1. ' Brief background of the matter is that through letter, dated 14-3-1997 the learned Chief Ehtesab Commissioner, referred the above reference, under section 14(1) of the Ehtesab Ordinance 1997 (hereinafter referred to as the "1997 Ordinance") stating therein that accused No,3, Hamir Singh i,e, the then Minister for Science and Technology, sought allotment of four acres of land in corridor s.Xtor, Scheme No,33 or in N.C. No,118 Deh Okewari Karachi, vide application, dated 4-12-1994 (Exh.5) purported to have been moved to the then Chief Minister Sindh (accused No,1) for launching a low cost housing scheme for the people of this country. The then Chief Minister, Syed Abdullah Shah (accused No,1) ordered on 4-12-1994 that a summary be put up for allotment. From the record it appears that this application was received by accused Ramesh M. Udeshi (accused No,2) who at that time was the Secretary to the Government of Sindh (L.U.) Department. Accused No,2 called for a' report on this application regarding availability of the land as well as its market value etc. Vide his letter, dated 4-12-1994 (Exh.6) addressed to D.C. Malir who vide his letter, dated 22-2-1995 sent his report to the . Commissioner, Karachi Division, Karachi and a copy was endorsed to the accused No,2. The report indicated that land was not available in corridor area but the same could be made available from N.C.1, Deh Thoming Scheme No,33 Karachi and its market value was shown to be at Rs,4,00,000 (four lacs) per acre; the report also suggested that in the past land had also been allotted to two persons at the rates of Rs,10 and Rs,25 per square yards in August 1994. The D.C. Also stated in this report that there was a complete ban on the allotment of land. It is alleged by the prosecution and as per evidence brought on record that the accused No,2, Ramesh M.
2. Udeshi, did not wait for the report of the Commissioner to whom the D.C. Malir had referred the matter and instead the accused No,2 hurriedly submitted his summary to the accused No,1 with the following recommendations:-- "(4) According to condition No,14 of the Statement of Conditions notified on 12-5-1975, the plots for residential/commercial purposes are to be disposed of through open , auction. Presently, the Government has imposed complete ban on disposal of State land. However, the Government/Chief Minister, Sindh by exercising the powers conferred under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 has granted land in Deh Thoming Scheme No,33 to various persons at the rate of Rs,10 per sq. Yard to Rs,25 per sq. Yard in relaxation of existing policy/ban/ rules of business, 1986.
(5) Under the circumstances orders are solicited as to whether the request of the applicant may be entertained under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912, at the rate of Rs,25 per sq. Yard in relaxation of existing policy/ban/rules."
3. ' The summary was finally approved by the accused No,1 on 16-7-1995 and thereafter, the accused No, 2 notified allotment to the D.C. Malir through his letter, dated 17-7-1995. This was followed by execution of lease agreement on 1-9-1996 upon payment of the suggested cost of the land as approved by the accused No,1. After promulgation of the Ehtesab Ordinance, 1977 and on detection and enquiry of the alleged illegal allotment which resulted in a substantial financial loss of Rs,1.116 million to national exchequer, a report was submitted on 20-1-1997 to the learned Chief Ehtesab Commissioner who in turn referred the matter to this Court for disposal.
4. ' During the course of proceedings the accused No,1 jumped bail and was declared an absconder vide order dated 15-4-1997 after the compliance of the necessary formalities. The case shall proceed against the accused No,1 as and when he is apprehended. The accused No,3 made good the alleged loss to the national exchequer and on his application under section 17 of Ehtesab Act 1997 (hereafter referred to as the "1997 Act) proceedings were dropped against him as he surrendered the allotment order of the disputed plot. Now this reference remains only against the accused No,2. Ramesh M. Udeshi and, thus, the present judgment only deals with his guilt or innocence, as the case may be.
5. ' In support of the prosecution case against the accused No,2, the prosecution examined Abdul Jabbar, Senior Clerk in Camp Office, Board of Revenue, Karachi. He produced the original application of Hamir Singh for allotment of the disputed land (Exh.5), letter written by the Deputy Secretary (LU), Board of Revenue Sindil to the Deputy Commissioner Malir (Exh.6), letter addressed by the D.C. Malir to the Commissioner, Karachi Division (Exh.7), area. Sketch (Exh.8), summary submitted by the accused No,2 to the then Chief Minister. Accused No,1 (Exh.9), letter sent by the accused No,2 to D.C. Malir (Exh.10) and also letters issued by the accused No,2 to the D.C. Malir, Colonization Officer, Sukkur Barrage, Hyderabad, Colonization Officer Guddu Barrage, Sukkur and the Revenue Officer, Kotri Barrage Hyderabad (Exhs.10 and , 11) confirming the imposition of complete ban on allotments of land., Janib Ali, Surveyor in the D.C. Office Malir was examined as P.W.2 (Exh.12) and he produced original challan (Exh.13). P.W.3, Ghulam Shabir Memon (Exh.14), the Enquiry Officer was also examined. Besides giving details of the enquiry he has produced the original letter written by Hamir Singh, accused No,3, on his letter head as the then Minister for Science and Technology, Sindh to the Deputy Commissioner, Malir (Exh.15), original lease agreement (Exh.16), report, dated 15-1-1997 addressed by this witness to the Deputy Director Anti- Corruption Establishment Karachi (Exh.17), reference sent by the Director, Enquiries and Anti- Corruption Establishment S & G Administration Department to the learned Chief Ehtesab Commissioner Islamabad against the three accused (Exh.18) and reference 9f learned Chief Ehtesab Commissioner sent to this Court (Exh.19). Thereafter, the learned Special Prosecutor gave up P.W. Anwar Hussain vide a statement (Exh.20) and closed the prosecution side vide another statement (Exh .21).
