' The State has preferred the present Ehtesab Reference on ground that the accused No,1 (i,e, Syed Abdullah Shah, the then Chief Minister of Sindh) and accused No,2 (i,e, Pir Mazhar-ul-Haque, the then Minister for Housing and Town Planning Government of Sindh) holders of public office, illegally dishonestly and in collusion recommended and allotted the plot in question to the accused No,3 (i,e, one Tariq Qazi) at a price of Rs,300 per square yard, when the market price of such land was at Rs,2,500 per square yard; notwithstanding that there was a complete ban against the disposal of State land and that wider the Sindh Disposal of Plots Ordinance, 1980 (hereafter: "the 1980 Ordinance") commercial plots could only be disposed off through public auction, no public auction was undertaken and the entire allotment to the accused No,3 was in relaxation of the rules, thereby causing a loss to the exchequer to the tune of Rs,1,813 million.
2. At this juncture, it is also pertinent to point out that the accused No,1 was declared to be an absconder after compliance of the necessary procedure and formalities under law. As such the case against the accused No,1 is to proceed as and when he is apprehended, while the trial has proceeded against the accused Nos.2 and 3 and the present judgment deals with their guilt/innocence.
3. The facts leading to the present Ehtesab Reference are that the accused No,3 applied for allotment of plot of land reserved for a petrol pump bearing No,ST-4, Sector 15-A4, Buffer Zone, North Karachi Township, Karachi directly to the accused No,1 through an application (Exh. No,6/I).
The accused No,1 through his noting and signature on such letter, dated 29-4-1994 directed the then D.G. K.D.A. To put the same up for allotment, the exact noting is "P.1 put for allotment". In consequence, a summary was floated for the Chief Minister by the then Secretary to the Government of Sindh, Housing and Town Planning Department, the original summary coming on record as Exh .6/2. In the said summary the following had been categorically pointed out by the Secretary:--
(a) In terms of the 1980 Ordinance (see PLD 1980 Sindh Statutes 108) and under the new allotment policy, commercial plots could only be disposed off through public, auction.
(b) Under section 15 of the 1980 Ordinance the provisions of the said Ordinance could be relaxed in case of any hardship or if otherwise expedient.
(c) The K.D.A. Had recommended the allotment of the commercial plot to the accused No,3 in relaxation of the rules.
(d) The reserved price of the commercial plot in question was Rs,300 per square yard (incorrectly mentioned as Rs,3,000 per square yard), while the average price of such plot was Rs,2,500 per square yards.
(e) It was in particular pointed out that the Government of Sindh, Housing Town Planning and Environment Department discouraged' allotments on the basis of relaxations which were sought in this case.
(f) It was also pertinently pointed out that the Chief Minister i,e, the accused No,1 had recently imposed a total ban on allotment of all kinds of plots.
4. The summary in question was routed through the accused No,2, who recommended the relaxation of the ban as also the rules; the exact noting of the said accused No,2, dated 15-6-1994 is reproduced as follows:-- "The Chief Minister may like to relax the ban as due to ban people are facing hardship and relax the rule."
5. The accused No,1 on the said summary allowed the request of the accused No,3 for allotment and ordered the transfer of the plot to the said accused No,3 at a reserved price of Rs,300 per square yards in relaxation of the ban on allotments. The exact noting, dated 8-7-1994 of the said accused No,1 is reproduced as flunks:-- "Please transfer the plot at the reserve price of Rs,300 per square yard, in relaxation of ban on allotments."
' Thereafter, the Section Officer-II on behalf of the Secretary to the Government of Sindh, Housing, Town Planning and Environment Department through letter, dated 11-7-1994 (Exh.6/4) directed the D.G. K.D.A. To allot the plot in question to the accused No,3 at the reserve price of Rs,300 per square yard as per orders of the accused No,1 .
6. In consequence, the accused No,3 submitted a challah of Rs,2,70,000,dated 26-7-1994 (Exh.6/3) and the K.D.A. Issued him the allotment order. Dated 22-8-1994 (Exh.615). The prosecution has alleged that thereafter the accused No,3 moved another application to the K.D.A., dated 17-4-1995, (Exh.6/6) for allotment of extra land admeasuring 166.66 square yards in addition to the original area of 900 square yards, adjoining the plot already allotted to him, and for reconstitution of the record file. In consequence, the then Assistant Director-II submitted the case for orders for the purposes of reconstitution of the record file on the basis of photo copies to be submitted by the accused No,3, as also allotment of the extra land and the rate to be charged therefor. The said extra land was allotted to the accused No,3 by the then D.G. K.D.A.,'Sabahat Ali.
