1. IHSAN-UL-HAQ CHAUDHRY, J.---Shaft Muhammad Sehwani (60) son of Khuda Bakhsh Qureshi, resident of House No,5 9th Avenue, F-8/1, former Member Planning and then Chairman, CDA, accused, along with co-accused Abdul Qadir Shaukat (68) son of Muhammad Din of House No,12, Street No,9, F-8/2, Islamabad, have been sent up for trial under section 14 of Ehtesab Ordinance, 1996, by the learned Chief Ehtesab Commissioner vide his order dated 31-12-1996. The case was entrusted to this Bench by the Hon'ble Chief Justice.
2. 2.The facts of the case, which could be collected from the relevant record, briefly are that in keeping with the modern trends, CDA decided to have a swimming pool in Markaz F-6, Islamabad and plot of 2200 sq. Yds. Was allocated for this purpose. This was initially allotted to M/s Abdul Majeed Farooqi and Ch. Muhammad Najeeb at the rate of Rs,50 per sq. Yard on 8-8-1974 as a lease for 33 years extendable for two more similar terms. The allottee failed to evince proper interest in the completion of the project as per conditions of allotment and in pursuance of the request of Abdul Qadir Shaukat accused, the plot wa,, transferred to him (A.Q. Shaukat) on 18-5- 1980.
3. 3.According to the conditions of allotment the plot was meant for the construction of swimming pool with heating arrangements so as to control the temperature of water at a personable degree and also to provide allied facilities such as massage, physiotherapy, cabin for change of clothes, public shower baths etc. The construction of a few cabins for refreshment was also permissible inside the premises of pool. Flagrantly violating the plan envisaged by C.D.A., accused No,2 constructed as many as 18 shops and committed many other visible major violations. The building was to be completed by 1-2-1981 according to the approved plan. It was, however, in view of the violations and deviations made in the approved plan and failure of the allottee to complete the swimming pool according to the terms and conditions that the allotment was withdrawn on 23-1- 1985 and the agreement terminated.
4. 4.Accused No,2, however, made a request for restoration of the plot and during this process Deputy Director, Buildings and Buildings Control proposed that either the authority should stand firm on cancellation of allotment and resume the possession of the plot or restore the plot on the condition of removal of construction on the first floor and the swimming pool along with attached facilities must be completed and put into operation within a period of three months. He further proposed that the price difference, if any, between the price of the commercial plot and swimming pool in Markaz F-6 should be charged from the allottee.
5. 5.Shafi M.Sehwani accused No,1, who was Member Planning and whose authority appeared to be next to that of the Chairman, asked for that difference of price from the Deputy Director, B & BC.
6. This officer, however, referred the case to Director Estate Management vide Para. No,601/N for reply, who with reference to Memo. Issued by the finance wing on 2-1-1984 reported that the prevalent rate for restoration in Markaz was Rs,1,000 per sq. Yard. The Deputy Director B & BC on 1-6-1989 vide his note again invited the attention of A.E.O towards Para. No, 659/N and observed that observation had not been attended to correctly by the Estate Management Directorate as only prevailing rate of Markaz i,e, Rs,1,000 per sq. Yard had been given. In Para. No,663/N, dated 3-6-1986 the Estate Management Office replied that the plot of swimming pool was located in Markaz and as such the prevailing rate mentioned in the aforesaid para would be applicable in this case. It was further mentioned that swimming pool being placed in Markaz, the price of other plots in Markaz shall be applicable to the swimming pool plot. The Member Planning vide his Para. No,666/N observed, "Yes, it should not be less than Rs,1,000 and this is to the best advantage of the allottee," and added, "please discuss." it appears that subsequently, accused No, 1 visited the site and accused No,2 also met him there. Accused No,1, however, completely suppressed the mention of Rs,1,000 per sq. Yard as restoration charges and put the case entirely on a different track and continued to write notes showing deviations and irregularities and proposing regularization of these irregularities on payment of certain charges and quoted wrong precedent. Ultimately, Mr. Mazhar Rail, who was Additional Secretary in the Interior Division and was holding additional charge of Chairman, C.D.A.
7. Agreed to the wrong suggestion of Shafi M. Sehwani that a sum of Rs,100 per sq. Yard may be charged from the allottee for violations committed by him in construction on the plot. This was done intentionally by Shafi Sehwani accused to provide undue benefit to his co-accused, A.Q.
8. Shaukat. The Chairman was thus clearly misled by the wrong suggestion of Sehwani accused and eventually a loss of Rs,18,70,000 was caused to the State exchequer.
9. 6.Both the accused were confronted with the aforesaid charge, which they refuted and pleaded their innocence and claimed trial.
10. 7.The prosecution has examined 7 witnesses in al; in order to substantiate its case.
