' The present Ehtesab Reference concerns award of an octopi contract at a price below the reserved/upset price without adhering to the prescribed procedure. The relevant facts are detailed in the following paragraphs.
2. It is alleged by the prosecution in the Ehtesab Reference that for the financial year 1996-97 the Government of Sindh, Local Government Department, issued advertisements on 7-5-1996, 14-5- 1996 and 19-5-1996 for conduct of auction in relation to award of an octopi contract for bus stand, petrol pump and sugar mill at Khoski. These advertisements were published in the daily Jang and daily Ibrat fixing the reserved/upset price at Rs,52,44,000 (P.W.1 Exhs.8/1 and 8/2). It is admitted that no one attended the auction proceedings where after the accused No,3 (i,e, Abdul Razzak Khan.
The beneficiary) wrote a letter directly to the accused No,1 (i,e, Mir Munawar Ali Talpur, the then Minister, Local Government of Sindh) (copy of this letter appears as P.W.1 Exh.8/5). It is pertinent to note that the accused No,3 in his letter under reference had offered to take the contract in issue at Rs,20,00,000. Upon such letter the accused No,1 directed the Director, Local Government to submit comments. In turn comments were called from the then Town Officer, Town Committee, Khoski (i,e, accused No,2, Ahmed Khan Abro, who through letter, dated 13-6-1996 (P.W.1 Exh.816) recommended, inter alia, the offer of the accused No,3 at Rs,20,00,000. The Director, Local Government in turn through letter, dated 17-6-1996 forwarded the recommendation of the Town Officer, Town Committee, dated 13-6-1996 to the Secretary, Local Government (P.W.1 Exh.8/7). In forwarding such recommendation the Director, Local Government in his referred letter, dated 17-6- 1996 observed as follows:-- "The Town Officer, Town Committee, Khoski recommended the above offer looking to the above circumstances.
' Under the circumstances explained above the same may be considered, since in the Departmental recovery there is apprehension of loss."
' Ultimately, the Secretary, Local Government, had put up a summary before the accused No,1, dated 24-6-1996 (D.W.1 Exh.14/1) recommending that the Deputy Commissioner, Badin be requested to hold another open auction after wide publicity and under his own supervision. The accused No,1 on 26-6-1996 declined to follow the recommendation given by the Secretary, Local Government and directed the offer of Rs,20,00,000 submitted by the accused No,3 to be accepted.
In doing so the accused No,1 observed as follows on the face of the summary:-- "I have observed that these two sugar mills will not come in the jurisdiction of Town Committee, Khoski and will not effect the income of the said Town Committee. Hence offer given by Abdul Razzak hereby confirmed in the interest of Council."
' In pursuance of the above, the octroi contract was awarded to the accused No,3 for Rs,20,00,000 confirmed through letter, dated 26-6-1997 (P.W.1 Exh.8/8) by the Section Officer-II for the Secretary, Local Government.
3. The case of the prosecution is that the award of the octopi contract to the accused No,3 as explained was in flagrant violation of the procedure of award prescribed through notification issued by the Government of Sindh, Local Government/Health, Engineering, Rural Development and Katchi Abadis Department, dated 10-3-1996 (P.W.1 Exh.8/3); furthermore, there was no justification to award the contract for Rs,20,00,000 when admittedly the upset/reserved price was fixed at Rs,52,44,000, and in consequence the State exchequer has been deprived of a substantial loss of Rs,32,44,000
4. In this case all the three accused pleaded not guilty, to the charge of corruption and corrupt practices envisaged in sections 3 and 4 of the Ehtesab Ordinance, 1997. The present proceedings continued under the Ehtesab Act, 1997 in view of section 31(2)(e) thereof (for further details see the State v. Pir Mazharul Haq 1998 MLD 1264. On behalf of the prosecution Liaquat Ali son of ,Ahmed Nawaz, the then Director. Local Government and Muhammad Sohail son of Muhammad Ali Khan, Inspector Anti-Corruption i,e, the Investigation Officer deposed as the prosecution witnesses. They were examined and cross-examined. All the three accused submitted their statements under section 342, Cr.P.C. And in support filed additional statements and explanations. All the .Hree accused also chose to testify, in view whereof they were also examined and cross-examined.