7. The prosecution has further alleged that the accused No,3 thereafter requested the conversion of the entire plot from a low commercial to a high commercial plot (as confirmed in the testimony of P.W.2, Ahmed Hussain). This was allegedly done by the accused No,3 through his letter brought on record as Exh.8/B and the processing of such letter was ordered through noting, dated 11-10-1994. In this letter the accused No,3 had pointed out that the site was not suitable for a petrol pump as the plot was situated in a residential area and also because the same was not on the main road on which the transport was frequently found. This request was allowed by the accused No,2 in relaxation of rules through noting, dated 20-8-1995 (Exh.7/1). The exact noting and approval by the accused No,2, dated 20-8-1995 is reproduced as follows:-- "Approved as it does not pertain to any amenity plot. Rules are relaxed."
8. The prosecution has further alleged that the accused No,3 paid a further fees of Rs,1,06,700 as the N.O.C. Fees for change of land use, evidenced through receipt, dated 20-9-1995 (Exh.8/E), while earlier the said accused No,3 obtained the possession of the entire premises evidenced through acknowledgement of possession order, dated 27-7-1995 (Exh.8/F). The State has further alleged that the accused No,3 has sold away the entire plot to one Mirza Muhammad Ishtiaque Baig son of Mirza Muhammad Ashfaque Baig, resident of House No,T-27/1, Rashan Shop No,127, Mirza Adam Khan Road, Bukra Peri, holding N.I.C. No,507-85-039734 through agreement of sale, dated 20-4- 1995 fOr a valuable consideration of Rs,26,00,000 (Exh.9/1). -9. To the charge of corruption and corrupt practices under section 3 of the Ehtesab Ordinance, 1996 the accused Nos.2 and 3 pleaded not guilty. The prosecution examined Masood Hyder, Project Director, Lines Area, K.D.A., Karachi as P.W./1, Ahmed Hussain, Ex-Director-General, K.D.A., as P.W./2, Rafique Ahmed, Director, K.D.A. As P.W./3 and I.D. Mangi, Inspector, Anti-Corruption, Karachi, the Investigation Officer, as P.W.4. These prosecution witnesses had deposed and produced documents which have been duly exhibited, while the relevant ones have been pointed out as aforesaid.
10. I have heard the arguments advanced by the learned counsel appearing for the prosecution and the accused, have gone through the record and testimonies.
11. It is an admitted position that at material times, the accused No,1 had imposed a ban, on the disposal of all kinds of State land. Additionally, in terms of section 12 of the 1980 Ordinance commercial plots could only be disposed of through public auction. The said section 12 is reproduced as follows:-- "12. Commercial plots.--- Commercial plots will be disposed of by the District Housing Committees/Development Authorities through public auction only."
Section 15 of the 1980 Ordinance provided for relaxation of rules but only in cases of hardship or in a manner otherwise expedient. The said section 15 provided as follows:-- "15. Relaxation.--- Any provision contained in this Ordinance may be relaxed in any case if Government is satisfied that strict application thereof, would cause hardship in that case or is otherwise expedient."
' There is little doubt that the relaxation envisaged in section 15 could be extended to disposal of commercial plots as provided for in section 12 which would have meant that such disposal could also be done otherwise than through public auction. Hov7ever, such relaxation could only be extended in case of a hardship or in a manner otherwise expedient. Nothing has come on record to suggest a case of hardship to the accused No,3. The other expression "otherwise expedient" as employed in section 15 does not confer absolute discretion upon the competent authority to relax the rules at sweet will. On the contrary, such expression would necessary entail exercising powers in cases of hardship or public interest. The term "otherwise expedient appearing in the said section 15 cannot be given any other import, otherwise the intention of the law makers to provide for such power of relaxation would be open to abuse and would facilitate negating the other checks embedded in the enactment. One such illustration is the check embodied in section 12 that all commercial plots could only be sold through public auction. The ethos behind such provision is to protect loss to the State in case venal incumbents in collusion and dishonestly sell away priced land of the State, causing immense loss to the exchequer. The idea of holding a public auction is very fundamental since it ensures fetching the best possible and available price in the market.