11. Syed Ali Tajammul Wasti (P.W.1) was Director Estate Management C.D.A., at the relevant time.
12. Mazhar Rafi (P.W.2) was holding additional charge of Chairman, C.D.A. When he was reportedly misled by Sehwani accused. Muhammad Asghar Rai (P.W.3) was Deputy Director, Building Control Cell, C.D.A. At the relevant time. Muhammad Ishaque Khan, Deputy Director (Litigation) Law Directorate, C.D.A., deposed as P.W.4, whereas Khan Muhammad Niazi, Inspector F.I.A. Appeared as P.W.S. Matiullah Khan, S.I. F.I.A., testified as P.W.6 and Muhammad Yaqub Rashid, Inspector F.I.A., who had partly investigated this case, deposed as P.W.7.
13. Mian Nusratullah, Special Prosecutor for State, gave up Muhammad Ramzan Malik being hostile because he was an accused along with accused No,1 in another Ehtesab case. He also gave up Muhammad Khan, Muhammad Riaz, Gulraz Ahmad Chughtai and Khalid Iqbal, P. Ws. Being unnecessary and closed prosecution evidence.
14. 8.Both the accused were examined under section 342, Cr.P.C. And desired to adduce evidence to disprove the charge against them. Eventually they appeared themselves as D.W.1 and D.W.2 and closed their evidence.
15. 9.It would be convenient with a view to appreciate, as to whether the prosecution has been able to bring home the guilt to the accused successfully, to give hereunder a brief resume of the evidence led by the parties.
16. Syed Ali Tajammul Wasti (P.W.1) who was Director Estate Management, C.E).A., at the relevant time, stated that the file was put up before him on 11-6-1986 and he recorded note No,665 (Exh.P.W.1/5).
17. This note was recorded in the light of Para. No,662 recorded by Assistant Estate Management Officer. Sehwani accused agreed to this note vide Para. No,666 where after he (P.W.) remained on Hajj leave and did not deal with the matter. Back he came in September, 1986 and issued letter requiring the allottee to pay Rs, 100 per sq. Yard instead of Rs,1,000 per sq. Yard. According to him, thus, a loss of Rs,18,70,000 WEIS caused to C.D.A. In an answer to a question from learned counsel for accused No,1, he stated that Rs,1,000 per sq. Yard was the prevalent market rate of F-6 Markaz and not difference of price. He further stated that the fact of the matter was that Member Planning, accused No,1, had agreed to the price of Rs, J .000 per sq. Yard but as the matter, also, pertained to the violations committed by the allottee, therefore, after agreeing to the price the matter was referred to Deputy Director, B & BC vide notes Nos.666 and 667. He conceded that thereafter the Chairman enquired vide Para. No, 671 as to the amount on which the plot was originally allotted and the prevalent market price. He volunteered that Sehwani accused had not indicated any price in his note No,670, therefore, the price was asked for by the Chairman. It was correct that Schwani accused in reply to the queries of the chairman, recorded notes Nos.672 and 673 (Exh.D/9) and submitted the file to the Chairman. The Chairman then asked for original terms and conditions vide notes Nos. 674 and 675. He, however, agreed to these Paras. And ordered restoration of the plot. He conceded that plot was against cancelled on 2-11-1986 on account of the failure of the allottee to pay the requisite amount. According to him, Sehwani accused, of his own, requisitioned this file and directed to he put up before him vide his note No,704 dated 8-10-1986. The file was accordingly put up before him on 23-10-1986 and he recorded his not No,708 proposing withdrawal of the plot. As such letter (Exh.D/13) cancelling the plot was issued by him. Subsequently, accused Abdul Qadir Shoukat informed that he had deposited a sum of Rs,13,29,866 with a view to compound the irregularities but there was no receipt available on record. This amount was fixed for the purposes detailed in letter Exh.D23. A.Q. Shaukat accused had allegedly paid the amount for regularization at the rate of Rs,604 per sq. Yard.
18. 10 Mazhar Rafi (P.W.2) recounted the events which led him to pass the order, endorsing the notes recorded by Sehwani accused and stated that he had additional charge of Chairman, C.D.A. And was misled by Shafi accused and ultimately when truth dawned upon him he recalled his order. He stated that he believed Shafi accused being a senior member of C.D.A. And was led to agree to his misleading notes. When asked as to how he came to know that he had been misled and wrong reports were made to him, he stated that he had directed the Director Enforcement to enquire into the matter and it was in pursuance of his report that he ordered cancellation. He conceded that he did not base the cancellation or withdrawal of the allotment on the grounds or reasons of report of Director enforcement but as advised by the office only on the ground that the allottee had failed to make payment of Rs,2,22,000 as calculated by the office.
