QAISAR AHMAD HAMIDI, J.- As this case raises a question of some importance which has not been decided before in this Court, 1 think it is advisable to refer to the relevant facts in some detail.
2. It is alleged that applicant Syed Qaim Ali Shah, a former Chief Minister of the Province of Sind, dishonestly disposed of about 37 acres of land situated in Ghulam-e-Johar, Karachi, to different builders at the instance of co- accused Asif Ali Zardari (since acquitted), husband of Mohtarma Benazir Bhutto, former Prime Minister of Pakistan, at a nominal price thereby causing pecuniary advantage to the purchasers and huge pecuniary loss to the Government of Sind. Consequently on 27.9.1990 Akhtar Siddiqui, Inspector CIA lodged FIR against the applicant and others at New Town P.S, Karachi, under section 406/109 P.P.C, (Crime No.497 of 1990). After usual investigation the police challaned the present applicant and co-accused, Asif Ali Zardari. The learned Sessions Judge
(East) Karachi, who took cognizance -against the accused issued notices to (i) Ayaz Ahmad Ansari, Ex-Secretary, Board of Revenue and Member, Land Utilization; (ii) Ismail Odhejo, Ex-Minister of Finance, Government of Sind and (iii) Iqbal Memon, to show cause as to why they should not be impleaded as co-accused along with the applicant and Asif Ali Zardari, as they had knowingly and intentionally played an important role in the disposal of the said land to different builders. These notices were, however, withdrawn vide order dated 6.5.1991, being premature.
3. . On 14.5.1991 the trial commenced against the applicant and co- accused Asif Ali Zardari, who were charged as follows:- "That you Syed Qaim Ali Shah son of Ramzan Ali Shah on or about 16th day of July 1989, while you were the Chief Minister of Sindh, and had dominion over the Government land i.e. 37.13 Acres situated in Deh Okuari, Schema No.36, Ghulam-e-Johar, Karachi-East, and you accused Asif Ali Zardari son of Hakim Ali Zardari abetted co- accused Syed Qaim Ali Shah and both of you, dishonestly disposed of this land to Messrs Imran Builders, 10 acres, Messrs. Kamran Builders, 10 Acres, Mudasar Builders, 10 Acres, Mohsin Builders, 7 Acres and 13 Ghuntas in violation of legal contract touching the mode of this dominion or trust at a nominal price less than Rupees Twenty Seven Crores, wilfully and dishonestly got the Sindh Government suffer loss to the tune of Rupees Twenty Two Crores and thereby committed an offence punishable under Sections 406 and 109 PPC, and within the cognizance of this Court."
4. In the meanwhile the applicant and co-accused Asif Ali Zardari, filed an application under section 265-K Cr.P.C, with a prayer that they may be acquitted as the charge against them is groundless. The learned Sessions Judge who heard this application acquitted co-accused Asif Ali Zardari, but refused the prayer of the applicant mainly for the following reason:- "There is no doubt that under the Rules of the Business Syed Qaim Ali Shah had ample powers and Government is absolutely empowered to grant State land to any person in such manner and on such terms and conditions as it deems fit, but no where it is permitted that the Chief Minister in exercise of his powers may cause wrongful loss to the Government or wrongful gains to the purchasers, while passing orders for disposal of State land."
It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court.
5. I have heard Shaikh Mir Muhammad, learned counsel for applicant and Mr. Abdul Hakeem Bijarani, learned A.A.G, for State. I have also gone through the record of this case carefully.
6. The scope of section 561-A Cr.P.C, was considered by the Supreme court of Pakistan in the case of Ghulam Muhammad vs. Muzammal Khan and 4 others, reported in PLD 1967 S.C. 317, and it was observed:- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed put in a number of decisions, should be extremely reluctant to (interfere in a case where a competent Court has, after examining the eridence adduced before it, come to the view that a prima facial case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, 'does not disclose any offence."
7. Obviously, therefore, the High Court should not interfere at the initial stage of the case unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. With this settled legal position in view, it is now to be seen whether the evidence which is likely to be adduced against the applicant discloses any offence under section 406 P.P.C, which requires:-
(1) Entrusting any person with property or with any dominion over property.
(2) The person entrusted (a) dishonestly mis-appropriating or converting to its own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation.
(1) of any direction of law prescribing the mode in which such trust is to be discharged, or
(ii) of any legal contract made touching the discharge of such trust.
8. Admittedly the applicant was working as Chief Minister, Government of Sind, when he had sanctioned the grant of land to different builders. Article 139 of the Constitution of Islamic Republic of Pakistan, 1973, deals with the conduct of business of Provincial Government in the following words: - "(1) All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor.
(2) The Governor shall by rule 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 Governor.
(3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government."
