NASIR-UL-MULK, J.---This Reference under section 14 (1) of the Ehtesab Ordinance (Ordinance XX of 1997) was sent by the Chief Ehtesab Commissioner on 24-2-1997, and submitted on 18-3-1997, for the trial, under the Ordinance, of Mr. Aftab Ahmad Khan Sherpao, former Chief Minister N.-W.F.P.
(accused No,1) and Mr. Malik Muhammad Afzal, former member of the National Assembly (referred to as accused No,2). The Reference was based on the report, dated 6-2-1997, submitted to the Chief Ehtesab Commissioner by the Director, Anti-Corruption Establishment N.-W.F.P. Peshawar. The allegation against the accused in the Reference and the report are that accused No,1 allotted one Kanal plot No,283, in Phase VII, Hayatabad Township, Peshawar, to accused No,2 in violation of the approved Housing Scheme for the construction of Government residences, which caused losses to the Housing Project. The possession of the plot, it was alleged, could not be delivered as the allottee had failed to comply with one of the pre-conditions, namely deposit of 1/4the advance money. The Reference stated that the said acts of omission and commission by the two accused constituted illegal and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance. The relevant record pertaining to the case was filed with the Reference.
2. On their appearance in response to the summons issued by this Court, the accused were provided with the requisite documents in accordance with the provision of section 265-C, Cr.P.C. It may be mentioned that the provisions of Chapter XXII-A of the Criminal Procedure Code have been made applicable to the trial of cases under the Ordinance. The case was adjourned from 15-4-1997 to 28-4-1997 for framing of charge. But on that date of hearing applications were submitted on behalf of both the accused for their acquittal under section 265-K, Cr.PC. on the ground that there was no probability of the accused being convicted for any offence under section 3 (1) (d) of the Ehtesab Ordinance. Written replies to the applications were submitted by the learned Special Public Prosecutor. Arguments were then addressed on the merits of the applications.
3. Mr. M. Zahur-ul-Haq, Barrister, appearing for accused No,1 pointed that after the repeal of Ehtesab Ordinance of 1997 by the Ehtesab Act, 1997 (Act IX of 1997) the proceedings of the case were now to be regulated by and conducted under the Act. In this context reference was made to section 31 of the Ehtesab Act which provided that proceedings initiated under the Ordinance were to continue under the Act. It was next argued that the scope of the offences under section 3 (1) (d) of the Ordinance has been narrowed down by the corresponding section 3(1) (d) of the Act and the latter provision makes the holder of public office guilty of corrupt practices only if by abuse of his official position he obtains or seeks to obtain pecuniary advantage for himself or his spouse or any dependant. The learned counsel, thus, submitted that it was not the prosecution case that accused No,1 had allotted or had sought to allot the plot to himself, his wife or dependant.
4. The learned counsel for accused No,2, Nawabzada Saleem Dil Khan, Advocate, in addition to the submissions made on behalf of accused No,1, contended that there was absolutely no case against accused No,2 as the documents and statements filed with the Reference do not show that the accused (No,2) had at any time made verbal or written request for the allotment of the plot to any person. Furthermore, it was argued that not only the plot was not availed of by accused No,2 but there is no material on the record to show that the accused had received the letter or order of allotment. Since the facts as alleged by the prosecution do not disclose the Commission of any offence by any accused either under the Ehtesab Ordinance or the Ehtesab Act, no charge, it was contended, can be framed against the accused and he is, therefore, entitled to be discharged under section 265-K, Cr.P.C. Reliance was placed on the cases reported as Muhammad Siddique and another v. The State (1991 PCr.LJ 630), Umubyeyi Christine v. The State (1993 PCr.LJ 1606) and Allah Ditta v. The State (1991 PCr.LJ 663) for the proposition that before framing charge under section 265-D, Cr.P.C. the Court must first satisfy itself from the police report and other documents and statements filed by the prosecution that there is ground for proceeding with the trial.
5. Mr. Amjad Zia, the learned Special Public Prosecutor responding to the arguments on behalf of the accused contended that the applications were premature and the prosecution be given opportunity to produce evidence to substantiate the charges against the accused. He submitted that without recording evidence the Court would not be in a position to fully appreciate the prosecution case. The learned Special Public Prosecutor, in the alternative, argued that as the proceedings in the Reference were initiated before the repeal of the Ehtesab Ordinance, the Ordinance would regulate further proceedings and that the charge would be framed under section 3 (1) (d) of the repealed Ordinance. Being wider in scope, it was pointed out, the charge could validly be framed under the repealed section 3 (1) (d) of the Ordinance.
