' During the hearing of suo motu Writ Petition No, 1993, regarding the illegal allotment of plots by Mian Manzoor Ahmad Wattoo, the outgoing Chief Minister of the Punjab, especially during the last night of his tenure, a news item came to the notice of this Court to the effect that, besides the aforesaid allotments, he had also misappropriated huge funds from the Provincial Bait-ul-Maal for the 'Long March' being organized by him with the support of Pakistan People's Party and in that connection his two political associates, namely, Mr. S. M. Bashir and Malik Haider Usman on 11-7- 1993 had, at his instance, withdrawn from the Fund of Provincial Bait-ul-Maal a sum of Rs,50,00,000 each, by two different cheques. Since the proceedings were primarily being taken on the press reports about the maladministration and misappropriation of public money, the learned Acting Advocate-General of the Punjab was directed to cause the production of the record of Provincial Bait-ul-Maal with a view to ascertain the authenticity of the news item. At the same time, Mr. S.M.
Bashir and Malik Haider Usman, against whom there were direct allegations of misappropriation of the said funds at the behest of the Chief Minister, were also asked to appear on the next date of hearing and explain their respective position vis-a-vis the news item in the 'Daily Jang' of 18th ultimo.
2. In reasons to the notice issued for 8-8-1993, Mr. S.M. Bashir and Malik Haider Usman put in appearance and requested for adjournment in order to engage a counsel and to submit written reply. They were allowed. In compliance with the above direction, the learned Acting Advocate- General placed on the file two statements regarding the appropriation and use of Bait-ulMaal Fund by the Chief Minister's Secretariat and also brought Mr. G. M. Sikandar, the Secretary to the Chief Minister, for making statement, if necessary for explaining the statements with the help of relevant record.
3. On 19-8-1993 Mr. S. M. Bashir and Malik Haider Usman represented by their counsel Syed Sharif Hussain Bokhari, Advocate, put in appearance as respondents and it was thought proper to segregate their case from the main writ petition and it was accordingly separated into W.P. No, 8622 of 1993, which is now in hand. On the same day, in this writ petition Mr. S.M. Bashir and Malik Haider Usman submitted their joint written statement. Since, as per statement of Bait-ul-maal expenditure already submitted by the learned Law Officer, a cheque of Rs, 50,00,000 in the name of Lahore Cadet School, Gulberg, for its construction was issued through Malik Haider Usman and Sardar Nasrullah Khan Derashak, a former Minister, the latter (Mr. Derashak) was asked to appear on the next date of hearing. The statement of Mr. G.M. Sikander, Secretary to the Chief Minister, was partly recorded and the proceedings were adjourned to 22-8-1993.
4. On this date of hearing Sh. Muhammad Salim, an Advocate from Rawalpindi, who was one of the petitioners, in the main Writ Petition No,7459 of 1993, having joined those proceedings alongwith Al- Jihad Trust represented by Mr. Habib-ul-Wahab Al-Khari, Advocate on their own request, also put in appearance in this writ petition as petitioner. So far as proceedings herein are concerned, statement of Mr. G.M. Sikander, Secretary to the Chief Minister, Punjab, was partly recorded in the presence of the aforesaid petition Syed Tassadaq Hussain Jilani, Acting Advocate-General and Mr. Sharif Hussain Bokhari, Advocate for Malik Haider Usman and S.M. Bashir. However, Sardar Nasrullah Khan Derashak, a former Provincial Minister, who was summoned for this date, did not turn up and Mr. Sharif Hussain Bokhari, Advocate, who was representing the other two respondents, undertook to bring him on the following day. Thus, with the participation of Sh. Muhammad Salim, Advocate as petitioner herein, this writ petition, technically speaking ceased to be a suo motu writ petition.
Anyhow, the proceedings were adjourned to 23-8-1993.
5. On this date of hearing, besides Sh. Muhammad Salim, Advocate as petitioner, Syed Tassadduq Hussain Jilani, Acting Advocate-General, appeared alongwith Mr. G.M. Sikandar, Secretary to the Chief Minister. Mr. S.M. Bashir and Malik Haider Usman also appeared alongwith their counsel Syed Sharif Hussain Bokhari, Advocate. Sardar Latif Khan Khosa, Advocate, accompanied by Sardar Nasrullh Khan Derashak put in appearance and sought adjournment for filing written statement on the following day. Statement of Mr. G.M. Sikander, Secretary to the Chief Minister was completed.
Statements of Mr.Arif Bhatti, Manager, Bank of the Punjab the Mall, Lahore and Mr. Amir Controller, Office of the Chief Minister, were recorded. Since from the statement of Mr. G.M.Sikander it appeared the Bait-ul-Maal Council headed by Sh. Manzoor Elahi, as its Ameen, who is now Care- taker Chief Minister of the Punjab had apparently without lawful authority transferred a sum of Rs, 9,22,66,908 from Punjab Bait-ul-Maal fund to the Chief Minister's Secretariat, he was asked to submit his comments as under what circumstances did the Bait-ul-Maal Council in its 12th meeting, dated 12-9-1992, which was chaired by him, had transferred the aforesaid amount to the Chief Minister's Secretariat for disbursement to the flood affectees? The proceedings the comments of Sh. Manzoor Elahi, the Ameen of Bait-ul-Maal, were received. Excepting Sh.
