' While the present Provincial Chief Minister Mr Ghulam Haider Wyne, held the portfolio of Minsiter for Industries and Mineral Development, Government of the Punjab and Chairman Punjab Small Industries Corporation (hereinafter referred to as PSIC), Navid Asif, Member of the former Civil Service of Pakistan, posted as Managing Director, PSIC was, inter alia, subjected to disciplinary proceedings and placed under suspension, validity whereof was called in question by means of constitutional petitions W.P.2242 and 3022 of 1989, during the pendency whereof as an ad interim measure, an injunctive order was issued directing that disciplinary proceedings may continue but final order should not be passed. Subsequently, when these petitions were set down for final arguments, learned counsel divulged that the allied criminal prosecution of Navid Asif together with all the co-accused has culminated into recording of acquittal by the Senior Special Judge, Anti-Corruption, Punjab, whereupon with a view to examining propriety and legality of the order pressing into service suo motu revisional jurisdiction record of the trial Court was summoned.
2. From the perusal whereof, it transpired that Navid Asif alongwith 10 others, namely, Muhammad Ikram Project Director (Turnkey Project) PSIC, Lahore, Abdul Majid Akhtar Director (Finance and Accounts) PSIC, Lahore, Rashid Tanvir Deputy Director (Estate) PSIC Faisalabad, Muhammad Akmal Machine Operator PSIC, Lahore, Ihsan Sabri Legal Advisor PSIC, Lahore, Sher Ahmed Tehsildar, PSIC Faisalabad, Jamal Din s/o Muhammad Abdullah, Khalid Masud alias Bhola son of Muhammad Shafi, Khalid Mahmood son of Karim Bakhsh and Muhammad Akram son of Hashmat Ali, in the case registered vide FIR No,l of 18-1-1987 under section 409/420/406/218 PPC read with section 5(2) of the Prevention of Corruption Act, 1947, with the Director Anti-Corruption Establishment Punjab, Lahore at the instance of Ali Kazim the then Secretary, Industries and Mineral Development, Government of the Punjab alleging fraudulent purchase of 181 acres and 5 marlas of agricultural land in Chak No,165/RB, Faisalabad through general attorneys, at the rate of Rs,40,000 per acre and selling the same unto the PSIC for Rs,2,95,000 per acre while the average sale price of agricultural land ' in the vicinity was reported to be Rs,8153.60 per acre and that of the residential land Rs,80,000 per acre, for the setting up of small industrial estate Faisalabad No,II, under role over scheme without approval of the Government, deploying the PSIC funds by manoeuvring transfers thereof from various heads including the staff gratuity, pension, land recovery, depreciation, loans, reserves against goods supply etc., thereby causing loss of Rs,5,20,00,000 to the PSIC, were charged and tried on the following counts by Mr.Ausaf Ali Khan, the then Senior Special Judge, Anti- Corruption, Punjab, Lahore: "First: That you Navid Asif accused during the year 1986 while posted as Managing Director, PSIC, being public servant in colllusion with your co-accused Nos.2 to 8 by fraudulently and illegally using the forged documents purchased land in Chak No,165/RB, Faisalabad for the establishment of SIE-II by misrepresenting the price of the same as Rs,2,95,000 per acre while the actual price paid to the owner was Rs,40,000 per acre and thus in collusion with each other and Proclaimed Offenders Sher Muhammad, Tehsildar, PSIC, Iftikhar Ahmad, Muhammad Ashiq, Mst. Azra Naz, Mst.Bushera Begum, Fazal Hussain and Mst.Badar Saithi committed criminal breach of trust to the tune of Rs,4,61,62,468 belonging to PSIC/Government and thereby committed an offence punishable under section 409/109, P.P.C. Which is within the cognizance of this Court.
' Secondly: That you Navid Asif accused during the said time and place in collusion with your co- accused Nos.2 to 8 and Proclaimed Offenders Sher Ahmad and Iftikhar Ahmad cheated PSIC/Government by fraudulently and illegally purchasing land for SIE-II in Chak No,165/RB by misrepresenting the price as Rs,2,95,000 per acre while the actual price paid to the owner was Rs,40,000 per acre and thus caused a loss of Rs,4,61,62,468 to Government/PSIC and thereby committed an offence punishable under section 420/109 PPC which is within the cognizance of this Court.
