TASSADUQ HUSSAIN JILANI, J.---Appellant M. Anwar Saifullah Khan, the former Minister for Petroleum and Natural Resources was tried by the learned Judge Accountability Court, Lahore under section 9(a)(vi) of the National Accountability Bureau Ordinance (Ordinance No,XVIII of 1999). Vide judgment dated 30-11-2000 he was convicted under section 3(1)(d) of the Ehtesab Ordinance read with section 35 of the National Accountability Bureau Ordinance, 1999 and sentenced to imprisonment for one year and a tine of Rs,50,00,000 (Rupees fifty lacs only) in default whereof he was further directed to undergo imprisonment for one year. Benefit of section 382-B, Cr.P.C. Was extended to him. He was also burdened to face consequences of section 15 of the Ordinance in terms of which he stands disqualified to hold public office for a period of ten years.
2. The prosecution case in the Reference tiled briefly stated is that the appellant, while holding the public office as a Minister for Petroleum and Natural Resources, abused his official position by issuing direction to the Chairman, O.G.D.C. To 'appoint 145 persons in the said Organization allegedly in violation of law and the relevant rules. The charge framed against him was as under:-- "(i) That while holding public office as Federal Minister for Petroleum and Natural Resources, Incharge Oil and Gas Development Corporation, by misusing his authority, directed the Chairman Oil and Gas Development Corporation on 16-9-1996 to appoint 145 persons in Oil and Gas Development Corporation in flagrant violation of the Rules and procedure as laid down in Service Rules of O.G.D.C. And subsequently approved their appointments on 16-10-1996 without lawful authority.
(ii) That 27 persons amongst 145 approved by you joined service while the remaining could not join service due to the ban imposed by the Government in November, 1996.
(iii) That he being a holder of public office misused his authority by way of allowing pecuniary advantage to 27 persons and attempting to allow pecuniary advantage to the remaining 118 persons and thus he committed the offence of corruption and corrupt practices as defined under section 9(a)(vi) read with the Schedule of Offences annexed to the said Ordinance and punishable under section 10 of the NAB Ordinance No,XVIII of 1999 which is within the cognizance of this Court."
3. Besides the documentary evidence (Exh.PB/1 to Exh.PB/145, Exh.PW4/1 to Exh.PW4/3, Exh.PW5/1 to Exh.PW5/19, Exh.PW6/1, Exh.PW6/8, Exh.PW6/9, Mark-A, Mark-B, Mark-C, Exh.PA, Exh.PB, Exh.PB/1 to Exh.PB/3, Mark-B, Exh.PW6/2 to Exh.PW67), the prosecution examined the following witnesses:-- P.W.1 Ijaz Ahmad Khan, Chief Personnel Officer of O.G.D.C.: He was Incharge of the Recruitment Section of the O.G.D.C. He stated that the appointments were made by the Chairman of O.G.D.C. But the same were processed through the Recruitment Section of which he was the Incharge. He is author of the note Exh.PA through which the summary for appointments was initiated which was ultimately okayed by the Minister (appellant).
P.W.2 Saeed Ahmad Khokhar, Manager, Process and Plans O.G.D.C.: In those days he was acting as Manager (Personnel) and stated that he agreed with para. 4 of the note (Exh.PA) and sent the same to the Chairman, O.G.D.C. He added that on 16-10-1996 the note was received back by him which reflected that the Minister had accorded approval to it.
P.W.3 Mobeen Ehsan, Former Chairman of O.G.D.C.: He stated that Mr.R.A. Hashmi, Principal Staff Officer to the Minister (appellant) sent a note bearing approval of the Minister (appellant) regarding the appointment of 145 applicants. According to him, he sent Exh.PB to the effect that the O.G.D.C. Was already overstaffed and the appointments in question would be a burden on the budget. He, however, added that the approval of the Minister (appellant) was solicited which was ultimately granted and the appointments were made by him pursuant thereto.
P.W.4 Akhtar Hussain, Chief Staff Officer of O.G.D.C.: He stated that in January and February, 1997 he received three files pertaining to the appointment of Amanat Ali, Hayatullah and Muhammad Zulfiqar. They joined service from the day they assumed charge.
P.W.5 Abdul Mateen Ahmad, Chief Personnel Officer of O.G.D.C.: According to him he received nineteen files pertaining to the recruitment of persons mentioned therein.
P.W.6 R.A. Hashmi, Ex-Principal Staff Officer: He was the Principal Staff Officer to the appellant when he was serving as Minister. He acknowledged to have issued note Exit PW6/1 .
P.W.7 Gulzar Ahmad Chughtai, Deputy Director FIA (Crimes Wing, Rawalpindi: He investigated the case and submitted challan.