Muhammad Salim, Advocate as petitioner and Syed Tasadduq Hussain Jilani, Acting Advocate- General, one else appeared. Since enquiry stood completed, the record was perused.
6. Before proceeding further it may be mentioned here that these proceedings, which are more of inquisitorial nature than of accusatorial character, are being held by the Court in the exercise of its Constitutional jurisdiction in public interest under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Article 2A thereof (inter alia, providing for the Islamic Social Justice) coupled with Quetta Declaration of Chief Justices Conference of Public Interest Litigation and Fundamental Rights read with section 3 which declares Shariah as the supreme law of the country), section 4 (enjoining interpretation of all laws in the light of Shariah) and section 5 (making the observance of Shariah obligatory on all Muslim citizens of Pakistan) of the Enforcement of Shariah Act, 1991, besides the basic principles of law that the welfare of the society is the supreme law, and where there is wrong there is a remedy'.
7. Since the matter concerning a portion of Bait-ul-Maal funds being used by the Chief Minister as a part of his discretionary grant needed somewhat intensive probe, it inevitably brought in the collateral subject of his ordinary or statutory discretionary grant as also of the funds being used by him from Jehaiz Fund. Therefore, a detailed statement of Mr. G.M. Sikander, Secretary to the Chief Minister, has been recorded with the help of relevant record, particularly with reference to statements/copies of documents from Annexure-I to AnnexureXXI. The statement of Mr. Muhammad Arif Bhatti, Manager, Bank of Punjab the Mall Branch, Lahore and that of Mr. Aamir Zamir, Controller, Chief Minister's Secretariat have been recorded with the assistance of the record being maintained by them.
8. The statement of Mr. G.M. Sikander reveals as to how the annual discretionary grant of the Chief Ministers of the Punjab which was originally only a sum of Rs,40,000 as specified in section 21 of the Punjab Ministers (Salaries, Allowances and Privileges) Act, 1975, with the passage of time, particularly after the restoration of democracy in 1985, has now swelled into crores of rupees and has also included in its ambit unauthorisdly if not altogether unlawfully, huge amounts, first from Jehaiz Fund and then from the Punjab Bait-ul-Maal Fund, both being administered by the Social Welfare and Zakat Department of the Government of the Punjab through the respective bodies, the one administering the Jehaiz Fund having been constituted under the executive order pursuant to Cabinet decision, and the one managing the Bait-ul-Maal Fund having been constituted through a legislative measure.
9. As the record indicates, the annual discretionary grant of the Chief Minister of the Punjab by virtue of section 21 of the Punjab Ministers (Salaries, Allowances and Privileges) Act, 1975 was Rs,40,000. Due to the imposition of the Third Martial Law in the year 1977, the Office of Chief Minister ceased to function. On the lifting of this Martial Law, when this office was first became the first Chief Minister and considering this grant as inadequate, through his Secretary vide letter dated 15-7- 1985, asked the Finance Department for its upward revision. The Finance Department, instead of suggesting amendment in section 21 (ibid), on the analogy of what was being done on Sindh Province, proposed the institution of a separate fund known as Chief Minister's Discretionary Grant (Utilization) Fund and proposed to release a sum of Rs,300,000 and placed the same at the discretion of the Chief Minister through a supplementary allocation. The summary submitted by the Finance Department to that effect was approved by the Chief Minister himself on 25-8-1985 and pursuant to this policy decision, the Finance Department issued a Notification/order on 3-9- 1985, indicating certain guidelines for the utilization to this fund/as in paragraph No,3 thereof. It appears that subsequently a move was made for amending section 21 of the said Act and it was eventually amended by the Amending Act X of 1985 w,e,f, 7-11-1985 by which the annual discretionary grant of the Chief Minister was enhanced from Rs,40,000 to Rs,100,000 side by side the Chief Minister continued to utilize his discretionary grant from the aforesaid fund set up under the executive order, dated 3-9-1985. In this fund the first allocation in the year 1985-86 was Rs,31,10,000 as against Rs,300,000 suggested in the summary approved by the Chief Minister. This vast difference remains inexplicable. Out of this grant, he spent Rs,12,04,000. In the Financial year 1986- 87 the grant was increased to Rs,96,00,000 and he expended Rs,1,13,45,850. In the year 1987-88 the annual allocation of discretionary grant was further increased to Rs,2 crores and the expenditure of this year was Rs,1,85,75,385. In the year 1988-89 the annual allocation of the discretionary grant was further augmented to Rs,2,49,65,471 out of which a sum of Rs,2,20,33,164 was spent by him. It may be mentioned here that during the period from 7-11-1985 to 14-1-1989 when section 21 of the Punjab Act X of 1975 was further amended with retrospective effect by Amending Act III of 1989, the statutory discretionary grant of the Chief Minister remained Rs,100,000 per annum. Perhaps realising the mistake of unauthorised spendings to the tune of crores of rupees during this period, the Finance Department moved for inserting a vague but comprehensive amendment in section 21 (ibid) and by virtue of the Punjab Amending Act III of 1989, the words, "An appropriate amount" were inserted for the words Rs,100,000. This amendment was given retrospective effect from 1-7-1985 obviously to validate unauthorised over-spendings from the fund instituted through the executive order. This amending law, to my mind, was of doubtful validity as the amendment so made went clearly outside the scope, intention and parameter of the Act itself and under the cover of this amendment the Chief Minister of the Punjab eversince 1-7-1987 continued to spend, rather arbitrarily squander away, public money to the tune of crore of rupees. The last annual discretionary grant for the year 1992-93 under section 21 (ibid) was Rs,4,45,67,850 and the expenditure from it was Rs,3,13,81,024. In the three-month mini budget for the year 1993-94, it was Rs, one crore and out of it, the expenditure during the period from 1-7-1993 to 18-7-1993 was Rs,9,60,43,352.