Since the present judgment is not ascertaining the legality of the actions of the accused No,1, 1 will refrain from commenting on his act granting the allotment without a public auction at a price at Rs,300 per square yard when the average market price in the area was Rs,2,500 per square yard, despite the ban imposed by himself. However, the legality of the recommendation of the accused No,2 can be examined.
12. On behalf of the accused No,2 the following has been stressed:--
(a) his noting on the summary in question was not a recommendation in any sense of the word.
(b) he did not recommend the price at which the plot was ultimately- sold, in view whereof he could not be blamed for any loss to the exchequer.
(c) the competent authority to relax the ban and the rules was the accused No,1, who had exercised the powers which have been called in question in this reference. Accordingly, the noting of the accused No,2 was wholly inconsequential.
13. In order to appreciate the above submissions it is necessary to first scrutinize the noting of the accused No,2 in issue. It is correct that the accused No,2 has not recommended any price on which the land was to be sold. However, admittedly he has recommended the accused No,1 to relax the ban and the rules "as people are facing hardship". This recommendation cannot be torn out of context from the summary floated for the accused No,1 and the facts of the case presented therein.
The accused No,2 on that very summary has recommended relaxation of the ban and the rules, thus, proposing a case for allotment of the plot in question to the accused No,3 at the price of Rs,300 per square yard. The accused No,2 as a Minister of the concerned department was expected to know the operative law and procedure, including the facts that under the 1980 Ordinance the land could only be sold after public auction and that A there was a complete ban on disposal of State land. Additionally, the accused No,2 had acted illegally in recommending a relaxation of the ban and the rules when the same could only be relaxed in cases of hardship and public interest, while the said accused No,2 failed to point. Out any such aspects or hardship or public interest warranting relaxation in favour of the accused No,3. The accused No,2 has accordingly acted dishonestly, in collusion and illegally. Non-mention of the price by him in his noting was equally inconsequential. The recommendation on the part of accused No,2 is also seriously objectionable since the summary itself had not only pointed out the existence of the total ban on all kinds of allotment but had also proposed that relaxation of rules in the context are to be discouraged (for further details concerning the illegality pertaining to relaxation of ban and exercise of power under the Sindh Rules of Business, 1986 as also disposal of State land through public auction, see The State v. Syed Abdullah Shah 1998 M LD 216. 1 accordingly find the accused No,2 guilty as charged.
14. The case of the accused No,3 is discussed herein below. In the Ehtesab Reference and also as alleged by the prosecution the accused No,3 had been the Political Secretary of the then Prime Minster of Pakistan or that he had represented himself as such. This is vehemently denied by the said accused No,3. Who has maintained. That he was never the Political Secretary of the then Prime Minister or that he had ever represented himself as such. I am of the view that nothing boils down on this controversy. Even if the said accused No,3 was never a Political Secretary or he did not represent as such, the key question is as to whether he has benefitted from the allotment in question as a beneficiary. The said accused No,3 has admitted execution of the letter (Exh.6/1) whereon the land had been allotted to him. He has also admitted payment through challan of Rs,2,70,000, dated 26-22-1994 (Exh.6/3). He has further maintained that he was granted allotment through allotment order, dated 2-8-1994 (Exh.6/5), I however, since he had been unable to pay the balance amount of 50% of the occupancy value within 3 months as stipulated in the said allotment order, he surrendered the plot hack to the K.D.A. He maintains that all subsequent documents containing his signature pertaining to, inter alia, his application for allotment of additional land, conversion and acknowledgement of possession, sale agreement, dated 20-4-1995 are all fake and fraudulent and have been brought on record to implicate him in a mala fide manner.
