1. ' The allegations contained in the present Ehtesab Reference are that on 7-3-1993 M/s. Lakhani Construction sought permission for construction of a building known as Prince Avenue on Plot No,270, Garden West, Karachi. The builders were accorded an approved plan on 9-6-1993 for constructing hollow plus ground plus one floors. It is alleged that since January 1994 the construction was raised in violation of the approved plan, in view whereof a show-cause notice was served upon the builders by officers of Karachi Building Control Authority (hereafter referred to as K.B.C.A.). It is not disputed that the copy of the show-cause notice is missing from the files while the entry in the dispatch register in relation thereto has been produced. It is alleged that subsequently Ahmed Hussain, the then Chief Controller of Buildings/K.B.C.A. (accused No,3) received two separate letters from two ex-Ministers in the Government of Sindh, namely Nisar Ahmed Khuro (accused No, l) and Mir Nadir Ali Magsi (accused No,2) through one Hashim, partner of Lakhani Construction Company, asking him (Ahmed Hussain) to allow construction in violation of the approved plan to be subsequently regularised. It is alleged that as a result of such letters the field staff of the K.B.C.A. Refrained from taking any further action against the builders. As a result the builders raised unauthorised construction comprising ground plus six floors.
2. ' At this point it is pertinent to highlight that the reference received by this Court described accused No,4 in the following terms: "Mr. Hashim and others--Partners of M/s. Lakhani Construction Company (Prince Avenue)-- beneficiaries."
3. ' On 13-2-1997 this Court upon pointation of the counsel for the accused No,4 took cognizance of the fact that M/s. Lakhani Construction Company was only the transferor of the disputed plot in favour of M/s. Prince Avenue. It was also clarified that it was the partners of Prince Avenue and not Lakhani Construction Company which raised the construction in issue. Accordingly it was the partners of Prince Avenue who were present in Court, they engaged their counsel faced trial proceedings and their statements under section 342 of the Cr.P.C. Were also recorded. The said partners are accused Muhammad Hashim, accused Zakaria Usman, accused Abdul Majeed, accused Zakaria M. Fazil and accused Abdul Qadeer. Hence, reference to the accused No,4 shall imply reference to the partners of M/s. Prince Avenue as stated.
4. ' Before adverting to the testimonies of the prosecution witnesses, I feel it convenient and necessary to reproduce the contents of the two letters written by the ex-Ministers marked exhibits 14/8 and 14/9 in which comprise the very basis of the prosecution case:-- {{TABLE}} Exhibit 14/8:- Sign of Seal Nasir Ahmed Khuro "Minister Planning and Development, Sindh Karachi, dated the 8-2-1994 ' My dear Ahmed Hussain, {{TABLE}} ' The bearer Mr. Hashim is a friend of mine with a problem he will explain to you personally. He has a genuine problem which is to be sorted out. I have also intimated the authorities concerned about this.
5. ' I would appreciate it very much if he is helped out to solve his problem.
6. ' Best wishes, Yours Sincerely (Sd.)
7. ' Mr. Ahmed Hussain Ch., ' Controller Buildings, ' Karachi."
(i) Exhibit 14/9:-- "To ' The Honourable Minister, ' Local Government & Rural Development, ' Government of Sindh, Karachi.
8. ' Subject: Request Allow to Continue the Construction on Plot No,270 GRW, Garden West Namely (Prince Avenue)
9. ' Respected Sir, ' With reference to the above it is humbly requested that I am the owner of above plot and have approval of building plans for residential flats. The construction work (sic) at site.
10. ' It is therefore requested you to please order continue the construction at site and the violations made will be regularised after the completion of project.
11. ' Thanks.
12. Yours truly, (Sd.)
13. (Muhammad Hashim)
14. CCQB request allowed (Sd.)
15. 10/2 (Stamp/Seal of)
16. ' Nawabzada Mir Nadir Ali Khan Magsi, ' Minister Local Government, ' Public Health Engineering and Rural Development ' Government of Sindh."
17. ' The crux of the prosecution case is that under the garb of these two letters the builders i,e, accused No,4 were able to raise unauthorised construction, while these letters had been written by the accused Nos.1 and 2 by way of corruption and corrupt-practice with a view to extend favour to the builders. Likewise the accused No,3 acted in collusion by entertaining the illegal letters as also by failing to stop the illegality i,e, unauthorised construction.
18. ' Mr. Abdullah Chandio, the learned Special Prosecutor. Has led testimonies of the following prosecution witnesses:- "(i) Qazi Mumtaz Iqbal, Deputy Controller, K.B.C.A.
