir in the year 1966, therefore, he was not a refugee of 1947 and has no entitlement for allotment of evacuee land in Azad Kashmir under the provisions of Rehabilitation Act, 1956 or Administration of Evacuee Property Act, 1957, as such the provisions of section 15 of Rehabilitation Act, are not applicable in the case. Only the provisions of Ehtesab Bureau Act are applicable in the case. The learned counsel referred to the case titled Ehtesab Bureau v. Abdi Hussain and others (Criminal Appeal No, 47 of 2013 decided on 8.9.2014).
5. We have heard the learned counsel for the parties and also perused the record. Three different references under sections 467, 468, 419, 420, 471, 109, P.C. 5 (2) PCA, 4 Ehtesab Commission Act, 1997 and sections 10 and 11 of the Ehtesab Bureau Act, 2001 are filed against the accused. The allegation against the appellant is that he, by misusing his official capacity, procured the allotment at six places i.e. (i) Mozia Chattar Domel, (ii) Mozia Pindi Sabarwal, (iii) Mozia Bahang Mripur, (iv) Mozia Onah Dadyal, (v) Mozia Garala Pallandri, and (vi) Mozia Sorakhi Dadyal in the years, 1981, 1982, 1995, 1995, 1995 and 1999 respectively. It is an admitted position that the appellant being a civil servant procured the allotment of evacuee land at different places in Azad Jammu and Kashmir. While procuring allotment at Mozia Bang Mirpur, Mozia Garala and Mozia Sorakhi, the appellant showed himself as refugee of 1947 whereas his date of birth in his Identity Card is entered as 1.6.1954. A certification is also on record that he migrated to this part of Azad Kashmir from occupied Kashmir in the year 1966.. It is also an admitted fact that his father got allotment of land measuring 13 acres, 4 kanals in Shorekot, District Jhang as refugee of 1965 and in the Ration Card issued in 1965 in favour of his father, the age of the appellant is shown as 13 years. It is further proved that the appellant was born after 1947 and he migrated to Azad Kashmir from occupied Kashmir in 1966.
The refugees of 1965 are entitled for procuring allotment of evacuee land in Shorekot, District Jhang, Pakistan. The father of the appellant has procured the allotment as head of the family in Shorekot, District Jhang, Pakistan.
6. The corruption and corrupt practices are defined in section 10 of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001. Section 10(1)(d) postulates that if a holder of public office. By corrupt, dishonest or illegal means, obtains or seeks to obtain for himself, or for his spouse and for dependents or any other person, any property or valuable thing, or pecuniary advantage he is said to commit or have committed the offence of corruption and corrupt practices. The case against the appellant is that he procured the allotment of evacuee property in Azad Jammu and Kashmir without entitlement by stating, at one place, that he is a refugee of 1947, whereas he procured the allotment at another place by showing himself a refugee of 1965. The question whether provisions of a special law i.e. Pakistan Rehabilitation Act, 1956 and Azad Jammu and Kashmir Multiple Allotments Act, 1961, will govern the matter or provisions of Ehtesab Bureau Act are applicable in the case. The proposition that when the case of a person falls in a special law, whether Ehtesab Bureau has jurisdiction in the matter or not, has already been resolved in a case titled Ehtesab Bureau v.
Abdi Hussain and others, (Criminal Appeal No,47 of 2013 decided on 8.9.2014), wherein it has been observed that the Ehtesab Bureau has jurisdiction in the matter and can file the reference. It was observed as under:- "From the bare reading of the above said provision, there is no ambiguity in the language used in the section as four different categories of persons come within the domain of Act, 2001. The words "all persons in Azad Jammu and Kashmir" by themselves show that apart from any other person whether holding the public office or 'not, a person in the Azad Jammu and Kashmir, if indulged in the corruption, corrupt practices, misuse/abuse of power, misappropriation of property, kickbacks, commissions and for matters connected and ancillary or incidental thereto, is liable to be dealt with under Act, 2001. Secondly; the words. "holder of the public office" are also of very much importance. The term "Holder of Public Office" is defined in section 4 (n), of Act, 2001 the relevant portion of which reads as under:- "Holder of Public Office" means a persons who'
(i) ........................
(ii) ........................