19. 11.Muhammad Asghar Rai (P.W.3) was Deputy Director Building Control Cell, C.D.A., during the days when the offence was allegedly committed by the accused. According to him, he recorded notes Nos. 652 and then 660 and so also note No, 661. Again while dealing with the file he recorded note No,663. Accused No,1 recorded notes Nos.666 and 667. Accused No,1 discussed the matter with him and thereafter he recorded note No, 668. According to record, accused No,1 visited the spot and note No,669 was recorded by him (P.W.) on 2-7-1986. According to him by April, 1990 accused No,2 had not been able to construct the swimming pool and provide for the allied facilities like massage etc. And instead shops had been constructed and let out. This tantamounted to non-conforming use of the plot. In cross-examination, he stated that he did not remember having gone to the spot after 1986. He denied that in November 1986 they went to demolish the columns, which were constructed to cover the swimming pool. He was unaware of the compounding of the offence by the C.D.A. After receiving Rs,13,29,866.
12. Muhammad Ishaque Khan (P.W.4) stated in answer to a question from the learned defence counsel that Sehwani accused had indeed asked the office to point out the difference of price of commercial plot and swimming pool plot. He, however, conceded that he had given the sale price of the commercial plot prevalent in the year 1984 and the same was meant for the new allottees.
20. 13.Khan Muhammad Niazi, Inspector F.I.A. (P.W.5) had registered this case vide F.I.R. No,27 of 1996 on 23-11-1996. In cross-examination, he denied that Enquiry Report No,140 of 1988 was referred to Mr. Inamur Rehman Sehri, Deputy Director for verification. He was unaware that this enquiry was found false and the case was closed by the Interior Division. He was equally unaware if the accused No,2 had remained in police custody until 30-11-1996 and was arrested on 26-11-1996.
21. 14.Matiullah Khan, S.I., F.I.A. (P,W,b) partly investigated the case and effected arrest of accused No, I on 24-11-1996 and of the second accused on 26-11-1996 and before that he got permission for investigation from Illaqa Magistrate. In an answer to a question from learned counsel for accused No,2 as to why he had sent A.Q. Shaukat to judicial lock-up On 30-11-1996, the P.W., stated that A.Q.
22. Shaukat accused had told him that he had paid Rs,3,00,000 (three lacs) to Sehwani accused for fully commercialization and regularization of the plot. He further told that the total demand was for rupees six/seven lacs out of which the aforesaid amount had been paid.
23. 15.Muhammad Yaqub Rashid, Inspector F.I.A. (P.W.7) also investigated the case and submitted the challan.
16. Ms allegations in brief, as ascertained from the evidence on record, are that the accused No,1 got the allotment of accused No,2 restored and construction regularised against a payment of Rs,2,20,000 instead of a sum of rupees over eighteen lacs. This way the accused No,2 derived the financial benefit of over rupees eighteen lacs at the cost of the exchequer. The points for determination are-- Firstly, whether accused have committed any offence punishable under section 4 of the Ordinance XX of 1997; and Secondly, whether prosecution has proved the allegations against the accused beyond reasonable doubt.
24. 17.Before we take up above points it is relevant to briefly refer to the legislative history on the point.
25. The first piece of legislation is contained in sections 161 to 169 of the P.P.C. It was realised after the Second World War that these provisions have been proved to be an ineffective check on the corruption in the public sector, therefore, Prevention of Corruption Act II of 1947 (hereinafter to be referred as Act II of 1947) was promulgated, which exclusively held the field till 1977 when the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 (commonly known and hereinafter to be referred as Presidential Order 16 of 1977) and the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (commonly known and hereinafter to be called as Presidential Order 17 of 1977) were promulgated but in spite of this the corruption in all spheres was ever increasing. The result was that the country was being branded as second most corrupt country in the world. The citizens were crying for effective measures to check the corruption but probably Government of the time was not still serious. The result was that it moved a bill in the National Assembly while the opposition moved a bill in the Senate. The National Assembly was dissolved for the last time by the President in exercise of powers under Article 58(2)(b) of the Constitution of Islamic Republic of Pakistan, 1973 before its repeal by the Parliament and thereafter, Caretaker Prime Minister was appointed. The President promulgated Ehtesab Ordinance CXI of 1996, which was twice amended and ultimately Ordinance XX of 1997 was promulgated with effect from 1st February, 1997.
26. 18.The Chief Ehtesab Commissioner was appointed to make references of corruption and corrupt practices' by holder of public office or any other person. The offence was defined in section 3, and made punishable under section 4 of Ordinance XX of 1997. Now we take up the first question whether the accused have committed any offence in terms of section 3, which reads as under:-- "3. Corruption and corrupt practices.--(1) A holder of public office or any other person is said to commit the offence of corruption and corrupt practices---
(a) if he accepts or obtains from any person any gratification, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860), or for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person:
(b) if he accepts or obtains any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions, or from any person whom he knows to be interested in or related to the person so concerned: or
(c) if he dishonestly or fraudulently misappropriates or otherwise converts. For his own use or for the use of any other person any property entrusted to him or under his control as a holder of public office or willfully allows any other person so to do; or
(d) if he, by corrupt, dishonest, in proper or illegal means obtains or seeks for himself or for any other person any property, valuable thing pecuniary advantage or undue favour; or
(e) if he or any of his dependents or benamidars are in possession of any movable or immovable property or pecuniary resources. Disproportionate to his known sources of income which he cannot reasonably account for; or
(f) if he commits or causes rigging of election."