6. Alongwith the Reference made by the Chief Ehtesab Commissioner, the prosecution has filed the report of the Director, Anti-Corruption Establishment; letter of allotment signed by accused No,1; allotment order dated 9-7-1996, issued by Housing Officer, Peshawar Development Authority; letter dated 1-2-1997 by Secretary P.D.A. to Director, anti-Corruption Establishment, and statements of Sheryar Khan, Secretary, P.D.A. and Inamullah Khan, Housing Officer, P.D.A. The facts that can be gathered from these documents and statements are that by an undated letter, signed by the former Chief Minister N.-W.F.P. (accused No,1), addressed to the Director-General, P.D.A., plot No,283 Sector E-6 measuring one Kanal in Phase VII Hayatabad Town, Peshawar, was allotted to Malik Muhammad Afzal M.N.A. (accused No,2). In pursuance to the letter of allotment, the Housing Officer P.D.A. on 9-7-1996 issued letter of allotment to accused No,2, requesting the allottee to deposit 1/4th of the sale price with the P.D.A. within thirty days. The advance money was not deposited and, therefore, possession of the plot was never delivered to accused No2; it was so stated by the letter dated 1-2-1997 written by Secretary P.D.A. to the Director, Anti-Corruption Establishment, in response to querries made by the latter. This is the entire documentary material proposed to be produced by the prosecution at the trial. As their statements filed with the Reference would reveal, the two prosecution witnesses were to be examined only in support of the said documents with nothing else to add.
7. The law relating to Ehtesab was first enacted on 18-11-1996 by Ehtesab Ordinance 1996 (CX1 of 1996), which was further amended by Ordinance CXXIII of 1996, Ordinance VII of 1997 and Ordinance XI of 1997. The Ehtesab Ordinance of 1996 was repealed and replaced by Ehtesab Ordinance 1997 (Ordinance XX of 1997 dated 1-2-1997). The Reference in the present case was made under Ordinance XX of 1997 as it was submitted on 18-3-1997. On 31-5-1997 the Ehtesab Act (Act IX of 1997) was enacted, under section 31 (1) of which the Ehtesab Ordinance 1997 was repealed. Since the question as to whether the proceedings in the present Reference are to be regulated by the repealed Ehtesab Ordinance or the Ehtesab Act, will depend upon the interpretation of section 31 of the Ehtesab Act, it will be necessary to reproduce the entire section:
31. Repeal. (1) The Holders of Representative Offices (punishment for Misconduct) Order, 1977 (P.P.P.O.16 of 1977), the Parliament and Provincial Assemblies (Disqualification for Membership)
Order, 1977 (P.P.P.O. 17 of 1977), and the Ehtesab Ordinance, 1997 (XX of 1997), are hereby repealed.
(2) Notwithstanding the repeal of the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 (P.P.P.O. 16 of 1977) the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (P.P.P.O 17 of 1977) and the Ehtesab Ordinance, 1997 (XX of 1997),
(a) any proceedings pending before the Special Court under the said Orders shall continue as if the said Orders had not been repealed;
(b) any appointments made under the Ehtesab Ordinance, 1997 (XX of 1997), including specifically that of the Chief Ehtesab Commissioner by the President shall continue for the appointed term; and
(c) any proceedings pending before a Court under the Ehtesab Ordinance, 1997 (XX of 1997), shall continue under this Act and it shall not be necessary to re-call any witness or once again record any evidence that may have taken down."
Under subsection (1) of section 31, not only the Ehtesab Ordinance but two other President's Orders of 1977 had been repealed. By using the words 'notwithstanding the appeal...' in subsection (2) the intendment of the legislature was that in matters specified in clauses (a), (b) and (c) of subsection
(2) of section 31 of the Act, the normal effects of repeal of an enactment were excluded. Clause (a) relates to pending proceedings under the two President's Orders, Nos.16 and 17 of 1997, whereas clause (c) is in respect of the pending cases under the Ehtesab Ordinance. A clear distinction has been made in the two provisions; under clause (a) the Special Courts established under the President" s Order are to carry on with pending proceedings as if the Orders had not been repealed whereas under clause (c) the proceedings pending under the Ehtesab Ordinance 1997 are to continue under the Ehtesab Act. Clearly, the intention was that the provisions of the repealed Ehtesab Ordinance were not to apply to proceedings that were pending under it at the time of its repeal and that further proceedings were to be regulated and continued under the Ehtesab Act.
Thus, from the date of enactment of the Ehtesab Act its provisions would apply to cases that were pending under the repealed law. Support for this construction can be found from the insertion in clause (c) the provision that the witnesses already examined under the repealed Ordinance need not be recalled. If the pending proceedings were to continue under the repealed Ordinance, the provision regarding non-recalling of witnesses would not have been necessary. Furthermore, the Ehtesab Act has also brought about a change in the constitution of the Court empowered to try cases under it. Under section 2 (a) of the repealed Ordinance 'Court' meant a Bench of two or three Judges of the High Court whereas under the Ehtesab Act, a single Judge can also constitute a Bench. If the argument of the learned Special Public Prosecutor that pending cases are to be tried under the repealed Ordinance, is accepted, those cases could only be tried by a minimum of two Judges and not by a Single Judge as provided for under the Ehtesab Act. Surely the intention of the legislature was that Benches of Single Judges may try not only new cases but pending ones as well.
