' AJMAL MIAN, J.---This is a direct appeal under Article 7 of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (President Order No,17 of 1977), hereinafter referred to as the Order, against the judgment dated 13-10-1991 passed by the Disqualification Tribunal, Karachi, presided over by Mr. Justice Mukhtar Ahmed Junejo, Judge of the High Court of Sindh, hereinafter referred to as the Tribunal, upon Reference No,3 of 1990 made by the President of Pakistan under Article 4 of the Order, accepting the Reference by recording finding that the appellant was guilty of misconduct as defined under the Order and directing that the appellant shall stand disqualified from being elected or chosen as member of the Parliament or a Provincial Assembly for a period of seven years in terms of Article 5 of the Order.
2. The brief facts are that the appellant was elected as a member of the National Assembly from the Constituency No,NA-156 Jacobabad in the election held in 1988. It seems that he submitted an application dated 20-5-1989 (Exh.11) for a loan of Rs,19.54 million alongwith two copies of a feasibility report for setting up a fish farm over an area of 350 acres of land adjacent to village Khatolabad, Jacobabad, hereinafter referred to as the scheme, which is 65 k.m. From Sukkur. The above application was placed on 25-6-1989 before the Project Loans Committee, hereinafter referred to as the Committee, in its 34th meeting as agenda item No,16 alongwith many other items, which resolved as under in respect of the scheme:- "18. Approved. The Committee concluded that there appears to be no objection for sanction of loan subject to the completion of all required formalities. Committee authorised the Chairman to sanction the loan within Rs,11.724 million."
3. It seems that pursuant to the above resolution of the Committee, the Chairman of A.D.B.P.
Sanctioned a loan of Rupees 10.350 million for the scheme on 6-12-1989, which was conveyed to the appellant through the Deputy Director (PFD) of A.D.B.P.'s letter dated 10-12-1989 (Exh.13) containing the terms and conditions for the grant of the above loan. It will suffice to reproduce the conditions contained in paras.2(iii) and 8(a), which have direct bearing on the controversy in issue and which read as follows:- "2. The disbursement of this loan is subject to the fulfillment of the following conditions:
(i) .
(ii)
(iii) that you will build flood protection bund all along the western side before disbursement.
8. Disbursement Schedule----After execution of legal documents and provision of the required securities, the loan of Rs,10.350 million shall be disbursed as tinder:
(a) Loan amounting to Rs,6.000 million for excavation in cash in 12 equal instalments after ensuring proper utilization of earlier disbursed instalments;"
4. It further seems that on 16-12-1989, the appellant saw Mr. Chaudhry Ahmed Saeed, who was appointed as the Chairman of A.D.B.P. On 25-7-1989 by the then Government (Exh.24) from outside the service cadre and presented his application (Exh.9), which reads as follows:-- "Chairman, ' Agricultural Development Bank of Pakistan, Islamabad.
' Dear Sir, ' Thank you for granting loan for our Fish Farming Project in Jacobabad. I will try to complete this project early. So it would be much easy if first instalment of loan is realized at least Rs,55 lacs so that I can advance payment to private parties for construction of ponds. It is biggest fish farm of 350 acres. How I can start work with Rs,10 lacs. Yours faithfully, (Sd.)
(Sardar Muqaim Khan), M.NA., Jacobabad."
5. It appears that on the same day, the Chairman of A.D.B.P. Passed the following order on the above application:- "For favorable consideration.
(Sd.)
Chairman, 16-12-1989"
' The above application was handed over by the Chairman to P.W.6 (Qamar Amir Khan), Secretary to A.D.B.P. With the direction that he should hand over the same to P.W.3 (Muhammad Ishaq) who was, at the relevant time, Director, Project Finance Department and asked him to talk to the Chairman before initiating action on the above application. According to P.W.6 (Qamar Amir Khan), he was unable to contact P.W.3 (Muhammad Ishaq) and, therefore, he conveyed the above message of the Chairman through the chit (Exh.8), which reads as follows:-- "Chairman has kindly desired for speaking about the enclosed case. Please see him before initiating action."
6. It also appears that on the above application (Exh.9), the official concerned i,e, Deputy Director
(PFD) and Director (PFD) put up a note before the Chairman on 18-12-1989 recommending that the loan of Rupees six million may be disbursed in two equal instalments and that the subsequent instalment be paid on proper utilization of the first loan instalment to the entire satisfaction of the Regional Manager, Shikarpur. On the above note, the Chairman on the same day i,e, on 18-12-1989, granted the facility of the payment of above amount of Rupees six million in two instalments in place of 12 instalments as was provided under the terms of the loan. It further seems that the Deputy Director (PFD) through his letter dated 19-12-1989 addressed to the Regional Manager, A.D.B.P., Shikarpur (copy of which was endorsed inter alia to the appellant), conveyed the above order of the Chairman, but also stated that the other terms and conditions as contained in the above sanction letter dated 10-12-1989 (Exh.13) would remain unchanged.
7. It may be stated that the appellant was released first instalment of Rupees three million on 12-2- 1990 and second instalment on 25-7-1990. It further seems that the then Government was dismissed by the President on 6-8-1990. Mr. Chaudhry Ahmed Saeed's services were terminated on 9-8-1990 (Exh.26). After that, the appellant was served with a notice dated 15-9-1990 by the Regional Manager, A.D.B.P., Shikarpur (Exh.19), recalling the loan amount for the following reasons:- "Mr. Sardar Muhammad Muqeem Khan Khoso, M/s. Al-Rahim Fish Pond, Deh, Khaloolabad District, Jacobabad.
' Subject: MISUTILIZATION OF LOAN Dear Sir, ' You were advanced a loan of Rs,10.4 million for establishment of Fish Pond on your land at Deh Khaloolabad, District Jacobabad you were advanced first instalment of Rs,3 million on 12-2-1990.
You have not utilized this amount and obtained another instalment of Rs,3 million on 25-7-1990 under the influence of political pressure fraudulently.
' The entire loan advanced has not yet been utilized for specific purpose for which it was sanctioned. You are, therefore, requested to kindly repay the entire loan with Mark-up thereof immediately failing which we shall be constrained to take action against you to recover the above loan as arrears of Land Revenue under Land Revenue Act.
' Yours faithfully, (Sd.)
(Ghulam Farooq Jakhro) Regional Manager."
8. It appears that on 19-9-1990, the above Reference under the Order was made to the Tribunal against the appellant. Upon receipt of the above Reference, the Tribunal examined P.W.1 (Bashir Ahmed), who took over as the Chairman, A.D.B.P. On 19-8-1990 after the removal of Chaudhry Ahmed Saeed; P.W.2 (Syed Munir Hussain), who acted as the Chairman of A.D.B.P. During the period from 15-9-1988 to 8-7-1989; and P.W.3 (Muhammad Ishaq), who was Director, Project Finance Department in May, 1989, when the appellant presented his above application for the loan. After examining the above witnesses, the Tribunal issued a show-cause notice dated 29-11-1990, para.2 of which reads as follows:-- "2. The allegation constituting the 'misconduct' are:--
(a) That you as Managing Director Al Rahim Fisheries Limited submitted a feasibility report to the Agriculture Development Bank of Pakistan (A.D.B.P.) for construction of a Fish Farm under the name and style of Al-Rahim Fisheries Limited (as a Private Limited Company) on your land measuring 350 acres at a cost of Rs,19.54 million. The Bank evaluated the project at Rs,14.793 million and granted a loan of Rs,10.350 million on 10-12-1989.
(b) That out of the amount sanctioned Rs, 6 million were to be disbursed in twelve equal instalments after satisfying certain conditions, inter alia "that you will build flood protection bund all along the western side before disbursement" (para.2(iii) Annex "B") and, that each of the 12 instalments was to be disbursed after proper utilization of the earlier disbursed instalment (para.8
(a) Anned "B"). That you abused your position as M.NA. By prevailing upon the Bank Authorities and secured release of Rs,6 million in two equal instalments instead of twelve instalments without satisfying any preconditions. The two instalments were disbursed on 12-2-1990 and 27-7-1990 without formal waiver of conditions aforementioned.
(c) Site inspection carried out by Ghulam Farooq Jakhro, Regional Manager, A.D.B.P., Shikarpur on 23-8-1990 revealed that you have not utilized a single paisa out of the amounts of the two instalments of Rs,30 lacs each disbursed to you on 12-2-1990 and 25-7-1990. In this way the entire loan was misutilized."
' The abovementioned acts on your part amount to wilful misapplication of public money and abuse of power and position as a MNA's attracting the provisions of P.O. 17 of 1977.
' Please take notice that this does not preclude the Referring Authority from submitting at any stage such further material as may be subsequently become available in support of the above charges."
9. In response to the above show-cause notice, the appellant filed a reply dated 17-12-1990, in which preliminary objection as to the legality of the Order was raised. It was also pleaded that making of the Reference under the Order was violative of the equality and equal protection of law guaranteed by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. On merits, it was pleaded that the allegation that the appellant had abused his position as MNA was general and too vague. It was also denied that the appellant had not utilized or misutilized the loan amount. It was further pleaded that Rupees six million were advanced as loan to M/s Al-Rahim Fisheries and that the same were not entrusted as public fund to the appellant. It was also pleaded that even the allegations of non-utilization or misutilization were proved, they had no nexus with "misconduct" as defined in clause (a) of Article 2 of the Order.
It was further pleaded that the Reference was the result of mala fides and that it had been manipulated at the instance of Mr. Ilahi Bakhsh Soomro, who was a Minister in the Care-taker Cabinet of Mr. Ghulam Mustafa Jatoi and who was going to contest elections against the appellant.
