THE STATE vs Syed IFTIKHAR HUSSAIN GILANI

'

1. Syed Iftikhar Hussain Gilani (accused herein) was holding the portfolio of Minister for Law and Justice in the previous cabinet of Mutrama Benazir Bhutto which was dissolved by the President of the Islamic Republic of Pakistan on 6th of August, 1990. In the Budget for the year 1989-90 a sum of Rs. 50 million was allocated as a special grant for the strengthening of judiciary. On 13-6-1990 the accused submitted a summary to the then Prime Minister (office copy Ex.P.W.1/15), proposing the creation of non-lapsable Legal Aid Fund for the benefit of the needy and deserving persons and for according sanction to the transfer of Rs.2 million out of the unspent amount of Rs.2.798 million out of the fund for strengthening of judiciary. It was specifically mentioned therein that the fund would be administered personally by the Law and Justice Minister in accordance with the normal codal formalities. The original summary was returned by the then Prime Minister with the following endorsement in her own hand, (Ex. P.W.1/16):- "We may keep the amount which is still available in legal fund.

' Approved.

' B.B.

' Dt.14-6-1990."

' The accused issued a D.O. Letter(Ex.P.W.1/17) to the Minister of State for Finance, Economic Affairs and Planning and Development, Ministry of Finance, Islamabad on the same day, on 14-6-1990, informing him of the approval of the Prime Minister, for establishment of Legal Aid Fund and transfer of Rs.27,94,000 the unspent amount from the fund of strengthening of judiciary, to the same fund and for necessary action at their end. The Finance Division conveyed their approval vide Ex.P.W.1/19 with a direction to the Law and Justice Division to formulate accounting procedure in consultation with the Auditor-General of Pakistan and the Budget Wing of their Division.

Accordingly a letter dated 18-6-1990 (Ex.P.W.1/20) was addressed to the Auditor-General Lahore requesting him for the allotment of a fund account number and also for indicating the accounting procedure to run the aforesaid non-lapseable fund. The Auditor-General's reply thereto dated 19- 6-1990 (Ex.P.W.i/21) is reproduced verbatim:-- "No. 201/14. Ac.II/P/90 dated 19-6-1990.

' To ' The Secretary to Government of Pakistan, Ministry of Law, Justice and Provincial Coordination, (Law and Justice Division), Islamabad.

' Atten; Mr.Abdul Jalil Siddiqui, Dy.Secretary.

' SUB: ESTABLISHMENT OF FUNDS FOR LEGAL AID. Sir, ' I have the honour to refer to Ministry of Law, Justice and Provincial Coordination (Law and Justice Division), Islamabad letter No.F.6(1)/ 90-B & A , dated 18-6-1990.

(2) Attention is invited to Article 80 of the Constitution according to which the allocations sanctioned in the Schedule of Authorised Expenditure of a financial year, if remaining unspent, will lapse to the Consolidated Fund on 30th June. In the light of this provision and in accordance with Article 43 of Audit Code, approval of the Legislature would be needed to keep the allocations of the Consolidated Fund in the Public Account under a Reserve Fund to be opened for the purpose or in a non-lapseable P.L.A./Assignment Account.

(3) In view of the above, the following actions may be taken before opening of a new head of account:

(I) A Reserve Fund for this purpose may be opened with the approval of the Legislature and a formal Government Sanction duly endorsed by Finance Division issued. As the fund would be non- lapseable and funds sanctioned for the financial year 1989-90 are desired to be carried forward to the next financial year and arc not to lapse on 30th June, 1990, approval of the Legislature will be necessary.

(ii) Accounting procedure may please be drafted and sent to the A.G.P.R., Islamabad for preliminary examination and then obtaining approval of the Auditor-General of Pakistan.

(4) However, to facilitate the matter and to avoid delay, the detailed head "3312023-Fund for Legal Aid" subordinate to major head, "3000000 Deposits and Reserves-B not Bearing Interest and minor head "3300000-Reserve Funds' is earmarked for this purpose. The proper authorization will be made on the fulfilment of the above requirements.

' Your obedient servant, (Sd.)

(Mrs. Tanweer Hamid) Assistant Auditor-General (Accounts)."

' It appears that the directions contained in the above-quoted letter could not be fulfilled as the session of the National Assembly could not be convened for paucity of time. Consequently, the Accountant-General, Pakistan Revenues, Islamabad was addressed a letter (Ex.P.W.1/22) by Muhammad Amin, Section Officer (P.W.1) soliciting sanction for opening of a Non-interest bearing Lapseable Personal Ledger Account on account of Legal Aid to be operated by Syed Iftikhar Gilani, Minister for Law and Justice and his specimen signatures were annexed thereto. The Accountant- General was also requested vide (Ex.P.W.1/25) to authorise Treasury Officer Islamabad for the transfer of Rs.2,799,000 (Rupees two point seven nine nine million) to the Lapseable Personal Ledger Account, titled "Fund for Legal Aid" to be operated by the Minister for Law and Justice.

2. The Accountant-General vide (Ex.P.W.1/26) authorised the Federal Treasury Officer, Islamabad to open a Lapseable Personal Ledger Account in the Government Treasury, subject to the condition that the account will be lapseable at the end of the financial year. Through another letter (Ex.P.W.1/27) the Accountant-General authorised the Treasury Officer to transfer the amount of Rs.2.799 million to the Personal Ledger Account of the Minister for Law and Justice and Provincial Coordination and the Federal Treasury Officer vide letter dated 26-6-1990 (Ex.P.W.1/28) intimated the accused the opening of lapsable Personal Ledger Account titled "Expenditbre of Law and Justice Division on Legal Aid" as per the direction of the Accountant General in his name. It is worthwhile to mention here that the copies of the above narrated correspondence were specifically sent to Muhammad Amin, Section Officer (P.W.1) which proves that he was the concerned officer dealing with the matter in issue.

3. On 26-6-1990 Cheque No.A000801 for Rs. One million was issued by the accused in the name of Muhammad Ayub Drawing and Disbursing Officer (P.W.5) alongwith the requisite schedule (Ex.P.W.l/32) showing inter alia, that the Cheque is issued in the name of payee, Muhammad Ayub, D.D.O. Law and Justice Division, for distribution under Fund for Legal Aid. This amount was drawn by the payee on 27-6-1990 and handed over to the accused through Amjid Ali, Additional Secretary and in token of the receipt thereof the accused issued regular receipt Ex.P.W.1/3. The other Cheque No.A000802 for a sum of Rs.1.798 Million on 28-6-1990 was also issued in the name of D.D.O. Law and Justice Division alongwith a similar schedule (Ex.P.W.1/31) and the same was also encashed by Muhammad Ayub DDO (PW5) and the amount handed over to the accused through Amjid Ali, Additional Secretary for which amount also a duly signed receipt Ex.P.W.1/4 was handed over by the accused.

