' IRHSAD HASAN KHAN, J.---This appeal under section 26 of Ehtesab Act, 1997 read with Article 185
(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is directed against the judgment dated 19-6-1997, passed by the Ehtesab Bench of the High Court of Sindh, Karachi in the case of Reference under section 14 (1) of the Ehtesab Act, 1997 (hereinafter referred to as the Act)
2. The brief facts are that the learned Chief Ehtesab Commissioner filed a reference dated 16-1-1997 against Syed Abdullah Shah, ex-Chief Minister of Sindh, Mr Aijaz Ahmad, the Controller of Buildings, Karachi Building Control Authority, K.D.A. And Ms. Sarah wife of Muhammad Ashraf, Director M/s Awazi Associates (Pvt.) Ltd., Karachi. It is stated in the Reference that despite ban on the construction of High Rise Buildings imposed by the Government of Sindh beyond ground plus four floors, the appellant recommended the approval of additional floors in relaxation of the ban, pursuant to the application moved by Ms. Sara, who applied for approval of additional floors on Commercial Plot No, 46, Block No,3, situate at Bihar Cooperative Housing Society, Karachi, to the accused No, 1 Syed Abdullah Shah. It is also stated in the reference that Syed Abdullah Shah despite ban, in collusion with the accused No,2, (the appellant) allowed the construction of the additional floors and, thus, showed favoritism to the accused No,3, Ms. Sarah.
3. Syed Abdullah Shah, the then Chief Minister of Sindh, is allegedly absconding. He was, therefore, tried in absentia alongwith Aijaz Ahmed, appellant herein and Mst. Sarah.
4. The appellant and Ms. Sarah accused were charged for the alleged commission of the offence in league with each other and with the connivance and consent of the then Chief Minister of Sindh, Syed Abdullah Shah.
5. The prosecution evidence is supported by Syed Muhammad Hussain, P.W.1, Ahmed Hussain Siddiqui, P.W.2, Abdul Rahim Shoro, P.W.3, The appellant as well as Ms. Sarah accused in their statements under section 342, Cr.P.C. Did not plead guilty to the charge.
6. The learned Ehtesab Bench, after thorough scrutiny of the prosecution witnesses, namely, Syed Muhammad Hussain, Controller of Buildings, K.B.C.A., P.W.1 Ahmed Hussain Siddiqui, ex-Director General, KDA, P.W.2 and Abdur Rahim Shoro, Inspector Anti-Corruption Investigating Officer P.W.3 and the documents proved on record, i.e, Exhs. P-1 to P-5 and P-6 to P-21 and considering the statements of the accused, recorded a finding that Aijaz Ahmed appellant in abuse of his official position and in abetting the offence of corruption and corrupt practices on the part of absconding accused Syed Abdullah Shah and bringing forth illegal and dishonest gains and profits to accused Mst. Sarah, stood proved, therefore, he was found guilty of the offence of abetment. In consequence, the appellant was convicted under sections 107 and 108, P.P.C. Read with section 4(2) of the Ordinance, 1996 (hereinafter called the Ordinance), and sentenced him to suffer imprisonment for a term of two years and to pay a fine of Rs,2 millions or in default to suffer further imprisonment for another one year vide majority judgment recorded by Wajihuddin Ahmed, J. (as he then was), and Syed Saeed Ashhad, J. Learned Members of the Ehtesab Bench, However, Mushtaq Ahmed Memon, J., agreed with the findings recorded by the learned majority Judges as to the guilt of Aijaz Ahmed, appellant to the effect that three additional floors were constructed and the permission for such construction, possibly could not have been accorded but for the report/summary, Exh.P-3 to which he was one of the several contributors.
7. As regards quantum of punishment, Mushtaq Ahmed Memon, J., inter alia, observed:- "the officers who were superior to accused Aijaz Ahmed, having instructed him to prepare summary in a particular fashion and having thereafter approved the same should not have been let off and go free."
' Having regard to the fact that the prosecution has chosen to leave out the officers superior to accused Aijaz Ahmed, the award of severe punishment to the appellant may tantamount to discrimination. In the concluding paragraph it was observed:- "In my view, therefore, imposition of fine alone shall be sufficient punishment and would also be a reasonable deterrent factor and an eye-opener for those who indulge in commission of corruption and corrupt practices or an abetment thereof. As to the amount of fine I am in complete agreement with the penalty amount proposed to be imposed by my learned brother Wajihuddin Ahmed, J. And the sentence awarded in the event of default in payment thereof."
7. Mr Abdur Rahim Kazi, learned counsel for the appellant did not challenge the conviction of the appellant. After examining the evidence on record, we also hold, that the conviction of the appellant is based on proper appraisal of evidence on record. The appeal to that extent is, therefore, dismissed.
