SARDAR MUHAMMAD RAZA, C.J.---Through a reference under section 14(1) of Ehtesab Ordinance, 1996 (CXI of 1996), Chief Ehtesab Commissioner, Islamabad, on 27-1-1997, indicated Aftab Ahmed Khan Sherpao, former Chief Minister N.-W.F.P. And Muhammad Zahir Shah, former Director-General, Peshawar Development Authority before Ehtesab Bench of Peshawar High Court, to stand trial on the charge that they, in collusion with each other allotted about 100 plots of different sizes in Phases II, VI and VII of Hayat Abad Township, Peshawar in violation of the approved Plan and allotment policy, thereby bringing about loss to the Housing Project. That the area earmarked for Government Officers' Residences and Tubewell was converted into plots and allotted to their associates or favourites, with mala fide and dishonest intention in order to extend or gain pecuniary advantages, thereby doing an act that constituted offences of corruption and corrupt practices within the contemplation of section 3 of the Ehtesab Ordinance 1996, punishable under section 4 thereof.
2. By ti time the Ehtesab Bench concluded the trial, heard the arguments and reserved the judgment for about an year, the law under which the indictment was made, was twice repealed,lastly by National Accountability Bureau Ordinance, 1999; which, while saving the proceedings already undertaken, transferred the case to a changed forum, now termed as Accountability Court. The Court, vide its judgment dated 31-12-1999 convicted both the accused under section 3(1)(c) and (d) of Ehtesab Ordinance and sentenced each to a fine of rupees one million which was paid in Court. No order of forfeiture was passed because the accused were not proved to have had gained any pecuniary advantage or acquired any movable or immovable property as a reward for their corrupt practices.
3. Aftab Ahmed Khan Sherpao and Muhammad Zahir Shah have filed separate appeals (Ehtesab Appeals Nos. 1 and 2 of 2000) against their conviction and sentence, while, the Prosecutor-General National Accountability Bureau had filed an Appeal (No, 3 of 2000) for the enhancement of sentence to maximum imprisonment and also for disqualifying the convicts from contesting elections in future. All these appeals shall be decided through this single judgment in Ehtesab Appeal No,1 of 2000.
4. Before touching the merits, we may recall that after filing the appeal, Aftab Ahmed Khan Sherpao, due to some other cases, had made himself scarce for this Court and thus, a dispute arose as to whether he can be extended the right of audience through counsel. As per our detailed order dated 12-4-2000 in Ehtesab Appeal No,3 of 2000 "State through Prosecutor-General, National Accountability Bureau v. Aftab Ahmed Khan Sherpao and Muhammad Zahir Shah"; holding, with strict reference to section 423, Cr.P.C., that the convict-appellant had the right of audience through counsel in his appeal against conviction but had no such right in the appeal filed for enhancement of sentence, as, the eventuality of enhancement required the appearance of respondent in person.
5. The above order on 12-4-2000 was passed after when the proceedings under section 204, Cr.P.C.
Read with section 87, Cr.P.C. Were completed and Aftab Ahmed Khan Sherpao, in Ehtesab Appeal No,3 of 2000, was declared a proclaimed offender on 27-3-2000.
6. Reverting to the merit of the case, the prosecution has examined only five witnesses. First among them is Mr. Ehsanullah, Housing Officer, Peshawar Development Authority. He stated that an area measuring 200 Kanals was reserved in Phase VII for the construction of Residences for Ministers and other Government Officers but it was converted into one for M.P.As. And Ministers and then allotted at the choice of the accused. The witness admitted and it is proved from the evidence of prosecution itself that the Authority demanded the Government to deposit a sum of Rs, 2,60,000 per Kanal for the earmarked area but the Government despite the passage of unreasonable time failed to deposit the money and hence the scheme was dropped in its entirety. One, cannot discern despite effort as to what offence the witness Ehsanullah attempted to bring home to the convict appellants.