4. As stated earlier the National Assembly as well as the Cabinet was dissolved by the President on 6th of August, 1990. Since the Ministry for Law and Justice Division was not possessed of the details of any expenditure incurred by the accused from the Legal Aid Fund, Muhammad Amin Section Officer (P.W.1) who had been dealing with this particular case, sent a written report dated 29-8- 1990 (Ex.P.W.1/1) to the Director, F.I.A. Rawalpindi on the basis whereof a case F.I.R. No. 34 (Ex.P.W.1/2) under section 409 P.P.C. Read with section 5(2), Prevention of Corruption Act was duly registered by Malik Bashir Ahmad, Assistant Director F.I.A. (P.W.6) incorporating the contents of the report therein.

The section of law was however, later on changed under legal advice, and Article 3 of President's (Post-Proclamation) Order No.16 of 1977 (hereinafter to be referred to as P.P.O. No.16 of 1977) was substituted for the original section of law.

5. The investigation of the case was entrusted to Najabat Hussain, Inspector F.I.A. (P.W.7). He took into possession the original receipts Ex.P.W.1/3 and Ex.P.W.1/4 vide memo Ex.P.W.1/12, specimen signatures of the accused (Ex.P.W.1/7 and Ex.P.W.1/8), three T-A. Bills containing normal signatures of the accused (Ex.P.W.1/9, Ex.P.W.1/10 and Ex.P.W.1/11) produced to him by PW Muhammad Amin vide memo. Ex.P.W.1/13 on 2-9-1990. On the following day viz. 3-9-1990 he took into possession file No.F- 6(1) 90 B & A of the Law and Justice Division containing documents Ex.PWI/14 to Ex.PW1/32 vide memo. Ex.PW1/33 and the original cheques Ex.PW1/5 and Ex.PW1/6 vide recovery memo. Ex.PW1/35.

On the same day he sent the original cheques, original receipts, the specimen routine signatures of the accused and the T.A.Bills, taken into possession by him, to the Handwriting Expert for his opinion which is in positive vide Ex.PW2/1. He recorded the statements of the P.Ws. Under section 161, Cr.P.C., completed the investigation and after obtaining sanction Ex.PW/7/1 of the Federal Government for the prosecution of the accused, submitted complete challan in this Court.

6. The accused put in appearance in compliance with the summons issued to him and after compliance with the provisions under section 265-C, Cr.P.C., charge-sheet under Article 3 of the P.P.O. No.16 of 1977 and section 403, P.P.C. Was framed against him to which he pleaded not guilty and claimed trial.

7. The prosecution produced Muhammad Amin, Section Officer (P.W.1), Munir Ahmad Shah, Inspector FIA (PW2), Muhammad Hamid, Accounts Officer, A.G.P.R. (P.W.3), Nisar Ahmad Goraya, Federal Treasury Officer (P.W.4), Muhammad Ayub, Drawing & Disbursing Officer (PW5), Malik Bashir Ahmad, Assistant Director F.I.A. (P.W.6) and Chaudhry Najabat Hussain, Inspector F.I.A. (P.W.7), in support of its case and abandoned the remaining P.Ws. Being unnecessary.

8. Muhammad Amin (P.W.1) is a star witness in this case as he being a Section Officer Incharge Budget and Account Section of the Ministry of Law and Justice Division had been dealing with the matter in issue, set the ball rolling by reporting the matter to F.I.A. He gave the entire history of the case as narrated above and exhibited all the documents pertaining to the case in hand which have already been referred to in the earlier part of this judgment. He positively deposed that the Personal Ledger Accounts arc to be maintained properly and that they are subject to audit. He disclosed that no regular account of the disputed Legal Aid Fund was maintained and an amount of Rs.2.798 million was taken away by the accused and embezzled. He testified to the correctness of the relevant memos. To which he is a marginal witness. He explained that the disputed amount was sanctioned for helping the needy and deserving persons in their litigation including the fees of their counsel as contained in the summary Ex.P.W.1/15, duly approved by the then Prime Minister vide Ex.P.W.1/16. He was cross-examined at length but nothing material could be elicited from him in support of the defence theory rather damaging questions were put to him, the answer whereof went against the accused. For example, at his instance, the witness produced original advance bill for the year 1981-82 bearing token No.14461 dated 29-6-1982 according to which a sum of Rs.6 lac under the head "Grants-in-Aid to the Pakistan Bar Council and Association' (unspent amount) was withdrawn to save it from lapsing and also on account of expected expenditure vide cheque No.D341307 dated 30-6-1982. As a matter of fact the total allocation under the aforementioned head was Rs.10,34,000 which had remained unspent in its entirety during the financial year concerned and out of the same Rs.6 Lac was withdrawn on 30-6-1982 leaving the balance of Rs.4,34,000 lapsed. This entire amount of Rs. 6 lac was spent from time to time until 4-10-1984 and the details of the expenditure have been given in the left hand column and on its reverse (photostat copy Ex.P.W.1/D-3). Since this document had been introduced for the first time in the cross-examination, the learned Special Public Prosecutor was permitted to cross-examine the witness only regarding the said document. In reply to questions by the Special Public Prosecutor the witness showed the bill/vouchers, receipts, entries in the Cash Book and stated that each item of payment out of the said saving spreading over about two years was duly supported by vouchers and entries in the Cash Book, duly initiated by the Drawing and Disbursing Officer. He produced a statement (Ex.P.W.1/X-2 comprising of three sheets) showing the disbursement of the said amount and the specimen copies of Cash Book Ex.P.W.1/X-1 and Ex.P.W.1/X-3. According to him the said amount remained in the chest maintained by the Ministry under the control of Cashier and Drawing and Disbursing Officer and was open to inspection and scrutiny by superior officers at any time and that at no stage the said amount of Rs.6 lac remained in the personal custody of any official of the Ministry. He was also questioned about letter Ex.P.W.1/30 in which the witness had admitted that the amount had been utilized, with a minor saving of Rs.1,000. The witness offered an intelligent explanation to the word utilization and stated that by utilization he meant that the said amount had been withdrawn by the Minister from the Treasury and never meant that the Minister had utilised it. He, however, conceded that the account was to be maintained, administered and operated by the Minister at his discretion. He frankly conceded that he did not draft any accounting procedure or sent it to A.G.P.R. Through his superiors because there was no time at their disposal for complying with the said direction. When questioned about one Muhammad Saced he admitted that he was O.S.D. With the accused and that he had met him once in connection with his T.A./D.A.