5. I have heard the learned counsel for the prosecution and the three Accused, perused the testimonies and looked into the record.
6. The learned counsel for the accused No,1 has raised the following defence which could be deciphered from the written statement filed by him, the trend of the cross-examination of his counsel and his own testimony:-
(i) The award of contract to the accused No,3 was recommended by the Town Officer, Town Committee (accused No,2) through letter, dated 26-6-1996 as also the Director, Local Government i,e, P.W.1.
(ii) The Secretary, Local Government while recommending reaction did not highlight the relevant rules or procedures which he was under an obligation to do under Rule 22(e) and (f) of the Sindh Government Rules of Business, 1986. As such the accused No,1 could not be blamed for this lapse of the Secretary as neither the said Secretary highlighted the prescribed procedure embodied in the notification, dated 10-3-1996 nor the said accused No,1 was conversant or possessed knowledge of the prescribed procedure contained in the referred notification. Also such notification was never brought to his knowledge.
(iii) Additionally, the summary of the Secretary, dated 24-6-1996 was erroneous since it failed to appreciate that two sugar mills i,e, Pangrio Sugar Mills and Seri Sugar Mills which were expected to commence functioning in that year fell outside the jurisdiction of Khoski Town Committee, in view whereof the actual collection of the octopi would have been far low than expected: also these sugar mills would have consumed a substantial quantity of sugarcane, once against reducing the octopi in view of decrease in the import of such sugarcane within the Khoski Town Committee jurisdiction; also the Secretary in the summary has ignored the shortage of water in the area which would have resulted in the decline of agricultural growth and in turn income from octopi.
(iv) The prosecution has failed to establish through any evidence that any illegal gratification was received from the accused No,3 or that the accused Nos.2 and 3 had influenced the accused No,1 in any manner.
7. The accused No,2 has mainly raised the defiance that since at material times he was in BPS-11, the Ehtesab proceedings and jurisdiction did not apply to him. Other aspects raised by him are common to the ones raised by the accused No,1, mutatis mutandis.
8. The accused No,3 in his defense has stated that the offer of Rs,20,00,000 on his part was exclusive of other expenditures towards salary 'and income-tax which came to about Rs,6,50,000.
9. A common ground of defense on the part of all the three accused is that the very upset/reserved price at Rs,52,44,000 was against the notification, dated 10-3-1996 since the said reserved price could only be worked out by adding 15% to the contract price for the previous year i,e, 1995-96. It was submitted by the learned counsel for the accused that for 1995-96 the contract was awarded at Rs,17,45,000 and by adding 15% thereto the reserved/upset price for 1996-97 could only come to about Rs,20,00,000, hence no violation stood committed in the award of the contract for the latter year.
10. In my humble opinion the common ground advanced on behalf of the three accused attacking the very fixation of the upset/reserved price for the year 1996-97 at Rs,52,44,000 needs to be dilated upon. Rule VI of the notification. Dated 10-3-1996 (P.W.1 Exh.8/3) is relevant in this regard and sub- para. (a) thereof reads as under:-- "VI Fixing upset price
(a) Reserved or upset price for the auction will be fixed by adding 15% to the contractual amount/confirmed bid of 1995-96." (Under lined for ' emphasis).
11. The said Rule VI(a) reproduced above confirms that the upset/reserved price for the year 1996- 97 should have been 15% more than the contractual amount i,e, the confirmed bid for the year 1995-96. The confirmed hid or the contractual amount for the year 1995-96 was at Rs,45,50,000 and not Rs,17,45,000. The official bid amount i,e, the upset price for the year 1995-96 was Rs,27,27,800, however. In view of extreme competition the price escalated by the process of knocking down each others bids and finally the successful contractor confirmed his bid at Rs,45,50,000. The said contractor, however, defaulted and absconded, in view whereof octroi had to be recovered departmentally by the Administrator; and the actual recovered amount for the year 1995-96 come to Rs,17,45,000. All these facts can be confirmed from the cross-examination of the P.W.1 Liaquat Ali by Mr. Abdul Hafeez Lakho, the learned counsel for the accused No,1, as also unrbutted documentary evidence brought on record as P.W,1 Exh.8/6, P.W.1 Exh.8/7 and Exh.14/1. Rule VI(a) as pointed out above talks in terms of the "confirmed bid or the contractual amount" as the criterion/bench-mark and not the actual recovered amount. Accordingly, the learned counsel for the accused are incorrect in assailing the fixation of the upset/reserved price at Rs,52,44,000 since 15% is to be added to the figure Rs,45,50,000 and not Rs,17,45,000 to arrive at the reserved price for the year 1996-97.
