1. The present Ehtesab Reference against Syed Muzaffar Hussain Shah was received in this Court from the office of the learned Chief Ehtesab Commissioner, Islamabad, dated 26-1-1997 under section 14(1) of the Ehtesab Ordinance, 1996.
2. The brief facts are that Syed Muzaffar Hussain Shah, Ex. Member Provincial Assembly of Sindh, while holding the office of the Chief Minister Sindh, accused, in his capacity as Chief Minister Sindh, prevailed upon Chairman and Members of District Council Mirpur Khas, Provincial Highways Department and Deputy Commissioner Mirpur Khas to arrange and execute schemes of face lifting of Hyder Farm Taluka Umerkot, District Mirpur Khas.
3. Accused Syed Muzaffar Hussain Shah and his family members own and possess agriculture land, in and around village Hyder Farm situated in Deh Diat Bah, Taluka Umerkot, Mirpurkhas. The District Council Mirpurkhas had no funds for electrification included within aforesaid scheme, nor particular function formed part of Schedule-III of the Sindh Local Government Ordinance, 1979 yet accused got executed electrification work of Hyder Farm at the cost of Rs,24,27,378 by diverting Rs,2 millions allocated by the Government of Sindh for repairs of buildings and roads and Rs,4,47,378 from the District Council Mirpurkhas and the entire funds were utilised for Hyder Farm illegally and further that no work for repairs of buildings or roads were carried out for which this amount was allocated.
4. It is further case of the prosecution that accused ordered diversion of public money by abusing his official position and power and misapplied Rs,2 millions by ordering reappropriation by allocating the funds from buildings and roads to Hyder Farm electrification. Since the accused was holder of public office within the meaning of section 2(t) of the Ehtesab Ordinance, 1996, under the circumstances, the above acts of omission and commission amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance.
5. After the receipt of the reference accused Syed Muzaffar Hussain Shah appeared and was granted bail on 13-2-1997, thereafter on 28-5-1997 charge Exh.2 was framed, which reads as under:---
(1) Wajihuddin Ahmed, (2)Saiyed Saeed Ashhad and (3)Mushtaq A. Memon, JJ do hereby charge you accused:-
1. Syed Muzaffar Hussain Shah as under:-- That you accused Syed Muzaffar Hussain Shah, being a holder of Public Office in your capacity as Ex-Chief Minister of Sindh, at the relevant time in abuse of your official position and with mala fide, illegal and dishonest intention with a view to obtain illegal, fraudulent and dishonest gain, profits and favour for yourself and your family members directed and prevailed upon the then Chairman and Members of District Council Mirpurkhas, Provincial Highways Department's Officers and the then Deputy Commissioner, Mirpurkhas for face lifting of the area around your family farm known as Hyder Farm-as well as of Hyder Farm as a result of which electrification work of Hyder Farm at the cost of Rs,24,27,378 was undertaken and this amount was procured by taking out Rs,2 million from the budget allocation provided for repairs of buildings and roads and Rs,4,47,378 was taken out from the funds of District Council Mirpurkhas and by your above act you got diverted public money for electrification and face lifting of your personal property; And that your above acts of omission and commissions amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance and punishable under section 4 of the Ehtesab Ordinance within the cognizance of this Court, and we hereby direct that you be tried by us for the aforesaid offence.
6. Given under our hands and seal of this Court, this 28th day of May, 1997."
7. Plea of the accused was recorded Exh.3 to which he pleaded not guilty to the charge and claimed to be tried.
8. Prosecution adduced evidence in support of the prosecution case. On 8-7-1997 P.W. Muhammad Yousuf Gill son of late Muhammad Ibrahim, Chief Officer of Zila Council Mirpur Khas was examined as Exh.4, on 9-7-1997 Ghulam Muhammad son of Haji Muhammad Suleman, Sub-Engineer District Council Mirpur Khas was examined as Exh.5 and on 11-7-1997 Iqbal Ahmad son of Abdul Aziz, Assistant Director, Anti-Corruption Establishment, Hyderabad, Investigating Officer was examined as Exh.6. Subsequently, learned Special Prosecutor submitted Application bearing No,115 of 1997 which was granted and Investigating Officer was re-called who submitted the report dated 10-2- 1994 as Exh.6/4. In the meanwhile on 11-6-1997 the accused/applicant submitted application bearing No,85 of 1997 and Miscellaneous Application No,109 of 1997 on 9-7-1997. Notices of both these applications were issued to the Special Prosecutor. On 15-7-1997, Iqbal Ahmad, Investigating Officer submitted his report mentioned hereinabove and after his examination and cross- examination Mr. Syed Mamnoon Hassan Special Prosecutor closed his side on behalf of the prosecution. Thereafter, by consent for hearing of Miscellaneous Application No,85 of 1997 and Miscellaneous Application No,109 of 1997 filed on behalf of accused/applicant, were adjourned for hearing on 17-7-1997.