After the dissolution of the Cabinet but lie never informed him about the maintenance of account by him regarding the disbursement of the disputed amount by the Minister. He stated that he lodged the report with the oral approval of his Secretary to whom a copy of the F.I.R. With a note was put up but the same was not returned. In reply to a question he stated that neither he nor the Law Secretary or other Officer of the Ministry ever enquired from the accused on telephone or otherwise as to what had happened to the amount in question. He denied all knowledge of the Law Ministry having twice refused sanction to prosecute the accused for the instant offence.

9. Munir Ahmad Shah (P.W.2) is the Inspector, Handwriting Expert, Technical Wing, F.I.A. Headquarter Islamabad, who compared the signatures of the accused, receipts and cheques Ex.P.W.1/3 to Ex.P.W.1/6 alongwith his admitted signatures viz. Specimen signatures and his signatures on the TA.

Bills and submitted his opinion that the signatures on the receipts and cheques Ex.P.W.1/3 to Ex.P.W.1/6 were that of the accused. He proved his report Ex. P.W.2/1, Ex.P.W.2/2 and Ex.P.W.2/3 as correct. He was not cross-examined and his statement shall be presumed to be correct as under the judicial pronouncement of superior Courts the statement of a witness not cross-examined shall be deemed to have been accepted.

10. Muhammad Hamid (P.W.3) is Accounts Officer, A.G.P.R. Islamabad who had produced the original cheques Ex.P.W.1/5 and Ex.P.W.1/6 to the Investigating Officer. He denied the suggestion in the cross-examination that F.I.A. Officials had contacted him at any time between 20th and 27th of August, 1990.

11. Nisar Ahrnad Goraya (P.W.4) is the Federal Treasury Officer, Government of Pakistan Islamabad who passed the original cheques Ex.P.W.1/5 and Ex.P.W.1/6 for payment which were encashed from the State Bank of Pakistan, Islamabad. According to him Personal Ledger Account is opened in the Federal Treasury on the basis of specific objectives for allocation of funds.

12. Muhammad Ayub, Drawing and Disbursing Officer (P.W.5) stated that the Cheques Ex.P.W.1/5 and Ex. P.W.1/6 were issued in his name which he encashed on 27-6-1990 and 30-6-1990 respectively and handed over the cash to Amjid Ali, Additional Secretary of the Ministry of Law and Justice Division who gave him receipts Ex.P.W.1/3 and Ex.P.W.1/4 respectively, evidencing the receipt of the amount by the accused. He deposed that this amount was not put in the Chest under his control. In reply to a Court question he stated that there are two Drawing and Disbursing Officers in the Ministry of Law and Justice Division, including himself and that the other one is attached to the Solicitor. He added that the disbursement of the disputed amount was the responsibility of the accused and he could maintain the account therefor himself or entrust it to any official.

13. Malik Bashir Ahmad, Assistant Director F.IA. Crimes Circle Rawalpindi (P.W.6) deposed only to the receipt of the report Ex. P.W.1/1 of Muhammad Amin Section Officer (P.W.1) and the registration of the case vide F.I.R. Ex. P.W.1/2 on the basis of the report and entrustment of the investigation to Najabat Htissain Inspector. He was not cross-examined.

14. Chaudhry Najabat Hussain Inspector F.I.A. Crimes Branch Rawalpindi (P.W.7) is the Investigating Officer and 'his statement, more or less, pertains to the recovery of documents enumerated above and other matters connected with the investigation of the case. He admitted to have recorded the statement of Muhammad Saeed under section 161, Cr.P.C. On 17-10-1990. In reply to a question in the cross-examination he stated that the accused produced written statement to Malik Bashir Ahmad (P.W.6) and he did not examine him independently under section 161, Cr.P.C. But the written statement tendered by him to P.W.6 was handed over to him, as he was the Incharge of the investigation. He admitted that the written statement was supported by certain receipts allegedly in token of the payment made by the accused and copy of the register. He conceded that he neither investigated the genuineness of the receipts and the register though shown to him in original, nor examined the executants of the receipts as they had been examined by Malik Bashir Ahmad (P.W.6). The witness denied the suggestion that after 5/6 days of the dissolution of the Cabinet, F.IA. People including himself started visiting the Law Division, making queries, examining witnesses and ultimately coercing P.W. Muhammad Amin to make a report without obtaining written authority from the Law Secretary. He also denied the suggestion that this was done under instruction from above and that the instant case had been registered and prosecution launched for political reason to victimise the accused.

15. The accused was examined under section 342, Cr.P.C. In which all necessary questions rising out of the prosecution evidence were put to him for explanation. He admitted the summary (Ex.

