' This reference under Article 4 of the Parliament and Provincial Assemblies (Disqualification of Membership) Order, 1977 (PPO No,17 of 1977) has been made by the President of Pakistan hereinafter called the referring authority.
2. The facts disclosed in this reference shortly stated are that Mrs. Benazir Bhutto the respondent was elected as Member of the National Assembly from constituency No,NA-166, Larkana-III, during the general elections held on 16th November, 1988 under the Constitution of Islamic Republic of Pakistan, and held the post of Prime Minister of Pakistan from 2nd December 1988 to 6th August, 1990.
2. That till the middle of 1989 production of Liquified Petroleum Gas (LPG) was 324 tons per day which was being marketed by six marketing companies. An additional production of 60 tons per day of L.P.G. From Adhi and 25 tons per day from Dakhni fields was envisaged to be available by July/August 1989.
3. The Ministry of Petroleum and Natural Resources considered the request of six applicants for the distribution and marketing rights and allocation of product from the said two new sources and decided in October, 1988 that no new company or an individual should be inducted in the L.P.G.
Marketing. In November, 1988 it was decided that allocation of additional product be given to the existing marketing companies in equal proportion on the consideration that they would market 15% in Azad Kashmir, 20% in hilly areas and 15% in N.-W.F.P. Including FATA area. However, Al-Shifa Trust (a charitable Trust Hospital located at Rawalpindi) in joint venture with Pakistan State Oil and Oil and Gas Development Corporation (OGDC) was allowed in October, 1988 on humanitarian grounds, entire allocation of L.P.G. Ex Dakhni (25 tons). The total production of L.P.G. Ex Adhi was to be equally distributed among the other five marketing companies. The letter to that effect was reissued to AI-Shifa Trust on 30-10-1988 and to the other aforesaid companies on 28-11-1988.
4. Subsequently when the respondent became the Prime Minister a meeting to review L.P.G.
Allocations was held on 7-2-1989 in the Ministry presided over by Secretary Petroleum and it was decided to suspend the allocations made to the aforesaid companies and the letters of allocation issued to them were cancelled on 15-2-1989. The allocation of L.P.G. From Adhi and Dakhni fields made earlier was again reviewed by the Minister for Petroleum and it was decided that the allocation of two private sector companies viz Lifeline and Burshane be cancelled and in order to overcome infrastructure problems the four public sector companies were allowed to continue with their construction/development plans on provisional basis for approximate period of 8-10 months.
5. It went on saying that a summary was submitted by the Ministry to the Prime Minister on 3-4- 1989 giving background as regards L.P.G. Allocations made by the Ministry with two suggestions:
(a) 12.5 tons of L.P.G. Ex Dakhni be reallocated to a new party namely Lub Gas (Pvt.) Ltd.
(b) The allocation made to the four public sector companies ex Dakhni/Adhi can be altered, if so desired.
6. The respondent in her capacity as Prime Minister on this summary passed order on 10-4-1989 which is reproduced below:--- "Air Marshal Zulfiqar Ali Khan, Gulzar Khan, Tariq Akbar Khan, Mian Assad Ehsan have also applied for liquid petroleum gas permission. They may be given in PREFERENCE to others because they suffered unduly in the past dictatorial regime."
7. It was alleged that the aforementioned four persons were neither mentioned in the said summary nor were they shown as applicants in the summary itself. The respondent nevertheless on her own initiative without proper inquiry gave them benefit purely to favour them so that they may obtain pecuniary gain. Later on the name of Tariq Akbar Khan was dropped and instead Lub Gas Ltd. a Private Ltd. Company belonging to Mr. Tariq Islam (a first cousin of the respondent) was added in the meeting held on 15-4-1989 under the Chairmanship of the Minister of Petroleum and the allocation for Lub Gas was 15 tons ex Dakhni as against the proposed 12.5 tons in the summary dated 3-4-1989. These four beneficiaries were advised by the Minister that 50% dealers would be appointed by him.