10. Before the Tribunal the Referring Authority examined P.W.1 Muhammad Tasneem, who was Director, Project Finance Department of A.D.B.P. In May, 1989, when the appellant filed his application for loan; P.W.2 Lal Khan Almas, who was Deputy Director, Projects Appraisement Department, A.D.B.P., at the relevant time; P.W.3 Muhammad Ishaq, who was Director, Project Finance Department at the relevant time; P.W.4 Lal Dino, who was Manager, A.D.B.P., Shikarpur Branch, at the relevant time; P.W.5 Ghulam Farooq Jakhro, who was Regional Manager, A.D.B.P., Shikarpur at the relevant time; P.W.6 Qamar Amir Khan, who was Secretary, A.D.B.P. At the relevant time; P.W.7 Syed Fahim Ahmed Gardezi, Director, Personal Administration Department, A.D.B.P.
11. The appellant did not examine any witness in rebuttal but was examined by the Tribunal under Rule 9 of the Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990, hereinafter referred to as the Rules. The appellant also examined himself on oath. After that, he closed his side.
12. The Tribunal, after hearing the learned counsel for the parties, concluded that in the Reference (Exh.1) no exception was taken to sanction the loan in favour of the appellant and, therefore, as such the Tribunal was not required to look into the circumstances leading to sanction of the loan. It further concluded that it had to confine its enquiry to the specific allegations made against the appellant in the Reference, namely,
(i) that the appellant in abuse of his position as NINA prevailed upon the bank authorities and secured the release of Rupees six million in two equal instalments instead of twelve installments without satisfying any of the preconditions; and
(ii) that the appellant after obtaining the loan amount of Rupees six million has not utilized a single paisa on the project for which the loan was obtained and has misutilized the entire loan amount.
13. The Tribunal, after discussing the entire evidence on record, concluded that the charge of misconduct as regards the release of Rupees six million in two instalments stood proved. However, it also held that the appellant was not guilty of wilful misapplication or diversion of public moneys as the loan amount could not be treated as public money. While recording the above findings, the Tribunal pressed into service the principle that "while considering circumstantial evidence one can adhere to the well-settled principle of criminal law that the circumstantial evidence should be such that does not lead to one to any other hypothesis than that of guilt of the accused". In view of the above finding, the above Reference was accepted in the above terms. Thereupon, the appellant filed the above appeal under Article 7 of the order.
14. In support of the above appeal, Mr. Abdul Hafeez Lakho, learned counsel for the appellant, has vehemently contended that the finding recorded by the Tribunal on above allegation No, (i) is based on surmises and conjectures and, therefore, the impugned order cannot be sustained. His further submission was that the Reference was mala fide and in fact was made at the behest of Mr. Ilahi Bakhsh Soomro who had contested the election against the appellant in 1988 but was defeated and then again he contested the election in 1990 in which he raised the very ground which was the subject-matter of the above Reference before the Returning Officer and in appeal before the High Court without any success and that in the original counting, the appellant was declared as successful but in the official counting, Mr. Ilahi Bakhsh Soomro was declared as elected, against which the appellant's election petition is still pending.
15. On the other hand, Mr. Kamal Mustafa Bukhari, learned counsel appearing for the Referring Authority, has contended that the proceeding before the Tribunal is in the nature of an enquiry and it is for the Tribunal to decide, what evidence it requires and it is not for the Referring Authority to produce the same. His further submission was that, in any case, the Referring Authority had in fact produced sufficient evidence to sustain the above finding recorded by the Tribunal. He also submitted that the following finding of the Tribunal is contrary to law and, therefore, he has filed an application under Rules 5 and 6 of Order XXXIII read with Rule 5 of Order XII of the Supreme Court Rules, 1980, for raising the above plea:- "After disbursement of the loan amount (through two instalments) the same ceased to be public money and if that was not spent on the project for which it was obtained, such omission would not amount to "wilful misapplication or diversion of public moneys".
16. Before touching the merits of the case, it may be pertinent first to dilate upon the question, as to the nature of the proceedings before the Tribunal. In this regard, it may be pertinent to point out that on 25-11-1977, two President Orders were issued, namely, President Order 16 of 1977 under the caption "Holders of Representative Offices (Punishment for Misconduct) Order, 1977", which makes misconduct on the part of holder of a representative office a criminal offence punishable with imprisonment for a term which may extend to seven years or with fine or with both under clause (1) of Article 3 and it also disqualifies a convicted holder of a representative office for a period of seven years from being elected or chosen as a member of Parliament or a Provincial Assembly under clause (4) of above Article 3 of the Order. The above President Order 16 of 1977 also contemplates setting up of Special Courts. Article 6 of it provides that a Special Court shall have all the powers conferred by the Code of Criminal Procedure, 1898, on a Court of Session exercising original jurisdiction. Whereas, Article 7 lays down that any person charged with an offence punishable under Article 3 shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged with may at the same trial, but sub-clause (a) of the proviso provides that the accused shall not be called as a witness except on his own request. The President also issued the order i,e, President Order No,17 of 1977, which was invoked in the present case. It provides only disqualification for a period of seven years but does not contemplate imposition of any sentence of the nature provided for in P.0. No,16 of 1977. Article 6 of the Order provides that a special Court shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, in respect of the matters mentioned in sub-clauses (a) to (e), namely, summoning and enforcing attendance of any person and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavit, issuing commission for the examination of witnesses or documents and requisitioning any public record or copy thereof from any Court or office.
17. It may also be pertinent to mention that at the time of issuance of the above President Orders 16 and 17 of 1977, we had in the field Holders of Representative Offices (Prevention of Misconduct) Act, 1976 (Act IV of 1977) and Parliament and Provincial Assemblies (Disqualification for Membership)
Act, 1976 (Act V of 1977), both gazetted on 9-1-1977, which corresponded with President Orders Nos.16 of 1977 and 17 of 1977, respectively. In other words, section 3 of Act IV of 1977 made misconduct on the part of any holder of representative office punishable with imprisonment for a term which may extend to seven years or with fine or with both. It also under subsection (4) of section 3 provided that upon conviction, the convict shall be disqualified until holding of the next general elections to the National Assembly from being elected or chosen and from being a member of the Parliament or a Provincial . Assembly. Whereas, section 5 of Act V of 1977 provided that upon conviction the person shall stand disqualified until the holding of the 'next general elections to the National Assembly from being elected or chosen as, and from being a member of Parliament or of a Provincial Assembly. However, section 6 of above Act V of 1977 lays down that an enquiry under the above Act shall be held as nearly as may be in accordance with the procedure provided in the Code of Criminal Procedure, 1898, for trial before a High Court, as if reference in the Court to the accused were a reference to the respondent and reference to conviction were omitted. This provision is in contradiction to Article 6 of the Order which provides that a Special Court shall have the power of a Civil Court trying a suit under the Code of Civil Procedure, 1908, in respect of the matters mentioned in sub-clauses (a) to (e) already referred to hereinabove.
18. Both the parties have referred case of Hamidul Huq Chowdhury v. His Excellency the Governor- General of Pakistan (PLD 1953 Federal Court 279) and the case of Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC (Pak.) 91). The contention of Mr. Abdul Hafeez Lakho was that in the proceeding before the Tribunal, the burden of proof squarely was on the Referring Authority and the Tribunal was bound to apply the principle which it in fact pressed into service i,e, by considering the circumstantial evidence, one should adhere to the well- settled principle of criminal law that the substantial evidence should be such that does not lead one to any other hypothesis than that of guilt of the accused.
' He has heavily relied upon the case of Muhammad Saeed and 4 others (Supra), whereas the submission of Mr. Kamal Mustafa Bukhari was that under Article S of the Order, it is for the Special Court to hold enquiry and to examine any witness it may deem necessary and that the nature of enquiry before the Tribunal is akin to a departmental proceedings against a civil servant or proceeding for misconduct against a Judge of a Superior Court and not to that of a criminal proceedings. According to him, the ratio decidendi of the judgment of the Federal Court in the case of Hamidul Huq Chowdhury (supra) is applicable to the case in hand.
19. In the case of Hamidul Huq Chowdhury (supra), the question before the Federal Court was, whether the findings of misconduct which included bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys or money collected, whether by public subscription or otherwise and any other abuse of official power, recorded by the Tribunals comprising of Chief Justice and a Judge of the Dacca and Sindh High Courts in the proceedings initiated against Hamidul Huq Chowdhury and M/s. MA. Khuro and Kazi Fazlullah under section 3 of the Public and Representative Offices (Disqualification) Act, 1949, were appealable before the Federal Court, Abdul Rashid, C.J. And Cornelius, J., after referring to the relevant provisions of the above Act and the case-law, recorded the following findings:- ' Abdul Rashid. C.J: "The disqualification is incurred by the person found guilty upon the public notification of an order of the Governor-General in this behalf. It does not make it obligatory on the Governor-General to issue a public notification in respect of the charges which have formed the subject-matter of the enquiry. To take an instance, it might be that 10 very serious charges are preferred against a Minister. He is found not guilty" on practically all the charges but is found guilty of a technical abuse of official power in a very insignificant matter. In such a case, in my opinion, it would be open to the Governor-General not to disqualify the person concerned. If the Governor-General is not bound to disqualify a person as a result of a finding of guilty in respect of some of the charges, it is clear that the whole enquiry must be regarded as an exercise of administrative or executive function by the Governor-General, and the findings of the Judges must be taken to be the advice of an expert body requisitioned by the Governor-General in accordance with the provisions of the Act."
' Cornelius. J: "These are the reasons by which I am impelled to reach the conclusions that findings recorded under section 3 of the Act are not judicial 'determination' within the meaning of section 3 of the Judicial Committee Act, 1833, and further that in any case, the subject-matter of the legislation is such as places it entirely outside the sovereign's prerogative of justice, and I would therefore dismiss all these petitions, but having regard to the complexity of the questions which have required elucidation before this Court. I would have the parties to bear their own costs."
20. The ratio of the above case seems to be that as the findings of the Tribunal were subject to the acceptance by the Governor-General and that they themselves did not entail any penal consequence, the same could not be treated as a judgment, decree or an order. Abdul Rashid, C.J.