(ii) Syed Asghar Ali, Deputy Controller, K.B.C.A.
(iii) Syed Ali Zafar Qadri, Deputy Controller, K.B.C.A. (hr) Ashiq Ali, Assistant Controller, K.B.C.A.
(v) Zafar Kauser, Assistant Controller, K.B.C.A.
(vi) Munawar Azam, Assistant Controller, K.B.C.A.
(vii) Muhammad Akram Inspector, A.C. Establishment."
19. ' In defence none of the accused produced any witnesses and chose not to be examined on oath.
20. As a result all the accused only submitted statements under section 342 of the Cr.P.C. Along with documents and exhibits, which shall be referred to in due course as and when found necessary.
21. ' I would now venture to underscore the material assertions made by the prosecution witnesses in their testimonies. Reference shall only be made to material witnesses and their relevant testimonies.
22. ' Qazi Mumtaz Iqbal, the first and star prosecution witness, inter alia, deposed that in January 1994 his Assistant Controller (SITE), Muhammad Ali Qaimkhani intimated him the violations in issue. Qazi Mumtaz Iqbal thereafter deputed another officer Jamil A. Memon to look into the case and he submitted his report. As a consequence a notice dated 5-2-1994 was issued and delivered to the builders. Though the copy of the said notice has not been brought on record entry No,2 in the relevant dispatch register has been seen and its photo stat copy duly certified kept on record as exhibit 7. Qazi Mumtaz Iqbal has further deposed that on 10-2-1994 he was called by Ahmed Hussain, the then Chief Controller, and at that time Mr. Wasti, the concerned Controller of Buildings, was also present. Wasti informed Qazi Mumtaz Iqbal that Ahmed Hussain had received two letters one from Nisar Ahmed Khoro dated 6-2-1994 and the other from Nadir Magsi dated 10-2-1994 in view whereof no further action should be taken against the alleged violations on the disputed plots.
23. It was further alleged by Qazi Mumtaz Iqbal that Wasti also handed him photo stat copies of the two letters, while stating that in view whereof the construction at site continued till his transfer from the Zone on 7-7-1995. Qazi Mumtaz Iqbal has further stated that he had also sent a report in relation to the alleged violations to the then Controller of Buildings on 12-10-1994. Once again no copy of the said report or the report itself has been produced, while only entry receipt in the peon book is produced as Exhibit 14/10. On cross-examination of Qazi Mumtaz Iqbal to the learned counsel appearing for the accused the following aspects are worth to note--
(a) the entry No,2 in the dispatch register confirming issuance/receipt of show-cause notice dated 5-2-1994 contains erosions and overwriting's. The same has been produced since' the show-cause notice itself has not been produced;
(b) in the vicinity there are other buildings having ground plus six stories and even above that;
(c) the builders had filed a suit in this Court and obtained interim orders;
(d) Qazi Mumtaz Iqbal was confronted with the fact that the two letters of the Ministers were allegedly fabricated;
(e) the office of the Chief Controller of Buildings maintains outward and inward registers. In K.B.C.A.
24. All lettersi'Dak' is initialled by the Officer receiving it. On the two letters no such initials of any officer including Wasti are obtaining;
(f) very significantly, Qazi Mumtaz Iqbal never saw the originals of these two letters. Also he does not know where the originals are at present;
(g) no written order was sent by Ahmed Hussain or Wasti ordering Qazi Mumtaz Iqbal to refrain from taking any action.
(h) Mumtaz Iqbal was confronted that in his section 161, Cr.P.C. Statements he had stated that the alleged report dated 12-10-1994 was prepared by Munawwar Azam. On this aspect there appeared to be some contradictions;
(i) on 10-2-1994 when Ahmed Hussain had called Mumtaz Iqbal he did not himself say anything to Qazi Mumtaz Iqbal;
(j) it is only the Assistant Controller, SITE and not the Deputy Controller who is responsible for checking the unauthorised construction;
(k) on 24-1-1995 a letter has been issued by K.B.C.A. Marked Exhibit 14/11, inter alia, averring that the unauthorised construction has been raised from second to fourth floor;
(1) the relevant files are kept in the custody of the relevant staff or its Assistant Controller.
25. ' Syed Asghar Ali, the second prosecution witness has, inter alia, stated that in his section 161 Cr.P.C.
26. Statement he had stated that when he apprised his superiors about the unauthorised construction on the plot in question, the then Controller Wasti and the Chief Controller Rauf Akhtar Farooqui prohibited him from taking any action. It is also stated by him that he had not seen the original file as the same was not traceable.