27. Subsection (1) clause (d) of section 3 is relevant for the purposes of the present case. The same deals with- I II III Corrupt dishonest improper or illegal meansObtains or seeksFor himself or any other person any property valuable thing pecuniary advantage or undue favour.
28. 19.The Legislature in contradistinction with the previous legislation on the point has used word ' seeks' instead of ' attempts'. This word has not been defined in the Ordinance XX of 1997 or elsewhere, therefore. Both the sides have referred to its dictionary meanings, which are as under:- "seek. To look for: to try to find, get, or achieve: to ask for: to aim at to resort to, betake oneself to: to advance against: to try to search, examine. To go in search or quest or; look for; try to discover or find; To try to secure or acquire; pursue; aim at; strive for; to endeavor or try: Extract from:
(1) Chambers 20th Century Dictionary; and
(2) Funk & Wagnalls New Standard Dictionary of the English Language."
29. It is clear from the meanings of word seeks that it has widened the net of the law to cover all sort of misconduct resulting in gain or property, valuable thing, pecuniary advantage and undue favour, In the case in hand, the allegations are that accused No,1 improperly, dishonestly and illegally allowed pecuniary benefit to the tune of rupees over eighteen lacs by showing accused No,2 undue favour and in that way caused a loss to exchequer. The allegations, therefore, levelled against the accused are covered fairly and squarely by clause (d) of subsection (1) of section 3 of Ordinance, 1997 because in nut-shell the accused No,2 has sought dishonestly, improperly and illegally, pecuniary advantage and undue favour from accused No,1, who in the bare fashion showed him this undue favour and allowed this pecuniary advantage at the cost of the exchequer. The learned Special Prosecutor rightly referred to the judgment of Hon'bie Fedral Court in case of Muhammad Ashraf v. The Crown (PLD 1956 FC 27). The relevant portions read as under:- "After considering the material on the record, we are unable to acceded to the contention raised by the . Learned counsel. In our opinion, the admitted private of profit was a very strong circumstance indicating that Muhammad Ashraf has also been actively. Instigating the two principal accused to resort to the stratagem or diverting the wagons to Badami Bagh instead of re-booking them. It is unthinkable that Muhammad Ramzan should have gratuitously conferred a benefit on.
30. Muhammad Ashraf if the latter had not been interested in the transaction, there should have been no difficulty in retaining his wagon at the Moghalpura Railway Station and diverting the wagon of Muhammad Ramzan only to Badami Bagh. Moreover, as has been observed above the story of the appellant that he did not come into the transaction at all till after the delivery had been taken, is wholly falsified by the test money of Sardar Ali and the documents that were exhibited in this case ....
31. The definition of "criminal misconduct" in section 5 of the Prevention of Corruption Act, 1947, is very wide. a public servant is said to commit the offence of criminal misconduct, inter alia, if he, by corrupt or illegal means or otherwise abuses his position as public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage. Undoubtedly, in this case, pecuniary advantage was gained by Muhammad Ashraf due to the illegal means adopted by the principal offenders. The circumstances point to the irresistible conclusion that Muhammad Ashraf must have abetted Muhammad Sharif and Shamim Ahmed to resort to that illegal means It is clear from the record that accused No,2 had to pay premium at the prevalent market rate i,e, Rs,1,000 per sq. Yard plus compounding/ regularization charges for the illegal construction made by him whereas the allotment was restored, construction of shops and other illegal construction compounded just for Rs,100 per sq. Yard, therefore, these arguments are absolutely without any merit.
32. 20.This brings us to the discussion on next point whether the allegations have been proved against the accused beyond any shadow of reasonable doubt or not? The prosecution examined two sets of witnesses. P.W. I to P.W.4 are the employees of the C.D.A. Whereas P.W 5 to P.W.7 are the officials of F.I.A. While the accused made statements under section 340, Cr.P.C. As D.W.1 and D.W.2.