' Thirdly: That you Navid Asif accused in collusion with your co-accused Muhammad Ikram during the said time and place forged "Site Inspection Report" by replacing first two papers of Site Selection Report of the Committee and thereby changed the selected site situate near Octori Post at a distance of 13 Kilometres from Faisalabad to one at Khurianwala/Jandowali Road (Link Road)
28 Kilometres from Faisalabad for the purpose of cheating intending that it shall be used for the purpose of cheating and thereby committed an offence punishable under section 468/109 PPC which is within the cognizance of this Court.
' Fourthly: That you Navid Asif accused during the said time and place used as genuine the "Forged Minutes of Meeting" dated 14-4-1986 and thereby assumed power to purchase land directly for SIE- II Faisalabad which otherwise did not vest in you You also used as genuine the forged report dated 10-8-1986 of Muhammad Nazir, Patwari of Chak No,165/RB, while sending comments to the Government vide U.O. Dated 1-10-1986. You also in collusion with your co-accused Muhammad Ikram, Rashid Tanveer, Abdul Majid Akhtar, used as genuine the said forged "Site Inspection Report "which you and your aforesaid co-accused knew and had reason to believe the said documents to be forged at the time you and your said co-accused used the said documents and thereby committed an offence under section 471/109 PPG which is within the cognizance of this Court.
' Fifthly: That you Navid Asif, Muhammad Ikram, Abdul Majid Akhtar, Rashid Tanveer and Muhammad Akmal accused during the said time and place by abusing your official position as public servants committed the above mentioned acts and thereby committed an offence under section 5(2) of the Prevention of Corruption Act, 1947 which is within the cognizance of this Court."
3. Wherein Kh. Sultan Ahmad, Advocate having been appointed as the Special Public Preosecutor vide notification of the Government of Punjab, Services, General Administration and Information Department No,S.O. (S-V)/87 dated 12-3-1987, after examining 37 witnesses for the prosecution including All Kazim the then Secretary Industries, Hafiz Ullah Ishaq the then Commissioner, Lahore Division and formerly Secretary Industries, Shahid Rafi the then Deputy Commissioner, Lahore and formerly Deputy Commissioner Faisalabad, Zulfiqar All Chairman Chief Minister Inspection Team, Muhammad Javed Akhtar Assistant Director Accounts Payment Section PSIC, Muhammad Ashraf Assistant Director Accounts Headquarters, Ghulam Mustafa Deputy Secretary Industries and Mineral Development, Muhammad Nawaz Chief of the Planning and Development Section, Government of the Punjab, Nasir Muhammad Research Officer, 'Planning and Development Department, Muhammad Saeed the original vendor, Shabbir Hussain Assistant Economic Advisor Industries and Mineral Development Department, Muhammad Mumtaz Deputy Director PSIC and a dozen of Bank Managers/officials inter alia, testifying circuitous routing of the proceeds through surreptitious multiple inter Banks transactions to the intended beneficiaries involving the feminine folk, closed the evidence.
4. Subsequent whereto, Sh.Lutf-ur-Rehman, the present Senior Special Judge, Anti-Corruption, Punjab, Lahore vide order dated 3-6-1990 recorded the acquittal under section 249-A, Cr.P.C., primarily on the basis of the parawise comments submitted by Ch.Sardar Muhammad Director Anti-Corruption Establishment Punjab, endorsed by Abdur Rahim Assistant District Attorney to the effect that with the execution of agreement to annul the sale deeds and reimbursement of 'the entire amount received from PSIC upon return of the land, the matter, prima facie, appears to be purely of a civil nature and stands resolved in totality; the relevant text whereof is reproduced hereinbelow: I feel that since the parties to the disputed property treated it as a dispute of civil nature and as they have entered into agreement etc. Annulling the transactions which gave rise to this criminal case followed by the return of the entire amount received from PSIC, no criminal liability is made out...................