8. It was further stated that respondent despite full knowledge that Lub Gas Ltd. Belonged to her cousin Mr. Tariq Islam did not only cause the approval in its favour but also unjustifiably and without reason in abuse of her post and power got cancelled the earlier allocation letters validly issued by the Ministry to Public Sector Companies launching joint venture of Al-Shifa Trust and without inquiry or application on record permitted four other new corners who were her close associates, friends or relatives namely Air Chief Marshal (Retd.) Zulfiqar Ali Khan a close friend later on appointed as Ambassador of Pakistan in U.S.A., Gulzar Khan a Special Assistant to Prime Minister, Tariq Islam (a first cousin), Mian Assad Ehsan (a friend) to obtain benefit of L.P.G. Marketing rights/permission. The order of allocation of L.P.G. To the aforementioned four persons inclusive of Tariq Islam owner of Lub Gas Ltd. Was in breach of rules known as Liquified Petroleum Gas (Production and Distribution) Rules, 1971 promulgated under section 2 of the Regulation of Mines, Oilfields and Mineral Development (Government Control) Act (XXIV of 1948) as they did not fulfil the requirements of rules 3, 4 and 5 of Part II of the said Rules.
9. According to Referring Authority the aforementioned facts and circumstances amounted to favouritism, nepotism wilful maladministration and abuse of power and position therefore constituted "misconduct" within the meaning of P.P.O. No,17 of 1977.
10. The respondent contested this reference. Apart from the objection as regards jurisdiction of the Special Court created under the said P.P.O. No,17 of 1977 the factual pleas were denied. Evidence was recorded.
11. Before entering upon the discussion of the merits of the case it will not be out of place here to mention that the care-taker Prime Minister before tendering advice to the President and the President before acting upon the said advice were required to take a decision after considering the material placed before them on relevant consideration having logical nexus with the object of law whether it was at all a fit case for making the reference. In doing so, they were required to act justly, fairly and not whimsically. The exercise of power should also not have been colourable because making of such a reference against a politician was likely to cloud his personality and damage his prestige having the effect of lowering him in the estimation of the voters/citizens of the country as regards his reputation as to integrity which was the most valuable asset earned by such a leader to his credit in politic.
12. It may also be emphasized here that while taking the decision they were also required to keep in mind:
(a) that the respondent was to be presumed to be innocent;
(b) that according to law all official acts done or performed by her were to be presumed to have been done or performed in a regular manner as prescribed;
(c) that all acts were done in good faith unless there was clear evidence to show that they had suffered from positive mala fides. This principle is also embodied in Article 10 of the PPO under which the reference was made.
13. After considering the facts stated in the reference and the documents attached therewith and the evidence produced and subjecting the same to the rigorous test on the touchstone of the above broad principles, criteria and principles of justice and good conscious, I have no hesitation to hold that the same is wholly misconceived and baseless for the reasons to follow.
14. The very basic assumption that the note/recommendation recorded by the respondent on the summary dated 3-4-1989 was self-executory order for allocation of L.P.G. To the four persons mentioned therein suffers from acute misconception of the true factual position as emerges from the material available on the record. The said note was not taken by any of the concerned officers in the Ministry as an order regarding the allocation of L.P.G. For which no further scrutiny of the case was required. It is evident from Exh.PW.1/24 that the Director-General scrutinized the cases of these four persons in the light of the law and the rules and made formal recommendations as required by law for allocation of L.P.G. Which was endorsed by the Secretary as is clear from Exh.PW.1/25. The case was then placed before the Minister who passed order for allocation of L.P.G. As is manifest from Exh.PW.1/26. It may be prominently mentioned here that though in the note written by the respondent the name of Tariq Akbar Khan was included as one of the four persons in whose favour recommendation was made but the Ministry dropped his name having found that he was the employee of P.S.O. There is no evidence that respondent exerted any pressure for allocation of L.P.G.