(iii) is holding, or has held, an office or post in service of Azad Jammu and Kashmir, or any post or any service in connection with the affairs of the State, or of local council constituted under any State law relating to the constitution of local councils, or in the management of corporations, banks, financial institutions, firms, concerns, undertakings or any other institution or organization established, controlled or administered by or under the Council and the Azad Government of the State of Jammu and Kashmir, other than a person who is a member of any of the armed forces of Pakistan or for the time being is subject to any law relating to any of the said forces, except a person who is, or has been a member of the said forces and is holding, or has held, a post or office in any public corporation, bank financial institution, undertaking or other organizations established, controlled or administered by or under the Azad Government of the State of Jammu and Kashmir, or any Board, team, Task force; authority or any such other body known by any name setup by the President, the Government or the Council, including any post in any Development Authority or a Transport Authority... "
The words "an office or post in service of Azad Jammu and Kashmir, or any post or any service in connection with the affairs of the State, or of a local council constituted under any State law relating to the constitution of local councils, or in the management of corporations, banks, financial institutions..." mentioned in the above referred provision clearly show that the bank employees also come within the domain of Ehtesab Courts, if they are involved in corruption or corrupt practices.
Whereas, the next category shows that not only the holder of public office but if any person who facilitates or abets or induces in the commission of offence also comes within the parameters of section 3 of the Act, 2001. In the case in hand, admittedly, the accused-respondents are bank employees and allegation levelled against them is that they are involved in the embezzlement of huge public money. There is no ambiguity in our mind that the banks are national institutions and their employees come within the purview of holder of public office. If for the sake of arguments it is accepted that the bank employees do not come within the definition of 'holder of public office' as observed by the learned High Court that the council has not adapted the definition of the public office holder. Even then there cases come within the purview of section 3(a) of Act, 2001.As this section clearly speaks that this law is applicable to 'all the persons in Azad Jammu and Kashmir' irrespective of the fact that they are holder of public office or not."
There is force in the argument of Mir Khalid Mehmood, Chief Prosecutor, Ehtesab Bureau, that the case of multiple allotment is relevant only if a person was entitled for allotment and he has procured the allotment in excess of scale while concealing the previous allotments, then the Multiple Judge has jurisdiction in the matter but if a person is not entitled for allotment, Multiple Judge has no jurisdiction in the matter and Ehtesab Bureau has jurisdiction in the matter.
Section 265-K, Cr.P.C. empowers the Court to acquit an accused person at any stage of the proceedings, if the Court is of the opinion that if all the evidence, which is proposed to be produced by the prosecution, is admitted as correct then too, there is no chance of conviction of the accused for the offence he is charged with. It is not denied by the appellant that he procured allotment of evacuee property at different places in Azad Jammu and Kashmir. The questions, whether the appellant was entitled to procure the allotments; whether he has misused the authority of public office and whether the allotments procured by the appellant are legal or illegal, can only be resolved after recording the evidence There is no illegality in the impugned judgment. The appeal has no merit, it is hereby dismissed.
8. We have also considered the argument of Mr. Mushtaq Ahmed Janjau Advocate, the counsel for the appellant that the provisions of Ehtesab Bureau Act, 2001 are made applicable in the offences which have been committed after first January, 1985: Some allotments have been procured before 1985, therefore, Ehtesab Bureau cannot probe into the matter. From the record, it appears that the allotments at Mozia Chattar Domail Muzaffarabad and Mozia Pindi Sabarwal, Mirpur have been procured on 07.5.1981 and 14.12.1982 respectively. Under section 2(3) of the Azad Jammu and Kashmir, Ehtesab Bureau Act, 2001, the offences committed after 1st January, 1985 shall be triable under this Act. From the record of references, it appears that the appellant procured allotments at seven different places. He got first allotment on 7th March, 1981, second allotment on 14th December, 1982 and all other allotments have been obtained on 7th January, 1995, 27 February, 1995, 2nd May:, 1995 and 7th June, 1999, respectively. The allotments i.e. dated 7th March, 1981 and 14th December, 1982 have relating to these allotments don't fall in the ambit of Ehtesab Bureau. The case of the appellant itself is that if these allotments are procured by making false statement then he can be proceeded against under section 15 of the Pakistan Rehabilitation Act, 1956, therefore, the appeal to the extent of allotments procured through file No.5102, at Mozia Chattar Domel on 7.5.1981 and through file No. 9974 at village Pindi Sabarwal on 14th December, 1982, is accepted. The Ehtesab Bureau has no jurisdiction to inquire into the matter and file references in respect of these allotments whereas appeal to the extent of remaining four allotments is dismissed. The trial Court shall proceed- with the matter accordingly. The appeal is disposed of in the manner as indicated above. No order as to the costs.