10. Here it would be interesting to note that the Prime Minister of Pakistan under section 7 of the Prime Minister (Salary, Allowance and Privileges) Act, 1975 read with first item of the Second Schedule appended thereto, the annual discretionary grant of the Prime Minister even now is Rs,4,00,000 only as against the so-called present annual discretionary grant of about Rs,4 crores of the Chief Minister of the Punjab.
11. To be a little more precise, as per record of the Chief Minister's Secretariat, Mian Nawaz Sharif during his tenure as Chief Minister of the Punjab from 7-3-1985 to 6-8-1990 spent discretionary grant of Rs,8,98,99,075; Mr. Ghulam Haider Wyne during his tenure as such from 7-8-1990 to 25-4- 1993 spent discretionary grant of Rs,9,72,46,258 while Mian Manzoor Ahmad Wattoo during his Chief Ministership from 24-4-1993 expended a sum of Rs,1,38,29,482 but the cheques amounting to Rs,36,18,000 were either dishonoured on account of lack of funds or the same were withheld by the caretaker Government.
12. Mian Nawaz Sharif, the Chief Minister probably still not satisfied with the volume of the discretionary grant, started exploring other avenues to augment it. It appears that in the year 1987- 88 the Federal Government set up Jehaiz Fund with an amount of Rs,200 millions to provide assistance to the marriageable poor girls. 80% of this amount was allocated to the Provinces on the basis of their respective population and in this way the Punjab got a share of Rs,92,752 millions.
A similar fund was instituted by the Punjab Government during this year and the initial allocation thereof was Rs,100 millions. The Federal Government itself specified the constitution of Jehez Committees at the Provincial level which were to work under the administrative control of Provincial Social Welfare Department. The committee in each District consisted of the Deputy Commissioner as Chairman, Chairman, District Council; Chairman, District Zakat Committee; Assistant Commissioner of the Sub-Division or Mayor or Chairman of the Municipal Corporation as members and Assistant Director, Social Welfare as its member/Secretary, the maximum amount payable for the marriage of girl initially was Rs,3,000 but it was subsequently raised to Rs,5,000 out of the annual allocation from this fund, the Social Welfare Department on 6-3-1990 submitted a summary to Mian Nawaz Sharif, the Chief Minister, suggesting to reserve 30% of the total allocation of Jehaz fund for its utilization at the Provincial Headquarters by the Minister for Social Welfare.
Mian Nawaz Sharif agreed to the increase of reserve portion of the fund from 20% to 30% of the total allocation but he decided to utilize this part of the fund himself as his discretionary grant in addition to the statutory one as already explained, and directed the money to be placed at his disposal. Anyhow, during his tenure he utilized only a sum of Rs,11,85,000 approximately, most of which he sent down to the Deputy Commissioners of certain districts for distribution amongst the needy but with the association of public representatives, who were inducted in the District Committee through a letter dated 2-4-1989 issued by the Social Welfare. Department of the Government of the Punjab, this letter also reserved some percentage of the fund for the poor families of industrial workers. The change in the constitution of the Jehez Committees and in their mandate was made without consulting the Federal Government perhaps with a view to oblige the public representatives and the class of industrial workers generally. This change went beyond the scope of Jehez Fund which was meant only for the financial assistance of the poor marriageable girls and not to poor industrial workers in general. In any case, from this fund, a total amount of Rs,6,64,85,000 was placed at the discretion of the Chief Minister by the Social Welfare Department and out of this amount, a sum of Rs,4,68,01,999 was spent by the Chief Ministers during the period from 23-4-1990 to 18-7-1993 leaving a balance of Rs,98,53,064 on the day Mr. Wattoo was removed.
To be a little more specific, Mr. Ghulam Haider Wyne during his tenure from 7-8-1990 to 25-4-1993 spent a sum of Rs,4,49,71,000 while Mr. Manzoor Ahmed Wattoo spent Rs,6,45,000 during his tenure of a little less than three months.