9. I have heard Mr. Ch. Iftikhar Ahmed, learned counsel for the accused and Mr. Syed Mammon Hassan, Special Prosecutor for the State.
10. The learned counsel for the accused/applicant contends that the scheme for installation of street lights was on a public road in front of Hyder Farm, and was initiated through a resolution moved by the then Chairman District Council Mirpurkhas, the late Haji Ghulam Rasool Junejo. The resolution was adopted unanimously, the work was let out as per rules to the company which offered lowest tender. That after the dissolution of local bodies, the Administrator District Council Mirpurkhas had requested the Provincial Government for change of head, and for re-appropriation of the amount in question which subsequently was allowed by the Chief Minister (accused Syed Muzaffar Hussain Shah) as per rules of business of the Government of Sindh. That the road on which the street lights were installed was a public road which leads to Taluka Chachro and about 10/15 villages, besides leading to the Basic Helath Unit, the Rural Health Centre, the school and office of the Union Council Khejrari. That the statement of Ghulam Muhammad was recorded by Anti-Corruption Establishment as an accused in F.I.R. No,18 of 1993 under sections 406/34 read with section 5(2) of the Prevention of Corruption Act, 1947 and that no other statement under section 161, Cr.P.C. was recorded, nor he was associated with any inquiry pertaining to the Ehtesab Reference. That statement of Muhammad Yousaf Gull does not make out any case against the accused in terms of section 3 of the Ehtesab Act, 1997.
11. Mr. Ch. Iftikhar Ahmed, learned counsel for the accused Syed Muzaffar Hussian Shah contends that P.W.2 Ghulam Muhammad has only supervised the work of street installation and is a formal witness and his testimony will not in any way improve the case of the prosecution. So far accused cannot be convicted on the evidence of Muhammad Iqbal Ahmed, P.W.3, who is also a formal witness, being the Investigating Officer of Crime No,18 of 1993. That according to statement of P.W.
12. Yousaf Gull, his statement was not recorded as a witness but as an accused in Crime No,18 of 1993 of the Anti-Corruption Establishment and that actually in fact no statements of any witness had ever been recorded in relation to any inquiry in so far as the present reference is concerned, inasmuch as Yousuf Gull and Ghulam Muhammad were examined as an accused persons on 8-4- 1994, whereas the Ehtesab Ordinance was promulgated on 18-11-1996 after a period of more than two years and nine months. That it has come in the evidence that according to the Sindh Local Bodies Ordinance, District Council Mirpurkhas was/is competent to sanction/recommend development schemes and the installation of street lights on the public road in front of Haider Farm was carried out in pursuance of the resolution of the District Council Mirpurkhas. The order for re-appropriation was also issued on the request of the Chief Officer Muhammad Yousaf Gull P.W.1 who in his letter had stated that because of paucity of funds, and because of the heavy rains, funds could not be utilised for maintenance/construction of roads, the amount for installation of street lights may be granted by Government, by re-appropriating the amount lying with the District Council Mirpurkhas for repairs of Roads, since the District Council is a semi-Government and independent body was established under the Provincial Act, had so desired and expressed through its unanimous resolution that the scheme was executed. In view of the evidence so recorded under the circumstances there is no iota of evidence whatsoever to support the charge of the corruption under section 3 of the Ehtesab Ordinance, even otherwise there is no evidence to substantiate the charge and in any case there is no possibility/probability of the accused, being convicted on the evidence so adduced/recorded and referred hereinabove.
13. Mr. Ch. Iftikhar Ahmed, learned counsel for the accused has referred in support of his contentions the following case law.