33. 21.It may be made clear that the prosecution case is mainly based on the written orders/recommendation made by the accused No,1 in respect of restoration of the plot and regularization of illegal construction made by accused No,2. The following basic facts are admitted between the parties.--
(i) that the allotment of accused No, 2 of plot had been cancelled on 23-1-1985 vide Exh.D/16;
(ii) that the prevalent market price in the year 1985 of the commercial plots in Markaz was Rs,1.000 per sq. Yard;
(iii) that the plot was restored vide letter dated 28-9-1986 Exh.D/17;
(iv) that the plot was once again cancelled vide order dated 2-11-1986 for alleged failure of accused No,2 to pay the amount of regularisation and restoration charges;
(v) that the above order was set aside by learned Ombudsman vide order Exh.D/18;
(vi) that the plot was again cancelled in 1990;
(vii) that the plot was again restored vide letter dated 7-8-1993 Exh.D/23. Subject to payment of Rs,13,29.866; and (viii)that this allotment was made in 1974 at the rate of Rs50 per sq, yard, which was also the rate for the commercial plots in Markaz.
34. 22.It is also admitted between the parties that this was a commercial plot allotted for construction of covered swimming pool with hot and cold water facility but accused No,2 instead of completing the construction of the swimming pool proceeded to construct 18 shops, which was technically called non-conforming use, therefore, the plot was cancelled for gross violations of the allotment order and illegal construction. The matter was dealt at different levels. Then P.W.3 Asghar Rai recorded paras. 652 to 657 Exh.D/1 (File Exh.P.W.1/1) and submitted the file to Deputy Director- General (Design) with the proposal that either the authority should stand by the action previously taken or present construction/use may be allowed with the condition that the construction of colitis etc. On the first floor should be removed and swimming pool with allied facilities must be put into operation within three months and for this price difference between the price of the commercial plot and swimming pool plot in this Markaz if any should be charged from ex-allottee.
35. The Deputy Director-General (Design) put up the file to accused No,1, who vide his note Exh.D/2 enquired as to what is the difference in rate and also asked for putting up the original plan showing swimming pool and violations/unauthorised shops constructed thereon. P.W.3 pointed out the violations made by the ex-allottee but forwarded the file to D.E.M. For answering query as to difference of price and then sending the case to Member Planning accused No,1 for decision. This is clear from para. 661 Exh.D/3.
36. 23.Thereafter, Muhammad Ishaque Khan P.W.4 recorded para. 662 Exh.D/4 and pointed out that the prevailing rate in Markaz was Rs,1,000 per sq. Yard. The file was sent to P.W.3 once again, who pointed out that the query raised by accused No,1 has not been attended to. Once again the case was sent to AEMO-1, who pointed out by referring his note 663 Exh.D5 that as the swimming pool is situated in Markaz as such the prevailing rate mentioned in para. 662 Exh.D/4 would be charged.
37. The same was confirmed by P.W.4 in his note 664 dated 3-6-1986 Exh.D/6. The file was thereafter put up to accused No,1 through D.E.M. The accused No,1 proceeded to record paras. 666 and 667 on 17-6-1986 Exh.P.W.3/2 and the same read as under:--- "666. Yes please: should not be less than Rs,1,000 and this is to the best advantage to the allottee.
667. Please discuss."
38. Thereafter, the accused No,1 visited site as is apparent from para. 669 dated 2-7-1986 Exh.P.W.3/4 recorded by P.W.4. This was followed by a typed note consisting of para. 670 dated 13-7-1986 Exh.D/7 whereby he recapitulated the case of accused No,2 and submitted the file to Chairman, who raised a query as to the price of the plot when allotted and of the other plots allotted for commercial use and asked accused No,1 to put up the file personally on next day. The accused No,1 thereafter recorded his note as contained in paras. 672 and 673 Exh.D/9 and submitted the file. He suggested that for additional storey over the existing ground floor the allottee may be charged additional amount of Rs,100 per sq. Yard to regularise the matter. The Chairman once again returned the file with the observation that he would like to see the original terms and conditions and know the price of adjoining shopping centers etc. The accused No,1 recorded his note consisting of paras. 676, 677 and 678 Exh.D/11. In the first para. He referred to the original terms and conditions and rate at which the allotment was made. Thereafter, he proceeded to refer to Plots No,7.10-A, 10B, 10-C and 11 with the rates at which the same were allotted and in the last para. He suggested that accused No,2 may be allowed basement, ground plus one storey and charge him Rs,100 per sq. Yard to regularise commercial use of the shops. The proposal of accused No,1 as contained in paras. 677 and 678 Exh.11 was approved by the Chairman vide his note in para. 679 Exh.P.W.2/1. The Chairman has appeared as P.W.2 and stated that he was misled by preceding paras. (Exh.D/11) recorded by accused No,1 and he relied on accused No,1 as he was there for quite some time but when subsequently he came to know that true facts have been concealed from him he deputed Director Enforcement C.D,A. To check up these facts and after receiving the report he proceeded to withdraw the order.
