' SHAFIUR RAHMAN, J.---This appeal, as of right, has been filed under Article 7 of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (President's Post-Proclamation)
Order No.17 of 1977 hereinafter referred to as P.P.O. 17 of 1977) against the judgment of the Special Court dated 7-11-1992. The impugned judgment holds the following charges against the appellant proved:-- "(a) Release of payments as mentioned in the reference to Contractor Ejaz Hussain in connection with construction of side drains of Ward No.17, Mailsi City;
(b) Release of payments as mentioned in the reference to Contractor Malik Bashir Ahmad in connection with construction of Link Soling Road, Mauza Sahibali to Rajbah."
' The legal effect of this finding under Article 5 of P.P.O. 17 of 1977 is that the appellant stands disqualified for a period of seven years from being elected or chosen as a member of Parliament or of a Provincial Assembly.
2. The case of the referring authority before the Special Court was that the appellant, an elected member of the National Assembly, was appointed District Administrator Peoples Works Programme, Vehari on 27-1-1990 and held that charge till 6-8-1990 when the National Assembly was dissolved. During this period he sponsored, approved and administered the following three Scheme:--
(1) Scheme at Serial No.7. ---Construction of Side Drains of Ward No.17, Tehsil Mailsi at estimated costs Rs.1,51,600. Payment of Rs.66,367 (Net Rs.57,719) was paid to contractor Ejaz Hussain showing 50% physical progress of the work. In fact the work was not even started at site.
(2) Scheme at Serial No.13.---Construction of Link Soling Road Village Sahibali to Rajbah (Watercourse) Tehsil Mailsi. Out of amount released to appellant (Rs.1,01,600) a sum of Rs.53,954 was paid to Malik Bashir Ahmad Contractor against 50% physical progress of the 'work when in fact the work was not started at all.
(3) Scheme at Serial No.28. ---Construction of street soling village Malkoo at estimated cost of Rs.4,95,100. A sum of Rs.2,92,491 (Net Rs.2,54,460) was paid to contractor Manzoor Hussain against 50% physical progress of land. In fact the work was not started.
3. The appellant, as District Administrator was required to personally visit the projects in hand, to verify physical progress of it and to authorize the payments in respect of it accordingly. Having done none of these and authorized the expenditure the appellant was guilty of misconduct as defined in P.P.O. 17 of 1977.
4. In denying these allegations, the appellant pleaded as hereunder:--
(i) "No copy/Guideline was officially passed on to me. The office work was being carried on, before my appointment, by previous Administrator and the Staff was looking after the work. I took charge of a running department, did not construct the office or procedure nor did I establish any traditions but followed what was being done by officers responsible for their job. Moreover I being member of NA. And C.E.C. Had to attend Assembly/meetings and was out of Mailsi for considerable period. My period as Administrator was barely six months and one week.
' I had trusted the officers as responsible persons and had even handed over Jeep (official) to them so that they can supervise the field work. I have my own Jeeps/Cars and I never charged T.A./D.A. Though allowed in my letter of appointment dated 27-1-1990. R.I.
' I would request the Court to summon the log book of vehicle to see how and who were the officers who used official conveyance and for what purposes.
' The office was to be controlled by P.O. Who is Secretary of the Committee and all correspondence/affairs are conducted by the Secretary. The inspection or verification of measurements is not done by Administrator and it was never done before. In fact the P.W.P. Was governed by Local Bodies Rules as it appears even in prosecution evidence. The Administrator was at par with D.C.
(ii) In so far other two schemes i.e. Ward No.17, Tehsil Mailsi and Mau'za Sahib Ali are concerned I never ordered payment to contractors. The formalities were duly completed by the Field Staff and officials like all other schemes and on the instructions of Planning Officer/Engineers I issued advice to the Bank like other advices on the various schemes.
' The prosecution has not referred to other schemes in which the same staff did all the preliminaries including measurements and verifications and I would send to advice as proposed. The comparison of all the schemes would, make the position amply clear that the same procedure was adopted and there was no departure in the cases cited by the prosecution. The amount of money available against each cheque/advice was to be determined by Accountant/P.O. On whose recommendation the Advices were sent by Administrator.
(iii) I was however not pointed out by staff that I have to inspect every site nor was it possible for me to do it. There was no complaint/report of staff that I should inspect the sites before signing the Advice. No P.W. Has even stated that I was asked to visit the site but I refused to go. The official conveyance was at the disposal of officials for inspections."