14. (1)The State v. Accused Syed Muzaffar Hussain Shah Ehtesab Reference No,23 of 1997 forwarded by the learned Chief Ehtesab Commissioner and the learned Ehtesab Bench consisting of my Lord Justice Wajihuddin Ahmed the senior puisne Judge, Justice Saiyed Saeed Ashhad and Justice Mushtaq Ahmed, Memon, on 28-5-1997 was pleased to acquit the accused with the following observations:-- 'From the above discussions we are unable to understand and comprehend as to how the name of accused Syed Muzaffar Hussain Shah could have been included in the Reference as one of the accused being responsible for illegal order of sale of fertilizers on credit to accused Nos.2 to 8 and we are satisfied beyond any shadow of doubt that there is not an iota of evidence in the material and documents available with the prosecution to warrant the slightest possibility of involvement or incrimination of accused Syed Muzaffar Hussain Shah in the above offence and proceeding with the trial against him will be nothing but causing him uncalled for harassment, hardships and miseries, which is not the object of law."
(2) The learned counsel has referred section 7(iii) of Rules of Business framed by the Government of Sindh in which power of Chief Minister has been mentioned which is as under:-- S.7(iii): Any order passed by the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Government.
(3) Learned counsel for accused referred the case of State through Secretary, Ministry of Interior v.
15. Ashiq Ali Bhutto (1993 SCM R 523).
16. This was an appeal through leave of the Court by the State against summary acquittal of the respondent in a corruption case. Leave to appeal was granted for the consideration of the question; as to whether, without recording any prosecution evidence the trial Court was justified in law to hold that charges against the respondent were groundless. The provision of law under which the Special Judge acquitted the accused is section 249-A of the Cr.P.C., but as stated by the learned counsel it appears to be under some inadvertent mistake that section 249-A, Cr.P.C. was mentioned, and that it should have been section 265-K, Cr.P.C. In this background of the matter their Lordships of the Supreme Court considered the provisions of section 249-A, power of Magistrate to acquit accused at any stage and section 265-K power of Court to acquit accused to any stage and their Lordships were pleased to dismiss the appeal filed by the Government.
17. (4)Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 SC 399).
18. ' Their Lordships of the Supreme Court consisting of Nasim Hasan Shah, Ajmal Mian and Sajjad Ali Shah, JJ. have held that under section 249-A Cr.P.C. order of acquittal can be passed by the Court without recording of evidence provided the Court is satisfied that peculiar facts of that case justify such order.
19. (5)The State v. Asif Ali Zardari and another (1994 SCM R 798).
20. Division Bench decision of their Lordships of the Supreme Court consisting of Saad Saood Jan (as his Lordship then was) and Sajjad Ali Shah, the judgment was authored by his Lordship Sajjad Ali Shah. The State filed leave to appeal against the Judgment dated 26-9-1994 of the High Court of Sindh at Karachi whereby Criminal Miscellaneous application filed under section 561-A, Cr.P.C. was allowed and in consequence proceedings against respondent No,1 (Asif Ali Zardari) in a case under section 420/468/471, P.P.C. and section 5(2) of the Prevention of Corruption Act of 1947 pending in the Special Court (Offences in Banks) Karachi, were quashed. Their Lordships, after hearing the learned counsel for the parties and analysing and discussing the evidence so adduced by the prosecution in the case, finally came to the conclusion and observed as follows:-- "Learned Advocate-General Sindh was unable and at pains to point out any flaw or legal infirmity in the conclusions drawn by the High Court, which is done after fair appraisal of evidence and discussion of correct legal position as is enunciated in the case-law cited and relied upon in the impugned judgment for and against the proposition which are elaborately discussed in detail. We find no justifiable reason to disagree with the High Court and, therefore, we consider that it is not a fit case for grant of leave. In the result leave is refused and this petition is dismissed as having no merits."
21. Mr. Syed Mamnoon Hassan, learned prosecutor contended that prosecution has adduced evidence which shows that accused Syed Muzaffar Hussain Shah and his family members own and possess agriculture land in and around village Hyder Farm situated in Deh Diat Bah, Taluka Umerkot and that accused in his capacity as Chief Minister Sindh prevailed upon Chairman and Members of District Council Mirpurkhas, Provincial Highways Department and Deputy Commissioner Mirpurkhas to arrange and execute schemes of face lifting of Hyder Farm Taluka Umerkot, which is his family land and private property. That District Council had no funds for electrification included within the aforesaid scheme, yet accused got executed electrification work of Hyder Farm at the cost of Rs,24,27,378 by diverting Rs,2 millions allocated by the Government of Sindh for repairs of buildings and roads and Rs,4,47,378 from the District Council Mirpurkhas and the entire funds were utilised for Hyder Farm illegally and no work for repairs of buildings or road were carried out for which the amount was allocated. That accused ordered for diversion of public money by abusing his official position and power and misapplied Rs,2 millions by ordering reappropriation by allocating the funds from buildings and roads to Hyder Farm electrification.