12. The next issue which requires determination is whether in awarding the contract in issue any breach of the prescribed procedure had taken place. In this respect Rule X(a) of the notification, dated 10-3-1996 is relevant and which is reproduced as under:- "X Offer: (a) In case of failure in auction with official bid, the Auction Committee may reduce the official bid by not more than 3% of the last year's contractual amount plus 15% increase keeping in view the interest of the Council, provided that auction proceedings have been conducted at lest thrice with 15% increase over the last years' contractual amount."
' The above Rule X(a) would crystalize that in case the offers do not meet the official bid i,e, the reserved/upset price the latter could be reduced by 3%. However, this could only be done till such time reactions are conducted thrice with the original upset price. In this case once no response was received by the bidders in the first auction at least the reaction should have taken place thrice before any reduction in the Official bid could be mooted; and the reduction could only be at 3% which would have come to Rs,50,86,680 (i,e, Rs,52,44,000 reduced by 3%). There was, thus, no justification to have bypassed this mandatory procedure of auctioning thrice; equally the accused No,1 was not justified to violate this procedure and award the contract at Rs,20,00,000 despite opposition by the Secretary of the Department. The defense raised by the accused No,1 that he was neither apprised of this procedure by the Secretary nor he had knowledge thereof is completely devoid of force. Even the Rules of Business cited by the accused No,1 do not come to his rescue for the simple reason that ignorance of law is no excuse. If such principle is extended to common men, it would be a travesty of the rule of law and Articles 2A, 3, 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973 if the same principle is also not made applicable to persons at the helm of the affairs. In R.V. Reid (1973) 3 All ER 1020, Mr. Scarman, L.J. In the English Court of Appeal held that a motorist's mistaken belief that a constable has no right in the particular circumstances to require a specimen of breath, is not a reasonable excuse for not providing the specimen, because ignorance of law is no excuse. In another case i,e, Johnson v. Youden (1950) I KB 544, of a house above a particular price; D helped to negotiate the price of the house above the statutory price under the erroneous belief that the negotiated price was lawful; D was found to have the men's' rea (note: these two decisions have been cited by Smith and Hogan in "Criminal Law" 5th Edition, p.68).
In our jurisdiction also the concept that "ignorance of the law is no excuse" has been recognized (see Agricultural Development Bank of Pakistan v. Noor Muhammad and 2 others PLD 1985 Quetta 74 at 80-C in a different context). Reliance by the accused No,1 on Rule 22 (e) and (0 of the Sindh Government Rules of Business, 1986 is misplaced. Such sub-rules no doubt require the Secretary of the concerned department to invite the Minister's attention to the relevant rules and regulations, but the same do not absolve the Minister from taking an illegal action in case the concerned Secretary does not apprise the Minister of the relevant rules/regulations. The ultimate responsibility is that of the Minister himself. Rule 19 of the Sindh Government Rules of Business, 1986 confirms such analysis, which provides that the Minister shall be responsible for matters delegated to him concerning his department (see Rule 19(i)(a). A Minister of Local Government is expected to know the law and procedure under which he has to operate. In this case the accused No,1 has acted in violation of the said Rule X(a) for which he is to be held responsible. Other arguments touching upon the factors such as lack of water and non-inclusion of two sugar mills within the jurisdiction of Khoski Town Committee do not in any manner provide an excuse to bypass the said Rule X(a), which provided a mandatory pre-requisite of auctioning thrice. The reason why in my humble opinion such requirement was mandatory, was because it was aimed at protecting the interest of.
The exchequer and promoting public interest. Likewise, there was no justification for the accused No,2 for illegally recommending the award of contract to the accused No,3, while bypassing the mandatory requirement of Rule X(a) providing for auctioning thrice, in the context as explained above.