8. Even otherwise the Supreme Court of Pakistan in Pir Sabir Shah v. Federation of Pakistan (PLD 1994 SC 738) at page 781, referring to its earlier judgments in Government of Punjab v. Ziaullah (1992 SCM R 602), Muhammad Naeem alias Naeema v. The State (1992 SCM R 1617) and Muhammad Arif v. The State (1993 SCM R 1589) has held that an Ordinance, being a piece of temporary legislation, proceedings initiated under it would ipso facto terminate once the Ordinance lapses and that the provisions of Article 264 (1) (E) of the Constitution would not save such pending proceedings. The august Supreme Court, while dealing with the argument of the learned counsel for the petitioner that the Parliamentary Party empowered under Ordinance XXX of 1993 to disqualify its defected members was empowered to do so even after the lapse of the Ordinance as the proceedings of disqualification were initiated before the lapse, held that the proceedings were not saved under Article 264 of the Constitution as the Ordinance was a temporary piece of legislation. Thus, it was ruled that the Parliamentary Party was no longer empowered to disqualify its defected members after the lapse of the Ordinance though proceedings were initiated before the lapse.
9. From the above discussion it follows that further proceedings in the present Reference are to be conducted under and regulated by the Ehtesab Act 1997. Thus, the charge is to be framed for the offences specified in the Act and the question as to whether a charge could be framed under section 265-D Cr.P.C. is to be determined with reference to the offences enumerated in section 3 of the Ehtesab Act, which is the only section that defines the offences to be tried under the Act.
10.Section 3 subsection (1) of the Act creates 5 offences. Clause 'a' and clause (b) of subsection
(1) of section 3 are clearly not attracted as they relate to offences where the holder of public office accepts illegal gratification or valuable things without consideration in return for favour. In the present case, there is no allegation regarding acceptance of any illegal gratification by anybody.
At the time of arguments, the learned Public Prosecutor made an attempt to bring the case against the accused under clauses (c) and (d) and subsection (1) of section 3 of the Act. A holder of public office is said to have committed an offence under clause (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 a public office or wilfully allows any other person so to do ". One of the essential ingredients of the above offence is misappropriation or conversion. The offence would, thus, not be complete unless the property has been misappropriated or converted. No penal consequences ensues by merely an attempt to misappropriate or convert. In the present case even the prosecution case is not of misappropriation or conversion as the plot allotted was never availed of by the allottee. Thus, the offence under clause (c) was never completed and consequently no charge can be framed for the offence specified therein.
11. Clause (d) of subsection (1) of section 3 makes it an offence where a holder of public office by corrupt, dishonest, or illegal means, in abuse of his position as a holder of public office, obtains or seeks for himself, or for his spouse or dependents any property, valuable thing or pecuniary advantage. One of the elements of this offence is that the holder of public office must obtain or seek to obtain property etc either for himself or for his spouse or dependent. It is not the prosecution case that the plot was allotted by accused No,1 to himself, to his spouse or dependent, or that he had himself, his spouse or dependent obtained any pecuniary advantage from such allotment. Surely the facts alleged by the prosecution do not warrant the framing of the charge for the said offence.
12. Section 265-D does require the trial Court to peruse all the documents filed by the prosecution to see whether there is ground for proceeding further with the trial. Such scrutiny is to precede the framing of charge against the accused. The power to examine the record before framing of the charge is confined to trial before High Court and the Court of Sessions under Chapter XXII-A and such power is not conferred upon the Magistrate, who under section 242, Cr.P.C. is not left with any option but to frame a formal charge when the accused appears before him. The exercise of powers under section 265-D not to proceed with the case is, however, to be sparingly used and ordinarily the prosecution provided opportunity to produce evidence. But in appropriate cases, when the facts alleged by the prosecution do not disclose the commission of any offence, the Court cannot desist from discharging the accused under section 265-D, Cr.P.C. The jurisdiction of this Court to try offences under the Ehtesab Act is limited to the offences enumerated in section 3 of the Act. As discussed above, the documents and statements filed by the prosecution do not disclose the commission of any offence under section 3 of the Ehtesab Act. In such circumstances, there is no ground for further proceeding with the trial and, therefore, to frame a charge against the accused.
Though the applications submitted by the accused were for their acquittal under section 265-K, Cr.P.C. but the accused cannot be acquitted, for, acquittal pre-supposes the framing of a charge as section 265-H Cr..P.C. provides that an order of acquittal can be recorded in a case in which a charge has been framed. The two applications are, therefore, treated as having been made under section 265-D, Cr.P.0 and are accepted as such. Resultantly, the accused are discharged under section 265-D Cr.P.C.
Above are the reasons for our short order dated 26-6-1997.