39. 24.It is clear from the record that the C.D.A. Has to restore the allotment after regularising the violations committed by accused No,2. This way the regularisation and restoration of allotment were the two facets of the same transaction. There was a set policy for both the matters. The allotment was to he restored subject to payment of: (i) restoration surcharge at the rate of Rs,25 per sq. Yard; premium at the prevalent rate; and (Iii) undertaking mai lot shall not be transferred till the completion of building.
40. 25.This position is clear from Regulations Exh.D.W1/12 issued by Estate Management Directorate of C.D.A. For Land Disposal in }Islamabad Regulation, 1985 particularly Regulation No,52. Which reads as under-- CHAPTER X111.--RESTORATION 52.The Authority may consider cases for restoration of allotment of cancelled plots on following conditions provided an appeal has been made by the aggrieved allottee within a period of three months:-
(a) By charging restoration surcharge at the rate of:-
(i) Rs,10 per sq. Yard for residential plot'
(ii) Rs,25 per sq. Yard for commercial plot.
(iii) Rs,50 per sq. Yard in Blue Area.
(iv) Rs5.000 per acre for plots in Agrofarming Schemes.
(b) Charge Price/premium at C.D.A. Prevailing rates.
(c) Making the plot Non-transferable till certified completion of the building.
41. In case of mitigating circumstances accepted by the Authority any or all of the above conditions can be waived,"
42. Accused No,1 while appearing as D.W.1. Reluctantly admitted this legal position. The prosecution case is that accused No,1 misled Chairman P.W.2 and posed to him in his Notes 676 to 679 that as it was a matter of regularization of commercial use of the shops whereas it is clear from his own note 666 Exh.P.W.3/2 that he was fully conscious of the fact that he was dealing with the matter of restoration of the allotment and regularization of the illegal construction. The defence pleas of the accused No,1 is contradictory in the first instance. His stand, as is clear from the cross-examination of P.Ws. And his statement as D.W.1, was that whatever done by him was correct. But afterwards when learned Special Prosecutor pointed out that accused No, 1 in order to give undue benefit, improperly, illegally to accused No,2 dishonestly left the issue of restoration of allotment at his note as contained in para. 666 and just referred to the regularization and got the approval of the Chairman although there could be no regularization without restoration of the allotment and vice versa. It was in reply to the argument of the learned Special Prosecutor that Ch.Mushtaq Ahmad Khan. Learned counsel for accused No,1 took up the position that his client never recommended restoration of plot, therefore, he has not shown any 'illegal or undue favour to accused No,2. This argument, of course, ignored the entire defence version as put to the P. Ws. In cross-examination.
43. This is not all. The order of restoration Exh.D/17 was issued on 28-9-1986 and thereafter, accused No,1 sent for the file on 8-10-1986 as is clear from his note in para 704 Exh.D.W.1/2 and asked the office to put up file on 25-10-1986. If only the illegal construction had been regularized then for what he was waiting and why he did not point out that the allotment has not been restored. That was not all. He has been dealing both aspects all along and never pointed out that he has nothing to do with the restoration of the allotment. The learned counsel feebly argued that as Member Planning he had nothing to do with the restoration of allotment, which was the subject-matter of Estate Management Department. It is not possible to accept this plea in view of clear notes contained in paras 652 to 657 recorded by P.W.3. Besides this was never his case There could be no regularization without restoration of the allotment, the orders have to be withdrawn simultaneously.
44. 26.It is clear from the evidence that accused No,1 concluded the matter of restoration of allotment with recording of his note contained in para. 666 and for the regularization he asked the Deputy Director Building and Building Control and proceeded to visit the spot. Thereafter, he noted down the irregularities and proceeded to observe in para. 673 that the allottee be asked to pay an additional charge of Rs,100 per sq, yard for regularization but in this para. Accused No,1 failed to refer to the restoration charges which accused No,2 was liable to pay for the same. As per the explanation that actually he took figure of Rs,1,000 in his note 666 as the difference of price; we may mentioned here that this story of difference of rate for the swimming pool plot and commercial plot which consumed lot of time of the different officials, was ,irrelevant because the swimming pool plots and commercial plots allotted in 1974 at the same rate and even in the subsequent rates notified through notification dated 2-1-1984. Swimming pool plot was not mentioned as a separate category. This controversy came to an end with the notes 663. 664 and 665 and particularly note of P.W.4. There was no difference of price between the two types of plots, therefore, it is not possible to accept the explanation. He has correctly noted figure of Rs,1,000 per sq. Yard. The same was exactly in line with Regulation 52 of 1985, 27.The prosecution has proved from various notes of accused No,1 himself that there was a clear change in his attitude after he inspected the spot in July 196. It is clear from the record that accused No,1 was all out to give undue, illegal benefit to accuses No,2.