To Tariq Akbar Khan thereafter or conveyed her displeasure over the act of dropping his name in spite of her orders treating it as willful non-compliance of the same. It is clear evidence of the fact that whatever recommendations were made by the respondent the Ministry was not asked to pass any order in violation of the rules, or allocate L.P.G. In their favour if they were otherwise disqualified or not entitled to the same. Khan Tariq Hameed Khan P.W.4 admitted that he was never pressurized by the respondent in this matter and asked to show undue favour to the said four persons which placed the matter beyond any doubt that the respondent did not act in this case as has been alleged. No other evidence has been brought on record to show that the respondent at any point of time showed any anxiety for allocation of L.P.G. To the said persons against the rules. Mr. Munir Ahmad, Director-General P.W.1 admitted that the Prime Minister did not allocate the L.P.G. Which fact is also evident from his statement placed on record as Exh.PW.1/21. There is no room left that neither the respondent allocated any L.P.G. Nor her recommendation or note was so construed by the concerned authorities.
15. It has also been alleged that PPP Government reviewed the earlier decision taken by the care- taker set-up that no new company or an individual should be inducted in the L.P.G. Marketing and cancelled the letter issued to Al-Shifa Trust on 23-10-1988 and other companies on 28-11-1988 for allocation of the L.P.G. This plea cannot be taken into consideration in isolation. The general elections were held in October, 1988. The care-taker Cabinet took the said decision on 26-114988 (Exh.PW.1/2) and allocation letters were hastily issued on 28-11-1988 though there was no need to show such a haste as the decision was to become operative somewhere in July or August, 1989.
The case of the respondent was that this lacked bona fides because two days thereafter the PPP Government was going to be inducted. Keeping in view this background and the other factors if the Government of the respondent had decided to review the said administrative policy decision there was no illegality in it as under the Constitution it was the privilege and prorogative of the elected Government to formulate its own policy. No exception could be taken to that. If in this manner the exercise of power is allowed to be objected to in regard to administrative decisions, no Government would be able to function.It may not be out of place to mention here that respondent was the Head of an elected Government whereas the previous decision was taken by a care-taker set-up.
16. The main ground for alleging that the aforementioned act of the respondent amounted to an act of nepotism and favouritism because the impugned recommendation and the order was made in favour of her close friends, relatives and associates. It was alleged that Tariq Islam was the cousin of the respondent who was owner of Lub Gas. There is no evidence that Tariq Islam was in fact the owner of the Lub Gas. The Referring Authority lost sight of the fact that in the summary dated 3-4-1989 on which the recommendation was made by the respondent which has been made the basis of this reference, the case of Lub Gas was also recommended for allocation of L.P.G. But in her recommendation it was not included. Tariq Hameed Khan, Secretary Ministry of Petroleum P.W.4 in his evidence stated that he informed the Minister that no allocation had been made by the Prime Minister for Lub Gas. It appears that competent authority in the Ministry allocated L.P.G. To Lub Gas in routine in exercise of power vested in it and the respondent was in no way concerned or involved in it. There is no evidence that any of the said persons to whom allocation was made was either relative of the respondent or her friend. No evidence has also been brought on the record that anyone of them suffered from any disqualification under the law and the rules governing the subject as regards allocation of L.P.G. It may be prominently emphasized here that the respondent as Prime Minister was the head of the Federal Government as such she was to decide all the matters regarding citizens in general of the country coming before her and neither she was legally debarred from dealing with the cases of her relatives and friends nor her relatives or friends were disqualified from getting their cases as regards their rights determined by her as citizens alongwith others and merely because a decision taken or an order passed by the respondent was favourable to any of her friend or relative was not by itself the evidence of the fact that it was a case of nepotism and favouritism unless it was established through evidence that---
(a) the order was passed by bypassing the provisions of law which if followed would not have entitled the said relatives or friends to a relief;
(b) that any other person who was more deserving to get allocation was ignored for such relative or friend; and
(c) that application of any other person made earlier was pending but the relative or friend was given priority over the same;
(d) that favour was shown to a friend or relative with a motive to derive personal benefit.