13. Mr. Ghulam Haider Wyne during his Chief Ministership tapped yet another source for further augmenting his discretionary grant. The Punjab Baitul-Maal Act, 1992 which was previously an Ordinance, set up Bait-ul-Maal Council consisting of 15 members to be headed by an Ameen. Out of them, five were its official members, namely Secretary, Social Welfare and Zakat Department; Secretary, Finance Department; Secretary Health Department; Secretary, Education Department and Director-General Social Welfare, Department and the remaining ten members were to be non- official. As the notification indicates Sh. Manzoor Ellahi, the present care-taker Chief Minister of the Punjab, was its Ameen, Raja Zafar-ul-Haq, Senator; Mian Muhammad Yaseen Wattoo, Ex-MNA; Mr. Sikander Hayat Malhi, Ex-MPA Dr. Muhammad Afzal Aizaz; Ex-MPA Malik Faiz-ul-Hassan, a respectable from Lahore; Mr. Aziz Zulfiqar, an Industrialist from Gujranwala; Mr. S.M. Bashir, Joint Secretary, Punjab Muslim League; and Mian Masood Ahmad an office-bearer of JUP; were its non- official members. In the letter, dated 9-8-1992, written by the Secretary to Mr. Ghulam Haider Wyne, Chief Minister, obviously under his directions, the Bait-ul-Maal Council was asked to earmark Rs, one crore from Bait-ul-Maal Fund for the assistance of the poor and needy and the amount so earmarked was to be utilized for complying with the directives of the Chief Minister. The fund, however, continued to be formally operated by the Social Welfare Department. During the next financial year 1992-93, the Bait-ul-Maal Council either of its own accord to oblige the Chief Minister, or under his verbal directions, earmarked Rs,one crore from Bait-ulMaal Fund and placed the same at the disposal of the Chief Minister Secretariat. However, this amount somehow or other, remained unutilized. Subsequently, vide letter, dated 11-9-1992, the Chief Minister, Mr. Ghulam Haider Wyne through his Secretary asked the Punjab Bait-ul-Maal Fund for distribution to the flood affectees and the Council in its 12th meeting, dated 12-9-1992, decided to transfer this amount of Rs,10 crores to the discretionary grant of the Chief Minister but actually a sum of Rs,9,22,66,908 was transferred, after taking it out from the fixed deposit, as only this much amount was available.
14. Here I may refer to the comments of Sh. Manzoor Elahi, the Ameen of Bait-ul-Maal (now care- taker Chief Minister of the Punjab) which he has submitted in response to the order of this Court. He says that on 10-9-1992, Secretary to the Chief Minister of the Punjab, telephonically conveyed to him the desire of the Chief Minister for the immediate transfer of reserved Bait-ulMaal Fund of Rs,10 crores, which was lying in fixed deposit in a Bank, to him for disbursement amongst the flood affectees in the Punjab. According to him, he categorically refused to transfer this amount in his individual capacity, and that too on his verbal order, without seeking the concurrence of the Bait- ul-Maal Council. He, however, assured the Secretary to the Chief Minister that on the receipt of the formal reference, the matter would be placed before Bait-ul-Maal Council for decision which was competent to decide under section 5(vi) of the Punjab Biat-ul-Maal Act, 1991 for the utilization of fund for 'any other purpose' . He adds that on the receipt of the letter, dated 11-9-1992 the matter was placed before the Punjab Bait-ul-Maal Council and the Council, during its 12th meeting, despite some members being not oblivious of the autonomous status of the Council, unanimously resolved to place the said amount at the disposal of the Chief Minister for specific purpose as defined, one of which was the utilization of the fund for the benefit of flood affectees. In short, he has tried to justify the transfer of Bait-ul-Maal Fund to the Chief Minister's Secretariat on the strength of unanimity of the Bait-ul-Maal Council.
15. The Ameen has tried to take shelter behind the provisions of section 5(vi) of the Punjab Bait-ul- Maal Act but in my view he cannot. Clause (vi) ibid and the words 'any other purpose' figuring therein, are to be interpreted ejusdem generis to the preceding clauses of the section and not insulatedly so as to defeat the very purpose of the Act. The Bait-ul-Maal Council itself could utilise the fund for any collateral purpose and it could not dole it out to a formidable State functionary, who did not figure in the Act in any capacity and almost wrenched the money from the Council by brow-beating it first verbally and then formally in writing which contained an order in the form of a so-called request. I feel constrained to say that the members of the Council and its experienced Ameen should have resisted his illegal demand instead of tacitly submitting to it. By doing so, the Council appears to have violated its charter and incurred a legal liability by allowing the Chief Minister to squander away a huge amount of public money for his political self-projection and self- aggrandizement in the manner hereinafter indicated.
16. In any case, besides the Jehez Fund amounting to crores of rupees, a big chunk of the Bait-ul- Maal Fund also became a part of the so-called discretionary grant of the Punjab Chief Minister and as the subsequent paragraphs would show, he and his successor disported it to their heart's content in order to oblige their greedy friends and a various political associates in lieu of extending their political support to prop up their high chairs.
17. Now with reference to the statements of Mr. G.M. Sikander, Manager Punjab Bank and Mr. Aamir Zamir, Controller of Chief Minister Secretariat, I proceed to demonstrate as to how the statutory discretionary grant obtained through the mala fide amendment of section 21 of Act X of 1975 and the money snatched away from the Jehez Fund and Bait-ul-Maal Fund of the Social Welfare Department was used by the last two Chief Ministers of the Punjab because the details of expenditure incurred from the so-called statutory grant in the tenure of Mian Nawaz Sharif as Chief Minister has not yet been supplied to this Court and the same are said to be under preparation.
18. So far as Mr. Ghulam Haider Wyne Chief Minister is concerned:--
(a) From the Jehez Fund at his disposal, he distributed a total sum of Rs,4,39,71,000 out of which he personally disbursed to the persons of his own choice a sum of Rs,43,61,000 and a sum of Rs,39,61,000 to the 4 Senators, 41 M.N.As. And 248 M.P.As. As detailed in (Annex XI) who had obtained various sums shown against their respective names for their nominees from public, each at the rate of Rs,5,000.
(b) From the discretionary grant under Act X of 1975 he distributed a total sum of Rs,9,60,61,499, out of which he directly disbursed to the persons of his choice a sum of Rs,5,14,05,622 and a sum of Rs,4,46,55,877 through 232 M.N.As. And M.P.As. As detailed in (Annexure XIV), who had obtained various sums shown against their respective names for their nominees from public but God knows: whether the amounts reached them or not.