6. ' The accused No,2 in his statement recorded under section 342, Cr.P.C. Denied the allegations and further stated as follows:-- "I am innocent. I have been falsely implicated with mala fide and ulterior motives."
7. ' He did not examine himself on oath under section 340(2), Cr.P.C. And also led no evidence in defence.
8. ' I have heard the learned counsel for the parties at length and perused the record. The learned Special Prosecutor submitted that:--
(i) admittedly there was a complete ban on the allotment of land in the province of Sindh and the plots for residential and commercial purposes could only have been disposed of through open public auction, in case the ban was lifted;
(ii) in the instant case, the allotment was made in violation of condition No,14 of the statement of condition and the relevant rules;
(iii) the accused No,2 has deliberately violated the relevant rules and, thus, misused his official position;
(iv) in spite of the fact that the D.C., Malir had informed him about the value of the land at Rs,4 lacs per acre, the accused recommended the cost of the land at a nominal price of Rs,25 per square yard;
(v) the summary put up for the accused No,2 to the accused No,1 was in violation of the rules of business and he in particular referred to Rules 3, 22, 23, 25 and 26 of the Sindh Government Rules of Business, 1986;
(vi) notwithstanding the fact that the possession of the disputed land was not given to the beneficiary (accused No,3) the fact remains that the accused officer played an important role in the whole process of grant of the land."
9. ' On the other hand the learned counsel for the accused No,2 submitted that:-
(a) the prosecution has failed to bring any evidence to show that the accused abused his official position, for making any illegal or fraudulent gain, and to show any relationship between him and the accused No,3 or that he has committed any offence within the meaning of the Ehtesab Ordinance or the Act;
(b) the accused floated a summary to the then Chief Minister on the report of the D.C., Malir and that in para. 4 of the summary the accused had clearly mentioned that there was a ban on allotment of land, but the then Chief Minister, in exercise of powers under section 19(1) of the Colonization Act, granted land in Deh Thoming Scheme No,33 to various parties, at the rate of Rs,10 to 25 per square yard;
(c) in the concluding para. Of the summary, the accused had only solicited the orders, whether request of the applicant be entertained under section 10(1) of the Colonization Act at the rate of Rs,25 per square yard. This summary was floated in accordance with clause 17(1) of the Rules of Business without concealing the facts. It was then the Chief Minister, who allotted four acres land in Deh Thoming to accused Humir Singh. Thus, the contents of the summary do not reflect any element of mens rea on the part of the accused, nor there is any evidence to that effect against him;
(d) since possession of the land in question was not delivered to the allottee, the Government did not suffer any loss and similarly no right had been created in favour of the accused No,3;
(e) as per section 10(2) of the Colonization Act, the powers of Chief Minister are restricted to grant of land to any person under section 10(1) of the Act;
(f) unlike other cases, in the instant case no loss was caused as the possession was not delivered to the party. Thus, the present case is distinguishable on facts from the others;
(g) the accused had not proposed the value of the property himself but only incorporated the same as per the Report of the Deputy Commissioner Malir, who is competent to determine the value;
(h) finally, he submitted that no penalty is provided under the Rules of Business and if there is any irregularity the same can be cured and was cured by the then Chief Minister, in view whereof there is neither any violation of the Rules of Business nor the accused has committed any such act which may be punishable under the Ehtesab Act or Ordinance.