P.W.1/15) sent to the then Prime Minister, soliciting her sanction to divert the amount of Rs.2.8 million to the Legal Aid Fund, the opening of the Personal Ledger Account on the advice of the Minister for Finance, the issuance of cheques Ex. P.W.1/5 and Ex.P.W.1/6 and the receipts Ex.P.W.1/3 and Ex.P.W.1/4 in token of the receipt of the amounts of the cheques encashed by Muhammad Ayub, (P.W.5) paid to him through Amjid Ali, Additional Secretary. However, he denied the allegation regarding the fraudulent and dishonest misappropriation of the amounts in question and submitted that he had maintained proper regular account of the amounts disbursed by him. In reply to the question as to why he was charged, he replied that the charges levelled against him were result of malice and mala fides of the then Care-taker Government, he being the senior member of Pakistan People's Party, member of Central Executive Committee of the P.P.P. And the Federal Minister of Law and Justice and Provincial Co-ordination, always advocated the supremacy of the Parliament and consistently asked for the repeal of the 8th Amendment. According to him he was targetted as a special case because in the entire country he was the only person being tried under P.P.O. No.16 of 1977 which entails rigorous imprisonment for a period of seven years and not just the disqualification from being chosen a member of the Parliament and it is a classic case of political victimisation and harassm ent for holding an independent opinion on matters of public and national importance. As regards the Legal Aid Fund and the Personal Ledger Account he shifted the responsibility to his Additional Secretary who had told him that there was no accounting procedure laid down for the operation and maintenance of the said fund and that he could operate it at his discretion and further that at the end of the month of June, 1990 he was advised by the Additional Secretary to withdraw the amount in question otherwise it would lapse and the purpose for which the fund was allocated would be defeated. Regarding the custody of the amount he stated that he was advised by the Additional Secretary to keep the money in his personal custody till the disbursement is complete and, therefore, whenever, he would disburse or give some amount out of the same Fund he would obtain proper receipt and ask his O.S.U. Muhammad Saeed to make an entry in the Register maintained by him under his direction. He admitted the exclusive possession of the original Register and the receipts and produced then before the Court at the time of his examination but for perusal and inspection only without exhibiting them on the record. However, he exhibited the photostat copy of the letter . Sent to the Secretary Law and Justice Division and his written.Statement was handed over to the Investigating Team of the F.I.A., Ex. D.A. And Ex.D.A./1. He also exhibited the copy of his statement in the Senate which is Ex. D.A./2. About the non-availability of the account in his Ministry he stated that nobody asked him for the same. He added that an amount of Rs.5 million was at the disposal of the former Federal Minister Mr. Muhammad Aslam Khan Khattak in 1988 as a discretionary grant' but in spite of courteous requests from the Ministry of Communication, he declined to give any account of the money so spent by him and kept on writin4 back "the amount of Rs.5 million has been spent on purposes bona fide". The satins matter was referred to the Law Ministry vide U.O. No. U.O.-6(1)/88 Budget dated 15-4-1990. He also cited the case of one Chaudhry Shaukat Ali, a former Secretary, Election Commissioner of Pakistan against whom a proper report had been lodged by the Ministry of Religious Affairs with the F.I.A. Through.

Evacuee Trust Property. .Board on 14-7-1990 that Government money had been embezzled and case may be registered against him and proceeded according to law but two days later on 16-7- 1990 the amount of Rs.30 lac was returned to the Evacuee Trust Property Board and on 13-8-1990 the F.I.A. Withdrew from the case on the ground that since the amount had been realised, it is proposed that Departmental action under the relevant rules may be initiated against the defaulter.

In the end, he submitted that the amount in .Question was withdrawn bona tide and with honest intention under the advice of the concerned officials of the Ministry and part of it correctly utilised and the balance of Rs.13,15,000 was deposited in the State Bank of Pakistan. He claimed immunity under Article 248 of the Constitution of the Islamic Republic of Pakistan. In reply to the question whether he would like to produce defence he stated that the case against him has not been proved and, therefore, he does not feel any necessity to produce defence. In reply to a further question whether he would like to be examined as his own witness on oath, he gave similar reply that the prosecution has failed to prove its case and, therefore, he does not feel the necessity to appear as his own witness.

16. On the conclusion of the arguments of the learned Special Public Prosecutor, the learned defence counsel submitted an application for requisitioning certain record/files from the Ministry of Law and Justice Division regarding sanction for the prosecution of the accused on 3-4-1991 which was contested by the Special Public Prosecutor through written reply dated 6-4-1991. On the final conclusion of the arguments of the learned counsel for the accused on 20-4-1991 he submitted another application for permission to place on record and exhibit the original receipts (14 in number) and Voucher No.B/2 dated 4-9-1990, annexing the photostat copies of the documents mentioned therein which was also resisted by the learned. Special Public Prosecutor through his reply on 24-4-1991 and I have rejected both the applications vide my order on the order-sheet dated 24-4-1991.

17. The learned Special Public Prosecutor argued that the prosecution has been able to establish its case beyond reasonable doubt through the evidence of seven prosecution witnesses; the documents duly exhibited on record; the withdrawal of the amounts in question by the accused through cheques Ex.P.W.1/5 and Ek.P.W.1/6, the receipts Ex.P.W.1/3 and Ex.P.W.1/4; the illegal and unlawful custody of the amount by the accused right from the time when it was delivered to him till 4-9-1990 when part of the same was deposited in the State Bank of Pakistan; non-maintenance of proper account and deliberate omission of the accused to exhibit the original receipts on the file; refusal of the accused to be examined on oath for explaining how he made the disbursement and the circumstances which pursuaded him to hold the alleged recipients as needy and deserving persons entitled to help from the Legal Aid Fund and his adamance not to produce the recipients or any other evidence in support of his alleged payment and moreso his own O.S.D. Namely Muhammad Saeed who was allegedly maintaining the Register. According to the learned S.P.P. The entrustment of the amount had not only been proved but-admitted by the accused himself and the burden of proving proper utilization had shifted to him. As regards immunity claimed by the accused under Article 248 of the Constitution and his plea that P.P.O. No.16 of 1977 is violative of the Constitution he submitted that the accused, being out of office, is not entitled to claim immunity and that too from a, criminal charge whereas the P.P.O. No.16 of 1977 having been protected under Article 270-A of the Constitution cannot be declared violative of the Constitution.

18. The learned counsel for the accused, on the other hand, argued with vehemence that the accused is legally pre-summed to be innocent unless proved to be guilty beyond reasonable doubt and that the prosecution was bound to prove not only the entrustment of the amount to him but also dishonest and fraudulent misappropriation thereof. He emphasised that the accused immediately, on coming to know of the charge, not only produced the accounts and the receipts to the F.I.A. And the Law Division but these documents were duly investigated by the F.I.A. Who never alleged, much less proved that the documents were false or fake or that the recipients of the receipts denied the payment of the amounts to them. According to his wisdom, unless the prosecution had procured sufficient evidence that the receipts and the account tendered by the accused were forged the accused could not be prosecuted for the instant charge. He added that it was a discretionary grant and the accused could appropriate the same at his discretion and in doing so, he was not required to follow any procedural niceties or codal formalities. He emphasised that the provisions of Article 248 of the Constitution fully protected the actions of the accused which were immune from challenge before any Court of law. About the vires of the P.P.O. No.16 of 1977 he maintained that the same is a bad law having been promulgated during the dictatorial regime of Martial Law and that in the present democratic set-up such black laws should not be resorted to or acted upon by the Courts of law in spite of their protection under Article 270-A of the Constitution.

19. 1 have anxiously considered the arguments of the learned counsel for the parties and intend to deal with them one by one.