27. ' According to Zafar Ali Qadri, another prosecution witness, the K.B.C.A has roughly suffered a loss of Rs,6,60,00,000 by way of non-payment of charges for additional floors and regularisation fee. Also the builders could only earn Rs,5 crores had they raised construction in accordance with the approved plan. However, in view of the unauthorised construction they gained about Rs,24 crores.
28. In the cross-examination Syed Ali Zafar Qadri was not able to substantiate his estimates. It was also suggested by the witness that he had not seen the original file pertaining to unauthorised construction nor was he aware of its whereabouts.
29. ' Munawwar Azam, another prosecution witness in his testimony confirmed that he was posted in Garden Zone from March, 1995 to September, 1995.
30. ' Muhammad Akram the Investigating Officer, inter alia, deposed that according to 161, Cr.P.C.
31. Statements recorded by him the unauthorised report file though initiated was kept by the then Controller Akhtar Iqbal Usmani and never returned. Also he never examined or interrogated the said Akhtar Iqbal Usmani, Wasti or Rauf Akhtar Farooqui, nor the learned Ehtesab Commissioner had made them the accused. Also no explanation was offered for this material and serious default.
32. ' From the record it also transpires that Ahmed Hussain ceased to hold charge/post of the Chief Controller of Buildings on 24-10-1994 and in his place Rauf Akhtar Farooqui was inducted as the Chief Controller.
33. ' I have heard the learned counsel and perused the record. In my humble opinion the very crux of the matter lies in first determining as to whether the two letters allegedly written by accused 1 and 2 and subsequently routed to the accused No,3 are admissible since their originals have not been produced. Article 75 of the Qanun-e-Shahadat clearly stipulates that documents are to be proved by primary evidence except in cases provided by Article 76. Articles 76-A allows a party to adduce secondary evidence in certain cases itemised therein. Article 74 defines secondary evidence in the following terms: "74. Secondary evidence. ---"Secondary evidence" means and includes---
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
34. Illustrations:
(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy, compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared rs' not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original."
35. To start with I do not feel that the two letters in issue would even qualify as secondary evidence as admittedly none of the prosecution witnesses had even seen the original letters. As such the letters could not conceivably fall into any of the categories spelt out in Article. 74 since the relevant (first three) categories specified in Article 74 require certification/attestation and comparison of The copy with the original which has admittedly not been done for the very simple reason that none of the prosecution witnesses have even seen the originals as already underscored above.
36. ' The learned Prosecutor Mr. Abdullah Chandio through letter dated 4-6-1997 issued a notice to accused Ahmed Hussain under Ancle 77 of the Qanoon-e-Shahadat through the letter's learned counsel Dr. Muhammad Farogh Naseem calling upon him to produce the two original letters. In reply Dr. Muhammad Farogh Naseem through letter dated 10-6-1997 has stated on behalf of Ahmed Hussain that at no point of time the said letters were received by his clients or were in his possession or physical custody. It is also stated in the reply that no photo copies were ever supplied to Ahmed Hussain.
37. Even for a moment it is assumed that the two letters qualify as secondary evidence under Article 74, the next question that remains is whether the copies of the said letters could possibly fall under any of the eventualities spelt out in Article 76 so as to warrant admissibility. It may be clarified that it is Article 76 which has to be construed for the purposes of admissibility of secondary evidence while it is Article 74 which has to be seen to examine as to whether a particular piece of evidence would qualify as secondary evidence.
38. ' In order to examine as to whether the two letters could possibly fall under any of the categories mentioned in Article 76, it would be pertinent first to detail the said provision, which is reproduced as under: "76. Cases in which secondary evidence relating to document may be given,---Secondary evidence may be given of the existence, condition of contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77 such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;
(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) When, due to the volume or bulk of the original, copies thereof have been made by means of micro filming or other modern devices;
(e) When the original is of such a nature as not to be easily movable;
(f) When the original is a public document within the meaning of Article 85;
(g) When the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;
(h) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(i) When an original document forming part of a judicial record is not available and only a certified copy thereof is available certified copy of, that certified copy shall also be admissible as a secondary evidence, ' In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
39. ' In case (b), the written admission is admissible.
40. ' In case (1) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.