22. Under the circumstances the accused was holder of public office within the meaning of section 2(f) of the Ehtesab Ordinance, 1996, committed the above acts of omission and commission amounting to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance 1996 and that in view of the evidence of P.W. Muhammad Yousuf Gull, the Chief Officer Exh.4, Ghulam Muhammad, Sub-Engineer Exh.5 and Iqbal Ahmed, Assistant Director, Anti- Corruption Establishment Hyderabad and Investigating Officer who also produced report of Mukhtiarkar dated 10-2-1994 Exh.6/4, the case against accused/applicant has been made out and accused Syed Muzaffar Hussain Shah can be convicted as required under section 4 of the Ehtesab Ordinance.
23. Learned Special Prosecutor in support of his contentions cited decision of learned Ehtesab Bench of Lahore High Court in Ehtesab Reference No,3 of 1997, in which Shafi Sehwani, former member Planning and then Chairman, C.D.A., accused, alongwith co-accused Abdul Qadir Shaukat was convicted by the learned Ehtesab Bench of the Lahore High Court.
24. Learned counsel has also referred Ehtesab Reference No,3 of 1997, decision of learned Ehtesab Bench of this Court headed by my Lord Wajihuddin Ahmed, the Senior pusine Judge, consisting of my learned brothers Saiyed Saeed Ashhad, J., and Mushtaq Ahmed Memon, J.
25. In Reference No,3 of 1997 Shafi Sehwani, former member Planning and then Chairman, C.D.A. The brief history of the Reference is that C.D.A. decided to have a swimming pool in Markaz F-6, Islamabad and a plot of 2200 sq. yards was allocated for this purpose. It 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 extensible for two more similar terms. The allottee failed to show proper interest in the completion of the project as per condition of the allotment and in pursuance of the request of Abdul Qadir Shaukat, accused, the plot was transferred to Abdul Qadir Shaukat on 18-5- 1980. 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 reasonable 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. The accused No,2 in violation of the plan envisaged by C.D.A., constructed as many as 18 shops and committed many other visible violations and that building was to be completed by 1-2-1981 as per approved plan. 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. Abdul Qadir Shaukat, accused No,2, however, submitted request for restoration of plot and during this process Deputy Director, Buildings and Buildings Control submitted 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 alongwith attached facilities must be completed and put into operation within a period of three months. Deputy Director, Buildings and Building Control further suggested that the price difference, if any, between the price of the commercial plot and swimming pool in Markaz F-6 should be charged from Abdul Qadir Shaukat, the allottee.
26. Shafi M. Sehwani accused No,1, where authority appeared to be next to that of the Chairman, asked for that difference of price from the Deputy Director and consequently Director Estate Management reported that the prevalent rate for restoration in Markaz was Rs,1,000 per sq. yard and that further correspondence continued and Shafi M. Sehwani observed "yes, it should not be less than Rs,1,000 and this is to best advantage of the allottee," and added, "please discuss.". According to the prosecution case, Shaft M. Sehwani visited the site and Abdul Qadir Shaukat also met him there.
27. Thereafter, Shaft M. Sehwani completely suppressed the mention of Rs,1,000 per sq. yard as restoration charges and put the case entirely on different track and continued to write notes showing deviations and irregularities and proposing regularisation of these irregularities on payment of certain charges and quoted wrong precedents. According to the prosecution case and the observations of the learned Ehtesab Bench, ultimately, Mazhar Rafi, who was Additional Secretary in the Interior Division and was holding additional charge of Chairman, C.D.A. agreed to the wrong suggestion of Shafi M. Sehwani that 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, Abdul Qadir Shaukat. The Chairman was thus clearly misled by the wrong suggestion of Shafi M. Sehwani accused and eventually a loss of Rs,18,70,000 was caused to the state exchequer. In so for the proof of the above allegation, prosecution examined 7 witnesses in order to substantiate its case and consequently learned Ehtesab Bench found that both the accused guilty of offence under section 4 of the Ehtesab Ordinance, 1997 and they were convicted and sentenced to suffer R.I. for 5 years each and a fine of Rs,10,00,000 each and in case of default to further undergo 1 year R.I.