10. ' Undoubtedly, there was a total ban on the disposal of land in the whole Province. The accused No,2 had called for the report about availability of the land etc. From the D.C. He was obliged to wait for the said report instead of rushing into getting the land allotted from accused No,1 by floating the summary in question. Not only this, but though the D.C. Informed him that the market value of the land was Rs,4 lacs per acre, he recommended the cost of the land at a nominal price of Rs,25 per square yard. Thus by floating the summary in such a hurried manner he could not be absolved of the responsibility for causing a substantial financial loss to the exchequer. What prompted the accused No,2 to float the unlawful summary is a mystery. No where has the accused No,2 pleaded any duress or pressure from any person or any authority who compelled him to act in such a manner. Even if such a plea were advanced the same would not be legally tenable in the present context since public functionaries are supposed to act strictly in accordance with law and the rules and any deviation from this principle is bound to expose them administrative and penal consequences. Under Rule 3 of the Rules of Business a secretariat is shown to have various departments. As per Rule 16 of the Rules of Business the case which is to be submitted to the Chief Minister is to be routed through the Secretary and after the orders on the summary the same is also required to come back through the same channel. As per Rule 22(4) the concerned Secretary of the department is bound to ensure the strict compliance- of the Rules of Business. Likewise, rule 23(iv) stipulates that, if any order contravene the law or rules, the officer below the competent Authority has to point out the wrong to the said authority so that the same could be avoided. In other words, the officer seeking any order of the competent Authority on any matter has not only to point out the relevant law but also the interest of the national exchequer and State. The corollary would be that such officer should not suggest any contravention of law under the cover of ' relaxation' and that too without any legal justification nor is he expected to solicit such orders whereby the State or the exchequer is to suffer. In State v. Abdullah Shah and others 1998 M LD 216, dealing with the same accused i,e, Ramesh Udesi, this Court comprising myself i,e, Dr. Ghous Muhammad, J. Has already taken the view that the accused could not be absolved for not categorically .Apprising his superior i.e the Chief Minister that there was a ban on disposal of State land, while the same could in any event only be disposed of through open public auction. The said judgment is fully applicable in this case. The accused No,2 in his summary had failed to categorically point out the existence of the ban and the fact that the land could only be disposed of through open public auction. In any case the market value of the land was Rs,4 lacs per acre. In the instant case the recommendation of the accused officer is not only mala fide because he by misuse of his official position has not only extended unlawful favour to a beneficiary without any moral or legal justification but he has also knowingly caused substantial financial loss to the exchequer. Although it has been vehemently urged on behalf of the accused that since the possession of land in question was not handed over to the accused No,3 it cannot be said that the Government had sustained loss and even otherwise, the beneficiary has returned the benefits acquired by him illegally.
11. It is pertinent to point out that in this case though the possession of the disputed plot may not have been handed over to the beneficiary, the allotment order had been issued in his favour, which by itself had created rights and obligations which were adverse to the State exchequer in view of the allotment at a ridiculously low price. It was in view of creation of such circumstances adverse to the interest of the exchequer that the beneficiary not only surrendered the allotment order but the cost of land paid by him at Rs,4,84,000 was also forfeited in favour of the exchequer. This fact is evidenced through order of this Court, dated 16-1-1998, which is essentially an order on an application moved by the beneficiary under section 17 of the Ehtesab Act, 1997, being an application to voluntarily surrender the illegally gotten gains. Accordingly, the contention of the learned counsel for the accused No,2, on the score that due to the non-delivery of possession no loss to the exchequer had occasioned is misconceived.
12. The other argument of the learned counsel for the accused No,2 that once illegally gotten gains are voluntarily surrendered by the beneficiary under section 17 of the Ehtesab Act, 1997, the other accused persons who are the public servants cannot be punished, is also devoid of any force. The reason for this is that the provision of section 17 of the Ehtesab Act, prescribing surrender of illegally gotten gains voluntrily, is independent of the main charging and sentencing sections i,e, sections 3, 4 and 5 of the Ehtesab Act, which have created the offences and prescribed the respective punishments. In State v. Abdullah Shah, PLD 1998 Kar. 86 this Court, comprising myself i,e, Dr. Ghous Muhammad, J., has already taken the view that the voluntary surrender of gains under section 17 of the Ehtesab Act would not create any stigma or taboo for the persons surrendering the gains. In such case also the criminal liabilities of the public officials, who were accused, were considered on merits. This reasoning is also in line with and fully endorsed by the judgment of Full Bench of this Court in Ehtesab Reference 4 of 1997 wherein the beneficiary i,e, Mst. Sara submitted voluntary gains, however, the public official i,e, Ej az Ahmed, the Controller of Buildings, was convicted through judgment, dated 19-6-1997. The accused preferred an appeal before the Honourable Supreme Court, being Criminal Appeal No,167 of 1997 which has recently been disposed of through judgment, dated 1-3-1999. The Honourable Supreme Court while disposing of the appeal has maintained the conviction of the accused Ejaz Ahmed, despite submission of gains voluntarily by the beneficiary Mst. Sara. In disposing of the appeal the Honourable Supreme Court has been pleased to observe as follows:-- "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 bail order 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."
13. The above quote from the judgment of the Honourable Supreme Court would amply establish that where a public official who is accused in an Ehtesab Reference wishes to take benefit of section 17 he has to submit illegally gotten gains independent of the beneficiary. In this respect it will be only just and fair to observe that where the illegally gotten gains are distributable or apportion able amongst the accused themselves IE they may be so spread over in view of equity and fair play. However, this is a case where the gain accruing in favour of the beneficiary was distinct from that of the accused No,2 i,e, the beneficiary illegally gained the plot which he surrendered, whereas the gain to the accused No,2 was not the plot which was surrendered.
14. The upshot of the above discussion is that I hold the accused No,2 guilty under section 3 of the Ehtesab Act, 1997 and convict him under section 4 of the said Act with two years' R.I. And further to pay a fine of Rs,2 million and in default of such payment to further suffer R.I. For two more years. The accused No,2 is remanded to judicial custody and a copy of this judgment may be supplied to him free of cost after announcement thereof.