20. Article 248 of the Constitution of the Islamic Republic of Pakistan provides for immunity to certain functionaries of the State and it would be profitable to reproduce the entire Article on which the accused mainly relics for his defence:-- "248. (1) The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: ' Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.

(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office.

(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office in respect of any thing done or not done by him in his personal capacity whether before or after he enters upon his office unless, at least sixty days before the proceedings are instituted, notice in writing has been delivered to him, or sent to him in the manner prescribed by law, stating the nature of the proceedings, the casue of action, the name, description and place of residence of the party by whom the proceedings are to be instituted and the relief which the party claims."

21. The interpretation placed on this Article by the learned counsel for the accused is that all actions of the State functionaries enumerated in this Article are immune from challenge before any Court of law, whether the action be legal or illegal, right or wrong or in accordance with the rules framed by the Government for the performance of their functions or in utter violation thereof. His reasonings are that the said functionaries were made not answerable to any Court in order to save them from protracted litigation in Courts of law for the exercise of powers and performance of functions of their respective offices. The argument, prima facie seems attractive but the combined reading of sub-Articles (1), (2) & (3) of Article 248 of the Constitution leaves no room for doubt that the sub-Article (1) does not include actions of the Federal Ministers and others which may entail criminal liability. Sub-Article (2) of Article 248 provides that no criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office and sub-Article (3) thereof provides that no process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office. The President and Governors are also mentioned in sub-Article (1) and if the intention of the makers of the Constitution was to absolve all the functionaries mentioned therein from criminal liabilities as well, then the provisions of sub-Articles (2) and (3) become redundant. The provisions of sub-Articles

(2) and (3) clarify that no criminal proceedings can be initiated against the President and Governor while they are holding the said offices but even their immunity vanishes the moment they cease to hold the office. There is thus no ambiguity in the language of Article 248 of the Constitution that the accused , who was a Federal Minister, was not immune from criminal proceedings even during his tenure as such, muchless after he ceased to hold his portfolio. In this connection the illuminative judgment of the Supreme Courtin case, "Ch. Zahur Illahi, M.NA. v. Zulfiqar Ali Bhutto and 2 others" reported as PLD 1975 Supreme Court 383 can be referred to with advantage.The relevant dictum is reproduced below:- "Since neither the Constitution nor any law can possibly authorise him to commit a criminal act or do anything which is contrary to law, the immunity cannot extend to illegal or unconstitutional acts.

Even a Prime Minister is under clause (2) of Article 5 of the Constitution, bound to obey the Constitution and law as that is the basic obligation of every citizen. The scope of the powers and functions of a Prime Minister cannot possibly extend to the committing of contempt of Court which is punishable under the Constitution itself and, therefore, by necessary implication prohibited."

' The other authority which lends support to the above conclusion is a DB judgment of the Lahore High Court in case, "Sadiq Hussain Oureshi. v. Federation of Pakistan, Rawalpindi and 2 others" reported as PLD 1979 Lahore 1 wherein it has been held in para. 30 of the judgment that Article 248

(1) applies to and protects the holders of the offices mentioned in that Article only during the period that they are in the saddle and once they are removed from that office or cease to hold it for any other reason, the immunity vanishes.

22. It is a fundamental principle that no body is above law. Article 248 of the Constitution being an exception to the aforesaid general rule has to be strictly construed. The charge against the accused is of criminal misappropriation and he cannot justifiably claim that he is not answerable to this Court to reply to the charge and defend himself. Additionally, the National Assembly which framed the Constitution continued as such as the first National Assembly under Article 271 of the Constitution. The Parliament of which the said National Assembly was a part, passed the Holders of Representative Offices (Prevention for Misconduct) Act, 1977 (Act IV of 1977) prescribing punishment for misconduct as defined in section 3 thereof. If the framers of the Constitution had intented to provide blanket cover to all the actions of the Federal Ministers and others under Article 248 of the Constitution they would not have passed this Act providing for punishment to the holders of represenetative offices including the Federal Ministers as per definition contained in section 2 of the Act ibid. In this view of the matter too the arguments of the learned defence counsel claiming immunity under Article 248 is bereft of any substance.

23. In pursuance of the proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.LA. Order No.1 of 1977), the then elected President who continued in office was pleased to make the Holders of Representative Offices (Punishment for Misconduct) Order, 1977, President's (Post-Proclamation) Order No.16 of 1977, whereby some departure was made from the provisions of Act IV of 1977. However, no mention was made in this Order regarding the existence of Act IV of 1977. This Order was validated through Article 270-A of the Constitution with the result that the same cannot be called in question in any Court on any ground whatsoever. Sub- Article (6) of the said Article provides that such Laws can be amended by the appropriate Legislature in the manner provided for amendment of such laws. Act IV of 1977 has been repealed by the Ordinance IX of 1990 published in the Gazette of Pakistan dated 15-10-1990, with effect from 6th of August, 1990. As such Act IV of 1977 is no longer in the field and P.P.O. No.16 of 1977 governs the cases of misconduct of Holders of Representative Offices. The learned defence counsel tried to make much capital of the existence of two different Statutes providing for punishment for the same type of offences and emphatically argued that the accused could and should have been proceeded against under Act IV of 1977 which had the blessing of the duly elected Parliament and not under P.P.O. No.16 of 1977. The substantive provisions regarding misconduct are, more or less, the same in both the Statutes so far as the allegations against the accused are concerned but the procedure for trial of offences is altogether different inasmuch as under section 5 of Act IV of 1977 the offence of misconduct can only be tried by a Bench of the High Court composed of not less than two Judges whereas under P.P.O. No.16 of 1977, the President by Notification in the official Gazette can establish a Special Court consisting of a person who is a Judge of the High Court for the trial of such offence. Since Act No. IV of 1977 was repealed retrospectively with effect from 6th of August, 1990, the initiation of the proceedings for misconduct against the accused and his trial by this Court cannot be said to be coram non judice. Moreover the sanction for prosecution of the accused was granted on 16-10-1990 when Act IV of 1977 had already stood repealed. On this score too the accused could not be tried under the repealed law.

