' The petitioner, Abdul Rauf, through this Constitutional petition, has assailed the order, dated 24-2- 2001, passed by the Judge, Accountability Court No,1, Rawalpindi, whereby his application, under section 265-K, Cr.P.C. For his acquittal, has been dismissed.
2. The petition arises out of N.A.B. Reference No,31 of 2001, previously numbered as Ehtesab Reference No,4 of 1997. The petitioner is one of the three accused in case F.I.R. No,28 of 1996, dated 23-11-1996, registered at Police Station F.I.A., Rawalpindi, for the offences under sections 420/109, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947. The other two co-accused are employees of respondent No,3/Capital Development Authority, Islamabad. The subject-matter of the criminal proceedings is Plot No,56-G, Blue Area, Islamabad, which was originally reserved for the construction of Cinema. The respondent No,2/National Accountability Bureau, Islamabad, is pursuing the criminal proceedings, and respondent No,3/C.D.A., claims to have suffered wrongful loss.
3. The relevant facts are that in April, 1984, the abovesaid plot was put to auction by respondent No,3, for construction of 2/3 storeyd cinema building. One Mst. Farzana Nisar wife of Muhammad Nisar was the highest bidder, with the offer of Rs,1025 per sq. Yd. On 5-5-1984, respondent No,3 accepted the bid on terms and conditions contained in the letter of acceptance of bid, the relevant terms were that the plot shall not be used for any purpose other than the construction of cinema.
On 19-5-1986. An agreement between Mrs. Farzana Nisar and the petitioner and three others (the transferees) was entered into for the transfer of the rights of Mrs. Farzana Nisar, which was approved by respondent No,3, on 22-6-1986, and transfer letter was issued by the C.D.A. In favour of the petitioner and three others on 3-7-1986. It may be mentioned here that the petitioner's co- transferees are not the accused in the criminal proceedings. The petitioner then moved an application for the change of use of the said plot and the Chairman of respondent No,3, on 20-7- 1986, approved the proposal for the change of use. On 2-11-1986, the Chairman of respondent No,3 withdrew the approval, on the ground that the plot could have fetched more price if disposed of for commercial use. The order of the withdrawal of approval was challenged by the petitioner and his co-transferees in this Court through Writ Petition No,9445 of 1988 which was accepted by this Court on 21-2-1988, holding that the permission for change of use was accorded by the Board, comprising of Chairman and Director (Planning), thus Chairman alone could not withdraw the permission. The order, dated 2-11-1986, of withdrawal of the permission, was declared to he without lawful authority and of no legal effect and the consequential order, dated 4-11-1986 of the returning of the building plan to the writ petitioners, was also set aside. The judgment of this Court was assailed by the respondent No,3/C.D.A. In Civil Appeal No,14 of 1989. During the pendency of the said appeal, a compromise was cifected into between the respondent No,3/C.D.A./the then appellant and the petitioner and three others/the transferees/the then respondents. Both the parties submitted a joint application for the disposal of the appeal in terms of the written compromise dated 22-3-1990 reached between the parties outside the Court, according to which, the conversion of the disputed cinema plot to commercial use was granted subject to the payment of Rs,20,688,868 in 4 six monthly instalments effective from the date of the disposal of the appeal by the Supreme Court. It was also stipulated that the respondent No,3/the then appellant shall withdraw the appeal without prejudice to the enquiries that may be conducted by the F.I.A. And F.A.C.C. And, on conversion, the transferees (the petitioner and 3 others) were to construct a four- storey building, within 2 years, on the within mentioned specifications. On 1-4-1990, the Honourable Supreme Court disposed of the appeal in terms of the compromise with the following observations: -- "After hearing the learned counsel with regard to the genuineness of the compromise, on their assurance in that behalf we accept the same and dispose of the appeal in terms thereof. There shall be no order as to costs.- ' The petitioner also alleges that the compromise was approved by the Full Board of the C.D.A., comprising of the Chairman, the Chief Commissioner, I.C.T., Islamabad, Chief Commissioner, Rawalpindi, Member, Administration, C.D.A.. Member, Engineering, C.D.A. And Member, Planning, C.D.A. It is further alleged that the compromise was also approved by the Government of Pakistan, Law Division , Cabinet Division and Interior Division.
4, On the criminal side, a complaint was made to Federal Anti-Corruption Committee (F.A.C.C.) by one Qurban Ali, on 31-5-1987, the Sub-Committee of F.A.C.C. Observed that prima facie the case of corruption was made out against the Chairman, C.D.A., Shafi Muhammad Sehwani. However, on 31- 12-1989, Member/ Secretary, F.A.C.C. Recommended that on the basis of the judgment of the High Court, the allegations against Shafi Muhammad Sehwani were baseless and enquiry may be tiled.