9. In exercise of the powers vested in the Governor, the Sind Government Rules of Business, 1986, were framed which are effective from 20th November, 1986. Needless to say that these rules have got statutory status and the business of Government of Sind is conducted in accordance with these rules. Rule 7 of the Sind Government Rules of Business, 1986, relates to the powers of the Chief Minister in the following words:- "(i) The Chief Minister may allocate to a Minister one or more Departments or part of a Department, but the Chief Minister shall have powers to pass order in any case concerning any Department without consulting the Minister of that Department.
(ii) The Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to the Minister or Secretary of that Department.
(iii) Any order passed by the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Government.
10. It is thus apparent that the Chief Minister who is the Chief Executive of the Province acts as "Government" while taking decision in cases referred to him under Rule 17 of the Sind Government Rules of Business, 1986. During the course of arguments the photocopy of the Summary dated 5.7.1989 was placed on record, which disclosed that it was initiated by Mr. Ayaz Hussain Ansari, Secretary to Government of Sind, Land Utilization Department, Karachi, with the following recommendations contained in para 13 thereof:- "Since the available land is 55-20 acres only, all the applicants- Construction Companies cannot be accommodated. It is, therefore, proposed that the following Construction Companies may be allotted ten acres in each in Block No. 17 of K.D A. Scheme No. 36, situated in deh Okuari by private negotiation at the rate of Rs. 260/- per sq. Yard as under:-
(i) M/S Kamran Builders.
(ii) M/S Imran Builders.
(iii) M/S Mudassar Builders.
(iv) M/S Mohsin Construction Co.
(v) M/S Jabbar and Company.
The price of land shall be subject to concurrence of the Finance Department and the land shall be utilised in accordance with lay out plan to be approved by K.D A. As per rules."
This recommendation was approved by the applicant as the Chief Minister of the Province, who had further directed to obtain the views of the Finance Minister about the price of the land.
Obviously, therefore, it was the Finance Minister who had concurred with the recommendation regarding the fixation of the price of the land. On the face of the record the applicant acted in accordance with the procedure laid down by the Sind Government Rules of Business, 1986. In conducting the affairs of the Government things are often done which may subsequently be found to be wrong, but every wrong decision by the Chief Executive of the Province does not invite penal action. In this case none of the civil servants responsible for floating the Summary and the beneficiaries of this deal was prosecuted. Co-accused Asif Ali Zardari, for whose benefit the applicant is said to have taken this decision was also acquitted as the charge against him was found to be groundless, but still the proceedings pending against the applicant were allowed to continue, although as observed above he simply approved the recommendations made by the Secretary, to Government of Sind, Land Utilization Department, Karachi.
11. Again the contents of FIR and the statements of witnesses recorded during the course of investigation do not make out any case under section 406 P.P.C. Two things are essential to constitute an offence under section 406 P.P.C, in the first place there must be a trust or dominion and in the second place dishonesty. However, where there is question of error of judgment only on the part of accused, he cannot be held liable for any such offence, specially when as the Chief Executive of the Province he has to take such decisions every day. On these facts how does the case stand? To my mind therefore, it is quite clear that if I were to allow these proceedings to continue I would be allowing a farce to be enacted to the great harassment of the applicant.
12. The matter was indeed argued very ably and exhaustively on both the sides and it was reserved for judgment when on 9.9.1992 the following application was moved under section 561-A Cr.P.C:- "It is submitted on behalf of the petitioner as follows:-
1. That the above matter was argued before this Hon'ble Court when a submission was made that the pieces of land leased out to Messrs. Kamran Builders and Others at particular prices suggested by the Member, Land Utilization Board of Revenue were cancelled. But subsequently the leases were restored to all the 4 parties, at the same price and on the same terms and conditions.
2. That the documents confirming the position could not be filed earlier as those could not be obtained despite best efforts.
3. That the above documents have come to the possession of the Petitioner now.
4. It is, therefore, prayed that the petitioner may be allowed to i.e the documents showing that the lease has been restored to all the 4 parties at the same price and on the same terms and conditions by the subsequent Government which essence is the allegation against the petitioner."
13. Faced with this situation, Mr. Abdul Hakeem Bijarani, learned A.A.G, for State, finding himself on the horn of dilemma, conceded and I think rightly, that in view of the documents placed on record whereby the action taken by the applicant was ratified by his successor, he was not in a position to support the prosecution of the applicant.
14. Having regard to the above factual and legal position, I am of the view that "to allow the case to proceed would be to allow a mock trial to proceed, with no purpose." ln the result the application filed under section 561-A Cr. P.C. Is allowed and the proceedings pending against the applicant under section 406/109 P.P.C (Crime No. 497 of 1990), New Town P.S, before the trial Court are quashed.