(c) From the Bait-ul-Maal Fund of Rs,29,84,260, he distributed a sum of Rs,1,87,96,825 directly to the persons of his choice and a sum of Rs,1,10,45,795 through 173 M.N.As. As detailed in (Annexure IV-B);
(d) Astonishingly enough, he allocated to his own institution, known as Markaz Anjuman Islamia, Mian Chunnu, a sum of Rs,30 lacs from the Bait-ul-Maal Fund. From the same fund he also sanctioned a sum of Rs,11,84,000 for the nominees of Mian Nawaz Sharif, the Prime Minister of Pakistan. Out of this amount, he gave Rs,5 lacs to him through Mr. Madim Hassan Asif, then Deputy Commissioner, Lahore, on 22-3-1993 for disbursement as Eidi to the poor in the Governor House where the Prime Minister was present to meet the people at the occasion of Eid-ul-Fitr. Out of this amount a sum of Rs,21,49,957 was refunded to the Chief Minister Secretariat, while a sum of Rs,2,85,050 utilized by the Prime Minister for Eidi is still outstanding against him. Mr. Ghulam Haider Wyne also sanctioned a sum of Rs,one lac in the name of Military Secretary to the Governor for giving 'Eidi' to the staff of the then Governor.
(e) Surprisingly enough, he in a regal fashion distributed a sum of Rs,16 lacs as 'Eidi' to his staff at Chief Minister Secretariat at 7 Club Road, GOR-I, Banquat Hall, 90 Shahra-e-Quaid-e-Azam, Lahore; Punjab Houses at Rawalpindi, Islamabad, Murree and Karachi and his own Camp Office at Mian Chunnu.
19. Now I proceed to show as to how Mian Manzoor Ahmad Wattoo, who was Chief Minister from 26- 4-1993 to 18-7-1993 also left no stone unturned for his political self-projection and self- aggrandizement as it appears from the following facts:---
(a) From Jehez Fund of Rs,6,45,000, he doled out Rs,3,25,000 directly to the persons of his own liking and a sum of Rs,3,20,000 to his 16 political associates for their nominees as detailed in (Annexure XI).
(b) From his discretionary grant of Rs,1,41,69,982 available to him under the Punjab Act X of 1975, he gave a sum of Rs,43,41,805 directly to certain persons of his choice for various purposes and sum of Rs,98,28,177 to certain persons through his political associates as detailed in Annexure XIV/C.
(c) From Bait-Ul-Maal discretionary fund of Rs,2,65,53,185, he distributed a sum of Rs,64,01,825 directly to the persons of his own liking for various purposes and the remaining sum Rs,2,01,51,300 to his 61 political associates and some relations for their nominees as detailed in Annexure XIV-B.
(d) Like his predecessor-in-office, he too distributed 'Eidi' of Rs,10 lacs from Bait-ul-Maal Fund on 30-5-1993 to various persons while celebrating Eid at Okara and Depalpur. On 19-6-1993 he again took out a sum of Rs,10 lacs from Bait-ul-Maal Fund and allegedly distributed the same to the 'poor'. He also distributed awards (Inamaat) to the tune of Rs,13,50,000 to his staff at various establishments of Chief Minister Secretariat at Lahore, Islamabad, Rawalpindi, Murree and Karachi.
He did not submit details of these spendings to his office.
(e) The most disaointing thing which he did was that as against the available entertainment and gift grants of Rs,11,60,182, he spent a sum of Rs,38,75,825, thereby over-spending a sum of Rs,27,15,643. He asked the Finance Department for the additional grant to cover up this over- spending but they did not oblige him and he himself illegally appropriated a sum of Rs,22,46,871 from the Bait-ul-Maal Fund. Despite this reappropriation, a sum of Rs,7,10,737 is still outstanding against him.
(f) The hotel expenses incurred by him for the stay of his friends and political associates were Rs,3,44,238. The break-up of this expenditure, according to the Controller, is that a sum of Rs,67,685 was paid for four-time stay of Mr. Hussain Haqqani a political associate of Mr. Wattoo in Pearl Continental, Lahore, Rs,46,971 were paid for the stay of his friend Mr. Muhammad Rafiq Chaudhry; a sum of Rs,19,293 was paid for the stay of Jaam Yousaf of Balochistan. Similarly, Shalimar Hotel, Rawalpindi, Holiday Inn, Islamabad, and Rays Hotel, Lahore, were paid Rs,45,313, Rs,81,838 and Rs,28,079 respectively for the boarding and lodging of the friends of Mr. Wattoo whose names were not disclosed to the office.
(g) Out of the three Chief Minister's occupying this office after the restoration of so-called democracy, Mian Muhammad Nawaz Sharif and Mr. Ghulam Haider Wyne did not spend any amount from Government money on their boarding at their respective residences. They, however, utilized entertainment grant for their office expenses which were Rs,3,155 and Rs,9,576, respectively, per day on average basis. It was only Mian Manzoor Ahmad Wattoo, who, as Chief Minister spent Government money also on his household needs such as cold drinks and other eatables, including raw material, which entailed an expenditure of Rs,88,330 during his short tenure of about 82 days.