5. For proving its case the prosecution produced thirteen witnesses. The first four witnesses deposed about facts after the appellant was relieved of the charge on 6-8-1990. Syed Muhammad Taqi Kazmi (P.W.1) sealed the office, took possession of the record, constituted inspection teams for physical verification of the works in progress. The next three witnesses Ghufranullah (P.W.2), Abdul Jabbar Khan Niazi (P.W.3) and Muhammad Akbar (P.W.4) were members of the inspection team which carried out physical verification of the works.
' The next witnesses, Muhammad Tufail (P.W.5), Imran Khursheed (P.W.6), Ahmad Sher Tariq Sial (P.W.7), Munawar Hussain (P.W.8), Allah Ditta (P.W.9) and Muhammad Zaki (P.W.10) directly worked on the project, most of them being subordinate to the appellant.
' Noor Ahmad (P.W.11) and Sarfraz Hussain (P.W.12) are Bank Managers who stated about the clearance of the cheques made out by the appellant, except in one case where the payment was withheld on instructions.
' Ghulam Mustafa, Sub-Inspector F.IA. (P.W.13) investigated the case and stated that he "got the case registered in respect of these schemes against Muhammad Mumtaz Khan Bhaba Administrator, Muhammad Arshad Chishti District Engineer, Ejaz Ahmad Contractor, Malik Bashir Ahmad Contractor and Manzoor Hussain Contractor, through F.I.R. No.17/91 dated 7-6-1991 which is Exh.A.46".
6. The appellant did not appear as his own witness, made no statement on oath but produced two witnesses in defence. Jehanzeb Burki, Director, F.IA. (R.W.1) stated that two or three weeks time was given for finalizing the inquiry. Shaukat Ali (R.W.2) stated that he was given 79 files while 87 files were missing.
7. The Special Court after examining the entire material brought on record concluded as hereunder:-
(i) After considering the evidence I am persuaded to hold that the respondent neither had any hand regarding the entries made in the MBs nor he connived with the technical staff in making those entries.
(ii) Since the payment in respect of this Scheme was not in fact made, therefore, in the above circumstances I am inclined to accept the version of the respondent that the same was not made on his instructions after coming to know that the work had not been done at the spot. Even if the respondent had not inspected the spot at the relevant time but since it has been held that it was on account of him that the payment of an amount of Rs.2,54,466 against the said Scheme was not made to the Contractor, therefore, it is held that the charge has not been proved. It may be observed that the provisions of P.P.O. 17 of 1977 are penal in nature and according to firmly settled law regarding interpretation of such a Statute, the benefit of doubt is to be given to the accused.
(iii) Regarding the remaining charges sufficient evidence has been produced on behalf of the referring authority to establish that the respondent failed to inspect the site as required under the People Works Programme and released the payment to the contractors with regard to the work relating to Schemes i.e. Link Mauza Sahibali to Rajbah and Side Drains at Ward No.17 Mailsi whereas no work in fact had been done by the contractors. It was not the case of the respondent that the work at the site had been done in part or as a whole.
(iv) It is not possible to hold that the respondent was absolved of his responsibility merely because entries in the measurement books had been made from which he was misled. The power vested in him for releasing the payment, therefore, has been misused as no visit at the sites was made by him which has resulted in wrongful payment to contractors namely Ejaz Ahmed and Malik Bashir Ahmad in respect of the Schemes i.e. Link Soling Mauza Sahibali to Rajbah and Side Drains at Ward No.17 Mailsi which has caused wrongful loss to .The Government exchequer. The respondent being trustee and representative of the people was required to see that the hard-earned money of the
(sic) should not have been utilised for any work which was not done in exercise of the powers vested in him. Had the authorities considered the entries in the MBs sufficient to make payment, they would not have made any provision regarding the visit of the sites by the Administrator himself and issuance of advice. It is a clear case of misuse of powers which falls within the mischief of definition of "misconduct" given in P.P.O. 17 of 1977."
8. Mr. Fakhurddin G. Ebrahim, Senior Advocate, the learned counsel for the appellant contended that the charges levelled against the appellant should be viewed in the totality of his duties and responsibilities. He had remained District Administrator for just over six months. Allegation was that he had sponsored 28 Schemes but in fact he was overseeing Over ninety Schemes. In none other any irregularity was found except these two. If the appellant was prone to help the contractors he would not have stopped the payment of his own relative contractor for Scheme 28. Besides, the appellant had multifarious duties to discharge as MNA and he acted to the best of his ability and bona fide and is not liable to be prosecuted under Article 10 of P.P.O. 17 of 1977.