17. It has come in evidence that before the impugned recommendation as made by the respondent applications of all other persons had already been processed and scrutinized by the office and had been rejected therefore, on the date when the said recommendation was made no other applicant was waiting decision on his application for allocation of L.P.G. There is no allegation muchless proof that respondent was motivated by a desire to derive benefit for her person by making this allocation. It is not the case of the referring authority that the allocation was made to these persons though they were not entitled under the law to the allocation of L.P.G. No doubt in the reference reliance was placed on the provisions of rules 3, 4 and 5 of Part II of the aforementioned rules but the examination of the said rules show that there was no violation of the same. It is manifest from the recommendation itself that the same was made in acknowledgment of the sacrifices made by the said persons for restoration of democracy against the dictatorial rule on account of which they suffered which cannot by any stretch of reasoning be construed an act of favouritism as no favour was shown in acknowledgment of any service rendered by these persons to respondent personally.
18. Before closing this part of the judgment, it is necessary to mention that the allocation of impugned L.P.G. Was scrutinized by the care-taker Government after the dissolution of National Assembly on 6-8-1990 and the same was found to be in order. However, the quantum of L.P.G. Was reduced which was challenged by the aggrieved parties before this Court and the Sindh High Court under Article 199 of the Constitution. The said act of the caretaker Government was declared as without lawful authority and the allocation as made originally was restored. This aspect of the case was not only concealed from the Court but it appears that the same was not brought to the notice of the care-taker Prime Minister when he gave advise to the President or the President who made this reference. The legality of the impugned allocation having withstood the judicial scrutiny by this Court under Article 199 of the Constitution therefore it could not be alleged that the same suffered from any illegality or violation of the rules. Even during the arguments, learned counsel for the referring authority has not satisfied me that the allocation made in this case was violative of any rules framed under the law governing the subject. It is also regrettable that not only this, the complete relevant record was not made available for inspection during the hearing of this reference in spite of repeated prayers made by the respondent. Whatever record was produced the same was not complete as number of pages had been removed from the files and the respondent in these circumstances was deprived of her valuable right to defend herself properly. In spite of that the referring authority failed to make out any case and the evidence produced on record even if remains unrebutted, does not prove the allegations.
19. An attempt has also been made to show that the allocation could only be made to the Public Sector Companies as against Private Organized Companies. The rules do not prohibit distribution through Private Organized Companies. Taj-ud-Din Sherwani Director-General gave opinion that department's stand had throughout been that Government got better revenue from Private Organized Companies therefore, distribution should be done through them. Even according to the facts mentioned in the reference it was admitted that out of the various Companies which had already been allocated L.P.G. For distribution some of them were Private Organized Companies. A copy of draft Summary Exh.PW.1/15 made by Khan Tariq Hameed, Secretary Petroleum was produced in evidence to show that he opposed distribution of Gas through Private Organized Companies on the ground that it would result in delay and flaring of Gas as such Public Sector Companies being under Administrative Control of the Federal Government would be deprived of additional profits. Admittedly this summary or opinion what, per it was, was never placed before the respondent. On the other hand summary copy of which was produced as Exh.PW.1/16 was put up before the respondent in which no such advice had been recorded whereas on the other hand the advice was that Private Sector Companies could earn better revenues for the Government.
20. After undertaking close scrutiny of the evidence and the other material placed on record, I am disposed to hold that the referring authority has failed to prove the charges/allegations against the respondent. No case of misconduct has been made out. It is clear that neither full and correct facts were placed before the care-taker Prime Minister and the President nor there had been proper application of mind, as such, it can safely be concluded that it is clearly a case of colourable exercise of power under P.P.O.
17. The reference was made for purposes not germane to the letter and spirit of the law and lacked bona fides.
21. For the foregoing reasons the reference is hereby rejected.
Reference rejected.