Dealt with the above aspect as: ' The formal expression of the findings given by the Tribunal or the High Court has not been described by the Act as a decree or order. In fact, the High Court or the Tribunal cannot pass a decree or an order under the Act and can merely record findings of guilty or not guilty."
21. The contention of Mr. Abdul Hafcez Lakho that the ratio decidendi of the above case is not applicable to the instant case seems to be correct inasmuch as under the above Act the finding of the Tribunal was not binding on the Governor-General and he was not bound to disqualify the person charged with misconduct, whereas Article 5 of the Order is a self-executory provision as it provides that upon recording of a finding against the holder of a representative office by the Tribunal, he shall stand disqualified for a period of seven years from being elected or chosen as a member of the Parliament or a Provincial Assembly. It does not envisage passing of any further order by the Referring Authority or by any other State functionary.
22. This distinction has been highlighted by this Court in the case of Muhammad Saeed and 4 others (supra) while dilating upon the case of Hamidul Haq Chowdhury (supra). In the former case, the question before this Court was, whether the report of the Election Tribunal comprising the Commissioner acting under the Government of India (Provincial Elections) (Corrupt Practices and Election Petitions) Order, 1936, hereinafter referred to as the statute, was a judgment within the meaning of Article 160 of the late Constitution of Pakistan, 1956. While answering the above question in the affirmative, it was held that since the finding of the Tribunal acting under the statute was binding on the Governor and he was bound in terms thereof, it was a judgment. Muhammad Munir, C.J. And Cornelius, J. (as his Lordship then was), while dealing with the question as to the nature of proceeding under the statute, observed as follows:-- ' Muhammad Munir, C.J:
23. The law relating to the trial of elections petition, though volumes have been written on it, in so far as it is relevant to the present case, is so simple that it can be summed up in one sentence, namely, that where an election is sought to be set aside on the ground of commission of corrupt practices, the party challenging its validity must specify in the petition the corrupt practices committed, giving in the list attached to the petition or in his statement before the settlement of issues full particulars of those corrupt practices; that no fresh charge or instance of a corrupt practice can be added at the trial, that the burden of proof of corrupt practices is on the petitioner; that the evidence in proof of such practices must be restricted to the charges or instances mentioned in the petition and the particulars; that each ingredient of a corrupt practice so charge must be affirmatively proved by evidence, direct or circumstantial the commissioners before finding a corrupt practice proved must exclude all reasonable hypotheses which are consistent with that corrupt practice having not been committed. In the present case each and every one of these basic principles has been violated and as result of the trial held in contravention of these principles six returned candidates have been unseated. A clear case for the interposition of this Court therefore exists."
' Cornelius. J.
"A charge of a corrupt practice is a quasi-criminal charge and, as the Tribunal has stated in its report, the great volume of authority in the corpus, of election law is to the effect that such an allegation must be treated, for the purposes of evidence, on the principles applicable to the trial of criminal charges. One such principle is that in a case of doubt raised upon the evidence, the benefit of such doubt must go to the accused person. In the concluding paragraphs of its report, the Tribunal professes to have "given the respondents the benefit of all reasonable doubt in the sense that we have not accepted any inferences against the respondents, either from the evidence, or from the circumstances which were at all doubtful." In the same passage, they have declined to follow the rule laid before themselves by a great number of tribunals which in the past have dealt with election disputes, as regards the nature of a charge of a corrupt practice, and the principles to be followed in the trial of such charges. They have mentioned that the procedure applicable to such trials is the Code of Civil Procedure, that the person against whom a corrupt practice is alleged is competent to give evidence (unlike an accused person in a criminal trial) and that a finding of a corrupt practice cannot be followed by any penalties of the nature known to criminal law."
23. I may observe that there appears to be a marked distinction between a proceeding under the statute and the order inasmuch as under the statute, a person having personal interest used to initiate proceedings in the form of an election petition as a petitioner, whereas under the order, the Referring Authority, which is supposed to have no personal motive, initiates proceedings in public interest to ensure that the public representatives should not abuse their position. The second distinction seems to be that under the Second Schedule to the Statute, corrupt practices were also penal offences in terms of Chapter IX-A of the Pakistan Penal Code punishable with imprisonment for a term of six months, whereas under the Order, it is not so.
24. However, the question arises, whether the above principles enunciated in the case of Muhammad Saeed and 4 others (supra) can be pressed into service in the present case as the law-makers consciously made a distinction between President Order No,16 and President Order No,17 as to the nature of the proceeding by incorporating Article 6 in the above two orders couched in different language, whereas in the former, it has been provided that a special Court shall have all the powers conferred by the Code of Criminal Procedure, 1898, as a Court of Session exercising original jurisdiction, whereas in the latter by providing that a Special Court shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure 1908, for the matters mentioned in sub- clauses (a) to (e) as highlighted hereinabove in para.
16. This conscious distinction made by the law-makers is to be viewed with the factum that in Act V of 1977 which corresponded to the Order (i,e, President Order No,17 of 1977) and which was holding the field before the issuance of the order, section 6 provided that an enquiry under the Act shall be held as nearly as may be in accordance with the procedure provided in the Code of Criminal Procedure, 1898, for trial before High Court, as if reference in that Court to the accused were a reference to the respondent and reference to conviction were omitted as pointed out hereinabove.
Keeping in view the above conscious distinction made by the law-makers, I am inclined to hold that the proceedings before the Tribunal under the Order is of civil nature. The factum that Rule 9 of the Rules empowers the Tribunal to examine a respondent charged with misconduct, in my view, would not change the nature of the above proceedings. But I may add that since recording of a finding by the Tribunal against a respondent entails disqualification for a period of seven years from being elected or chosen as a member of Parliament or a Provincial Assembly, the Court while appraising the evidence, will extend the benefit of doubt, if any, to him, notwithstanding my above finding.
' However, the submission of Mr. Kamal Mustafa Bukhari that in view of Article 5 of the Order (which provides that "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."), it is for the Special Court to decide what evidence it needs and it is not for the Referring Authority to produce any evidence in support of the reference, seems to the untenable. Indeed the above provision empowers the Special Court after issuance of a show-cause notice to a respondent to hold such enquiry as it may think fit, but it does not relieve the Referring Authority of the burden to produce the evidence in support of the charge of misconduct. The effect of the above provision appears to be that the Tribunal has been empowered to examine any witness or to summon any record of its own without being requested by any of the parties to the proceedings.
25. Reverting to the merits of the case, it may be observed that Mr. Abdul Hafeez Lakho, learned counsel for the appellant, has taken us through the entire oral and documentary evidence and contended that the finding recorded by the Tribunal to the effect that the appellant in abuse of his position as M.NA. Prevailed upon the Bank authorities and secured the release of Rupees six million in two equal instalments instead of twelve instalments without satisfying any of the pre-conditions, is not sustainable. In order to appreciate the above contention, I may refer to the definition of the term "misconduct" given in clause (a) of Article 2 of the Order, which reads as follows:-- "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:"
' It may be noticed that the above clause has two parts, namely first part provides that it 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 the second part after "," and the word "and" provides any other abuse of whatsoever kind of power or position and any attempt at, or abetment of, such misconduct.
26. I am inclined to agree with the Tribunal that once the loan amount is released in favour of a loanee, it ceases to be public money and, therefore, it will not be covered by the first part of the above definition of the term "misconduct". I am also in agreement with the Tribunal that the second part of the above definition has very wide connotation and if the appellant had used his position as M.NA. For getting the above six million rupees released in two instalments instead of twelve instalments without fulfilling the preconditions, the same will be covered by the second part of the above definition.
27. The Tribunal has discussed the evidence in detail on the above question and recorded a finding against the appellant. I have reproduced hereinabove paras.2(iii) and 8(a) of the A.D.P.B.'s letter dated 10-12-1989 (Exh.13) containing the terms of the loan. The former provides that the disbursement of the loan was subject to the fulfilment of the condition that the appellant would build flood protection bund all along the western side before disbursement, whereas the latter provides that the loan amount of Rupees six million for excavation in cash would be disbursed in twelve equal installments after ensuring proper utilization of earlier disbursed instalments. The latter condition was varied by the Chairman, A.D.B.P. By his order dated 18-12-1989 by allowing the payment of Rupees six million in two instalments instead of twelve instalments.
28. As regards the fulfilment of the condition contained in para.2(iii) (Exh.13) as to the construction of the flood protection bund all along the western side before the disbursement of any instalment, it may be observed that there is nothing on record to indicate that the appellant had submitted any evidence before the A.D.B.P. Showing that he had constructed the above bund before asking for the release of the first instalment out of the two instalments. According to P.W.3 (Muhammad Ishaq), first instalment of loan was disbursed to the appellant on 12-2-1990 after execution of the documents without ensuring that the western protection bund was constructed. P.W.4 (Lal Dino) has deposed that the documentation in respect of this case was completed on 8-2-1990. He has further deposed that on 12-2-1990, he was sitting with the Regional Manager, A.D.B.P., Shikarpur, Mr. Behram Ali, when he received telephone from the Chairman for disbursement of the loan amount to the appellant. Thereupon, the Regional Manager gave me direction to disburse first instalment of the loan to the appellant and that in accordance with such direction, he disbursed first instalment though at that time, verification report was not received by him from the Project Credit Officer.
Whereas, according to P.W.5 (Ghulam Farooq Jakhro), Regional Manager, Shikarpur, he visited the site after the disbursement of the second instalment, where he found that there was no fish pond on the site and no protection bund was constructed on the site. However, the appellant in reply to the question put by the Tribunal denied the factum of having not constructed the above bund and has stated that he had raised the protective bund on the western side before receiving the amount of loan. This statement he reiterated when he offered himself to be examined on oath by stating that "I got constructed the western protective bund before receiving the first instalment of the loan amount". However, in his cross-examination, he stated as follows about the construction of the bund:--- "It is incorrect that before disbursement of first instalment to me I had not raised western protective bund. I do not recollect if I intimated to A.D.B.P. That I had started getting constructed western protective bund. I do not recollect if I intimated completion of said bund to A.D.B.P. I did not maintain any account in respect of the expenditure on western protective bund. I see reply to show-cause notice Exh.4. This was filed by me in this Court in said reply there is no mention about construction of western protective bund by me. I did not get the site inspected by A.D.B.P. For verification of the fact whether western protective bund had been constructed because that was not necessary for me."