' According to the learned counsel for the appellant the following statement of Syed Muhammad Taqi Kazmi (P.W.1) completely exonerates the appellant:-- "(i) The entries regarding measurements of construction work recorded in the measurement books by the technical staff are always taken to be a proof of the fact that according to the staff who is incharge of the Programme the work had been completed at the spot for which payments are to be made.
(ii) It is correct that whatever amounts have been paid to the Contractors against the three disputed Schemes they were made on the basis of entries in the measurement books made by the technical staff i.e. The Engineer which was evidence of the fact that at the spot the work had been done."
9. The learned counsel for the appellant further submitted that the appellant had not received the Guidelines or the instructions governing the Peoples Works Programme, nor had they any statutory force. The appellant could not be prosecuted for violation or non-observance of it. The statutory Rules applicable were the Punjab Local Council (Works) Rules, 1981 and no provision of it was shown to have been violated.
10. By referring to the dictionary meaning of words (i) maladministration, (ii) wilful, (iii) abuse, and decisions given in Mrs. Benazir Bhutto v. The Federation of Pakistan and others (1991 Monthly Law Digest 2622 (Karachi)), Chief Secretary/Referring Authority, Azad Jammu & Kashmir Government v.
Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95, Sheikh Mujibur Rahman and another v. The State PLD 1964 Dacca 330 at page 357 and State v. Awtar Krishna AIR 1957 Allahabad 88, the learned counsel contended that no case of misconduct was made out.
11. Finally it was contended that the appellant was maliciously made a victim in the course of political battle then going on so visibly and 'viciously to the knowledge of everyone between the Provincial Government of the Punjab and the Federal Government. His prosecution was, according to him, selective, purposive and unjustified.
12. Mr. Muhammad Sardar Khan, the learned Attorney-General for Pakistan supported the judgment of the Special Court.
13. P.P.O. 17 of 1977 under which the reference was filed in the Special Court defines "misconduct" in Article 2(a), as hereunder:-- "'Misconduct' refers to conduct after December 1970, and includes bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys or moneys collected, whether by public subscription or otherwise and any other abuse of whatsoever kind of power or position, and any attempt at, or abetment of, such misconduct."
' Article 10 of P.P.O. 17 of 1977 contains 'saving' in the following words:- "No proceeding under this Order shall lie against any person who holds or has held an office mentioned in Article 4 for anything which has been in good faith done or intended to be done in pursuance of or in exercise of powers vested, or in good faith believed to be vested, in him at the material time by virtue of that office."
' Article 5 of P.P.O. 17 of 1977 empowers the Special Court as hereunder:- "5. Enquiry by Special Court. Etc. ---In a case in which the Special Court has issued to the respondent a notice under paragraph (b) of clause (3) of Article 4, the Special Court shall after such further scrutiny of records and such enquiry as it thinks fit and after giving the respondent an opportunity of being heard, record its findings and, in case the respondent is found guilty, he shall stand disqualified for a period of seven years from being elected or chosen as a member of Parliament or of a Provincial Assembly."
14. The Government of Pakistan, Ministry of Local Government and Rural Development, Islamabad had issued instructions which were to provide the guidelines for the initiation, execution and completion of the Peoples Works Programme. The forward of document described as PIP-3 by its clause 9 ovided as hereunder:- "The programme would be Federal in concept and framework but would operate through a decentralized organization. As such, the proposed People's Programme would in the first phase by administered as a Federal Programme."
' The Procedure/Methodology for the Release of Funds required as provided in paragraph 19 in the document referred to above (PIP-3) in its introduction that the "second and third instalments are released subject to utilization of funds already released and on satisfactory physical progress to be verified by the District Administrator". Paragraph 24 provided as hereunder:-- "The District Administrator and the district engineer will regularly visit the sites of the Schemes being implemented in their district and record their observations in the inspection register. The executing agency will rectify defects if any, pointed out by the inspecting officer. The executing agency will cause a copy of the note, alongwith a brief description of the action taken thereon, sent to the District Administrator, and the A.D.G. (Please see Annexure I for latest instruction)."
' In paragraph 25 of the Form PIP-3 just referred to, the responsibilities of the District Administrators are prescribed as hereunder:-- "Responsibilities of District Administrators.---The District Administrator shall be responsible for the following duties:--
(i) Observe in all transactions, provisions of rules framed under the bye-laws of the Committee,
(ii) Keep a true and accurate account of all the assets and liabilities of the Committee including amounts received, and spent.