4. The appellant-accused when examined under section 342, Cr.P.C. Denied the charge. According to him, the Organization was never overstaffed, the profits of the said organization had soared from rupees thirty nine crores in 1993-94 to over rupees three hundred crores in 1995-96; that the overtime paid to the staff during the year 1995-96 was close to Rs,2.5 Crores; that the Chairman himself had sought approval for the appointments in question; that he neither solicited the appointments nor exerted any pressure on the Chairman, O.G.D.C., who was the appointing authority; that he had no special interest in any appointee; that out of the one hundred and forty- five appointees only twenty-seven persons joined service; that all the afore-referred twenty-seven persons, except three, joined service after the dismissal of the P.D.F. Government in which he was the Minister; that although he was no longer Minister yet those appointees were allowed to continue in service till date; that the present Reference had been tiled on account of the mala fide influence exerted by Gulzar Khan who was twice sacked by the Government in which he was the Minister; that the former bore ill-will against the appellant and thought that the appellant was responsible for his dismissal; that the Reference was tiled during the Prime Ministership of Mr.Nawaz Sharif who, in his earlier tenure as Prime Minister, was dismissed in 1993 by appellant's father-in-law Mr.Ghulam Ishaque Khan, the then President of Pakistan; that Mr.Nawaz Sharif bore personal grudge against .The appellant on that account; that the then Chairman of the Ehtesab Bureau (Mr.Saifur Rehman Khan), under the direction of Mr.Nawaz Sharif, filed the instant Reference to wreak vengeance and to politically tarnish appellant's image. He added that P.W. I., in his capacity as Incharge of the concerned section, had endorsed the proposal; that P. W.3 was the then Chariman, O.D.G.C. And the appointing authority fully endorsed the proposal and had sent the note for soliciting appellant's approval and that he was trying to wriggle out of the whole affair for dishonest reasons. Explaining the pressure of parliamentarian regarding providing jobs to their respective constituents, he added as under:-- There were hundreds of applications pending in the Minister's Office and the Parliamentarians, all elected people representing the entire country, were demanding that we should fulfil our moral and legal obligation to provide jobs to the unemployed applicants. It was in this context that after 2 years, during which the O.G.D.C. Regained full financial health, a list of applicants was forwarded to O.G.D.C. For consideration as per O.G.D.C.'s policy, rules and regulations. The appointments were made on temporary basis. 27 persons actually joined of whom as many as 24 were inducted after I had ceased to be Minister after dismissal of Prime Minister Benazir Bhutto's Government on 5-11-1996. All the applicants fulfilled the prescribed requirements with respect to age, qualification, suitability etc.
5. In defence, the appellant appeared as his own witness and reiterated his defence pleas taken in his statement under section 342, Cr.P.C. He reterred to his services as Member of the. National Assembly from N.-W.F.P., as Senator and as Minister. He referred to the Petroleum Policy of 1994, to the foreign investment during his tenure, the activities of PARCO. Sui Southern Gas Company Limited, Sui Northern Gas Pipelines Limited and other related developments. Regarding the appointments in question he explained that he had directed his Principal Staff Officer that the criterion of the individual merit pertaining to age, qualification and experience for the post in question should be strictly observed and there should be no discrimination on the basis of locality, District or Province. The proposal regarding appointments, he added, was duly recommended by the concerned officer and the appointing authority endorsed the note that the appellant could relax the rules and appointments could be made; that only the Chairman, O.G.D.C. Was vested with the authority to make the appointments and that if the Chairman had chosen not to appoint any applicant he would not have interfered with his decision. Stressing that all the appointments were temporary and he seized to be a Minister after three weeks from the date he accorded the approval, yet, except three, all the appointment orders were issued by the Chairman, O.G.D.C. And they were allowed to continue in service till date although their services could be dispensed with by way of a simple notice. Regarding mala fides on the part of the appointing authority i,e, Chairman of O.G.D.C., he stated that "the mala fides of the Chairman is also evident from the fact that in his cross-examination he has stated that he had not made any appointment in O.G.D.C. During his tenure as Chairman, while it has now transpired, after examination of O.G.D.C. Record, that he had appointed 68 persons in O.G.D.C. On 13-10-1996 and another 325 persons on 14-11-1995. The certified copies of appointments/notes put up to Chairman with the list of appointees which also bear signatures of the then Chairman Mr.Mobeen Ahsan which I have identified are Exh.DW1/8 and Exh.DW1/9". Explaining the general practice of making appointments in O.G.D.C., the appellant made particular reference to the appointments made in the past and present times and also placing the appointment letters on record he stated as under:-- "Within the O.G.D.C.'s number of absolutely illegal appointments of retired