24. As regards the argument of the learned defence counsel that P.P.O. No.16 of 1977 is violative of the Constitution, he could not refer to any provisions of the Constitution which may have been violated through the promulgation of the said Order. It provides full opportunity of defence to the accused and cannot be termed as discriminory because it extends better facilities and privileged treatment to him in his defence. He faces his trial before a Judge of the High Court where his rights can be safeguarded much better than ordinary subordinate Courts. Anyhow, this Court functioning as a Special Court under P.P.O. No.16 of 1977 cannot go into the question of vires of the said Statute and if at all, the accused was serious about this plea, he could have agitated the same through a proper constitutional petition before the proper forum. The objection of the learned defence counsel for the accused in this respect is overruled.

25. Reverting to the merits of the case, it is apparent from the discussion made in the earlier part of the judgment that the disputed amount was transferred to Legal Aid Fund from the Fund authorised by the Legislature for the strengthening of the judiciary. It is also down in the statement of Muhammad Amin (P.W.1) that. The Law and Justice Division became aware of the saving when a demand was made by the Chief Justice of Balochistan High Court for the allocation of fund for the completion of a judicial building. It is not understandable as to why the accused preferred to transfer the disputed amount to the Legal Aid Fund instead of utilizing it for the purpose for which it was sanctioned by the Legislature particularly, when a demand for much more amount had been made by the Balochistan High Court for completion of their judicial building and there could be no reasonable apprehension for the lapsing of the fund. Anyhow, his efforts to transfer the amount to a non-lapseable account did not bear fruit because that too required the approval of the Legislature, according to the opinion of the Auditor-General. He was bent upon removing the unspent amount from the fund of strengthening of judiciary to the Legal Aid Fund by hook or crook and got it transferred to lapseable Personal Ledger Account in his name with the assistance of the Finance Ministry. It is pertinent to mention here that both the accounts were lapsable and the amount had to be utilized before the 30th of June, 1990. The only achievement made by the accused from the aforementioned exercise was that he could utilize the amount for payment to the needy and deserving persons who were not in a position to pay off litigation charge's and fees of counsel and attorney but that too before the 30th of June, 1990 on which date the fund had to lapse. There is nothing on the record to show that the accused was legally competent to withdraw this amount from the Treasury and keep it in his personal custody for payment at his leisure after the close of the financial year on 30th of June, 1990. If it was so, then the very object of opening of lapseable Personal Ledger Account in the name of the accused was meaningless. In this way the law providing for prior approval of the Legislature for opening of non-lapseable Account was flouted. The act of the accused, in keeping the money in his custody after 30th of June, 1990, thus is in flagrant disregard of law and Federal Treasury Rules referred to in detail in the short order.

26. It was strenuously urged that the Legal Aid Fund was a discretionary grant and the accused could utilize it in the manner he liked unfettered by any law and rules governing appropriation of public fund. I am afraid this is not so. It was a lapseable Personal Ledger Account and all the rules governing the maintenance of accounts and procedure for disbursement thereof equally applied, mutatis mutandis, to the Legal Aid Fund as well. The cheque Ex.PW1/5 for a sum of Rs. One Million was issued in the name of Muhammad Ayub DDO (PW5) on 26-6-1990. Alongwith the cheque a schedule 'was prepared wherein it was specifically mentioned that the amount is being paid to DDO for payment to the needy and deserving persons. So is the case with cheque Ex.PW1/6. Had he not shown the purpose of the drawal of cheques in the name of Muhammad Ayub DDO I am afraid the Treasury Officer would not have passed the same. This clearly indicates that the DDO, as his very designation implies, was the concerned person for the disbursement of the same albeit, under the directions and payment orders passed by the accused on the applications from needy and deserving persons after judicious determination of the needs and entitlement of the applicants from the Legal Aid Fund. In following the normal procedure the DDO would have prepared vouchers and obtained proper stamped receipts from the payees on payment of the amounts sanctioned by the accused and regular entry made in the Cash Book on the prescribed form (Ex.P.W.1/X-1 and Ex. P.W. 1/X-3) and initial of the concerned superior, obtained against each such entry in the Cash Book. The accused himself, while cross-examining PW Muhammad Amin (P.W.1), exhibited a bill Ex.P.W.1/D-3 whereby a sum of Rs.6 lac was withdrawn on 30-6-1982 from the head "Grants-in-Aid to the Pakistan Bar Council and Association" and spent from time to time until 8-10-1984 by the Law and Justice Division. Notes of payments had been shown on the left hand side and reverse of the same bill by the official concerned from which the accused wanted to impress upon the Court that no proper accounting was necessary in such like matters. However, his efforts could not succeed as Muhammad Amin (P.W.1) produced the vouchers, payment orders, receipts and entries of Cash Book duly initialled by the concerned officer in corroboration of each payment out of the amount of Rs.6 lac referred to above (Ex.P.W.1/X-1 to Ex.P.W.1/X-3). He deposed that the aforesaid amount of Rs.6 lac remained in the Chest maintained by the Ministry under the control of Cashier and Drawing and Disbursing Officer and was open to inspection and scrutiny by superior officers at any time and at no stage the amount remained in the personal custody of any official of the ministry. In view of the above clear and unambiguous explanation offered by the disinterested responsible official of the Law and Justice Division, the accused cannot justifiably assert that he was not bound to follow the procedure in vogue for maintaining accounts of public funds of his Ministry or that he was within his rights to keep the Public Fund in his personal custody and disburse it at his whims.

27. Moreover, the accused had himself undertaken in his summary (Ex. PW1/15) that all the codal formalities shall be observed. The Auditor-General too while granting permission for the opening of the Personal Ledger Account had specifically directed the framing of accounting procedure and its submission to him for approval before the utilization of the amount of Legal Aid Fund. The accused, being Incharge of the Ministry and fully aware of the above prerequisites could not embark upon the disbursement of the public fund before framing of the accounting procedure and obtaining the approval of the Auditor-General and the Budget Section of the Finance Division. His plea that it was the Ministry which failed to comply with the directions cannot be absolve him from all responsibilities because it was he who exclusively dealt with the disbursement of the Public Fund without the aid or even the knowledge of his Ministry.