45. 28.The other argument was that accused No2 has not taken any benefit of the order of restoration passed as a result of paras. 677 and 678 Exh.D/11 recorded by accused No,1. The learned counsel for accused No,1 was confronted with the facts that when this order was withdrawn vide order dated 2-11-1986 Exh.PW.2/2, the accused No,2 proceeded lo challenge this order before the learned Ombudsman and the order was set aside vide judgment Exh.D/18 Thereafter, C.D.A. Filed review application Exh.D/19, which was dismissed vide judgment Exh,D/20. The net result was that it was held that in pursuance of this order C.D.A. Was entitled to receive Rs,2,20,000 as restoration charges and not Rs,2,22,000. It is relevant to mention here that accused No,2 was to pay as per order of restoration at the rate of Rs,100 per sq. Yard and the total area of the plot admittedly is 2200 sq.
46. Yard but C.D,A, incorrectly demanded an amount of Rs,222,000. Accused No,2 pointed out this discrepancy in working out the figure but nobody attended to his grievance in the .C.D.A, therefore, he had to seek redress of his grievance from the learned Ombudsman. This way the order was accepted. This is not all.. The accused No,2 in pursuance of this order has sent a draft for Rs,2,20,000 and the same amount was included in the amount of Rs,13,29,866 although not admitted by the accused but this position is proved from the documents forming part of file Exh.P,W.1/4 specially Para, Nos.1059 and 1060.
47. 29.The prevalent rate of Rs,1,000 per sq. Yard was for both commercial and swimming pool plots as the latter is also type of commercial as is clear from allotment order. There was no ambiguity.' If the explanation of accused No JL is correct then the discussion should not have been with the Building and Building Control Department official but with the official of the. Estate Management, who had supplied the prevalent price. Accused No,2 in order to avoid any presumption or his link with accused No,1 has denied having met him at the site. This is a statement on oath, which is patently false because accused No,1 as D.W1 has clearly stated that accused No,2 met him at the site when he went there for inspection. The amount of Rs:100 per sq, yard. Which was proposed by accused No,1 in his note 678, was utterly unjustified and when he was asked by the Court as D.W.I as what was the basis to arrive at this figure he had no answer. This fact alone is sufficient to convict the accused.
48. 30.Accused No,1 was all out to give dishonestly and improperly pecuniary benefit to accused No-.2 and for that reason the amount, which the accused No,2 was liable to pay for restoration of his allotment and regularization of violations committed, was not worked out at one place. Accused No,2 had constructed 18 shops in clear violation of the purpose of allotment of the plot and that was nonconforming use, which the C.D.A. Was not inclined to waive and he was also not in a mood to pay. In accordance with the rates fixed for 'restoration of allotment and regularization of violations in construction, Both the accused joined hands successfully to secure pecuniary advantage and undue favour through dishonest, improper and illegal means for accused No,2. This was the amount which C.D.A. Should have been received in accordance with the rules and regulations but was illegally and dishonestly deprived of by the two accused. This way accused No,1 illegally, improperly allowed benefit of rupees over eighteen lacs to accused No,2, to which amount the C.D.A. Was entitled as restoration of the allotment and regularization of illegal construction.
49. 31.The argument that the decision dated 22-7-1986 was not acted upon and accused No,2 has drawn no benefit from the same, therefore, the allegations of accused No,1 causing any loss to the exchequer by illegal or improper order are incorrect. The order was not only acted upon but enforced, by the accused No,2 through petition to the learned Federal Ombudsman and it was in face of this restoration order that the second cancellation order was passed by the C.D.A. On 3-11- 1990. The documents Exhs.D/2, D/3, D/4 and D/6 would prove the guilt of the accused beyond any reasonable doubt.
50. 32.The defence of accused No,2 is that since he did not involve accused No,1 at the instance of F.I.A., therefore, he has been involved in this case. The plea is incorrect on the face of it because the petitioner was arrested on 26-11-1996 after registration of case on 23-11-1996 and after interrogation remanded to judicial custody. Similarly the plea of accused No,1 is that investigation was in respect of the affairs of deposed Prime Minister and nothing was asked from him as to the present case. The defence plea besides being too vague is without any material on record. The case has been registered on specific allegations and accused No,1 has failed to substantiate any special connection with the deposed Prime Minister. Moreover. This all happened during the three months tenure of the Caretaker Cabinet. Which had no personal axe to grind.
51. 33.It was argued with reference to provisions of sections 11, 29 and 37 of Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (President's Order 1 of 1983) that proceedings in the present case are clearly barred. Raja Muhammad Anwar, Advocate for accused No,2 added that the issue has already been decided by the Ombudsman and it is final and cannot be re-opened directly or indirectly. It was maintained that nobody can be vexed twice and the present trial is not even possible under general principles. The learned counsel in this behalf referred to The Prince Glass Works Ltd. v. National Beverages Ltd. And another (PLD 1987 Karachi 49) and M/s. Pakistan Telecommunication Corporation through its Director v. Abdus Sattar and 5 others (1995 MLD 1563).