His average daily expenses on entertainment in his office and at his official residence were Rs,46,140 per day. Explaining this exorbitant expenses, the Controller deposed that Mr. Wattoo, his staff, his friends and his political associate often took lunches and dinners in his office at Government expenses and he arranged big functions at Banquet Hall, 90 Shahra-eQuaid-e-Azam, Lahore.
(h) Mr. Ahmad Shuja Wattoo, a brother-in-law of Mian Manzoor Ahmad Wattoo, got sanctioned from him 6 applications of different persons with a total sum of Rs,30 lacs from Bait-ul-Maal Fund.
Similarly, Mr. Mazhar Ahmad Wattoo, Deputy Secretary in the Assembly's Secretariat, who is also his son-in-law.
(i) Malik Haider Usman respondent, who is an Advocate from Multan and a close associate of Mian Manzoor Ahmad Wattoo, got sanctioned from him an amount of Rs,45 lacs from his statutory discretionary fund in the form of two cheques, one of Rs,30 lacs in the name of Masali Public School, Shami Block, Muzaffargarh, and the other of Rs,15 lacs in the name of Haleem Institute, 104-B Gulberg II, Lahore. From Baitul-Maal discretionary grant Malik Haider Usman respondent got sanctioned from Mr. Wattoo a sum of Rs,50 lacs in favour of Model Welfare Association at 73-B, Model Town, Lahore which is said to be residence of Mr. S. M. Bashir respondent, an office-bearer of Mr. Wattoo's Muslim League, on the application of Mr. Jalil Sheikh for the construction of an academic institution in M. A. Johar Town, Lahore. After a few days, he, alongwith Sardar Nasrullah Khan Derashak, a former Provincial Minister, got sanctioned another sum of Rs,50 lacs from Mr. Wattoo in the name of Lahore Cadet School, 19-L Gulberg-III, Lahore on the application of its Principal Mr. Muhammad Afzal. Earlier on 26-6-1993 he got sanctioned from Mr. Wattoo from Bait- ul-Maal Fund the financial assistance in favour of Mr. Abdul Jabbar Qureshi, resident of outside Daulat Gate, Multan. He received cheques of all these amounts sanctioned from Bait-ul-Maal discretionary grant and alongwith Mr. S.M. Bashir respondent and Principal Muhammad Afzal got the same encashed from Punjab Bank, the Mall Branch Lahore, as detailed in the statement of its manager Mr. Muhammad Arif Bhatti.
(j) Mr. Hussain Haqani, who is said to be a journalist by profession and a close political associate of Mian Manzoor Ahmad Wattoo, got sanctioned from him a sum of Rs,9 lacs from Bait-ul-Maal Discretionary Grant on the applications of three persons for starting some business: Apparently he misappropriated this amount. Such huge amounts could not be so easily doled out to ordinary persons from Lukshmi Chowk and Royal Park, Lahore.
20. Before recording my enclusions and findings in the light of various facts narrated above, I would like to elaborate the question of suo motu jurisdiction being exercised by this Bench though with the participation of Sh. Muhammad Saleem, Advocate as petitioner it does not remain to subtle and the question of discretion exerciseable by the Chief Ministers in utilizing huge public funds from their various discretionary grants. In paragraph No,6 supra I have referred to various sources from which I derive suo motu jurisdiction to look into different acts of alleged maladministration of the three Chief Ministers of the Punjab during their respective tenures and in that connection I proceed to further dilate upon them.
21. I am conscious of the fact that till recently the Hon'ble Supreme Court has not been favouring the idea of suo motu jurisdiction but of late there has been some shift in its views. Quite recently in service matters involving large scale ad hoc and regular appointments made by high-placed political functionaries of the State in violation of the recruitment rules, the Hon'ble Court has effectively intervened in the exercise of its original jurisdiction in public interest in Human Rights Cases No,104 (I to IV) of 1992. In these cases, there were individual applicants but the interim order, dated 19-3-1993, was all-pervading, affecting a large number of persons, it was given.Effect by the Punjab Government S.G. And I Department's Circular Letter S.O.R.III-2-2/91 dated 31-1-1993, throughout the Punjab and many persons benefittEd from it. To my mind, these were cases of suo motu of persons all over the country though the applicant in each case was an individual.
22. In this connection the provisions of Article 2A of the Constitution and sections 3, 4 and 5 of the Enforcement of Shariah Act can also be referred to and relied upon. It has also been held by the august Court in a recent case that where there is no law governing any subject, the vacuum shall be filled by the Muslim Common Law. Article 2A of the Constitution may not be overriding or a supra-Constitutional provision but at the same it is as good a provision of the Constitution as others are. As a result of this probe, startling facts hav e surfaced, clearly indicating the failure of present political system, which is unworkable three-in-one (Islamic, Presidential and Parliamentary) threatening the very existence of the State in many ways. In my opinion time has come to restructure it on the Islamic or Presidential pattern which are substantially akin to each other in the sense that both visualise a directly elected head of the State, not at the mercy of mostly avaricious and exploiting elected representatives, unlike the Prime Minister in a Parliamentary system. This objective can be achieved by an evolutionary process only if we give an overriding and all-pervading status to Article 2A which is the basis for the creation of Pakistan.