28. As discussed in the short order dated 24-4-1991 the prosecution has not only established the receipt of the disputed amount by the accused through oral and documentary evidence but this fact is also positively and unequivocally admitted by the accused himself in his statement under section 342, Cr.P.C. It is his own case that this was a discretionary grant, that he was entitled to keep it in his personal custody and appropriate it in the manner he liked and was not obliged to follow the Treasury rules and the other accounting procedure meant for the disbursement of the Public Fund. The simple question which cropped up for consideration from the arguments of the learned counsel for the parties, therefore, was as to whether the prosecution was bound to prove misappropriation and conversion to his own use of the disputed amount by the accused or the responsibility had shifted to the accused to affirmatively establish disbursement of the alleged payment of Rs.14.83 lacs to the needy and deserving persons, as per the,contents of his own summary dated 13-6-1990 (Ex.P.W.1/15). The learned Special Public Prosecutor, in support of his arguments, cited the authority of "Riaz Hussain v. The State" reported as 1968 SCM R 1130, a case under section 409, P.P.C. Wherein it was held that the on the' clearly rested on the accused to show that the amount entrusted, h-Ad. Been duly disbursed and that bare statement in defence by the accused was not sufficient. He also fortified his submissions from another judgment of the Supreme Court in case, "The State v. Abu Raza" reported as PLD 1959 Supreme Court (Pak.) 309, again a case under section 409, P.P.C. And the relevant dictum is as under:-- "Where, on the evidence, it could not be said that the ultimate intention of the accused was to misappropriate the whole amount, the evidence contained clear indications that some improper motive underlay the deal and the irregularities with which it was accompanied, it was held that in such a case it is not the duty of the prosecution to prove by evidence that the money received by the accused was actually converted to his own use; it is sufficient if the party aggrieved was deprived of the use of the money for an unexplained period, it being presumed in such a case that the accused had applied the money to his personal needs:".

' Another authority relied upon by the learned Special Public Prosecutor is the judgment of Dacca High Court in case, "Khalil v. The State", reported as PLD 1963 Dacca 983 and the observation of their Lordships is as follows:- "Direct evidence to establish misappropriation of the cloth over which the appellants had domination is undoubtedly lacking, but to establish a charge of criminal breach of trust, the prosecution is not obliged to prove the precise mode of conversion, misappropriation or misapplication by the accused of the property entrusted to him or over which he has dominion.

The principal ingredient of the offence being dishonest misappropriation or conversion which may not ordinarily be a matter of direct proof, entrustment of property and failure in breach of an obligation to account for the property entrusted, if....Proved, may in the light of other circumstances, justifiably lead to an inference of dishonest misappropriation or conversion. Conviction of a person for the offence of criminal breach of trust may not in all cases be founded merely on his failure to account for the property entrusted to him or over which he has dominion,,dven when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue, an inference of misappropriation with dishonest intention nay readily be made."

' The next authority relied upon was from the Patna High Court in case, "Emperor v. Chaturbhuj Narain Choudhury", reported as AIR 1936 Patna 350 wherein it was held: "To establish dishonesty, it is not necessary that the prosecution should establish an intention to retain permanently the property misappropriated. An intention wrongfully to deprive the owner of the use of the property for a time and to secure the use of the property for his own benefit for a time, may be sufficierit. It is not necessary or possible in every case of criminal breach of trust to prove in what precise manner the money was spent or appropriated by the accused because under the law even temporary retention is an offence provided that it is dishonest but the essential thing to be proved in case of criminal breach of trust is whether the accused was actuated by dishonest intentions or not. The question of intention is not a matter of direct proof but the failure to account for the money proved to have been received by the accused, or giving a false account as to its use is generally considered to be a strong circumstance against the accused."

' The Calcutta High Court in case "Akshoy Chandra Bose v. Emperor" reported as AIR 1934 Calcutta 532, in a case under section 409, P.P.C., came to the conclusion that if the prosecution succeeds in proving receipt of money by the accused for a particular purpose and makes out a case of entrustment of such money, it is for the accused to prove his defence and not for the prosecution to prove the mode of misappropriation.

29. The learned counsel for the accused, on the other hand, referred to several Pakistani and Indian authorities in support of his contentions. According to the judgment of the Supreme Court cited by him in case, "Shakir Hussain v. The State" reported as PLD 1956 Supreme Court (Pak.) 417, the prosecution is bound to prove each ingredient of the offence beyond reasonable doubt and in cases of criminal breach of trust not only the entrustment of or dominion over property is to be established but also that the accused dishonestly misappropriated, converted, used or disposed of that property himself or that he wilfully suffered some other person to do so. To the same effect are the authorities of Lahore High Court in case, "Munawar Ali and another v. The State", reported as PLD 1961 (W.P.) Lahore 885 and that of the Sindh High Court in case, "The State v. Shakoor Hashim Patel and others" reported as PLD 1960 (W.P.) Karachi 926. In the case of "Shamir alias Shamla v. The State" reported as PLD 1958 Supreme Court (Pak.) 242, it was held that even if the accused is unable' to prove the plea of self-defence but if his version received support from the prosecution evidence that the plea might be reasonably true he will be entitled to the benefit under the law. In case "Abdul Qayoom v. The State" reported as 1989 PCr.LJ 2439, in a case under section 409, P.P.C.

Read with section 5(2), Prevention of Corruption Act, it was held that the burden of shortfall in the entrusted property would shift on accused to prove that he had not misappropriated the entrusted property and it is not necessary for prosecution to prove in what manner property had been misappropriated but if reasonable explanation is offered by the accused the burden would again shift upon the prosecution to prove that explanation offered by the accused is incorrect and contrary to the facts on record failing which no adverse inference can be drawn against the accused. In case "Mir Ahmad v. The State" reported as PLD 1962 Supreme Court 489, it was observed that the decision in a particular case is not to be taken in relation to the accused's special pleading, but must rest on examination of the entire evidence and if there is reasonable possibility of the defence plea being true, the benefit has to be extended to him. The cases reported as PLD 1957 Supreme Court (Ind.) 18 and PLD 1952 Lahore 632 elucidate the principle contained in Article 122 of Qanun-e-Shahadat, 1984 regarding the proof of facts within the special knowledge of a particular person.