' The appellant in his reply to the show-cause notice has not averred that he had constructed Western Protective Bund, which fact he has admitted in his above cross-examination. The above omission is to be viewed with the appellant's above quoted statement in the cross-examination. It is surprising to note that he did not remember whether he intimated to the A.D.B.P. About the commencement and completion of the construction of the Western Protective Bund, nor he got it inspected by the A.D.B.P. For verification that it was constructed. The above statement of P.W.4 (Lal Dino) indicates that the first instalment was released without receipt of the report from the Project Credit Officer on the telephone call of the Chairman.
29. Even if I were to hold that factually the appellant had raised western protective bund as stated by him before the receipt of the first instalment (though there is no reliable evidence on record to prove the same), the finding that the appellant used his position as MNA in getting the above amount of Rupees six million for excavation released in two instalments instead of twelve instalments, stands proved. It also stands proved that the appellant got the first and second instalments released because of his position as MNA without fulfilment of the condition.
30. In this regard, it may be pertinent to point out that the appellant in his statement admitted the factum that he saw the Chairman of A.D.B.P. On 16-12-1989 and submitted to him his application (Exh.9) for the release of Rupees 55 lacs in advance instead of Rupees 60 lacs in 12 instalments. On the very day, the Chairman passed the above-quoted order, namely:-- "For favourable consideration."
' He also directed the Secretary, A.D.B.P., Mr. Qamar Amir Khan, P.W.6, to ask P.W.3 Muhammad Ishaq to speak to him before initiating action on the above application. The above message is contained in the note (Exh.8). Noting formality was completed within two days. The order was passed by the Chairman on 18-12-1989 acceding to the appellant's above request. The Chairman, Chaudhry Ahmed Saeed, was appointed as stated hereinabove by the then Government outside the service cadre on 25-7-1989 (Exh.24). His services were terminated on 9-8-199Q (Exh.26). The appellant was put specific questions about Chaudhry Ahmed Saeed in the cross-examination. His reply was as under:--- "I do not recollect if Ahmed Saeed was Chairman A.D.B.P. When I obtained orders that I be given the loan in two instalments. I have seen Ahmed Saeed the then Chairman, A.D.B.P. Two, three times. I do not know if Ahmed Saeed was connected with Pakistan People's Party. I do not know if Ahmed Saeed was appointed as Chairman of A.D.B.P. Due to his connection with Pakistan People's Party. I do not know if Ahmed Saeed was removed from his post or he resigned from his post after change of Government."
31. It is evident from the above reply that the appellant was unable to deny the factum that Chaudhry Ahmed Saeed was connected with a particular political party to which the appellant belonged. The witnesses examined by the Referring Authority have also stated that the appellant got the above facility of the release of Rupees six million in two instalments because of his influence as MNA. In a normal case the Chairman would not have phoned the Regional Manager to release the first instalment though the verification report was not received by the Manager, Shikarpur, from the Project Credit Officer.
32. As regards the release of the second instalment, it has come on record that the same was released without verifying that the amount of the first instalment was utilized for the purpose for which it was taken, in response to a telegram (Exh.20) sent by the Chairman, which has been proved by P.W.5 Ghulam Farooq Jakhro who stated that the second instalment of the loan was disbursed by him to the appellant on 25-7-1990 which was in response to a telegram received from the Chairman, A.D.B.P., which he got confirmed from the Private Secretary to the Chairman at Karachi. He has further deposed that he did not verify if the amount of the first instalment disbursed to the appellant had been properly spent before disbursing to him the amount of second instalment. In this regard, it may be pertinent to quote para. 123 from Chapter 12 of the A.D.B.P. Credit Manual, Volume 2, which reads as follows:--- "12.3. In cash disbursements, second and subsequent instalments should be paid on production of vouchers, and after verification to the effect that the amount previously advanced has been properly utilized."
' The above-quoted para 8(a) of the A.D.B.P.'s letter dated 10-12-1989 (Exh.13) containing the terms of the loan is in consonance with the above para of the Manual. In this regard, reference may also be made to Section 23 of the Agricultural Development Bank Ordinance, 1961 (Ordinance 4 of 1961), hereinafter referred to as the Ordinance, which provides that the Bank shall require as far as possible to ensure that a loan is spent on the purpose for which it is made and if this requirement is not complied with by the borrower, the bank may require repayment of the loan forthwith.
33. Even if I were to ignore the evidence of the Referring Authority on the above question of fact, the above fact stands proved by the appellant's own statement on oath. In this regard, I may quote the following statement of the appellant in his cross-examination:--- "On receiving first instalment of Rs,30,00,000 I paid advances to five contractors. Those contractors worked at the site. They did the work worth Rs,25 lacs or 26 lacs of rupees. This work was done up to June 1990. The work cannot be carried on beyond June due to waterlogging. I did not move any application for receiving the second instalment of the loan. It was Regional Manager of A.D.B.P. At Shikarpur, who told me that second instalment of loan had also been released in my favour.
Nobody questioned me, as to how I had spent the amount of the first instalment, when second instalment was released in my favour. I did not exert any influence for getting the second instalment. I was not given any letter fixing the period during which I had to complete the excavation work. No such direction was given to me by the A.D.B.P. The amount of second instalment was also paid by me to the same contractors. More than 40% of the excavation work is over ....
' I cannot give the exact number of acres over which excavation work was carried on, out of the amount released under first instalment. I cannot give the area over which excavation was done from the funds of the second instalment. I did not intimate A.D.B.P. The names of persons through whom the excavation work was done. A.D.B.P. Also did not make any such enquiry."
34. The above statement is to be viewed with para A of the feasibility report submitted by the appellant, which reads as follows:--- "A. Description of work: The proposed farm comprises of 9 earthen fish production ponds. In all the farm has a total net water surface of about 350 acres as per details below:--- {{TABLE}} 1000 x 400 x 20 =180 acres 2200 x 200 x 10 =100 acres 775 x 400 x 321 acres 810 x 400 x 540 acres 1000 x 4009 acres Total350 acres {{TABLE}} ' The production ponds will be built by intersecting the depression and raising the perimeter dikes.
' A schematic layout of the farm is shown in Fig.
2. Water will be delivered through pipes laid along the pond embankment. In a building to be constructed near the entrance to the area, will be concentrated all the facilities required for the administration and operation of the farm."
35. The above-quoted para A of the feasibility report is to be read with para. B thereof, which gives the detail of the work involved in the construction of the above production ponds. The appellant was to have 30 production ponds of varying in size from 10 to 12 acres each with a depth of 6 feet and 9 nursery ponds varying from 5 to 7 acres. The excavation work was to be carried out pondwise. For such work payments are made on the basis of measurements and not lump sum in advance. According to the appellant's own statement, more than 40% of the excavation work was carried out when he received the second instalment. In other words, he received the second instalment before utilizing the full amount of Rupees three million for excavation, which was a pre- condition. The appellant's plea, that he was paid second instalment without his asking, is belied by the fact that the Chairman sent above telegram (Exh.20) for the release of the second instalment, which he would not have done himself without being requested. The appellant admitted in his cross-examination that he saw the then Chairman of A.D.B.P. 2 or 3 times. If he did not ask for the payment of the same, why he did not refund the above amount, but retained it and appropriated it.
' It is also surprising to note that the appellant failed to state as to the area which was excavated against the receipt of the first instalment or against the receipt of the second instalment. The appellant has not produced any documentary evidence to show to whom the work of excavation was granted, what amount was paid to him and when it was paid, and whether any measurements of the excavation work were taken. There is no doubt that the burden of proof is on the Referring Authority but the burden of proof that the appellant had utilized the full amount of the first instalment for the purpose for which he received, was on him as per above para 8(a) of Exh.13 and also because of the fact that he was the person having the special knowledge of the above facts and not on the Referring Authority, this was necessary to prove before claiming release of the second instalment. As pointed out hereinabove, according to the appellant's own showing, the full amount of the first instalment was not utilized on actual execution of the excavation work, as according to him, more than 40% excavation work was done before he got the release of the second instalment. The Tribunal has discussed oral and documentary evidence thoroughly on the question, as to how the appellant has misused his position as MNA. There is overwhelming evidence on record to support the Tribunal's above finding. I see no reason to interfere with the above finding.
' Mr. Abdul Hafeez Lakho also submitted that in fact the appellant has not missed his position as MNA but at the most the A.D.B.P. Had shown favour to him. In my view, the above so-called favours would not have been extended if the appellant would not have exploited his position as MNA. The new incumbent of the office of the Chairman, A.D.B.P., apparently for the reason suggested to the appellant in the cross-examination, went out of the way to get above Rupees six million released without ensuring the fulfillment of the conditions. Though the omission on the part of the officials concerned to ensure the fulfilment of the conditions before releasing any of the instalments cannot be countenanced, but at the same time, one can appreciate that if the Head of the Institution becomes a party to the cause of a client, it becomes difficult for his subordinate officials to act against his wishes.
36. I may point out that under the Objectives Resolution which has now become substantial part of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) by virtue of Article 2-A thereof, sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by Him, is a sacred trust. Any abuse of position on the part of a chosen representative will amount to breach of the above sacred trust entailing heavenly and worldly punishment. The aforesaid Acts 1V and V of 1977 and the President Order 16 of 1977 and the Order (i,e, P.O. 17 of 1977) were designed and intended to curb and discourage the tendency on the part of public representatives to exploit their position as such for their personal gains. Unfortunately the above statutory provisions, which are for public good in order to ensure unadulterated and incorrupt democracy, have not been effectively enforced and given effect, with the result that some of the public representatives become purchasable commodity and they change loyalty for monetary and other gainful considerations and thereby commit breach of the mandate of their voters and the political party to which they belong. This betrayal of trust is now popularly known as horse-trading. This cancerous disease in the polity of our country is contributing a lot in destabilizing the democratic institutions and thereby adversely affecting the economic growth of the country besides affecting the good name of the country adversely in the comity of nations. The above tendency is to be checked and discouraged at all levels.