28. In Ehtesab Reference No,3 of 1993, the case of the prosecution is that Muhammad Shabbir, the accused applying for raising construction of a building on Plot No,8/2, RY-4, Railway Quarters, Karachi, and obtaining approval for a basement plus ground plus four floors by the Karachi Building Control Authority. Accused having raised construction beyond the approval, the KBCA issued a show-cause notice and allegedly, sealed the building. According to the prosecution case, Muhammad Shabbir thereafter is claimed to have approached Syed Abdullah Shah, accused No,1, the then Chief Minister of Sindh, through the accused No,2, Ghulam Mustafa Bozdar, an Ex-member of the Sindh Provincial Assembly. In the resulting application allegedly, the un-authorised construction was admitted. It is further case of the prosecution, that Syed Abdullah Shah, in response not only ordered desealing but also allowed regularisation by stopping further action at the level of the K.B.C.A., thus, exhibiting favouritism to M. Shabbir, on the recommendation of Ghulam Mustafa Bozdar. It is further case of the prosecution, that in cases of similar nature additional floors applied for by other builders were regretted by the then Chief Minister Sindh. Syed Abdullah Shah and Ghulam Mustafa Bozdar were holders of public offices, within the meaning of the Ehtesab Ordinance and Muhammad Shabbir was benefited, as beneficiary, by misuse of powers and through abetment, committed the offence.
29. Prosecution adduced the evidence consisting of Syed Muhammad Hussain, Controller of Buildings K.B.C.A., Ahmed Hussain Siddiqui, former Director General, K.D.A., P.W.2 Badrus Salam, Deputy Controller of Buildings K.B.C.A., P.W.3 Aijaz Ahmed, Controller of Buildings K.B.C.A. P.W.4, and Abdul Rahim Shoro, Inspector Anti-Corruption, the Investigating Officer in the case, through whom P-18 to P-33 were exhibited. The learned Ehtesab Bench was pleased to acquit Ghulam Mustafa Bozdar by giving the benefit of doubt and case against accused Syed Abdullah Shah was consigned to record, to be re-activated in course of time, whereas convicted Muhammad Shabbir for an offence under section 3(1)(d) of the Ehtesab Ordinance, 1996 mere seeking of a 'pecuniary advantage' or 'undue favour' through 'improper means' and was found guilty of offence and was awarded imprisonment for a period of three years and pay fine to the tune of Rs,10 million, default in payment of fine to suffer further for one year.
30. Mr. Syed Mamnoon Hassan, learned Special Prosecutor has cited (1) Sugni Chand Dayaram Jatwani v. Pakistan (through the Ministry of Rehabilitation Karachi) and others (PLD 1961 SC 523- 530) (2) Akhtar v. The State (PLD 1961 (W.P.) Lahore 1049) (3) The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) and (4) Sher Muhammad alias Shera v. The State (PLD 1990 Kar. 271) in rebuttal to the contentions of Ch. Iftikhar Ahmed, learned counsel for accused Syed Muzaffar Hussain Shah mentioned in Misc. Application No,85 of 1997 and paragraphs 9, 10 and 11 of the Application No,109 of 1997 in question stating herein that the Ehtesab Ordinance, 1996 has lapsed and a new law i,e, Ehtesab Act of 1997 (Act IX of 1997) which through section 31 of the said Act repealed P.P.O. 16 and P.P.O.17 and the Ehtesab Ordinance 1997, and saved the proceeding under P.P.O. 16 and P.P.O. 17, and that of the Ehtesab Ordinance of 1997, but did not save the proceeding initiated under the Ehtesab Ordinance of 1996. That Ehtesab Ordinance, 1996 was a temporary statute and expired after four months from the date of its promulgation and both the successor laws, i,e, the Ehtesab Ordinance, 1996 and the Ehtesab Act, 1997,. intentionally omitted to save proceedings initiated under the Ehtesab Ordinance, 1996. That section 6 of the General Clauses Act cannot be invoked in regard to statutes, which are of a temporary nature. That general rule is that where a temporary statute expires, the proceedings against a person under it will ipso facto terminate, and further trial and proceedings would be coram non judice.
31. At the time of hearing of the arguments, the learned counsel for the accused Syed Muzaffar Hussain Shah did not press the application containing the above contentions, accordingly, application was dismissed as not pressed. The case law cited by Mr. Syed Mamnoon Hassan, Special Prosecutor referred hereinabove mainly pertains to the authorities of the Hon'ble superior Courts to the effect that under General Clauses Act, the proceedings so initiated can come to a logical end and proceedings by lapse of Ordinance automatically does not abate though there may not be a clause to save the proceedings initiated under the Ordinance.