8. Mr Abdul Rahim Kazi, learned Advocate Supreme Court, however, argued that the quantum of punishment was excessive in the facts and circumstances of the case. We also find that no conclusive proof against the appellant is forthcoming on record to show if any material gain or advantage was obtained by him. He was not found beneficiary of the above transaction. Mr Qurban Sadiq Ikram, learned Senior Advocate Supreme Court for the Chief Ehtesab Commissioner also frankly conceded that the appellant did not obtain any benefit in this regard. It appears that the appellant abetted the illegal act of the superior authority without application of his independent mind and having regard to the relevant instructions, rules and regulations on the subject. The main culprit in the case was Mst. Sarah. She, however, moved an application under section 15 of the Ordinance, for dropping the proceedings against her as she was prepared to make good the loss that may have been suffered. It would be advantageous to reproduce section 15 of the Ordinance, which reads thus:- "Voluntary return, etc. ---Where before the commencement of trial or at any time, with the leave of the Court, the holder of public office or any other person specified in subsection (2) of section 4 voluntarily returns to the Chief Ehtesab Commissioner, property, assets, gain acquired through corruption or corrupt practices, the Court may not proceed with the trial subject to such conditions as to fine or penalty as may be imposed by the Court and he resigns from the representative office or, if he is a person specified in sub-clause (iv) of clause (f) of section 2, he accepts termination from his service."
' The learned Ehtaesab Bench allowed the application of Mst Sarah vide order dated 29-5-1997, which reads thus:- "The learned counsel for accused No,1, Mst. Sarah, have filed an application stating that such accused is prepared to deposit a sum of Rs,5 million with the Nazir of the Court in such manner that out of that sum an amount of Rs,2.5 million would be deposited by her by 30-61997 and the balance (Rs, 2.5 million) on 31-7-1997. In consequence, the proceedings are sought to be dropped against accused No,3 in terms of section 15 of the Ehtesab Ordinance, 1997. This is in a background, where during the earlier part of the day senior counsel for the said accused, Mr. Akhtar Ail G. Kazi, had pointed out that from the gross receipts of approximately Rs, 15 million for the additional three floors, comprising of 15 flats, accused Mst. Sarah had made a gain of no more than Rs, 2.3 million, excluding the payments which she had already made to the K.B.C.A. Etc. It was pointed out, at the time, to the learned counsel that section 15 aforementioned was not confined to. 'the property, assets, gain acquired', regarding which opinions may vary but also embraces conditions, if any, 'imposed'. Thus, where such a loss to the State and corresponding gain to the accused is offered to be made good, discretion still lies with the Court to accept, reject or impose terms relevantly.
Correspondingly, it was urged before us that the accused is a lady with little experience and, therefore, the discretion of the Court may favourably be exercised. In the circumstances, and upon hearing, with the concurrence of the learned Special Prosecutor super-added, the aforesaid figure of Rs,5 million was arrived at and the resultant application was made. Accordingly, in the overall circumstances of the case, the referred amount, with the conditionality's suggested, is accepted provided that within a period of 15 days, the accused would provide two sureties in the sums of Rs,5 million each with a PR Bond to ensure that she abides by the commitment she has made before us.
In the event of the PR bond and sureties not being duly provided or any of the instalments aforesaid not being paid or either of these things not being done, within the time stipulated, the order that we hereby pass would warrant recall. In such terms and upon consent of the learned counsel, the above application of accused Mst. Sarah is allowed and the proceedings against her in terms dropped, but subject, as stated, that she will have to stand trial again if the requirements of this order are not satisfied. On the amount being deposited, as aforesaid, the Nazir would make over such amount to the learned Chief Ehtesab Commissioner in accordance with the requirements of section 15 of the Ehtesab Ordinance."
' In conformity with above, we have amended the charge making mention of the fact that proceedings against Mst. Sarah stand dropped, as above.
' In turn, the learned counsel for accused Ejaz Ahmed has filed an application for recall of the witnesses in order that they may be cross-examined on the basis of the amended charge. The witnesses are present and have been cross-examined.
' Statement of accused also recorded in accordance with law. For arguments, put up on 30-5-1997."
9. There can be no doubt that upon the facts established, the appellant has clearly abetted the offence and, thus, had furthered the common intention of Mst. Sarah and, therefore, was rightly convicted. This does not, however, mean that the appellant contributed in an equal measure in the fulfilment of the common object. There is nothing on record to establish that he acquired any financial gain while abetting the offence charged. There is weight in the contention of the learned counsel for the appellant that keeping in view the circumstances of this particular case and the fact that no action has been taken against the superiors of the appellant involved therein and that the principal accused having been dropped as she has voluntarily returned the gain acquired by her through illegal practices, there appear to be circumstances entitling the appellant to a lesser sentence. It is well-settled that the sentence of an abettor could not, in propriety, be greater than that of the principal accused. Refer Raees Jumma v.The State (1991 SCM R 2018).
10. We are, therefore, of the opinion that the ends of justice will be adequately met if in his case the sentence of imprisonment already undergone by the appellant is upheld but the sentence of fine of Rs,2 million, is maintained. We, accordingly, uphold the conviction of the appellant but, maintaining the sentence of fine, reduce the sentence of imprisonment to the one already undergone. The fine has since already been deposited by the appellant in Court pursuant to the granted by this Court, we direct that the above amount shall be transferred to the learned Chief Ehtesab Commissioner forthwith, in compliance of this order.
11. Resultantly, we partly allowing this appeal modify the impugned judgment to the extent of sentence of imprisonment only as indicated above.
Sentence reduced.