37. As regards the contention of Mr. Abdul Hafeez Lakho that the reference was initiated on account of mala fides on the part of Mr. Ilahi Bakhsh Soomro who was a Minister in the Care-taker Cabinet of Mr. Ghulam Mustafa Jatoi, it will suffice to observe that Mr. Ilahi Bakhsh Soomro was not the Referring Authority. He might be interested in getting the appellant disqualified. However, there is nothing on record, on the basis of which, it could be concluded that there was any motive on the part of the Referring Authority to make a reference against the appellant mala fidely.
38. I had circulated my draft of the proposed judgment containing paras.37 and concluding para 38 dismissing the above appeal, among my learned brothers. I have received a draft of the dissenting note of my learned brother, Sajjad Ali Shah, J., in which I have noticed that his Lordship has dilated upon certain legal points, which were not urged by the learned counsel for the parties during the arguments before us and some of which were not even pleaded before the Tribunal or before this Court. I have thoroughly perused the above portion of the above draft in order to decide, as to whether should I change my view. But after careful examination, I am still of the view that the above appeal merits dismissal. In the above background, it has become imperative for me to dilate upon the above legal points in brief.
' Point No,1(a): Examination of three witnesses before issuance of the show-cause notice.--There is no doubt that Articles 4 and 5 of the Order contemplate two stages of the proceedings before the Tribunal, namely:---
(i) upon the receipt of the reference, the Tribunal is obliged to scrutinize the necessary records relating to the charge mentioned in the reference in terms of clause (3) of Article 4 and if as a result of such scrutiny, it is of the opinion that no charge can be established, it will return the reference with its opinion to the authority making it but if it finds otherwise, it will issue a show- cause notice in terms of sub-clause (b) of clause (3) of Article 4 of the Order:
(ii) the second stage commences after the issuance of the above show-cause notice and the Tribunal is to act under Article 5 i,e, it is to further scrutinize the records and to hold such further enquiry as it thinks fit and after giving the respondent an opportunity of being heard to record its finding.
Article 4(3) does not provide, whether the Tribunal at the stage of the scrutiny of the necessary records relating to the charge mentioned in the reference can examine or not any witness for scrutinizing the records. In other words, there is no express provision to that effect either way. The above clause (3) of Article 4 is to be read with clause (4) of Article 6, which lays down that "Notwithstanding anything contained in any other law for the time being in force, a Special Court shall have the power to conduct its proceedings and regulate its procedure in all respects as it deem fit including, in particular the power to refuse to examine any witness or summon any document". It may be highlighted that clause (3) of Article 4 of the Order provides that the Tribunal shall scrutinize the necessary records relating to the charge and not only the documents submitted with the reference. It seems that on 29-9-1990 after the receipt of the reference, the Tribunal passed the following order:--- "Heard Mr. Kamal Mustafa Bukhari, Advocate. Before proceeding against the respondent, I want to examine the Chairman A.D.B.P. And see the original documents of loan granted to the respondent.
' Chairman, A.D.B.P. Be summoned with original documents of loan. Hearing on 1-10-1990."
Pursuant to the above order, the Tribunal, while scrutinizing the record, examined three witnesses. I am inclined to hold that keeping in view the above clause (4) of Article 6 of the Order, it was open to the Tribunal to have adopted the above procedure so long as it did not, in any way, prejudice the respondent.
' It may also be stated that the word "scrutinize" employed in above clause (3) of Article 4 has been defined in the following dictionaries as follows:--- ' The American Heritage Dictionary of the English Language, page 1168: "To examine or observe with great care; inspect minutely or critically."
' The Concise Oxford Dictionary. Seventh Edition, page 945: "look closely at, examine in detail"
' Chambers Twentieth Century Dictionary, page 1218: "to examine closely".
From the above definitions, it is evident that the above word inter alia carries the meaning of "look closely at, examine in detail". For a detailed examination of the records, the Tribunal may examine witnesses, for understanding the controversy.
' Point No,2(b): That two out of the above three witnesses were not examined during, the enquiry.-- In this regard, it may be pertinent to point out that the Tribunal, while recording its findings, has relied upon the evidence of the witnesses examined during the enquiry. It has not relied upon the statements of the above two witnesses recorded at the stage of scrutinizing the records relating to the charge and, therefore, omission to recall the above two witnesses for cross-examination is of no consequence.
' Point No,3(c): That the President has not signed the reference but the same was signed by the Secretary to the President.--In this regard, it may be pertinent to point out that under sub-clause
(a) of clause (2) of Article 4 of the Order, the reference is to be made by the President. It does not provide that the reference should be signed by the President. In the present case, the Secretary to the President, while singing the reference, stated as under:- "By order of the President (Sd.)
(Fazlur Rahman Khan), Secretary to the President."
The appellant in his reply to the show-cause notice/reference did not raise any plea to the effect that the reference was not competently made. However, first time during the arguments before the Tribunal, it was urged by the learned counsel for the appellant that the reference should have been signed by the President. In my view, the learned Tribunal has rightly relied upon illustration (e) of Article 129 of the Qanun-e-Shahadat, 1984, regarding presumption of regularity inter alia as to the official acts.
' Point No,4(d).--As regards inadmissibility of Mr. Abbas Ali Ghumro, Regional Recovery Officer's report dated 20-5-1990 as Exh.22; it may be pertinent to observe that no doubt that the learned counsel for the appellant had raised an objection as to the admissibility of the above document during the examination of P.W.6 Qamar Amir Khan. The Tribunal recorded the following note on the above objection:- "Note.--Learned counsel for the respondent objects to production of this report in evidence on the ground that it is not a public document and it can be produced only by Abbas All Ghumro. The document sought to be produced, is original one and it is admissible in evidence under Article 73 of Qanun-e-Shahadat subject to proof of its contents under Article 78 of Qanun-e-Shahadat. Hence the objection relating to admissibility of the document is overruled."
' Since Mr. Abbas Ali Ghumro was not examined by the Referring Authority, the above exhibit has not been relied upon by the Tribunal while recording its findings.
39. The upshot of the above discussion is that the appeal fails. However, there will be no order as to costs.
' SAJJAD ALI SHAH, J.---I have appended separate dissenting note.
(Sd.)
' SAJJAD ALI SHAH, J ' SALEEM AKHTAR, J.---I agree and have also appended a separate note.
(Sd.)
' SALEEM AKHTAR, J ' SAJJAD ALI SHAH, J.---I have gone through carefully very elaborate judgment proposed to be delivered by my learned brother Ajmal Mian, J. Dismissing the appeal and I regret to say that I am unable to subscribe to that view for the reasons mentioned herein. It is not necessary to go into the facts which are sufficiently covered by the judgment of my learned brother mentioned above.
2. The Special Court in the impugned judgment has given specific finding to the effect ihat scope of enquiry under Article 5 of the Parliament and Provincial Assemblies (Disqualification of Membership) Order, 1977 (hereinafter to be referred as Order 17 of 1977) cannot be limited by the provisions contained by Article 4(3) thereof. I am unable to agree with this view. Articles 4 and 5 of Order 17 of 1977 lay down procedure for conduct of enquiry by the Special Court. First stage is that of scrutiny as contemplated by Article 4(3), which provides that the Special Court shall scrutinize the necessary records relating to the charge mentioned in the Reference. Paragraphs (a) and (b) of this provision are reproduced as under:---
(a) if, as a result of such scrutiny, it is of the opinion that no charge can be established, return the reference to the authority making it together with its opinion thereon; and
(b) in other cases, issue notice to the respondent requiring him to show cause why it should not further proceed against him under this Order."
3. The legislature on purpose has divided enquiry into two parts. First part is limited to the scrutiny by the Special Court of records sent in support of the charge. This part gives power to the Special Court to be satisfied that the charge is supported by the record or is likely to be substantiated or would stand such test in the Court. If at that stage the Special Court is satisfied and after scrutiny is of the opinion that no charge could be established, then the reference can be sent back to the authority along with its opinion thereon. Clause (4) of Article 4 further provides that there is no bar on the authority in making fresh reference but this cannot be done on the charge in respect of which reference is returned along with its opinion.
4. The second stage is of enquiry after issue of notice to the respondent. In these proceedings after notice further scrutiny of records and such enquiry as deemed fit by the Special Court are allowed after giving respondent an opportunity of being heard. This clearly shows that recording of evidence is allowed with right of cross-examination to the respondent for the reason that in the final analysis if respondent is found guilty he shall stand disqualified for the period of 7 years from being elected or chosen as member of Parliament or of a Provincial Assembly. There is wisdom in the use of word "scrutiny" by the Special Court in the first part of proceedings before the issue of notice to the respondent. In the Chamber's 20th Century Dictionary word "scrutiny" is defined as under:--- "Scrutiny" a vote of poll: close, careful, or minute investigation or examination searching look: official examination of votes: examination of the catechumens:"
' Same meaning is given in the Shorter Oxford English Dictionary. In the American Heritage Dictionary of English Language for "scrutiny" same meaning is given with addition of "close observation, surveillance and expression, "to reummage in a heap of trash". Word "scrutiny" is not defined in the Stroud's-Judicial. Dictionary and Black's Law Dictionary 5th Edition. It, therefore, appears that in the absence of any legal definition, reliance is to be placed on the meaning as is given in the ordinary dictionaries and the word is used in common parlance. Further intention of legislature is crystal clear that in the first part of proceedings before. The Special Court before issue of notice to the respondent only word "scrutiny' is used and in the second part of proceedings after issue of notice to the respondent as contemplated under Article 5 further scrutiny of records and such additional enquiry as is deemed fit by the Special Court, is permitted in presence of respondent after giving him opportunity of hearing, which means that evidence can be recorded in his presence and he has a legal right to cross-examine the witnesses. In such circumstances it can be said that in the first stage "scrutiny" is allowed of record sent by the authorities in support of the charge and the scope is limited to the extent of scrutiny only without recording of evidence and after issue of notice to the respondent. Special Court is allowed to record evidence and continue such enquiry as it deems fit and proper after giving respondent an opportunity of being heard.