The enquiry was resultantly filed on 24-7-1990 and the finding of F.A.C.C. Was ordered to be conveyed to the F.I.A. On 1-4-1995, the F.I.A. Formally closed the enquiries under the orders of the Ministry of Interior, as the competent Authority. The abovesaid criminal case was, however, registered on 23-11-1996. Report under section 173, Cr.P.C. Was made on 4-12-1996. On 31-12-1996, Chief Ehtesab Commissioner made Ehtesab Reference No,4 of 1997, under Ehtesab Ordinance, 1996 (later on Ehtesab Act,1997) to the Ehtesab Bench of Lahore High Court, which was later on transferred to respondent No,1/Accountability Court, under section 33 of the National Accountability Bureau Ordinance, No,XVIII of 1999.
5. On the basis of above facts, the petitioner moved the petition under section 15 of the Ehtesab Ordinance, 1996 and section 265-K, Cr.P.C. For his acquittal from the Reference, which as mentioned above, has been dismissed by respondent No,1 on 24-2-2001.
6. The respondent No, 1/the trial Court has recorded the petitioners' contentions, in detail as follows:-- "In the application it has also been stated that the factual position which emerges from the documents filed by the prosecution is that permission for conversion for cinema plot to commercial plot was sought on the grounds mentioned in the application. The request was granted subject to certain conditions by the Board vide letter, dated 27-7-1986. The approval was for limited commercial use and the plot was to retain its original use as a cinema. This limited change of use was not taken as change of the character of the plot. In the transfer letter it was stated that the transfer had been allowed on the terms and conditions of previous transfers. The order, dated 20-7-1986 showing limited changes was, however, withdrawn on 2-11-1986 observing that there was misrepresentation of facts as at the time of making the application, the applicants had no locus standi as they were not the allottees of the plot. The petitioner and three other transferees challenged this order before the Honourable Lahore High Court through Writ Petition No,9445 of 1988 which was accepted on 21-2-1988 and it was held that no basic misrepresentation had been made by the petitioner when he submitted the application for change of use of plot. The C.D.A. Against the order, dated 21-2-1988 of the Honourable Lahore High Court filed petition for Special Leave to Appeal (C.P. 402/R of 1988) and after the grant of leave it was a renumbered as Civil Appeal No,14 of 1989 and ultimately the matter was compromised before the Honourable Supreme Court. It was through this compromise that C.D.A. Agreed to the change of cinema plot into commercial plot on the condition that the difference of price between the cinema and commercial plot amounting to Rs,2,06,88,868 would be paid by the petitioner and three other transferees in four equal six monthly intalments to the C.D.A. The compromise tiled in the Honourable Supreme Court by the C.D.A. And the petitioner and his co-transferees entitled them to raise the construction of commercial building. The petitioner and three other transferees had already deposited with the C.D.A. The sum of Rs,2,06,88,868 and the plan for the construction of commercial building was approved by the C.D.A. And partly the same has already been constructed. The order, dated 20-7-1986 allowing limited change of use was made in the interest of C.D.A. And no benefit or advantage had accrued to the petitioner and other transferees. The benefit, if any was under the compromise allowed by the Honourable Supreme Court of Pakistan.
The allegation of undue gain to the petitioner in the circumstances, is based on misconception.
Even if any such gain was ever intended to be caused, the same stood duly repaid and recovered under the orders of the Honourable Supreme Court of Pakistan and in view of the intent of law, the petitioner is entitled to be acquitted and released from the charge as there is no probability of his being convicted of any offence as the charge is groundless. It was thus prayed by the petitioner/ accused that he be acquitted of the charge."
7. The learned trial Court, however, while dismissing the petitioners' application, did not go into the merits of the application and merely observed that the charge in this case was framed by the Lahore High Court, with the observation that there were sufficient grounds for proceeding with the trial of the accused and, therefore, at this stage, without recording any other evidence, he could not hold, by any stretch of imagination, that there were no sufficient grounds for proceeding with the trial of the accused. The trial Court further observed that "while the Honourable High Court in the order, dated 29-1-1997 had observed that there were grounds to proceed with the trial of the accused, this Accountability Court, before recording any evidence in this case, cannot come to the conclusion that there is no possibility or probability of the conviction of the accused/petitioner in this case".
8. I have heard the learned counsel for the petitioner, the learned Deputy Prosecutor-General of the National Accountability Bureau and have also seen various documents, which have been attached with this petition.
9. The trial Court did not decide the petitioner's application on merits and, therefore, the learned counsel for the petitioner, with the usual clarity of mind, confined himself to the legality of the order passed by the trial Court, by assailing the reasons advanced by the trial Court for not going into the merits of the petitioner's application.