5. Since endorsement of the parawise comments having been submitted under the signatures of the Director, Anti-Corruption, Punjab by Assistant District Attorney attached to the Senior Special Judge, Anti-Corruption had predominantly weighed with the latter, while Kh. Sultan Ahmed, Advocate being the notified Special Public Prosecutor, therefore, it sounded quite intriguing; consequently with a view to ascertaining the factual position the latter as well Mr. Farooq Bedar, learned Addl. Advocate-General Punjab, who as per record were attending to the case, were sent for, whereupon the learned Special Public Prosecutor stated that at the conclusion of the prosecution evidence he was advised by Ch.Sardar Muhammad, Director Anti-Corruption Punjab " to go slow in the case " because the accused persons have agreed to refund the defalcated amount; thenceforth he was kept out of the picture till he learnt through the press that the matter has concluded, subsequent whereto the then Additional Chief Secretary, Punjab revealed that all the accused have been acquitted.
6. Having gone through the entire prosecution evidence, I was at a loss to understand what impelled the Director Anti-Corruption, Punjab to bring about an abrupt drop scene of the case by painting it with the juridical colouration of "civil nature" and pushing it through a person other than the notified Special Public Prosecutor; consequently, exercising inherent powers, he was summoned, who, affirming that the parwise comments were drawn up under his instructions making a clean breast statement volunteered that he was directed by Anwar Zahid. The then Chief Secretary. Puniab to have a recourse to this adventurous methodology.
7. Sh. Lutf-ur-Rehman, Senior Special Judge, Anti-Corruption, when called upon under supervisory jurisdiction, frankly realising the obvious legal flaws in the judgment under examination expressing that he can't defend that divulged that save for the solitary exercise, trial of the case was conducted by his predecessor Mr.Ausaf Ali Khan, right from framing of the charge sheet till conclusion of the entire prosecution evidence.
8. Thorough perusal of testimonies of prosecution witnesses in entirety spread over approximately three thousand pages, in addition to the voluminous exhibits and the order under examination was ex facie demonstrative of the fact that the Senior Special Judge, Anti-Corruption without discussing merits of the case and independent application of mind has recorded the acquittal solely on the basis of the parawise comments submitted by the Director Anti-Corruption Punjab, thus apparently suffered from inherent legal infirmity, therefore, the respondents were called upon to show cause why the order of acquittal should not be set side and the case be remanded for disposal on merits in accordance with law.
9. Pursuant whereto M/s. Rafique Ahmad Bajwa, Shaukat Rafique Bajwa and Asif Ranjha, Advocates put in appearance on behalf of Navid Asif, Mr.Izhar ul Haq, Advocate along with Ehsan Sabri, respondent, Sher Ahmad, Muhammad Akram, Rashid Tanvir and Khalid Masud, respondents tendered appearance in person, while the remaining respondents did not show up therefore, keeping in view safer administration of criminal justice, they were directed to be served through the Director Anti-Corruption Punjab in addition to a citation in two leading newspapers with vast circulation namely the daily Jang and the Daily Nawa-e-Waqt, whereupon all the respondents joined the proceedings, save for Muhammad Akmal, with Mr Abid Hassan Minto, Advocate for Jamal Din and Mr.Mohammad Zaheer, Advocate for Abdul Majid Akhtar.
10. And their learned counsel made the following submissions: Mr. Abid Hassan Minto, Advocate: ' In revisional jurisdiction not only an order of acquittal is to be rarely and sparingly interfered with but also every illegal order necessarily need not be set aside; any observation made qua the apparent illegality might prejudice the mind of the trial Court; since there is some controversial element as to the quantum of sale consideration, therefore, the Special Judge, in addition to the stance adopted by the Director, Anti-Corruption Punjab, applying independent mind concluded that it is a matter of civil nature, and, lastly, scandalous description of the matter tends to manifest some preconceived doubt.
' Mr. Rafique Ahmad Bajwa, Advocate: ' The Pakistan Criminal Law Amendment Act, 1958 being the Special law designed to exclusively regulate the procedure in cases of the specie in question, provisions of section 439 of the Cr.P.C.