23. In Shariah which is now the supreme law of the country by virtue of section 3 of Enforcement of Shariah Act, 1991, except to the extent it relates to the political and economic system now in vogue (which portion thereof is against the Injunctions of Islam and has even been struck down by the Federal Shariat Court) no one howhighsoever he may be is above law and the process to accountability. He is accountable even to an ordinary citizen and much more to the Judge or Qazi who has an elevated position in a Muslim State. We have before us a fomous precedent of Islamic History as to how Huzrat Umer, the Great Caliph, as Head of the State had to explain to an ordinary citizen in an open assembly the length of the cloth by which he had got his shirt prepared which was inadequate for the shirt of the questioner who too, like him, had participated in Jehaad and got a share of cloth in Mal-e-Ghanimat like him. The time has now come when we have to follow our own precedents instead of ad hearing to those embodying foreign concepts, after wholly irrelevant of the needs of our society and its way of life. On the same analogy, this Court as a Muslim Qazi has the suo motu. Jurisdiction to ask the Chief Minister of the Punjab on the reports of the National Press, which, by virtue of the nature of its functions and duties represents the entire society, to explain as to how they have spent crores of rupees from those funds which did not legally belong to them and which were exclusively meant for the helpless, needy and down- trodden section of the society, and if they are not able to explain their expenditure plausibly then to take appropriate legal action against them so as to make it eye-opener for those who despite the poor's money in a regal fashion to oblige their friends, relations and political associates besides filling their own pockets.
24. As regards the question of discretion, the basic principle underlying it is that it has to be exercised in a reasonable and judicious manner. For spending public money, the basic principle governing it is that it has to be spent in a manner in which a prudent man would spend his own money. It inevitably takes out from it the element of arbitrariness. Here on this subject I would like to quote a beautiful, all-pervading passage from a recent judgment of the Hon'ble Supreme Court reported as Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi PLD 1991 SC 14: "A public official who undertakes to perform an act, even an act which is completely discretionary, must do so reasonably and in complete good faith without such delay as would frustrate its ultimate objective. One who accepts a public office does so cum owner or with the burden and is considered as accepting its burdens and obligations with its benefits. He thereby subjects himself to all Constitutional and legislative provisions relating thereto and undertakes to perform all the duties of the office, and while he remains in such office the public has the right to demand that he performs such duties. The acceptance of every public office implies an agreement on the part of the officer that he will execute his duties with diligence and fidelity. The duty of a public officer to fulfil the obligations of his office should take precedence over all other matters. Every public officer is bound to use reasonable skill and diligence in the performance of his official duties, particularly where rights of individuals may be jeopardized by his neglect. In other words, he is bound, virtue officio, to bring to the discharge of his duties that prudence, caution, and attention which careful men usually exercise in the management of their own affairs."
25. I have already expressed my views about the manner and the legality of three different kinds of funds which the three Chief Ministers have been utilizing, and also with regard to the Chief Minister's Statutory Fund which the first one had augmented without any limits by resorting to a legislative device by enacting Act III of 1989 to insert the words an appropriate amount in section 21 of Act X of 1975. To further support my views on the vires of that amendment and the scope of discretion exercisable by him in spending the unlimited grant I would quote the following passage from the same judgment of the Supreme Court:--- "Wherever wide worded powers conferring discretion are found in a statute, there remains always the need and the desirability to structure the discretion. Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time and then, as circumstances permit should further confine their own discretion through principle and rules. The movement from vague standards to definite standards to broad principles of rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power."
26. Judged in the light of the above principles and precedents, none of the three Chief Ministers of the Punjab used his discretion and utilized the discretionary funds in a reasonable and judicious manner rather they recklessly, carelessly and arbitrarily squandered them away. In the absence of the detail of the expenditure statements for the period of Mian Nawaz Sharif, the above observations are more pertinent to the conduct of Mr. Ghulam Haider Wyne and Mian Manzoor Ahmad Wattoo, one of whom went to the extent of doling out Rs,30 lacs to his own religious institution and distributed Eidi worth lacs of rupees amongst the staff, despite having the well- known title or 'Darvaish' while the other who during his short tenure has often been publicly and even on electronic media claiming himself to be the most honest and rightist person, stooped down to despite the poor's money on his household needs and on the entertainment of his friends, relatives and political associates by regularly serving them breakfasts, lunches and dinners even in his office and hotels as a result of which his expenditure on entertainment swelled to Rs,46,000 per day, besides doling out lacs of rupees to his political associates like Malik Haider Usman, Mr. S.M.
Bashir, Sardar Nasrullah Darashak, Hussain Haqani and his relations Ahmed Shuja Wattoo and Mazhar Ahmad Wattoo on fake and fictitious applications. The manner he and his associates, handled the national exchequer gives reasons to believe that they were out to do something injurious even to the very existence to the State then mere misappropriation of money. Anyhow, both the Chief Ministers, as it appears from the various lists indicating the distribution of funds amongst their friends, relations and political associates (Senators, M.N.As. And M.P.As.), not only misappropriated for themselves big chunks of money but also distributed huge amounts thereof as illegal gratification to them apparently for purchasing their loyalty and support, particularly to the last category (Senators, M.N.As. And M.P.As.) who avariciously took the same as bribe, therefore, Mr. Ghulam Haider Wyne and Mian Manzoor Ahmed Wattoo, their relations, friends and political associates, besides some official and non-official members of the Punjab Bait-ul-Maal Council, and a senior civil servant, all are liable to the following various legal actions:---
(a) Director, Anti-Corruption, Punjab shall cause a case under section 409, P.P.C. And under section 5(2) of the Prevention of Corruption Act, 1947 read with section 61, P.P.C. To be registered against Mr. Ghulam Haider Wyne and Mian Manzoor Ahmad Wattoo, the former Chief Ministers of the Punjab; Sardar Nasrullah Khan Derashak, a former Provincial Minister, Mian Ahmad Shujah Wattoo former Chairman, District Council, Okara; Mian Mazhar Ahmad Wattoo, Deputy Secretary, Punjab Assembly Secretariat; Malik Haider Usman, Advocate from Multan; Mr. S.M. Bashir, resident of Model Town an office-bearer of Wattoo's Muslim League; Mr. Hussain Haqani, a journalist; Mr. Abdul Jabbar Qureshi resident of outside Daulat Gate, Multan. Mr. Jalil Sheikh, Director, Model Welfare Association, 73-D Model Town, Lahore and Mr. Muhammad Afzal, Principal, Lahore Cadet School, Gulberg-III, Lahore and after the registration of the case, serious efforts shall be made by the Investigating Officer, who shall not be below the rank of an S.P. To recover public money misappropriated by them. He shall submit the challan within a fortnight.