7. When the Government failed to deposit the demanded amount and when the scheme, thus failed, it had to be dropped and so was it dropped. The area was replanned and converted into plots. Whether this re-allotment was dishonest, mala fide, or for unlawful pecuniary advantage, would be discussed at some later stage but so far as P.W. Ehsanullah is concerned, he happened to prove nothing. Rather, he reaffirmed that the procedure adopted for replanting, movement of a summary for the Chief Minister, grant of approval by the Chief Minister followed by subsequent allotments, was the procedure followed by all the previous Chief Ministers like Pir Sabir Shah, Mir Afzal Khan, Arbab Jehangir Khan and General Fazle Haq. This, thewitness experienced and practised during 22 years of his service in Peshawar Development Authority.
8. Next witness is Tariq Umar Khitab (P.W.2). He was never a prosecution witness. Not mentioned in the list of witnesses. Not conforming to the provisions of Article 59 of the Qanun-e-Shahadat. His statement not recorded under section 161, Cr.P.C. And not ever supplied to the accused under section 265-C, Cr.P.C. All, these were raised as objections when the witness appeared in the witness-box but the trial Court allowed his statement to be recorded on the pretext that all such objections shall be answered in the final arguments. This procedure should not have been adopted to the detriment of the accused. The next outcome of his enquiry was a certificate from Secretary, Peshawar Development Authority to the effect that the allotment of plots was irregular and beyond the quota of Chief Minister and second was a list of 151 persons to whom the allotment was made.
9. We cannot visualise as to how certificates given by somebody bring home the guilt to the doorsteps of the accused unless a clear violation of a law with criminal mens rea is proved by the prosecution beyond doubt. So far as the list of allottees is concerned, it only mentions a few individuals. But, who they are, how they are the associates of the convict/appellants, how they happened to be the favourites, what pecuniary advantage was extended to or gained from them; are a few most important questions of this case which have not at all been answered by the prosecution. Not a single one of them was produced in Court. Not a single witness was produced to determine their identity or entity. How on earth could it be dubbed as favoritism Whole conduct of the prosecution, in the instant case, has been of that style, and, so was the conduct of Mr. Tariq Umar Khitab (P.W.2) who in the eighteen years of his service had not carried out any investigation himself. According to the "opinion" of this witness the appellant Zahir Shah, Director-General P.D.A.Had entered into correspondence with the Chief Minister directly, bypassing the secretary,-- Physical Planning and Housing Department (P.P. & H.D.). As mentioned earlier, we would be discussing this aspect later.
10. Picking up the thread from the discussion of the allottees, the most important event is, that eight cases were registered against such allottees wherein Aftab Ahmed Khan Sherpao was a co- accused. All such persons alongwith appellants aforesaid stand acquitted by the Accountability Court. Not only that the necessary ingredients forming the offence of corruption or corrupt practices have not been proved in the instant case but it could not be proved even in the cases where such allottees themselves were the accused.
11. The interesting aspect of the case is, that the act or omission of the convict/appellants is considered to be an offence because Mr. Abdul Hameed Khan, the then Secretary, P.P. & H.D. Had opposed the creation of new plots and their allotment by the Chief Minister. This he had done in his summary to the Chief Minister. Such summary is Exh.P.2 on file. Mr.Abdul Hameed Khan, with reference to plots in Phase VII and their replanning, was of the view that, (1) those were earmarked for Government accommodation and, (2) that the Chief Minister had already availed his discretionary quota. Prosecution is aggrieved that still the allotments were done.
12. We are again at loss to find out as to how the views of the Secretary can be and were taken to be the last word. Those contained in the summary are his views which might have been reduced into black and white as per his knowledge and experience of Rules, practice and procedure.
Correct, to this extent, but in the sequence are the notes and views of other officers also including the Chide Secretary, Mr. Ejaz Raheem, who did not subscribe to the views of the Secretary and proposed that, "an allotment policy has already been adopted by the Provincial Cabinet at the instance of P.P. & H.D. In which the allotment of residential plots at reserve price to suitable persons has been approved". The Chief Secretary was further of the view that it was for the Chief Minister to decide whether these additional plots should be so allotted or not. It was also within his Constitutional discretion to take responsibility for taking the decision (a) himself or (b) by reference to the Cabinet. The Chief Secretary would not have made this suggestion if the Chief Minister had first followed the auction policy in Cabinet and subsequently had reverted to discretionary allotment policy.