30. I have carefully gone through the judgments cited at the bar. There is no cavil with the proposition that the initial burden of proof is on the prosecution to establish the guilt of the accused beyond reasonable doubt. It is equally an undisputed principle of law that the prosecution has to prove each and every ingredient of the sections of law with which the accused is charged, but it is equally well settled that every criminal case has its own peculiar distinguishing features and, therefore, the reported cases, though providing guidelines, are seldom on all fours with the facts of the cases requiring decision. The facts of the cited judgments are distinguishable as compared to the facts of the instant case. The overall conclusions that are deducible from the dictums of the cited judgments, as far as they can be made applicable to the instant case are that if the entrustment is established by the prosecution but the defence is also able to offer reasonable explanation and proof regarding its utilization the onus probandi again shifts to the prosecution to prove misappropriation of the entrusted property or its conversion to his own use by the accused but if no proof or reasonable explanation is offered regarding appropriation of the entrusted amount then the burden of proof is never shifted and the failure on the part of the accused to lead evidence in proof of the appropriation, will ipso facto justify drawing an inference against him that the entrusted money was dishonestly and fraudulently misappropriated or converted to his own use. As repeatedly mentioned earlier the accused has not only accepted the responsibility of keeping the Public Fund in his personal custody and its utilization without any assistance from his Law and Justice Division but also conceded that the original receipts and the register containing the alleged disbursement were also kept by him in his private custody even after he ceased to be a Law Minister and had to abandon his office in the Justice Division. In the circumstances none of the officials of the Law Ministry could pdssibly know about his dealing with the Public Fund and he having special and exclusive knowledge of the same was duty bound to lead convincing evidence in proof of the proper appropriation of the Public Fund in question. Article 78 of Oanun-e-Shahadat, 1984 provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Articles 79 to 89 relate to the mode of proof of execution of documents and Articles 90 to 101 enumerate the documents to which presumption of correctness is attached. Article 121 requires the accused to prove the circumstances that bring his case within any of the general exceptions while Article 122 provides that when any fact is especially within the knowledge of any person the burden of proving that fact is upon that person. Obviously the burden to prove the execution of the receipts whereby certain amounts were paid to certain persons from Legal Aid Fund by the accused was upon him.

Moreover the Fund had been established for certain specified purpose and only the accused could better explain whether the persons to whom substantial amounts were disbursed fell within the category of needy and deserving persons or not. No doubt, after the registration of the case he produced the receipts to the FIA and also to the Law and Justice Division but that by itself could not absolve him from proving his defence theory before the Court. Apparently the FIA and the State were not satisfied with the explanation offered by him and the genuineness of the receipts and the accounts allegedly maintained by him and, therefore, on the recommendations of the FIA, the Federal Interior Ministry, after due scrutiny, granted the sanction for the prosecution of the accused.

It must have put the accused on guard that his plea of appropriation of the Public Fund has not found favour with the FIA and the State and as such it was his bounden duty to lead convicing evidence in support of his plea of proper appropriation of the Public Fund. Unfortunately, he did not produce the original receipts on the day when he was charge-sheeted nor did he exhibit them at the time of his statement under section 342, Cr.P.C., though he exhibited photostat copy of his statement before Senate as well as before the FIA. Since the offence with which the accused is charged is the dishonest and fraudulent misappropriation of the Public Fund the law provided him an opportunity to appear as his own witness under section 340(2), Cr.P.C. And Article 7 of the PPO No.16 of 1977 to state on oath that he had properly appropriated the Public Fund, that the receipts in his possession were genuine and that the retention of the amount in his personal custody from 30- 6-1990 to 4-9-1990 was for certain bona fide reasons and not with criminal intention. It may not be taken to mean that an adverse inference is being drawn against him from his non-appearance as his own witness on oath but if he had appeared as his own witness on oath and had emerged victorious from cross-examination, it might have shifted the burden to the prosecution to satisfy the Court that his statement on oath was unture. Article 78 of Oanun-e-Shahadat is mandatory in nature and unless the accused had complied with the said provision of law, the receipts and the register relied upon by him arc mere waste paper. No explanation has been offered by the accused as to why he could not tender Muhammad Saeed, his own O.S.D. And the executants of the receipts particularly those to whom huge amounts were paid, in his defence. No presumption can legally be drawn in support of the execution of the receipts and payments allegedly made to different persons by the accused and in the absence of any Proof on behalf of the accused regarding proper appropriation of the Public Fund, the prosecution cannot be blamed for non-production of any evidence in support of misappropraition. The inevitable conclusion, therefore, is that if the O.S.D and the executants of the receipts had been produced, their evidence would have been unfavourable to the accused and on the consideration of the material available on record the only inference that can be drawn is that the accused has dishonestly and fraudulently mis- appropriated the Public Fund.

31. Article 3, sub-Article (2) (d) of the PPO No.16 of 1977 deals with the cases where the public representative continues his control over the Public Fund after he ceases to be such representative.

It is profitable to reproduce the said provision him or under his control as a holder of representative office for the welfare of the public in general as to continue his own control, either singly or together with any of the members of his family, on the use or disposal of such money or property, or the income arising out of it, even after he ceases to hold such office, or for the benefit of a particular political party or the members thereof."

32. The minute reading of the aforesaid provision makes it abundantly clear that if a holder of representative office continues his own control, either singly or together with any of the members of his family, on the use or disposal of the public money or property or the income arising out of it, even after he ceases to hold his office, his such acts and dealings of the Public Fund fall within the ambit of misconduct as defined in Article 3, sub-Article (1) of PPO No.16 of 1977 and is punishable thereunder. On the dissolution of the Cabinet on 6-8-1990 by the President the accused ceased to hold the representative office and legally he could not continue his control over the amounts of Legal Aid Fund, or use or dispose of the same in any manner. On his own showing, he deposited Rs.13.15,000 in the State Bank of Pakistan vide Voucher No.B/2 on 4-9-1990 which per se is evidence of the retention of this amount from 7-8-1990 to 4-9-1990. He is silent in his statement under section 342, Cr.P.C. As to where he had kept this public money. Obviously this could not be in the office of the Law Ministry because he must have discontinued visiting the Law and Justice Division.

He would never keep such huge amount in his house because of fear of loss or theft. The inference can safely be drawn that he invested this amount either in some of his personal affair or had deposited it in any Bank in his personal account, yielding due profits. He is as such guilty of misconduct under Article 3(2) (d) of P.P.O. No.16 of 1977 as well.

33. On the conclusion of the arguments the learned counsel for the accused submitted an application for placing on record the original receipts and register and requested for permission to exhibit them. There is no provision in the Criminal Procedure Code for the grant of permission, only to exhibit the documents without any additional prayer under section 540, Cr.P.C. For producing evidence in proof of the execution of the such documents. The application was, therefore, rejected as per my brief order on the order-sheet dated 24-4-1991.

' I have decided the instant case vide my short order dated 24-4-1991, stating brief reasons in support of my conclusions. The present judgment enumerates in detail the points for determination, the arguments advanced for and against them which were not touched in the short order and the decision thereon. As such the same is to be read alongwith the short order.