(b) A reference shall be made to the Election Commission of Pakistan, Islamabad, against four Senators, 41 M.N.As. And 236 M.P.M. As mentioned in the Jehez Fund lists (Annexure XI) and (Annexure XLI) and against the M.N.As. And M.P.As. Mentioned in the discretionary fund/Bait-ul- Maal Fund list (Annexure XIV) which is the combined list of four lists, 2 separate lists of Mr. Ghulam Haider Wyne and 2 separate lists of Mian Manzoor Ahmad Wattoo, for taking action against them under Article 62(f) read with Article 113 of the Constitution of Islamic Republic of Pakistan as, in the opinion of this Court, the manner they obtained funds from the Chief Ministers was more a form of political bribe, and they do not satisfy the requirement of these provisions of the Constitution as they themselves were its trustees.
(c) Reference shall also be made against Mian Nawaz Sharif, Mr. Ghulam Haider Wyne and Mian Manzoor Wattoo in terms of preceding clause (b) above, against the first one for illegally creating Chief Minister's Discretionary Grant (Utilization) Fund vide order notification dated 3-9-1985 and after unlawfully spending huge amounts from it, getting the same validated through a mala fide legislation (Punjab Act III of 1989); and against the last two for their various misdeeds as detailed above, especially when they have been adjudged as liars in the recent Full Bench judgment of Lahore High Court, Lahore reported as Ch. Pervaiz Elahi v. Province of Punjab and another PLD 1993 Lah.
595.
(d) Reference shall also be made against Mian Muhammad Yaseen Wattoo former M.N.A.; Dr. Muhammad Afzal Azaz former M.P.A.; Mr. Sikander Khilji, former M.P.A. And Mr. S.M. Bashir under Article 113 of the Constitution for illegally transferring, alongwith other members of the Punjab Bait- ul-Maal Council in its 12th meeting, dated 12-9-1992 a sum of Rs,9,66,22,908 to the discretionary fund of the Chief Minister on the illegal demand of Mr. Ghulam Haider Wyne, who and his success desipated a major portion thereof.
(e) Reference shall be made to the Secretary, Establishment Division, Islamabad, for initiating disciplinary action for misconduct under the Efficiency and Discipline Rules, 1973 against Mr. Tanvir Ahmad, Secretary Education, Mr. Tariq Saeed Haroon, Secretary Health, Mr. Tariq Sultan, Secretary Finance, Ch. Muhammad Ashraf, Secretary, Social Welfare and Zakat and Mr. Muhammad Jamil, Director-General, Social Welfare, Government of the Punjab, for the first three through their representatives, and the latter two personally, having agreed as members of Punjab Bait-ul-Maal Council, alongwith certain non-official members thereof, in 12th meeting of the council for illegally transferring a sum of Rs,9,66,22,908 from Bait-ul-Maal Fund to satisfy the illegal demands of the Chief Ministers of the Punjab and enabled them to misappropriate and squander away a major portion thereof for building up their political stature.
(f) The Government of the Punjab shall---
(i) on the completion of statements regarding the expenditure incurred from discretionary by Mian Nawaz Sharif during his period as Chief Minister of the Punjab and after its due scrutiny from the Audit, recover the amounts irregularly or illegally spent by him from this grant, besides the sum of Rs,2,85,050 which he obtained as loan from Mr. Wyne from Bait-ul-Maal Discretionary Grant for distribution as Eidi through Deputy Commissioner, Lahore;
(ii) recover various amounts doled out of the public representatives mentioned in clause (b) above, by way of political bribe, by employing all possible coercive means; and
(iii) suitably amend section 21 of the Punjab Act X of 1975 so as to remove its arbitrariness by specifying the maximum limit of discretionary grant, keeping in view the grant of the Prime Minister under the law governing him pay allowances and privileges.
(g) Reference shall be made to Secretary, Establishment Division, Islamabad for initiating disciplinary action under E & D Rules for misconduct against Mr. Moaeen Afzal, former Finance Secretary, Government of the Punjab who is now said to be serving the Federal Government, for submitting a wrong summary to the Chief Minister on 6-8-1985 for illegally suggesting the institution of a parallel fund under the executive order, instead of advising him to amend section 21 of Act X of 1975, and after its approval enabling him to illegally spend public funds to the tune of lacs of rupees.