13. Examining the whole summary, the Chief Minister, Aftab Ahmed Khan Sherpao, agreed with the proposal of the Chief Secretary and made the allotments. So far as the replanning and creation of plots are concerned, it is C evident from the very evidence of the prosecution and past correspondences that it always had been the job of the Authority (PDA). To prove that such allotment was violative of law and rules, the learned Assistant Advocate-General and the learned counsel relied upon different Rules and Regulations. These were pressed into service also to substantiate that the direct correspondence between the two convict-appellants was collusive and mala fide. This in fact is the main grievance of Mr. Abdul Hameed Khan, the then Secretary, who, immediately with the fall of the Government of Aftab Sherpao, took action, reacted sharply and got a. Case registered. The prosecution quite amazingly, seems to have also been suffering from' "Hameed Khan Fixation". We have given our considered thought to the point in question and do believe and hold that mere irregularities in allotment of plots (which also is not proved) and mere bypassing of someone in correspondence, might be dubbed as irregularities but cannot attract criminal liability unless criminal mens rea, dishonest monetary advantage, extended or gained, is distinctly and independently proved. On file there is not an iota of evidence to the effect.
14. The Laws/Rules and Regulations, alluded to in the preceding paragraph were;
(a) Hayatabad Satellite Town Scheme Allotment Regulations and Application Forms.
(b) Hayatabad Town, Peshawar (Phase. III) Application Form and Allotment Regulations.
(c) Provincially Urban Development Board Rules of Business. A detailed pertisal of the above documents would indicate that those at (a) and (b) are mere Regulations and not rules. It is not at all clear as to when were those framed and which calendar year or years those pertained to. One thing is clear beyond doubt that those pertained to such periods when there were no Chief Ministers and it was Martial Law. It provided for different cross sections of the citizens in general to whom the plots would be allotted. The one at (b) rather fixed the price of 5 Marlas plot at Rs, 13,000. It referred to a period of 1980 when there were not elected Chief Ministers. The larger authority in this behalf vested in the Authority (PDA). The Secretary, P.P. & H.D had the only authority as the appellate authority. The PDA had the authority to alter, amend, modify, relax, add to or omit any Rule or Regulation. We could not make any head and tail of these rules and conclude as to which one, if any of those was violated to the extent of dishonesty and mala fide. In fact there was none.
15. So far as the Business Rules at (c) above, it never contained a word about plots and the allotment thereof. It could not be proved as to which word thereof, having the force of law, had been violated attracting the provisions of criminal law. When the learned counsel for the appellants each in his turn, raised objection that the violation of Regulations and bypassing some channel does not even entail disciplinary action, much less criminal action; no satisfactory answer 'came from the opposite side.
16. The trial Court in its impugned judgment has declared and the prosecution had no words to refute, that the convict/appellants had gained no pecuniary advantages through such allotment.
We have already observed in the earlier part of this judgment that no evidence is brought forth to prove the allottees as associates or favourites of the convict/appellants and thus, it is not a case where the dishonest pecuniary advantage is extended to others.
17. The Court held and the prosecution endorses that the convict/appellants through their acts had brought monetary loss to the Authority and thus, to the Government. This was so because a plot worth Rs, 68,000 was sold at Rs, 49,000. This is utterly misconceived in view of the documentary evidence on record. The fact is that the price of 5 Marlas plot was suggested by'the Director, as Rs, 68,000 on the ground of prices fixed in Phase VII Stage-I. This Stage-I was an area earmarked for V.LPs. And the scheme was subsequently dropped. The Chief Minister considered and rightly so that a sum of Rs, 68,000 per plot of 5 Marlas would be excessive and that the price be fixed in accordance with normal rates of Phase VII i,e, Rs, 49,000 per plot. Till such time the price of 5 Marlas plot in the phase was Rs, 13,000. In this view of the matter a 5-Marla Plot valuing Rs, 13,000 was sold for Rs, 49,000. This, by no stretch of imagination, is tantamount to bringing loss to the exchequer.