Cannot be pressed into service whereunder scope of the revision has been circumscribed by section 10(1) viz., it has been tagged up with the Appeal which is available only against a judgment and not an order contemplated by section 249-A, Cr.P.C. And that too preconceives pendency of an Appeal which is non-existent; the expression 'High Court' appearing in section 439, Cr.P.C. Read in conjunction with Article 192 of the 1973 Constitution means Chief Justice and the Judges, therefore, unless a matter has been marked by the Chief Justice to a particular Bench, on its own, it cannot assume the jurisdiction; suo motu summoning of the record was Uncalled for since the order under examination having culminated out of compromise arrived at between the parties treating the transaction to be of civil nature, amounted to falsification of the allegations levelled in the complaint and implied revocation of the sanction for the prosecution; the parties having treated the transaction to be of a civil nature no offence is made out, further the prosecutor having committed that the matter is of civil nature remand would be an exercise in futility; exercising powers conferred under section 249-A, Cr.P.0 reference to the evidence became irrelevant after the trial Court reached the conslusion that the transaction is of a civil nature and the charge being groundless no conviction is possible, and, lastly, the exercise ventured upon by the Director, Anti- Corruption tantamounts to withdrawal of the prosecution within the contemplation of section 10(4) of the Act ibid specially when he had been instructed by Anw Zahid, the then Chief Secretary.
Punjab under the Punjab Anti-Corruption Establishment Rules, 1985.
' Mr. Izharul Haq, Advocate: ' Adopting the jurisdictional arguments advanced by Mr.Rafique Ahmad Bajwa, submitted that market rate of land being a variable factor cannot form basis of a criminal charge and the alleged causation of loss to PSIC is abortive because after carrying out the intended development the land ought to have been sold out at a profit.
' Mr. Muhammad Zaheer, Advocate: ' The matter having been admitted by the prosecution to be of a civil nature, no useful purpose would be served in re-writing the judgment merely on the technical ground that it is non-speaking, specially when valuable right has accrued to the re ipondents.
11. Adverting to the arguments canvassed by Mr.Abid Hassan Minto, Advocate without any degree of diffidence and hesitation I may say that there is no cavil with the proposition couched in terms of rare and sparing interference with orders of acquittal in generality of cases but with equal degree of unambiguity I must hasten to add that the judgemnt under examination is such a specie of rarity as well that if allowed to be countenanced it would tantamount to perpetuation of fraud on the judicial system, englosement whereof I am purposely avoiding being mindful and conscious of the fact lest it causes any prejudice to the respondents, since, inevitably, it would warrant reference to the evidence which also takes care of the apprehension expressed by the learned counsel.
12. The theorisation that there being some controversy as to variation in the sale consideration of the land, therefore, the Special Judge Anti-Corruption, independent of the submissions made by the Director, Anti-Corruption, reached the conclusion as to the civil nature of the transaction, loses sight of the fact that price variable factor is not to be visualized in isolation but has to be read in conjunction with the whole mass of evidence on the record, in which eventually comprehensive spectrum of the picture in its true perspective would be amply exhibited on the screen.
13. The contention as to preconceived doubt sublimes in the air when examined in the light of the fact that the Court had taken note of the matter in the constitutional petitions referred to supra wherein an injunctive order had also been granted during motion hearing and were set down for final arguments coupled with the fact that the show-cause notice was issued after extensive study of the evidence comprising nearly three thousand pages was carried.
14. Dealing with the arguments advanced by Mr.Rafique Ahmad Bajwa, Advocate in seriatim, it may be observed that the premier contention as to governing of the Anti-Corruption cases exclusively by the procedure conceived by the Pakistan Criminal Law Amendment Act, 1958 being the special law overlooks the fact that by virtue of its section 6, barring inconsistencies and the exceptions, provisions of the Code of Criminal Procedure, 1898 have been made applicable to trials before the Special Judge and likewise through the phenomenology of legislation by reference by means of section 10(1) of the Act ibid appellate and revisional provisions of the said Code mutatis mutandis have been borrowed including section 439, Cr.P.C. And have been made applicable with full vigour with the inbuilt mechanism of suo motu revisional powers without contemplating any limitations or fetters of any sort. Had the intention of the framers of this piece of legislation been to the contrary the statutory draftsmen must have specifically provided so.