Alternatively, it has been suggested on his behalf that while he had surrendered the plot, the officers of the K.D.A. In collusion have come up with the forged documents containing his fake signatures so as to obtain benefits themselves. It is correct that the allotment order, dated 20-8- 1994 (Exh.6/5) has been surrendered by the accused No,3. The very document itself which has been so produced by the prosecution contains such endorsement on its face. It is also correct that condition B of such allotment order stipulates. Payment of 50% O.V. Within three months. The prosecution case is that the said accused No,3 supplied photo copies to construct the K.D.A. File but none of the witnesses have testified to the effect that they had met the accused No,3 in person. In particular, it may be pointed out that Masood Hyder, P.W.1 in his examination-in-chief has stated that he saw the accused No,3 in the office of the then D.G., K.D.A., Sabahat Ali Khan. However, in the cross-examination to Mr. Sathi, Advocate, counsel for the accused No,3, he has retracted from such statement and maintained that he had never met the accused No,3. All the other prosecution witnesses have maintained that they had never met the accused No,3. In the face of the denial by the accused No,3 to have executed the sale agreement, dated 20-4-1995 (Exh.9/1) the best evidence which could have been available with the prosecution would have been the testimony of the purchaser of land through such agreement. No attempt had been made to produce such purchaser i,e, Mirza Muhammad C Ishtiaque Baig when his address and whereabouts including National Identity Card No, were available in the sale agreement. Nothing has been brought on record to show that such person was not available: nor any attempt was shown to have been made to locate him. Under Article 129, illustration (g) of the Qanune-Shahadat Order. 1984 there is a presumption that where the best evidence has not been produced by a party, a presumption would arise that if such evidence had been produced it would have gone against that party (see Qamrul Hassan v. U.B.L. 1990MLD 276. In this case the best evidence in the shape of testimony of the purchaser, Mirza Muhammad Ishtiaque Baig, has not been adduced, calling for pressing into service the presumption in relation to the best evidence rule embodied in Article 129, illustration (g).
Mrs. Ismat Mehdi, the learned prosecutor, has invited my attention to Exh.8/F i,e, the acknowledgement of possession order, dated 27-7-1995 duly signed by the accused No,3. This document is denied by the accused No,3. She has further invited my attention to Mrs. Nusrat Khanum v. Liaquat Ali PLD 1994 Kar. 252, for the point that the Court under Article 84 of the Qanun- e-Shahadat Order, 1984 has ample power to compare the disputed and admitted signatures. The disputed signature appears on the document brought on record as Exh.8/F whereas the admitted signature appears on the document brought on record as Exh.6/1. A comparison of the signatures on the two documents confirm that the two signatures do not tally. The signature of the accused No,3 on the sale agreement (Exh.9/1), which is equally disputed by him, tallies with the disputed signature on the document produced as Exh.8/F and Snot with the admitted signature on the document produced as Exh.6/1. The sale agreement also pre-dates the acknowledgement of possession order. None of the prosecution witnesses have been able to explain the endorsement "surrender" appearing on Exh.6/5 i,e, the allotment order, dated 22-8-1994. The only aspect which weighs against the accused No,3 in this regard is the fact that the admitted payment made by him of Rs,2,70,000 through challan, dated 26-7-1994 (Exh.6/3) has not been claimed back by him.
However, this fact alone will not be sufficient to sustain a conviction on him in view of the other circumstances, detailed above, raising a doubt against the prosecution case Mrs. Ismat Mehdi has placed reliance upon Lal Shah v. State 1970 SCM R 743 for the principle that a person may be found guilty on the basis of circumstantial evidence. However, in the same case, the accused was acquitted as the circumstantial evidence created a reasonable doubt in his favour. Such case is squarely applicable to the case at hand of the accused No,3 since the circumstantial evidence creates a reasonable doubt pointing to his innocence. Reliance by Mrs. Ismat Mehdi on Muhammad Tariq v. Mirza Rashid Akhtar 1991 CLC 1697 is also not helpful to her. In such case it was held that where no objection as to the mode of proof of documents is taken at the time when they are exhibited, such documents could not be excluded from consideration. The documents produced by the prosecution in this case have been duly considered and not excluded.
15. In light of the above discussion the accused No,3 is given the benefit of doubt and acquitted.
The accused No,2 is found guilty as charged and is convicted under section 4 of the Ehtesab Act, 1997 to undergo R.I. For two years and fine at Rs,10,00,000 (Rupees ten lacs) and in case of default in payment of fine the said accused shall suffer R.I. For six more months. He is on' G bail. He is remanded to custody to serve out the sentence. The bail bond of accused No,3 is discharged.