5. Perusal of the record of the Special Court shows that at the stage of scrutiny before issue of notice, three witnesses were examined in the absence of appellant before us. From these witnesses two were Chairmen of Agricultural Development Bank of Pakistan (to be referred hereafter as A.D.B.P.) and their names are Mr. Bashir Ahmed and Syed Munir Hussain. The third witness is Mr. Muhammad Ishaq, Director, Project Finance Department of Project Loans Division of A.D.B.P. These witnesses produced documents and depositions of these witnesses and documents produced by them have been placed in a separate file with caption "Preliminary enquiry".
6. Perusal of the order passed by the Special Court on 28-10-1990 issuing notice under Article 4(3) of Order 17 of 1977 shows that the learned Judge was not certain about the correct legal position of the scope of scrutiny and whether recording of evidence was allowed therein or not. In support of this fact I reproduce hereunder two paragraphs from the order dated 28-10-1990 of the Special Court issuing notice as contained in Part I of the original record of the Special Court: "At the stage of scrutiny, I allowed recording of some evidence to see if the respondent had committed the "misconduct" as defined by clause (a) of section 2 of the Order. For said purpose, learned counsel for the referring authority was allowed to examine certain witnesses namely, Bashir Ahmed, Chairman, A.D.B.P., Syed Muneer Hussain, Ex-Chairman, A.D.B.P. And Muhammad Ishaque, Assistant Executive Director, A.D.B.P. Through said witnesses certain documents were brought on record."
"At the stage of scrutiny, I need not enter into appreciation of the evidence as that would prejudice case of the either party. It is to be seen if the petitioner can be held to be guilty of wilful misapplication of public money if all the allegations levelled against him are assumed to be correct. It is also to be seen if the petitioner, as a MNA abused his power or position. However, I am of the opinion that this is not a case in which no charge can be established against the respondent."
7. I am, therefore, of the view that at the stage of scrutiny, the Special Court should not have recorded evidence of witnesses because Order 17 of 1977 does not allow it and should have returned the reference as contemplated under Article 4(3)(a) on the grounds, inter alia, that the charge was vague in nature and material produced in support thereof was inadequate to substantiate the allegation of misapplication of bank loan and wilful diversion of public money, particularly when there is no mention in the reference that appellant before us had misused or abused his official position as MNA in obtaining the said loan, which was recoverable and fully secured with mortgage of his property and subsequently in support of that fact documents were produced by three witnesses examined in the preliminary enquiry and are contained in the file of the Special Court pertaining to such enquiry.
8. It would be pertinent to mention here that Order 17 of 1977 empowers the Federal Government under Article 11 to make rules for carrying out the purpose of this Act, which have been made and promulgated as Parliament and Provincial Assemblies (Disqualification for Membership) Rules 1990 (to be referred hereafter as Rule of 1990). In these rules also no indication is given that scrutiny by the Special Court before issue of notice includes recording of evidence. On this point rule 3 covering the stage of scrutiny provides that the President may appoint one or more persons to assist the Special Court in the scrutiny of records under clause (3) of Article 4 and in the conduct of enquiry under Article 5 and no such appointment shall be questioned. The rules further cover other matters regarding procedure to be adopted by the Special Court for conduct of enquiry from day to day and recording of evidence in such manner as appears to it just and proper allowing respondent to make statement on oath at any stage of the enquiry and to be a competent witness on his own behalf. These rules apparently do not show intention of legislature to enlarge scope of scrutiny before issue of notice allowing recording of evidence of witnesses on oath in the absence of the respondent.
9. Second point is that objection was raised during the proceedings before the Special Court that reference was signed not by the President himself but by the Secretary to the President and, therefore, reference was not competently filed. Objection was not accepted by the Special Court and it is held in the impugned judgment that as per Illustration (e) of Article 129 of Qanun-e- Shahadat, 1984, which provides that judicial and official acts have been regularly performed it is presumed that reference was competently made by the President and authenticated by the Secretary in terms of Article 99(2) of the Constitution of Islamic Republic of Pakistan. I do not feel inclined to agree with this finding as I see substantial force in the objection. Article 99 of the Constitution contemplates that all executive actions of the Federal Government shall be expressed to be taken in the name of the President, who shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the President. In order to find out as to what are those executive actions to be taken in the name of the President, Article 99 is to be read in conjunction with Article 173(1) of the Constitution which provides that executive authority of Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts. Clause (3) of Article 173 further provides that all contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize. Rule 7 of the Rules of Business, 1973 provides that officers listed in Schedule IV may authenticate by signature, all orders and other instruments made and executed in the name of the President.
10. There is no dispute about the fact that orders and instruments to be executed in the name of the President by the officers mentioned in the Schedule are orders, agreements, instruments and contracts which are contemplated by Article 173 empowering executive authority of Federation to acquire property and to make contracts etc. The present case is entirely different in which the President of Pakistan is empowered to file a reference for disqualification of public representative under Order 17 of 1977 which has no nexus with Articles 99 and 173 of the Constitution which are mentioned above. Under Article 11 of Order 17 of 1977 the Federal Government is empowered to make rules and in compliance Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990 have been framed but no mention is made therein that on behalf of the President reference can be signed by the Secretary as is contemplated under the Rules of Business, 1973. In the absence of specific clarification perusal of Order 17 of 1977 and rules framed thereunder as mentioned above clearly show that there is adequate force in the objection that reference filed by the Secretary to the President is not competent. Illustration (e) to Article 129 of Qanun- eShahadat, 1984 could be attracted only when Order 17 of 1977 and rules framed thereunder specifically authorised the Secretary to sign reference on behalf of the President, which is not so in the instant case as stated above.
11. The third point is that the Special Court during scrutiny proceedings examined three witnesses on oath namely M/s. Bashir Ahmed, Syed Muneer Hussain and Muhammad Ishaque in the absence of appellant before us and relied upon that evidence in the order dated 28-10-1990 passed for issue of show-cause notice and then relied upon that evidence in the final order of disqualification passed against the appellant, but these three witnesses were not made available for cross- examination by the appellant during the time he participated in the proceedings except Muhammad Ishaque who was cross-examined. In this context I have checked the order sheets in the record of reference signed by the learned Judge of the Special Court from 21-94990 to 25-7- 1991 when the proceedings were concluded and final order was reserved.
12. In the order sheet dated 17-1-1990 (which could be read as 17-1-1991), it is mentioned that cross- examination of Muhammad Ishaque was reserved for want of time. This was after appearance of appellant who was present in the Special Court along with his counsel. Then in the order sheet dated 11-2-1991 it is mentioned that cross-examination of Muhammad Ishaque was concluded.
Remaining order sheets up to the conclusion of proceedings mention about the depositions of other witnesses and adjournments granted from time to time but no mention is made in them about why two witnesses M/s. Bashir Ahmed and Syed Muneer Hussain were not cross-examined. It is also not mentioned in these order sheets that these two witnesses were available for cross- examination but such cross-examination was declined voluntarily by the defence. In the absence of any plausible reason presumption would be that these two witnesses were not made available for the purpose of cross-examination by the defence, hence their evidence should not have been relied upon by the Special Court against the appellant.
13. Fourth point is that in the reference no exception is taken to the sanction of loan as such in favour of appellant by A.D.B.P., hence the Special Court could not look into the circumstances leading to the sanction of the loan as is rightly observed in the impugned judgment at page 37 of paper book Part I and further the Special Court had to confine its enquiry to the specific allegation that appellant had secured release of Rs,6 million into two equal instalments instead of 12 instalments without satisfying pre-conditions. On the other hand in the impugned judgment at page 41 of the paper book Part I evidence brought on the record is appraised which leads to the circumstances in which loan was sanctioned as requested by the appellant who was M.NA. Details are given as to how and when applications were filed to obtain the loan and in that connection order was passed by the Chairman for "favourable consideration" on Exh.9 dated 16-12-1989 and other circumstances including the fact that in that connection appellant met the Chairman at Islamabad.
14. Now if there is no allegation in the reference that appellant misused his position as M.NA. For obtaining sanction of the loan in his favour, how can the same circumstances be used to justify lesser wrong that appellant succeeded in obtaining release of funds in two instalments instead of 12 by misusing his position as M.NA. At page 45 of the paper book Part I, while dealing with the contention of the counsel for appellant to the effect that there was no direct evidence that appellant had abused his position as M.NA. The Special Court observed as under:-- "In cases of this nature one cannot possibly have direct evidence about abuse of power or position possessed by a person. In such cases circumstances speak by themselves about use of power or position. While considering the circumstantial evidence one can adhere to the well-settled principle of criminal law that the circumstantial evidence should be such that does not lead one to any other hypothesis than that of guilt of the accused."
15. While discussing evidence, Special Court was impressed by the fact that in application Exh.9 for release of amount appellant mentioned M.NA. Below his name and thus undue influence was exercised. On the other hand record shows that in the first application for loan dated 20-5-1989 Exh.11 also appellant has mentioned below his name M.NA. And the loan was granted but this did not give reason for grievance that loan was obtained under undue influence by using the label of M.NA. In these circumstances there is no justification for saying that influence was exercised for obtaining amount into two instalments instead of 12 and not at the time of sanction of loan.