(iii) Keep all the books and records of the Committee correct and up-to-date.
(iv) Prepare and lay before the Committee for its consideration and approval the income and expenditure statement and annual budget proposal for his office before sending them to the Additional Director-General.
(v) Take the necessary action on audit and inspection reports of the officers/persons authorised in this behalf.
(vi) Convene special meetings whenever required."
' The instructions as contained in Annexure III to the document just referred to, on the incurrence of expenditure from Development Funds provided to District Committees provide, amongst others, as hereunder:-- ""(1) Development funds referred to above will be kept in a separate current account opened in a main branch of National Bank of Pakistan at every District Headquarter
(2) The account will be operated under the supervision of the District Administrator by any two of the three officers of the District Committee viz. Planning Officer, Civil Engineer and Accountant.
(3) Only crossed cheques will be issued under the signature of the above two officers, so specified by the District Administrator and National Bank of Pakistan informed accordingly.
(4) The Manager of the Branch will be specifically instructed not to entertain any cheque unless accompanied by a covering letter signed by the District Administrator.
(5) No cheque will be issued unless prior approval of the District Administrator was in writing has been obtained."
15. The notification dated 27-1-1990 appointing the appellant as District Administrator was in terms as hereunder:-- ' The competent authority has been pleased to appoint with immediate effect and until further orders Mr. Mumtaz Khan Bhaba, MNA as District Administrator, People's Programme Vehari in place of Agha Salim Khurshid.
' His duties and functioning will be as specified by the Government and The will be responsible through Additional Director-General (PP) Lahore to the Director-General, People's Programme, Ministry of Local Government and Rural Development, for all administrative, financial and disciplinary matters.
' He will not be entitled to any remuneration except TA./D.A. For the purpose of meetings of District Committees and touring connected with the work relating to People's Programme."
16. With his reply to the allegations on which the appellant was tried he has filed Exh.R/5 which is in the following words:- "Yesterday I visited 88/WB where soling is under construction through your department. When I reached there I found none of your concerned S.D.O. Or any other person present at the opening ceremony of this project. I inquired about it from Malik Hassan, President, P.P.P. Union Council, Zaheerabad. He told that Pak. P.W.D. Was informed about the function and they told him that they would be present at the occasion but they did not turn up. The work speed was very poor and the bricks were of low grade, so I have black listed the contractor. Your S.D.O. Has tried to sabotage the programme and has ignored it knowingly. Kindly take proper action and black list the contractor in your record. No payment should be made until the work is done according to the standard.
' It was addressed to the XEN, Pak P.W.D. Sahiwal.
17. In the background of these documents and recitals it cannot be pleaded with any amount of success that the appellant was ignorant of his duties and responsibilities, that he always acted, as was the earlier practice, on what his subordinates told him, that he was only a signing machine and was not entrusted with the duties of verification, inspection, reporting and accounting.
18. The ordinary dictionary meaning of the word "wilful" as contained in the Concise Oxford Dictionary are "(Of action or state) for which compulsion or ignorance or accident cannot be pleaded as excuse, intentional deliberate, due to perversity or self-will". The definition itself indicates that the test is of where ignorance cannot be pleaded and not where ignorance is pleaded. Can the appellant in situation like this plead complete ignorance of his duties, responsibilities financial controls, restraining factors and prudences as expected of a man of his status, standing, and involvement in the affairs of the State. Black's Law Dictionary defines the word "wilful" in a more comprehensive manner as hereunder:-- "A wilful act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly heedlessly, or inadvertently. A wilful act differs essentially from a negligent act. The one is positive and the other negative.
' Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification."
' The word 'maladministration' has been defined as wrong administration. The word "abuse" has been scrutinized as pointed out in case of Mrs. Benaiir Bhutto 1991 M LD 2622 and includes everything which is contrary to good order established by usage.
19. The act of the appellant in pleading that he was only acting as a signing machine in all cases without (being) aware of his duties, without scrutiny, without visit to the spot is palpably false and is a poor cover for the deliberate omission to administer the project properly, efficiently and in accordance with the instructions governing the project. It need not be emphasized that all persons and authorities entrusted with public funds have to discharge their duties as trustees thereof, accounting for every penny and exercising extraordinary care and caution in utilizing, spending of such finances. The appellant was clearly guilty of wilful maladministration, of abuse of his authority as a Member of National Assembly and District Administrator of Peoples Works Programme. The finding recorded by the Special Court is amply justified from the material on record and needs no interference.