32. With due respect to the authorities referred by Mr. Syed Mamnoon Hassan, further, discussion, to these authorities is not necessary, in view of the fact that learned counsel for the accused/applicant at the very initially stage did not press the application.
33. On 15-7-1997, after examination of Iqbal Ahmed Investigating Officer, who was re-called on the application of learned Special Prosecutor, under the circumstances, after his examination, the Special Prosecutor closed the side on behalf of the prosecution and by consent, hearing of Miscellaneous Applications Nos.85 of 1997 and 109 of 1997 was adjourned for 17-7-1997.
34. I would like to refer the evidence adduced by the prosecution in support of the case as stated hereinabove, prosecution has been able to produce three P.Ws. The star witness of the prosecution is Muhammad Yousuf Gull, P.W.1 his examination-in-chief is very short which is reproduced as follows:-- "I was Chief Officer of Zila Council, Mirpur Khas from 21st November, 1989 till some time in the year 1993. I am aware of the facts of the case. In the year 1992, one Haji Ghulam Rasool Junejo was Chairman of the Zila Council, Mirpurkhas, who tabled a Resolution before the Council that the electricity should be provided to Haider Farm. He further informed the Council that the funds for such electrification will he provided by Provincial Government. I was present in that Session. Haider Farm is owned by accused Syed Muzaffar Hussain Shah, who at the relevant time was Chief Minister of Sindh."
35. In support of his case he produced the resolution of the District Council, estimate and orders for re- appropriation of the amount. In his entire examination-in-chief this witness or other two witnesses have not stated that either at the instance or pressure, directly or indirectly was exercised by accused Syed Muzaffar Hussain Shah in tabling the resolution before the District Council which according to record produced by the prosecution was unanimously carried over. Syed Muzaffar Hussain Shah, the accused was not even present during the session of the District Council, the re- appropriation orders were passed by the accused Syed Muzaffar Hussain Shah at the request of Muhammad Yousuf Gull, the Chief Officer who says in his examination-in-chief as follows:-- "On my last representation (Exh.4/10-C dated 21-1-1993 accused passed orders for re- appropriation. I also received a letter from Additional Secretary to Chief Minister Sindh dated 15-3- 1993 disclosing the order of accused for re-appropriation."
36. So far the allegation of the prosecution is that electrification and face lifting of the area around the area, being the family farm known as Hyder Farm of accused Syed Muzaffar Hussain Shah, as a result of which electrification work of Hyder Farm at the cost of Rs,24,27,378 was completed. It would be pertinent to point out that electrification was provided in accordance with the resolution unanimously adopted by the District Council Mirpurkhas and according to Muhammad Yousuf Gull, Chief Officer, District Council in his cross-examination has stated:-- Q. "I suggest it to you that Zila Council Mirpurkhas was fully authorised to approve a development scheme as of the scheme involved in this case.
37. A. It is correct that Zila Council was competent to approve such scheme through any resolution."
38. The Zila Council being an elected body of the Zila was competent to pass the resolution and carried out the scheme, moreover the electrification and street lights provided to the road, fall within the territorial limit of Zila Council. furthermore according to Muhammad Yousuf Gull the road on which electrification was provided was constructed by Highway Department, the same road leads to Taluka Chachro and also leads to Union Council Khajrari where one school, one public health office, one basic health unit and one rural health centre are also situated on this road, to establish this fact specific question in cross-examination was put to the witness and for the decision of this case I would like to reproduce the actual words of the witness deposed in Court in his cross-examination which reads as follows:-- "It is correct that the eleciric connections/street lights provided to the road fall within the territorial limits of Zila Council. It is correct that it is a public road and was constructed by the Highway Department some five/six years ago when resolution was passed for its improvement. It is correct that this road leads to Taluka Chachro. This road also leads to Union Council Khajrari. It is corret that one school, one public health office, one basic health unit and one rural health centre are also situated on this road. It is correct that the main road to Umer Kot and Kunri also starts from this road. It is correct that this road also passes through 10 to 12 villages. It is correct that in order to reach rural health centre the only route available is through the road on which the street lights were provided."
39. According to the witness, this road is a public road which is used by the public at large and it is not in the exclusive use of the accused Syed Muzaffar Hussain Shah and his family. Moreover according to Exh.4/10-A Muhammad Yousuf Gull himself requested the Provincial Government for change of head and re-appropriation of the funds in order to complete the scheme approved by Zila Council.