41. ' In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
42. Article 76(a) cannot be pressed into service in view of the clear cut denial by Ahmed Hussain's learned counsel that Ahmed Hussain never received the two letters and the same were never kept in his custody. Also the prosecution has failed to bring forth any evidence to rebut this claim of accused Ahmed Hussain. Article 76 (c) can also provide no assistance to the prosecution since it is now a settled proposition of law that unless the loss of originals is categorically proved secondary evidence cannot be led (see Khursheed Begum v. Chiragh Muhammad, 1995 SCMR 1237). It is needless to state that the other categories of Article 76 are hardly relevant. In Abdullah Khan v.
43. Government of Sindh, 1986 MLD 1500, a learned Single Judge of this Court held that the photo copy of a security bond could not be produced as secondary evidence since the original was not proved to have been lost. The Court in this case came to the conclusion that a mere assertion by way of oral explanation that the original document had been lost was not enough. In the present case also apart from a verbal explanation that the originals are missing there has been no attempt to establish that the originals have been lost. There is no complaint or F.I.R. To substantiate that some report has been lodged with concerned authorities about the loss of the originals. Also no departmental correspondence has been referred which could possibly establish the factum of loss of originals. All that the prosecution has been able to bring forth are unsynchronized testimonies from which it could only be gathered that Akhtar lqbal Usmani was the last possessor of the file pertaining to unauthorised construction. No explanation has been brought forth which could possibly justify failure to interrogate the latter incumbent. Another aspect of the matter is that the said photo copies have been directly and vehemently challenged. In Oriental Shipping Company Limited v. Panahghia, Odigitria 1991 MLD 148 a learned Single Judge of this Court has held that photo copies by way of secondary evidence become inadmissible where, inter alia, the said photo copies are directly challenged. The entire evidence in the present case in relation to the two letters is based upon hearsay in view whereof it would be extremely unsafe to rely upon secondary evidence as pointed out by Wajih-ud-Din Ahmed, J., in Jan Muhammad v. Abdul Ghaffar 1991 MLD.
44. 1631. The Hon'ble Supreme Court in Taj Bibi v. Syed Ahmed Shah 1989 SCMR 1001 has held that the Trial Court could invoke its discretion to determine as to whether sufficient grounds exist to warrant admission and reliance of secondary evidence. In this case I feel that the prosecution has miserably failed to make out a case for this Court to invoke its discretion so as to admit and rely upon the photo copies of the two letters by way of secondary evidence.
45. The upshot of the above discussion is that the two letters neither qualify as secondary evidence under Article 74 nor a case is made out for their admissibility under Article 76. It is also needless to mention that till such time a piece of evidence qualifies both under Articles 74 and 76 it cannot be adduced as secondary evidence. In this case the two letters fail on both such criteria. Apart from this aspect it is also an admitted fact that accused Ahmed Hussain had ceased to be the Chief Controller on 24-10-1994. From the letter produced as Exhibit 14/11 dated 24-1-1995 it also appears that on 24-1-1995 the building was only raised up to the fourth floor. If the construction work is equated back on averages to 24-10-1994 (when accused Ahmed Hussain left charge) it may well be the case that on such date no violation in terms of floors had commenced. Also in his statement recorded under section 342, Cr.P.C. Ahmed Hussain has submitted Delegation of Powers dated 5- 12-1981 whereby the jurisdiction of checking unauthorised construction did not vest with the Chief Controller. The said Delegation of Powers was not disputed.
46. In view of the above I feel that it is unsafe to convict the accused Nos. 1, 2 and 3 on the evidence adduced by the prosecution. I accordingly acquit the three accused Nos.1, 2 and 3 by giving them the benefit of doubt and also due to the failure of the prosecution to bring home its case against them.
47. However, the case of the builders i,e, accused No,4 viz., partners of M/s. Prince Avenue stand on a different footing. Article 129 of the Qanoon-e-Shahadat authorises the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in their relations to the facts of particular case. In common law this principle is known as loquitur' i,e, the things speak for themselves. Adrian Keane in 'The Modem Law of Evidence', 1985 Edition at pages 489 to 492 has discussed this principle of res ipsa loquitur in the following terms: "In the ordinary course of things bags of flour do not fall from warehouse windows, stones are not found in buns, cars do mount the pavement, and slippery substances are not left on shop floors unless, in each case those who have the management of thing in question fail to exercise proper care."