52. The argument is again misconceived. The charge here is that accused No,1 illegally, improperly and dishonestly allowed pecuniary benefit of rupees over eighteen lacs to accused No,2 and this way the C.D.A. Was deprived of this amount. The accused joined hands to allow undue favour by accused No,1 to accused No,2 at the cost of the exchequer.
53. 34.The next contention was that the whole proceedings were mala fide. In this behalf, reference was made to detention of accused No,1 under M.P.O. And then his arrest in this case from outside the Adyala Jail. The mere detention under M.P.O. Would not make this case mala fide. The case had already been registered. It is possible that the two State agencies were proceeding independently and that would rebut the suggestion of mala fide rather than prove it.
54. 35.The other legal point namely that the Ordinance CXI of 1996 was repealed without saving the action initiated under the same, therefore, the present trial and all proceedings initiated under Ordinance CXI of 1996 were without any legal basis. The argument clearly lost sight of the provisions of section 24 of the General Clauses Act, which provided that if any Central Act After commencement of Amending Ordinance, 1937 is repealed, re-enacted then unless otherwise provided any appointment, notification, order, scheme, rule, form, shall continue in force until same are inconsistent with the new enactment. This clearly saved the proceedings under Ordinance CXI of 1996. The trial is in accordance with law and valid.
55. 36.The accused are equally liable. A citizen who secures any benefit illegally or an undue favour cannot escape the liability under the Ehtesab Ordinance. A holder of a public office or any other person, who obtains or seeks to obtain such a gain for himself is equally guilty and in accordance with section 4(2) a person giving illegal gratification or abetting, assisting or aiding a holder of a public office is liable to the same punishment as is awarded to a holder of public office. This provision is in consonance with the general law, The evil of corruption has spread like cancer in the society because the citizens are out to obtain or seek property, valuable things, pecuniary advantage or undue favour by corrupt, dishonest, improper and illegal means. If looked from this angle a citizen who obtains or seeks the assistance of holder of a public office is more responsible for corruption. There is no distinction between the giver and taker of bribe or undue favour. We may refer here to the judgment in the case Emperor v. Kesri Chand AIR (32) 1945 Allahabad 207). The relevant portion reads as under:-- "Is there, then, any other reason for making a distinction between the two? The answer to this question depends on our conception of the law in its relation to the society and the State. The main, indeed the only function of law is the preservation of society. The merits of law or a particular enactment are judged by the contribution it makes to the development of a healthy society. The 'social conscience' is the ultimate forum to pass the final verdict on its value or utility. Every piece of legislation is judged by the above standard. If and in so far as it makes for the preservation or solidarity of the society or the State, it receives the approbation of 'social conscience'. If otherwise, it is condemned. The same with every individual action. The measure of harm it causes to society is the measure of its condemnation. This is what is really meant by the dictum that 'the State it is that determines whether an act has the status of crime or not (Principles of Criminology by K.
56. Subrahmania Pillai, page 8). It is for this reason that different sentences, have been provided for different offences, because every offence does not cause the same degree of shock to the conscience of the society or the State. Judged by the above test, is there any warrant for making a distinction between him who offers and him who accepts the bribe? Both are parts of the same instrument, the minds of both work in unison; both act in concert and it is their concerted action which produces a result constituting a menace to society."
57. 37.The corruption is a menace confronting the entire society. There is no short-cut to eradicate the same except that the corridors of power should remain clear and unpolluted from all sort of scandals of corruption and misuse of power, the citizens are conscious of their rights and they repose complete confidence in the Courts. The Government has to provide the necessary manpower for the trial Courts if it sincerely believes that people should get justice expeditiously and should not run after administrators with money or recommendations in their pockets to win undue favour.
58. 38.We would be failing in our duty if it is not made clear that the higher is the position enjoyed by a civil servant the more would be his responsibility. The plea simplicitor that one was, misled by his subordinate is no defence. It is the duty of the Government, also, to ensure the top administrative positions should be occupied by the officers who are efficient and believe that they are to serve' the citizens and not to those whose only qualification is access to power corridors. It is a matter of great regret that although on this 14th August we would be completing 50 years of our existence as Islamic country yet the attitude of the top administrative layer by and large has not appreciably changed. They mostly behave as rulers and not conscious of the fact that they are the custodian of the rights of the people and their purpose is to serve them.
59. 39.The upshot of the above discussion is that both the accused are found guilty of offence under section 4 of the Ehtesab Ordinance XX of 1997 and they are hereby convicted and sentenced to 5 years R.I. Each and a fine of Rs,10,00,000 (rupees ten lacs only) each and in case of default to further undergo of 1 year R.I. The convicts are entitled to benefit of section 382-B of Criminal Procedure Code.