40. A specific question was put to the witness in cross-examination to the following effect.
41. Q. "You have suggested change of head as well as re-appropriation of the amount on the ground that due to heavy rains, the funds could not be utilised for the maintenance/construction of roads.
42. A. It is incorrect. My communications were in furtherance of resolution (Exh.4/1-A).
43. 'Furthermore, in another question he replied as follows:-- Q. "Is it correct that there are other instances for re-appropriation and change of heads.
44. A. It is correct. During my tenure as Chief Officer there were several instances when re- appropriation and change of head were ordered."
45. The witness No,2 Ghulam Muhammad, Sub-Engineer District Council, Mirpur Khas has stated in examination-in-chief which is as follows:-- "In this case, I supervised electrification work. This project was meant for Hyder Farm. I was instructed by my Engineer Idrees to prepare estimate in respect of providing electricity to Hyder Farm or village. Voluntarily adds that I am not aware whether it is a farm or village. I produce estimate which was prepared by me as Exh.5/1. This work was assigned to M/s. Manzoor Electric Works. I also produce Tender Form (consisting of two pages), comparative statement and agreement (consisting of eight pages) as Exh.5/2, Exh.5/3 and Exh.5/4 respectively. I also produce seven contractors bills which were accordingly paid as Exh.5/5 to Exh.5/11. I produce payment receipt through which payments were made to WAPDA alongwith its challan as Exh.5/12-A and Exh.5/12-B respectively. This work was successfully completed. All the required payments were made to the contractor."
46. In cross-examination this witness has stated as follows:-- "Whether the street lights which were provided were on a public road or on private road?
47. I am not aware whether it is a public road or private road. Court Question.
48. "Are you aware of the difference between a public and a private road?
49. 'Yes, Sir. I am aware of such difference. A public road is used by public at large and the private road is used by the person who owns the same.
50. The road where street lights are installed is being used by public as well as by private persons."
51. The third witness P.W. Iqbal Ahmed has stated in his examination-in-chief as follows:-- "On 12th January, 1997 I received a Letter bearing No,837, from my Deputy Director to prepare a report in respect of former Chief Minister Syed Muzzaffar Ali Shah. I produce copy of my report as Exh. 6/1. I have incorporated all my efforts and actions in Exh. 6/1. On the basis of Exh. 6/1 Chairman Anti-Corruption Establishment forwarded a report to the Chief Ehtesab Commissioner vide his letter, dated 21st January, 1997, which I produce as Exh. 6/2."
52. On 15-7-1997 he was re-called and he produced report as Exh.6/4 in unequivocal terms he has stated in cross-examination to Mr. Ch. Iftikhar Ahmed, learned counsel for the accused, which is as under:-- "It is correct that I have based my report Exh. 6/1 on the investigation of Crime No,18 of 1993. It is correct that I have not examined myself any of the witnesses in the present case. it is correct that the contents of my report Exh. 6/1 are based on the findings of the investigation in Crime No,18 of 1993."
53. Furthermore he has also stated that he has not examined accused Syed Muzaffar Hussain Shah while preparing his report Exh.6/1. In cross-examination this witness has stated as follows:-- "It is correct that I have remained in Mirpur Khas. I have seen the road where the street lights are affixed. It is correct that there is basic health centre, middle school, rural health centre situated on the said highway. I am not aware whether a water storage and pumping station are also situated on the said highway."
54. According to him to a Court question he has stated:-- "I have not examined P.W.1 Yousaf Gull and P.W.2 Ghulam Muhammad Leghari, in the present case."
55. This is the entire case of the prosecution which has already been reproduced hereinabove. 'The witnesses so far examined by the prosecution in any case have not implicated the accused, if examination-in-chief and cross-examination are taken in juxtaposition. The resolution was tabled by the elected Chairman of the District Council which was carried on unanimously and it falls within its jurisdiction. The Hyder Farm is not only a farm but it is also a village where people of Hari class are living which apparently manifests from the report of the Mukhtiarkar which has been produced by Iqbal Ahmed, Investigating Officer as Exh.6/4 on 15-7-1997. It is a report prepared by Mukhtiarkar Umerkot bearing No,59 dated 10-2-1994, the relevant portion of the report shows as under:-- "Village Hyder Farm is situated in Deh Diat Bah which is unsurveyed state land."
56. According to Mr. Ch. Iftikhar Ahmed, learned counsel for the accused usually in Mufasal Area villages are established on un-serveyed State land, villages approximately consist houses of different caste of people ranging from 50 upto few hundreds.