48. ' Sir William Erle, C.J. In Scott v. London & St. Katherine Docks Co. (1865) 3 H. & H. 596 at 601 (referred by Keane at page 490) has explained the principle of res ipsa loquitur in terms of presumptions as he stated that on the proof or admission of the basic facts that firstly, something was done under the management of the defendants or his servants and secondly, an accident occurred, being an accident which in the ordinary course of things does not happen if ,those who have the management use proper care, it may or must be presumed, in the absence of sufficient evidence to the contrary that the accident was caused by the negligence of the defendant. Keane (at page 491) has further stated, that "most of the modern authorities suggest that the principle of res ipsa loquitur is a pursuasive or compelling presumption. It is also contended by the learned author (at page 490) that this maxim is also an aspect of circumstantial evidence. In Pakistan also the Courts have pressed into service the principle of res ipsa loquitur (e.g. See Qazi Arifunddin v. Government of Sindh PLD 1991 Karachi 291; Pakistan Steel Mills Corporation Ltd. v. Malik Abdul Habib 1993 SCMR 848, Nisar Ahmed v. Uroos Fatima. 1996 MLD 1913).
49. In the present case admittedly the plan was approved for hollow plus ground plus one floors. It has come on record without any dispute that the builders had carried out construction beyond the approved plan not only in terms of additional floors but also in the number of blocks. The builders have also not paid the regularisation fee and additional floor charges. Also incurring profits by the builders is not denied. The very fact that there had been unauthorised construction at such a substantial scale confirm that not only the builders have acted illegally but also some venal incumbent(s) had extended them favour by failing to check the illegality. This accordingly is a fit case where this Court can press into service Article 129 of the Qanoon-e-Shahadat embodying the principle of res loquitur giving rise not only to a presumption but impelling circumstantial evidence that the builders being beneficiaries are guilty under section 3 of the Act IX of 1977. Mr. Akhtar Ali G.
50. Kazi, learned counsel for the accused builders had addressed this Court on the point that if the first three accused are acquitted then the accused builders should also be acquitted under section 3. I am .Not impressed with this argument for the very simple reason that section 3 of the Act IX.Of 1997 does not necessarily create joint offences which fall or stand together (for further elaboration of the aspect of joint offences see Rani v. State PLD 1996 Karachi 316. There may be a case under section 3 where the offences charged will be joint offences where acquittal of one of the accused may lead to acquittal of all. However, in the present circumstances the liabilities of all the accused though related by the same or similar series of transactions are distinct and independent.. The circumstantial evidence is very clear that the builder accused acted in collusion with some incumbents which the prosecution has either failed to identify, prosecute or against whom sufficient evidence has not been brought on record for reasons best known to the prosecution.
51. Violations have been committed by the builders whereby floors were unauthorisedly constructed and a number of unauthorised blocks were raised. The violations are of such a magnitude that it cannot be digested that some person(s) vested with the authorities did not also act in collusion.
52. However it is not necessary to pin-point them since the case against builders can stand independently.
53. Before, however, convicting the accused builders I feel it just and fit to allow them yet another opportunity to submit returns voluntarily under section 17 of the Act IX of 1997. It may be clarified that the purpose and primary aim behind enactment of the said section 17 has been to provide an opportunity to the accused to return gains voluntarily. In case, the persons opt to invoke section 17 their subsequent discharge from proceedings do not give rise to any stigma or taboo. With these observations I allow the accused builders two days' time to submit applications under section 17 which may be replied expeditiously by way of counter-affidavit by the prosecution with another chance for filing a rejoinder, if any, by the accused builders. In these proceedings the parties are to exchange their averments and relevant material regarding gains. Such procedure no doubt is employed in civil proceedings, the same may well be applicable in matters pertaining to section 17 of the Act IX of 1997 as the same would be expedient. Section 12 of the Act IX of 1997 prescribes the provisions of the Cr.P.C. To apply but not in their entirety and only mutatis mutandis. Section 12(3) of the Act IX of 1997 further empowers the Court to dispense with any provision of the Cr.P.C. And follow such procedure as it may deem fit and proper in the circumstances.
54. ' Before parting I may clarify that in case the applications under section 17 are not filed within the prescribed two days all the partners of M/s. Prince Avenue i,e, Muhammad Hashim, Zakaria Usman, Abdul Majeed, Zakaria M. Fazil and Abdul Qadeer who are in default of such directions and accommodation shall ipso facto stand convicted under section 3 of the Ehtesab Act, 1997 and sentenced to undergo rigorous imprisonment for a term of five (5) years each and to pay fine amounting to Rs,50,00,000 (Rupees fifty lacs) each or in default to suffer further R.I. For two more years. Office is directed to issue their warrants of arrests and convictions for remanding them to judicial custody to serve out the sentences after 48 hours in case no application (s) under lj section 17 of the Act IX of 1997 is/are filed by them. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.