16. In the impugned judgment at page 47 of paper book Part I Special Court has concluded that appellant misused his position as M.NA. By making mention of it in the application and then succeeded in obtaining release of the amount in two instalments instead of twelve without there being proof of construction of Western Protection Bund which was necessary precondition and second instalment could not have been released unless there was proof that amount of first instalment was properly used on the project for which that instalment was released. There is no positive evidence produced by Referring Authority to prove before the Special Court that appellant used his influence as M.NA. In obtaining the concession of release of amount in two instalments instead of twelve without fulfilment of pre-condition. Amount of loan was not sanctioned by the Chairman but by the Project Loans Committee which was composed of three members, in its 34th meeting held on 25-6-1989. Three members were namely, Mr. Syed Muneer Hussain, Mr. Qamar Zaman Shah and Mr. Athar Mehmood. Syed Muneer Hussain was examined in the preliminary enquiry by the Special Court and the other two members were not examined. Mr. Muneer Hussain has not stated in his statement that any influence was exercised by the appellant on him or on the Committee or on the Chairman for the sanction of loan. According to the deposition of this witness loan was not sanctioned on that day as some formalities were still to be completed and the Committee authorised the Chairman to sanction the loan within Rs,11.24 million. The loan was sanctioned subject to the conditions as proposed in the office note on 6-12-1989 by the Chairman.
17: Mr. Muhammad Ishaque, who was Director, Project Finance Department of A.D.B.P. At the relevant time deposed before the Special Court that after the preparation of appraisal report, loan was sanctioned by the Chairman, A.D.B.P. On 6-12-1989 and the amount of Rs,6 million was earmarked for excavation which was to be disbursed in 12 equal instalments. Appellant moved an application Exh.9 requesting for release of Rs,55 lacs to be paid to him as first instalment of loan to enable him to make advance payments to the contractor for the construction of the pond. On this application Chairman ordered that it should be favourably considered. Thereafter office note was prepared by Mr. Muhammad Ali, Deputy Director, P.F.D. On 18-12-1989 proposing that the loan of Rs,6 million may be disbursed in two equal instalments with subsequent instalment to be paid on proper utilisation of the first instalment to the entire satisfaction of the Regional Manager, Shikarpur. Agreeing with this proposal the Chairman ordered two instalments. The witness deposed further that the first instalment was disbursed on 12-2-1990 and the second instalment on 25-7-1990. Both the instalment were released without ensuring that the Western Protective Bund was constructed and proper utilisation of the amount of the first instalment. This witness stated before the Special Court in his deposition that he was pressurised by Director-General Mr. Anwar Bajwa, who compelled him to put up the case in the meeting of Project Loans Committee on 25-6-1989
18. Mr. Muhammad Ishaque was confronted with his previous statement recorded by the Special Court at the stage of preliminary enquiry and he admitted that he did not mention pressure in his earlier statement in which he stated that there was no time left to prepare appraisal report but the item was approved in the meeting. In his previous statement dated 6-10-1990 this witness stated that proposal was made that loan may be sanctioned subject to detailed appraisal. He further stated that there was nothing on the record to indicate that first instalment of the loan was disbursed before construction of Western Protective Bund and further there was nothing on the record to show whether Western Bund was constructed or not. In the evidence of this witness three persons are named, who are Mr. Ahmed Saeed, Chairman, Mr. Anwar Bajwa, Director-General and Mr. Muhammad Ali, Deputy Director, P.F.D. Who could have been examined in support of allegation of undue influence but they are not examined by the Referring Authority.
19. Mr. Laldino who was Manager, A.D.B.P. Shikarpur Branch deposed before the Special Court that he disbursed the first instalment without receiving verification report from the Project Credit Officer.
He has further explained in the cross-examination that since loan was sanctioned directly by the Head Office, credit verification report also had to come from the Head Office. Charge was created in respect of lands of Mr. Khoso and others by Mukhtiarkar, Garhi Khairo at the request of A.D.B.P.
The formalities were complied with and respondent was not required to submit credit verification report. He had informed the Regional Manager that Project Credit Officer's report was not available in the record. Mr. Ghulam Farooq, Regional Manager, A.D.B.P. At Shikarpur deposed before the Special Court that he disbursed second instalment on 25-7-1990 which was done by him in response to a telegram Exh.20 received from the Chairman, A.D.B.P. After disbursement of the second instalment he visited the site and found no fish pond there and also protective bund was not constructed at the site. He sent notice of misutilisation dated 15-9-1990 Exh.19 to the appellant.
In the cross-examination he stated that Ghulam Abbas Ghumro bad sent report about utilization of the amount of first instalment. It may be mentioned here that Mr. Ghulam Abbas Ghumro is not examined as a witness in the Special Court. Mr. Ghulam Farooq further testified that he sent letter dated 23-8-1990 Exh.18 to the Assistant Director (M) Project Monitoring Department at Islamabad informing that he had visited the site and observed that appellant had not utilized a single paisa on the project from the instalment received by him and in the circumstances he reported that entire loan was misutilized and also sought further instructions in the matter. This witness further admitted in the cross-examination that he had sent this letter not on his own initiative but in response to direction from the Head Office. He also admitted that before going to the site he did not inform the appellant or his people that he would be visiting the site to verify if the amount of loan had been spent for the purpose for which it was given. He visited the site 2/3 days before the issuance of letter Exh.18. He also admitted that during the days when he visited the site there was inundation of the irrigational water in the lands which were under plough. The paddy crop was standing in the lands of respondent. There was no water in the uncultivated land. There was no digging of earth in any part of the land. This witness admitted in the cross-examination that he did not prepare any memo, of inspection while visiting the site. In the circumstances I am of the view that no reliance can be placed on the assertion of inspection of site which was not made in presence of the party concerned and without notice to him. One thing more worthmentioning is that this witness has admitted that he sent letter Exh.18 dated 27-9-1990 not at his own initiative but in response to the direction from the Head Office. It appears that everything was going on smoothly in the A.D.B.P. With regard to the loan matter and no illegality or irregularity was felt or pointed out till the Government of that time was dismissed on 6-8-1990 by the President of Pakistan and Care-taker Government was inducted in which Mr. Illahi Bakhsh Soomro was taken up as Federal Minister. I shall come to the case of the defence later on. It is in this connection that admission of this witness is to be understood that he sent letter dated 23-8-1990 Exh.18 to the Head Office reporting that the loan in question be treated as misutilized.
20. Next witness is Mr. Qamar Amir Khan, Secretary, A.D.B.P. At Islamabad who has deposed that on 16-12-1989 appellant called on Chairman Mr. Ahmad Saeed and submitted to him application for loan. The Chairman told him to speak to Mr. Sheikh Muhammad Ishaque, Director, Project Loan Department, which he tried and since Mr. Ishaque was not available he sent application alongwith his slip Exh.8 to Mr. Ishaque. While deposing this witness produced in the Special Court letter dated 20-5-1990 of Mr. Abbas All Ghumro, Regional Recovery Officer addressed to Deputy Director (Monitoring) A.D.B.P. Head Office, Islamabad, with request that his order of appointment as Project Credit Officer for M/s Al-Rahim Fisheries may be withdrawn for the reason that he apprehended danger to his life if he went for site inspection and report. It is mentioned in this letter that he attempted to do so and was given threats by the men of the appellant that if he did so he would be killed as the area was dangerous and further there was no project in existence at the site. It appears that objection was raised by the counsel for appellant against the admission of letter in evidence on the ground that its author was not examined and the letter could be produced only by the author but the objection was overruled and the letter was admitted in evidence as Exh.22 on the short ground that it was so admissible as per Articles 73 and 74 of Qanun-e-Shahadat. I am of the view that objection should have been sustained for the reason that Article 73 of Qanun-e- Shahadat relates to primary evidence and mentions that primary evidence means document itself produced in the Court for inspection and Article 78 contemplates that if document is alleged to be signed by any person, signature or handwriting of such document is to be proved as of that person.
21. Now there is no explanation as to why Mr. Abbas All Ghumro was not examined. Secondly, signature or handwriting in the document can be identified by another person only when there is evidence that author of the document is not available and cannot be made available with convenience. Exh.22 is addressed to Mr. Irfan Ahmed Urfi, Deputy Director (Monitorings), Project Supervision & Monitoring Department, A.D.B.P. Islamabad and he is also not examined to say that he received this document in the process of official correspondence. These witnesses should have been examined very easily and conveniently by the Referring Authority and no reason is shown as to why it was not done. In the absence of any satisfactory explanation it can be said that in view of legal infirmities this document should not have been admitted in evidence and exhibited as stated above.
22. Referring Authority examined Mr. Syed Fahim Ahmad, Director Personnel Administration, who produced document with regard to the appointment of Choudhry Ahmad Saeed as Chairman, A.D.B.P. From 25-7-1989 to 9-8-1990. This witness also produced current account ledger of appellant as Exh.28 and produced photo copies of vouchers and slips showing withdrawal of the amount of loan by different modes as Exhs.29/A to 29/8.
23. Statement of appellant was recorded by the Special Court purportedly under section 342, Cr.P.C. In which questions were put to him with regard to the terms of incriminating circumstances against him. Defence plea taken in that statement is that he did not exert any influence in getting his application for loan included in the meeting of Project Loan Committee on 25-6-1989 and amount of loan was sanctioned not on account of any influence exercised by him. He asserted that protective bund on the Western side was raised by him before receiving the amount of loan.
Regional Manager, A.D.B.P. Had made a false report about non-utilisation of the amount of loan on the Project. He has admitted that first instalment was taken by him and after release second instalment was put in his account by A.D.B.P. He denied that Ghulam Farooq Jakhro, Regional Manager, A.D.B.P., Shikarpur inspected the site and declared his report as false. He admitted having meeting with Chairman, A.D.B.P., Islamabad on 16-12-1989 when he gave him his letter Exh.9. In the end of the statement claim was made that this was a case of political victimization and was initiated at the behest of Mr. Ilahi Bakhsh Soomro, who was his rival candidate in the last election of 1990 as well as in the election of 1988. It was further asserted that Mr. Illahi Bakhsh Soomro had filed objection against acceptance of his nomination paper and had mentioned that he had misused amount of loan.