57. Unfortunate aspect of this case is that the report of the Mukhtiarkar was produced by Investigating Officer and Mukhtiarkar was not produced by the prosecution to enter the witness-box and face the cross-examination, so as to get the proper number of the houses of the village Hyder Farm, because cross-examination is the only source through which truth can be had from the mount c of a witness but this report was produced through Iqbal Ahmed who has stated in cross-examination to the effect that:-- "I have not prepared the report which I have submitted. I have taken out this report from the file of Criminal No,18 of 1993. The report is dated 10-2-1994. The report which I have submitted, was prepared 2 years prior to its presentation."
58. The whole emphasis of the prosecution is that accused Syed Muzaffar Hussain Shah prevailed upon the District Council and Provincial Highways Department and Deputy Commissioner Mirpurkhas for the above acts whereas from the perusal of the record and the evidence produced referred hereinabove there is no iota of evidence to connect the accused Syed Muzaffar Hussain Shah with the commission of the crime. According to the Rules of Business referred here in the earlier part of this order, Chief Minister under the Rules is competent to pass orders which are deemed to be orders passed by the Government. The electrification was provided to a public road which is used by public at large which fact has even been admitted by the prosecution witnesses including Investigating officer. Moreover the sanction for re-appropriation of the funds was allowed by the accused Syed Muzaffar Hussain Shah as Chief Minister, on receipt of correspondence and the frequent requests made by Chief Officer Muhammad Yousuf Gull P. W.1, the relevant portion of his deposition has already been reproduced above.
59. Ch. Iftikhar Ahmed, learned counsel for the accused very rightly pointed out that in the under developed rural areas of the Province of Sindh especially Mirpurkhas and its surrounding area, including Tharparkar large number of the public have not yet been able to see, observe and use the electricity. Moreover, in their lives they have not even seen bulbs themselves, as the process of development so far carried on has not been brought at the door steps of the people of the rural area. The people of faraway areas especially in Tharparkar, Mirpurkhas and Umerkot are not having the facility of even potable water. There are numerous people who have not even seen the hand pump from where potable water could be taken by them and their women-folk are getting water from the water-courses and ponds which are in the common use of human beings and animals together. In this state of affairs at the instance and unanimous resolution of District Council, the electrification and face lifting work of a road to village Hyder Farm was carried on for the benefit of the people of the area and if sanction of the re-appropriation of the funds was allowed by the accused Syed Muzaffar Hussain Shah as the Chief Minister, who according to the Rules of Business referred and re-produced hereinabove framed by the Government was competent to sanction, clearly shows that prosecution has not been able to produce the evidence which can be considered for awarding conviction.
60. The authorities cited by Ch. Iftikhar Ahmed, the learned counsel for the accused are relevant and applicable to the facts of the present case, whereas references and authorities cited by Mr. Syed Mamnoon Hassan, Special Prosecutor are quite different and distinguishable from the facts of the present case. In Ehtesab Reference 3 of 1997 decided by the learned Lahore High Court and Ehtesab Reference No,3 of 1997 decided by learned Ehtesab Bench of this Court, in both these references prosecution was able to produce sufficient evidence so as to prove the case against the accused. Resultantly, the accused in both these cases were convicted, whereas the other authorities on legal point cited by Syed Mammon Hassan, learned Special Prosecutor in my humble opinion are not applicable to the circumstances of the present case inasmuch as the counsel for accused/applicant did not press the Application Miscellaneous No,85 of 1997 and did not press the clauses of Miscellaneous Application No,109 of 1997 referred hereinabove. Consequently the Miscellaneous Application was dismissed as not pressed and paragraphs Nos.9, 10, 11 and 12 were not pressed by the learned counsel for the applicant, whereas learned counsel vehemently placed the submissions totally on the evidence so far recorded by this Court. I am of the considered opinion that this case is fully covered by the provisions of section 465-K of Cr.P.C. which provides:-- "S. 265-K. Power of Court to acquit accused at any stage. --Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."
61. I have gone through the material placed with the case and have applied my mind, I am of the firm opinion that in view of the facts, circumstances, evidence and the case law referred and discussed hereinabove, which I most respectfully follow, as such in the circumstances, there is no probability or possibility of the accused being convicted for the acts, omissions and commissions amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance.
62. Consequently, I allow the application and acquit the accused. Reference stands disposed of.
63. After hearing the parties at length on 17-7-1997, by short order application was granted and accused was acquitted and these are reasons for the same.