10. It is submitted by the learned counsel for the petitioner that the trial Court was under the misconception that the charge was framed in the Ehtesab Reference by this Court. It is argued that the charge was framed by an Ehtesab Bench, which comprised of two Honourable Judges of this Court, acting under the Ehtesab Act No,IX of 1997 and not by this Court. Reference in this regard is made to section 2(f) of Ehtesab Act, 1997, which defines the "Court" as a Bench of one or more Judges of the High Court, nominated by the Chief Justice of the High Court. The argument has force. The proceedings were being conducted under the Ehtesab Act, 1997, by the Honourable Judges of this Court, as a Court established under the Ehtesab Act, 1997 and not as Lahore High Court. Further reference in this regard has correctly been made by the learned counsel to section 33 of the National Accountability Bureau Ordinance No,XVIII of 1999, the successor of the Ehtesab Act, 1997, whereby all the proceedings pending before "a Court" under the Ehtesab Act, 1997, stood transferred to the Accountability Courts, to be constituted under the aforesaid Ordinance No,XVIII of 1999. Section 33 further provides that it shall not be necessary to recall any witness or again to record any evidence that may have been recorded. This makes it absolutely clear that the proceedings pending before respondent No,1 are the same proceedings which were pending before Ehtesab Bench of this Court and there is no break in the continuity. The learned counsel for the petitioner has further argued that the trial Court has acted illegally in holding that "at this stage", without recording any evidence, he cannot hold that there are no sufficient grounds for proceeding with the trial of the accused because the words employed in the statute (section 265- K, Cr.P.C.) are "at any stage" and the recording of evidence is not a condition precedent for entertaining any such application. Reliance in this regard has been placed on The State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto 1993 SCM R 523, Muhammad Hassan v. Manzoor Ahmad and another 1991 PCr.LJ 2177 (Karachi) and The State v. Asir All Zardari and another 1994 SCM R 798. In the State through Secretary, Ministry of Interior v. Ashiq All Bhutto (supra), the Honourable Supreme Court has held that the connotation of the expression "at any stage" in the provisions of sections 249-A and 265-K, Cr.P.C. Was that recording of the prosecution evidence was not a condition precedent for acquitting an accused. In Muhammad Hassan v. Manzoor Ahmad and another (supra), a learned Single Judge of Karachi High Court held that if the facts of the case do not disclose mens rea or commission of criminal offence, the criminal proceedings will be an abuse of the process of the Court. In The State v. Asif Ali Zardari and another (supra), the Honourable Supreme Court held that section 249-A, Cr.P.C. Empowers the Presiding Officer of the trial Court to acquit accused at any stage of the trial and the only requirements to be fulfilled are, firstly, that the hearing is given to the prosecutor and counsel of accused and, secondly, the reasons are to be recorded in support of the conclusion that charge is groundless or that there is no probability of accused being convicted. It has further been held that it is very clear that such an application can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application is to be filed after evidence of all the witnesses is recorded. The learned Deputy Prosecutor-General, representing the respondent No,2, has not been able to dispute the abovesaid settled law.
11. It is therefore, held that the trial Court acted illegally in holding that it could not, at this stage, hold that there were no sufficient grounds for proceeding with the trial of the accused, without recording any other evidence. It has also been argued by the learned counsel for the petitioner that the judgments of the Supreme Court operate as res judicata and cannot be re-opened.
Reliance in this regard has been placed on Muhammad Tufail v. Atta Shabir and 5 others PLD 1977 SC 220. In the end, it is submitted that the proceedings pending with respondent No,1 are also barred under Article 13 of the Constitution of Islamic Republic of Pakistan, 1973.
12. Avoiding the repetition, it is held that the trial Court wrongly held that previously the charge had been framed by this Court. It had been framed by a Court, constituted under the Ehtesab Act, 1997, though presided over by Honourable Judges of this Court. The trial Court further acted illegally in holding that since the framing of the change had established a prima facie case against the accused, therefore, at this stage, without recording any evidence, it could not hold that there are no sufficient grounds for proceeding with the trial of the accused because the statute provides that the Court has the jurisdiction to hold, at any stage of the trial, if after hearing the prosecutor and the accused, and for the reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence. The trial Court was, therefore, duty bound to attend to the pleas being urged before it by the petitioner. The application was required to be decided on merits.
It is thus a case of illegal refusal by the trial Court to exercise the Jurisdiction vested in it under section 265-K, Cr.P.C.
13. In view of the abovementioned, the writ petition is allowed, the impugned order, dated 24-2- 2001, passed by respondent No,1, is set aside, the petitioner's application under section 265-K, Cr.P.C. Shall be deemed to be pending before the trial Court, which shall be decided on merits in accordance with law by attending to all the pleas, legal as well as factual, to be urged before it, by both the parties. It is further directed that the application shall be decided within a period of one month and the trial Court shall not proceed further with the trial till the decision of the application.
Under the circumstances, there are no orders as to costs.