14. Before finally parting, two issues warrant clarification:-- "(a) The learned counsel for accused No,1 has protested in the production of the letter written by the accused No,3 to the accused No,1 available on record as P.W.1 Exh.8/5 on the ground that the same is a photo copy. The objection is overruled since the accused No,1 in his own testimony has admitted the receipt of such letter. In any event, nothing would boil down on this score since the reason for convicting the accused have been their act of violating Rule X(a). This aspect and as to whether the accused No,1 could have received the letter directly and other ancillaries have been left open.
(b) On behalf of the accused No,2 it has been vehemently contended that since at material times he was in BPS-11 the Ehtesab Act, 1997 or proceedings thereunder are inapplicable to him. In order to appreciate this subsections (iii), (iv) of subsection 2(i) and (v) of the Ehtesab Act, 1997 are relevant which are reproduced as under-- "(i) 'holder of a public office' means a person who--
(iii) is, or has been the Chief Minister, Speaker Provincial Assembly, Deputy Speaker Provincial Assembly, Provincial Minister, Advisor to the Chief Minister, Special Assistant to the Chief Minister.
Provincial Parliamentary Secretary. Member of the Provincial Assembly. Advocate-General and Assistant Advocate-General. Political Secretary. Advisor or Consultant to the Chief Minister and the holder of a post or office with the rank or status of a Provincial Minister;
(iv) is holding. Or has held, an office or post in Basic Pay Scale 18 or above in the service of Pakistan, or any service in connection with the affairs of the Federation, or of a Province, or of a local council constituted under any Federal or Provincial law relating to the Constitution of local councils, or in the equivalent pay scale of local councils, or in the equivalent pay scale of management incorporations, banks, financial institutions, firms, concerns, undertakings or any other institution or orgnization established, controlled or administered by or under. The Federal Government or a Provincial Government other than a person who is a member of the armed forces, or for the time being is subject to any law relating to any of the said forces except a person who is, or has been a member of the said forces and is holding, or has held an equivalent post of office in any public corporation, bank, financial institution, undertaking or other organization established, controlled or administered by or under the Federal Government or a Provincial Government;
(v) ' is holding or has held an office or post in Basic Pay Scale 1 or below of the nature specific in sub-clause (iv) and is involved in an offence committed by a person or persons falling within sub- clauses (i) to (iv); and Section 2 (v) of the Ehtesab Act, 1997 stipulates that the "holder of a public office" would. Inter alia, mean a person holding an office in BPS-17 or below of the nature specified in sub-clause (iv) and is involved in an offence committed by a person or persons falling within sub-clauses (i) to (iv). Sub-clause (iv), inter alia. Includes persons in service in a local council.
Since the accused No,2 is involved in an offence relatable to accused No,1 who falls within sub- clause (iii) the provisions of sub-clause (v) are not applicable to accused No,2 since at material times he was holding a post in the nature of specified in sub-clause (iv).
15. The upshot of the above discussion is that the prosecution has succeeded in proving beyond any shadow of doubt that the accused Nos.1 and 2 are guilty of corruption and corrupt practices under section 3 of the Ehtesab Act, 1997 for extending undue favour to the accused No,3. Likewise the accused No,3 is also guilty. Being beneficiary having gained the pecuniary advantage illegally. I accordingly convict all the three accused under section 3 of the Ehtesab Act, Now there remains only the question of quantum of sentence which is to be awarded to the accused. Accused No,1 was the elected representative of the people as such he was required to perform his duty honestly, in the public interest and as a trustee, but as has been proved by the prosecution he indulged in corruption and corrupt practices, therefore, such persons deserve no leniency. Similarly, the accused No,3 being the beneficiary was in league and collusion with the accused No,1, therefore, he should also meet the same fate. Accordingly, they are sentenced to suffer R.I. For three (3) years each and to pay fine of Rs,15.00,000 (Rupees fifteen lacs) each or in default each to undergo R.I. For one (1) more year. So far the accused No,2 is concerned keeping in view the facts and circumstances of the instant-case and looking to the grade of the accused No,2, the interest of justice would he met if he is awarded lesser punishment. Therefore, he is sentenced to suffer R.I. For two (2) years and fine of Rs,3,00.000 (Rupees three lacs) or in default to undergo R.I. For six (6) more months. They are on bail. They are remanded to judicial custody to serve out the sentence.
After announcement copies of the judgment will be supplied to each accused free of costs.
Accused convicted.