Rather, a sum of Rs, 36,000 was gained against each plot. The convicting Court has not appreciated the matter in its true perspective.
18. A serious and lengthy discussion was done on the point that the appeal of the Prosecutor- General for enhancement of sentence was not competent. It is but evident that such appeal is filed under section 32 of National Accountability Bureau Ordinance, 1999 which provided that any party to the proceedings aggrieved by the final judgment would file an appeal, within ten days, before the High Court of the Province. It is also evident that in a criminal trial generally the parties aggrieved are either the convict or the State. The State is always represented by the Advocate- General. The appeal in question is filed by the Prosecutor-General and not by the Advocate- General and thus, is not an appeal by the State. We could not be convinced that Advocate-General and Prosecutor-General are synonymous by any stretch of interpretation. The job of a prosecutor is to achieve success in the shape of conviction while that of State (represented by Advocate- General) is to do justice between both the parties and not necessarily to seek conviction if not warranted by law or by circumstances.
19 The appeal was yet pending when National Accountability Bureau (Amendment) Ordinance (Ordinance IV of 2000) was enforced on 3-2-2000, amending section 32 of the original Ordinance to the effect that the right of appeal was now specified to be vested in the convict and Prosecutor- General Accountability, if so directed by NAB. This amendment by itself means that on the days of appeal filed on 11-1,2000, the Prosecutor-General was not competent to file an appeal. By the time the right got vested in him through amendment on 3-2-2000, the appeal had already become time-barred. It is I worth to be mentioned that the appeal is not maintainable despite amendment through Ordinance IV of 2000 because the Prosecutor-General cannot file an appeal unless "so directed by NAB". Appeal file does not contain any permission by NAB till this day. It is thus not maintainable.
20. One could argue that the amendment in section 32 of NAB Ordinance, 1999 through Ordinance IV of 2000 had a retrospective effect and hence could not be barred by time. Even if we assume the retrospectively, yet it provides no relief because still it lacks the permission of NAB, at all times.
21. Moreover, the law-maker through the amendment, seems consciously to have avoided the words and phrases giving retrospectivity. Similar intention, avoided qua section 32, seems to be manifest in the amendment of section 35 which starts with the words as follows: "In the said Ordinance, in section 35 the following amendments shall be made and shall be deemed always to have been so made, namely:---------------------------------------------------------------------------------- -------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------ ----------------------------------------------------------------------------------------- ------------------------------------------------------------------------------------ ----------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------- The above terminology avoided while amending section 32, no retrospectivity can be attributed to it. We hold that the avoidance is conscious and meaningful. Seen from either angle, the Appeal No, 3 of 2000 filed by the Prosecutor-General is not maintainable when filed at the first instance. If amendment is pressed into service, it is still not maintainable, for, being time-barred and not allowed to be filed by the National Accountability Bureau.
22. As a sequel to our discussion, we propose to, and do hereby, accept the appeals of convict/appellants Aftab Ahmed Khan Sherpao and Syed Muhammad Zahir Shah (Ehtesab Appeals Nos. 1 and 2 of 2000) and reject the Appeal No, 3 of 2000 of Prosecutor-General. The conviction recorded and the fine of Rs, 10,00,000 imposed on each vide judgment dated 31-12-1999 of Accountability Court, Peshawar, is set aside and Aftab Ahmed Khan Sherpao and Muhammad Zahir Shah are hereby acquitted of the charges under sections 3 and 4 of Ehtesab Ordinance, 1997.
The amount of fine of rupees one million each shall be refunded to the appellants. The order, dated 27-3-2000 of this Court declaring Aftab Ahmed Khan Sherpa() as proclaimed offender and the perpetual warrant of arrest issued in pursuance thereof on 28-3-2000 are hereby withdrawn, in this case.