15. The second contention is equally fallacious because with the constitution of the Court as conceived by Article 192 of the 1973 Constitution of the Islamic Republic of Pakistan, all powers of the High Court come to vest and enjoined upon every member of the Bench.
16. Likewise, the third contention is utterly devoid of any substance because dixit of the parties in general and that of the prosecution in particular is not binding on the Court and the Special Judge was obliged to decide the matter in accordance with law on the basis of the evidence available on the record.
17. Similarly, the plea of treating the adventurous course ventured upon by the Director, Anti- Corruption Establishment, Punjab, as implied revocation of the sanction for the prosecution and withdrawal of the prosecution, is misconceived because section 10(4) of the Act ibid specifically bars withdrawal of prosecution except under the orders in writing of the appropriate Government, which admittedly is not the case. Consequently, the theory of implied revocation of sanction of the prosecution and withdrawal thereof put forth by the learned counsel in view of the principle of expressio unius est exclusio alterius, is abortive.
18. Independent of the aforegoing, at this juncture it is apt to mention that even a written application of the Government seeking withdrawal of the prosecution is not to be granted by the Court as a matter of course but shall have to be dealt with on the touchstone of the law enunciated by the Supreme Court in the case of Mir Hassan v. Tariq Saeed and 2 others PLD 1997 SC 451: ' that "Section 494 is an enabling provision, and vests in the public prosecutor the initiative and the discretion to apply to the Court for its consent to withdrawal from the prosecution of any person.
What the Court has to determine in such a case, for the purpose of giving consent, is whether the general executive discretion given by law to the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for reasons not related to the public interest. The application for withdrawal can be made on many possible grounds which may include the inexpediency of prosecution on grounds of public policy or in the interest of public peace, or the undesirability of permitting the prosecution to continue where there is insufficient or meager evidence to justify a conviction. In making such an application the public prosecutor may legitimately be instructed by the Government which, under the legal system obtaining in Pakistan, is responsible for the prosecution of all cognizable offences.
' The discretionary power having been vested in the public prosecutor by the Statute, the Court acts, so to say, in a supervisory capacity, to see that the power is not abused in any manner exercised arbitrarily and contrary to the public interest so as to amount to an interference with the ordinary coure of justice. The Court must, therefore, satisfy itself that there do exist on the record grounds to sustain the reasons advanced by the public prosecutor for his withdrawal from the prosecution. It is clear that this supervisory function of the Court can be exercised only on a consideration of all the facts and circumstances of the case available to the Court, and not in disregard of any material factor or circumstance having a bearing on the issue. At the same time, it is also clear that in undertaking this exercise the Court cannot embark upon the kind of detailed analysis of the evidence which can appropriately be undertaken only at the conclusion of a judicial trial. Any such attempt would, in our opinion, amount to throttling the prosecution or interfering with the ordinary course of justice."
19. Qua the contentions urged by Mr.Izhar ul Haq and Muhammad Zaheer, Advocates, it suffices to mention that these have been conceived in oblivion of the evidence on the record, reference whereto, even at the cost of repetition I may say that I am purposely avoiding so that the respondents' case is not prejudiced.
20. In view of the aforegoing, the order of the Senior Special Judge, Anti-Corruption, Punjab, dated 3-6-1990 recording acquittal of the respondents having been passed in a mechanical fashion without independent application of mind to the facts of the case is hereby declared to be a nullity in the eye of law and is set aside; resultantly, the respondents' application under section 249-A, Cr.P.C. Is deemed to be pending before the trial Court who shall decide the same in accordance with law, keeping in view the evidence having been adduced, after summoning the accused persons and affording them an opportunity of hearing.
21. Record of the case should be remitted to the trial Court through special messenger.