24. Appellant appeared as his own witness and gave statement on oath and testified that he wanted to set up fish farm along with his wife, his father's sister and his mother. Feasibility report was prepared and the farm was to be set up in name of Al-Rahim Fisheries (Pvt) Limited. He applied to A.D.B.P. For loan which was sanctioned. Before the sanction of the loan, two teams of A.D.B.P. Had visited the site. He constructed Western protective bund before receiving the first instalment of loan. He moved an application for payment in lump sum in place of 12 instalments as he had to make advance payments for excavation. His application was allowed and order was passed for release of the amount in two instalments. After receiving first instalment he paid advances to five contractors, who worked at the site. They did work worth Rs,25 or 26 Lacs when amount of second instalment was paid, more than 40% of excavation work was over.
25. It is further stated in the sworn testimony of the appellant that he was candidate for National Assembly seat against Mr. Illahi Bakhsh Soomro, who was inducted as Federal Minister in the Care- taker Cabinet. Mr. Soomro had raised objection against acceptance of his nomination paper on the same ground that he had taken loan from A.D.B.P. Such objection was rejected by the Returning Officer. An appeal against rejection of the objection was moved before the appellate authority which was also dismissed. In cross-examination appellant stated that he had contested National Assembly election in 1988 from NA-156 Jacobabad and had secured about 80 to 85 per cent of the votes cast. He was elected as candidate of Pakistan People's Party. He again contested National Assembly seat in 1990 against Mr. Illahi Bakhsh Soomro and he in official count was declared successful but after final count Mr. Ellahi Bakhsh Soomro was declared successful. He filed election petition against Mr. Soomor which was still pending till then. He stated that he did not exert any influence as MNA for disbursement of the amount of loan in two instalments instead of twelve.
26. It appears from the deposition of the appellant that he was cross-examined at great length and asked so many questions about why he did not do this and that for example, he was asked why he did not get the site inspected by A.D.B.P. For verification of the fact whether western protective bund had been constructed or not. He was also asked why he never intimated A.D.B.P.
That he was commencing the excavation work or that he had completed that work. He replied that he did not intimate because it was not necessary for him to do so.
27. Now the charge against the appellant is that he used his influence in getting the amount of loan released in his favour in two instalments instead of twelve. In order to prove this allegation it was incumbent upon the Referring Authority to have produced evidence and material of positive nature in order to satisfy the Court that appellant really did so because in the ultimate analysis of the evidence brought on the record appellant is disqualified for 7 years from contesting election again which is not only a punishment but also is a stigma. There is no dispute about the fact that the prosecution has not produced evidence of inculpatory nature to show that appellant had exercised influence as MNA in obtaining that concession. Punishment of disqualification from being public representative cannot be sustained on the ground of conjectures and surmises against the appellant and in favour of Referring Authority, as mentioned above.
28. Mr. Bashir Ahmed, Chairman, A.D.B.P. Who was examined by the Special Court during preliminary enquiry as witness No,1 has stated in his deposition that for the purpose of obtaining the loan appellant had mortgaged his property with A.D.B.P. Valuation of the property as given by the concerned Mukhtiarkar was Rs,1,55,31,600. He produced statement containing certificate of the Mukhtiakar as Annexure 'H'. The land mortgaged by the loanee was 350 acres in area. This witness also stated that A.D.B.P. Had given loan to partnership firm of which Sardar Muqeem Khan Khosa was Managing Director and it was not given to him as an individual. There were other members of the family as well as including ladies. He also explained that whenever any loanee did not spend amount of loan for the purpose for which the loan was given, such loanee is called upon to refund the amount of loan. If loanee did not return the amount of loan then recovery is to be made under the provisions of Land Revenue Act in respect of the property of the loanee which is mortgaged with the Bank.
29. Perusal of preamble of Agricultural Development Bank Ordinance, 1961 shows that the bank is set up to afford credit facilities to agriculturists and persons engaged in cottage industries in rural areas and for matters connected therewith. Loan advanced by the bank is fully secured by mortgage of the property. Section 24 of the said Ordinance provides for repayment of loans in full in certain circumstances and section 25 contemplates recovery of bank dues as arrears of land revenue. Under the said law and rules framed thereunder proper steps are taken as required under the law for securing the loan and making recovery thereof from loanee. In the instant case it has come in the evidence that loan was given to a partnership firm and not to the appellant as an individual and it is not proved that appellant exercised undue influence in obtaining concession of two instalments particularly when it is not alleged by the Referring Authority that loan was taken by the appellant by misusing his office as M.NA. It has come in the evidence that everything went well till Government of that time was dismissed on 6-8-1990 and replaced by Caretaker Government with induction for Mr. Illahi Bakhsh Soomro as Federal Minister. Till that time the bank had no complaint whatsoever against the appellant with regard to the loan proceedings. Mr. Muhammad Ishaque denied suggestion in cross-examination that he and other officers of the bank were giving evidence against appellant under pressure from the Government. Extract from his cross- examination is as under:- "I can recognize Kr.. Ellahi Bakhsh Soomro. I cannot recognize Senator Ahmed Mian Soomro. It is incorrect that I saw Mr. Ellahi Bakhsh Soomro on 17-1-1991 before giving evidence in this case. It is incorrect that on 17-1-1991 Senator Ahmed Mian Soomro and Mr. Ellahi Bakhsh Soomro had come in the Court and had met me before arrival of the Presiding Officer."
30. Mr. Ghulam Farooq Jakhrani sent letter dated 23-8-1990 after dismissal of the Government of Peoples Party to the bank at Islamabad complaining about non-utilization of the instalment released in favour of appellant. He has admitted in the cross-examination that he had sent letter Exh.18 not at his own initiative but in response to the direction from the Head Office. The second letter dated 15-9-1990 Exh.19 was sent to the appellant alleging misutilization of loan and its recovery under the provisions of Land Revenue Act. The evidence produced by the Referring Authority as discussed above suffers from lapses and legal infirmities. It is not sufficient to prove that appellant is guilty of exercising undue influence in obtaining concession of two instalments instead of twelve. Proceedings of the reference are in the nature of criminal trial as Special Court has recorded statement of the appellant under section 342, Cr.P.C. And further his statement on oath had also been recorded. General principle of criminal law is that case is to be proved against the accused beyond doubt and not that accused has to disprove his guilt.
31. For facts and reasons mentioned above I am satisfied that the impugned judgment is not sustainable as referring authority has failed to prove the case beyond doubt and secondly that transaction was legal in which appellant took loan as permitted by A.D.B.P. Ordinance, 1961 which was fully secured and the said loan can be competently recovered by the Bank, if at all there is default on the part of the appellant. After disbursement of loan, money ceased to be public money and the same, if not spent on the project, would not be tantamount to wilful misapplication, or diversion of public money. On the basis of defective evidence produced by Referring Authority as mentioned above, it cannot be said that though there is no wilful misapplication or diversion of public money but still appellant is guilty of misconduct on the ground of abuse of power or position as is mentioned in the definition of "misconduct" described in Article 2(a) of Order 17 of 1977. In my humble opinion Article 2-A of the Constitution is not attracted to the facts of this case to support order of disqualification on the ground that appellant has abused his position as chosen representative of the people because loan was advanced not to him but to the partnership under the provisions of special law under which the same could be realised back by the bank if conditions were not fulfilled or default was made. This is not a case of betrayal of trust in the category of horse-trading. There is no proof that appellant abused his position as MNA to obtain concession of two instalments instead of 12 or misappropriated public money. I, therefore, set aside the impugned judgment and allow the appeal.
(Sd.)
' Sajjad Ali Shah, J.
' SALEEM AKHTAR, J.---I have had the privilege of reading the judgments proposed by my learned brothers. I agree with the proposed judgment prepared by my learned brother Ajmal Mian, J including subsequent paragraph No,38. Although after the exhaustive judgments prepared by my learned brothers there is little left to be discussed, however, I wish to point out that the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 under which proceedings have been initiated against the appellant intends to bring discipline in the members of the legislature so that they may not misuse their office for personal gains at the cost of public money or to the disadvantage of the electorate. Simultaneously with this Order of 1977 the President had also promulgated Order 16 of 1977 entitled Holders of Representative Offices (Punishment for Misconduct) Order, 1977. The title and contents of both the orders which were promulgated simultaneously clearly A demonstrate that the Order 16 of 1977 was intended not only to disqualify the member of the Parliament and Provincial Assemblies for misconduct, but also to punish them by imprisonment. On the other hand Order 17 of 1977 is restricted to only imposing disqualification.
The procedure in the earlier Order 17 of 1977 is to be governed by the Code of Criminal Procedure whereas the proceedings under Order 17 of 1977 are to be taken in accordance with the Code of Civil Procedure for purposes mentioned in Article 6. Besides this the distinction and chief characteristics of both the Orders as discussed by my learned brother Ajmal Mian, J. Clearly lead to the conclusion that proceedings under Order 17 of 1977 are not in the nature of criminal proceedings.
' I may further add that security and recovery procedure provided by any other enactment should not be confused with disqualification which can be imposed for misconduct under the Order.
Where loan is fully secured but the Court holds a respondent as defined in Article 2(b), to be guilty of misconduct, disqualification as provided by Article 5 will be attracted. Likewise insolvency of the respondent/borrower or remedy provided by other statutes, for recovery of loan would not affect or bar proceedings under the Order. As provided by Article 9 the provisions of this order are in addition to and not in derogation of any other law for the time being in force. The proceedings under the Order will be in addition to all such proceedings which can be taken against the borrower under any other law in force.
(Sd.)
' Saleem Akhtar, J ' ORDER OF THE COURT ' As per majority judgment, the appeal is dismissed with no order as to costs.
(Sd.)
' Sajjad All Shah, J.
(Sd.)
' Saleem Akhtar, J.