army officers have been made by the present MD, O.G.D.C., who himself is a serving Major-General. But no reference has been filed qua these appointments while my lawful approval of a legitimate proposal made by O.G.D.C. Officials has been made the subject of the instant mala fide Reference. I have obtained the certified copies of the record of O.G.D.C. Under the orders of this Court. Exh.DW1/1 is the copy of the notings on the recruitment file of Mr.Khadim Hussain, Exh.DW1/2 is the copy of the letter dated 26-9- 1994 of Mr.Rifat Asghari, the then Chairman, bearing the order (Mark-A) passed by the accused on 28-9-1994. Exh.DW1/3, Exh.DW1/4 and Exh.DW1/5 are the printed copies of the Annual Reports published by the O.G.D.C. Exh.DW1/6 is the copy of the statement showing overtime payments from July, 1985 to June, 1996. Exh.DW1/7 is the certified copy of the statement of Insarul Haq, recorded by this Court on 28-10-1999. Exh.DW1/8 is the copy of the noting on the file of recruitment of 68 persons (consisting of 3 pages). Exh.DW 1/9 is also the copy of noting on the file of recruitment of 385 persons in O.G.D.C. (consisting of 10 pages), Exh.DW1/10 is the copy of the mfnifesto of PPP (Senior Coalition Partner in the Government). I also produce certified copies of personal files of 5 Army Officers who have been recruited in 0.G.D.C. Recently in flagrant violation of the O.G.D.C. Rules and Policies. The certified copy of the file of Brigadier Rizwan Ashraf is Exh.DW1/11 (consisting of 30 pages), of Col.(Retd.) Sher Baz Exh.DW1/12, of Major (Retd.) Muhammad Afzal (consisting of 17 pages) as Exh.DW1/13, of Lt.-Col. (Retd.) Qazi Imtiaz Ahmad (consisting of 17 pages) as Exh.DW1/14 and Brig. Rana Mushtaq Ahmad (consisting of 29 pages) as Exh.DW1/15. The noting portion of personal files of Mr.Qudratullah Khan Sundrani, O.G.D.C. 2422-F (consisting of 6 pages) Exh.DW1/16, of Abdul Sattar Jamali Exh.DW1/17, of Mr.Shahid Hussain Shah (consisting of 5 pages) Exh.DW1/18, of Mr.Zafar Abbas Rizvi (consisting of 3 pages) Exh.DW1/19. I also produce the record of appointments made by Mobeen Ahsan, Chairman, O.G.D.C. Under Phase-III in violation of Service Rules during this tenure Exh.DW1/20. In the end I tender in evidence certified copy of the record of appointment of Mr.Muharnmad lqbal Consultant Technician. This file shows correct procedure for the appointment of Consultant as opposed to the present recruitment of the Retired Officers of the Armed Forces as Consultants (consisting of the 46 pages) Exh.DW1/21."
6. Khawaja Haris Ahmad, Advocate/learned counsel for the appellant, in support of this appeal made following submissions:- i) That the prosecution has failed to adduce evidence to prove the charges framed against the appellant.
(ii) That the appellant had given no direction to appoint anyone. His office just had referred the applications to the competent Authority i,e, Chairman, O.G.D.C. Who was fully authorized to appoint or not to appoint.
(iii) That no law or rule was violated because the rules in question had not been notified when the appointments were made and even if those rules had been notified they were not applicable to the temporary appointments and admittedly all the impugned appointments were temporary.
(iv) That the appointment orders in all the cases, except three, were issued after the PDF Government (of which the appellant was the -Minister) had been dismissed. The Chairman, O.G.D.C. Who was the competent Authority could refuse to issue appointment orders as the appellant was no longer the Minister by then. The Chairman could even dispense with services of those employees with one month's notice as provided in the terms and conditions of their appointment. This circumstance would indicate that it- was the Chairman who, of his own volition, made the appointments and allowed those appointees to continue although the appellant was no longer the Minister.
(v) That admittedly it was the Chairman, O.G.D.C. Who had made the appointments in question. He was the one who rendered favour to the appointees resulting in pecuniary advantage but he was never arrayed as an accused and tried. This would adversely reflect on the bona tides of the entire prosecution case against the appellant.
(vi) That mens rea is an essential requirement to prove a crime. The evidence led by the prosecution has failed to prove the . Existence of mens rea insofar as the conduct of the appellant is concerned.
(vii) That at worst the appellant could be accused of an act reflecting mistake of civil law. He was wrongly advised by the competent Authority that he had the power to relax rules but that would not make it a criminal offence.
(viii) In support of the submissions learned counsel for the appellant relied on the following case- law:--
(I) Dr.Farooq Sattar v. The State and others (PLD 2002 Lahore 95).
(II) Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233).
(III) The State v. Jam Mashooq All and others (PLD 2002 Karachi 72).
(IV) The President of Pakistan v. Mrs. Benazir Bhutto (1994 MLD 1969).
(V) Mian Muhammad Nawaz Sharif v. Special Court and others (1998 PCr.LJ 162).
(VI) Harris's Criminal Law by Ian Mclean & Peter Morrish on General Principles of Criminal Responsibility Mistake of Civil Law, at page 49 (Twenty Second Edition by Sweet and Maxwell Limited).
7. Mr.Ahmer Bilal Sufi, the learned Deputy Prosecutor-General for National Accountability Bureau supported the impugned judgment and contended as under:--
(i) That the prosecution, in the light of the evidence led during the trial, has proved its case beyond reasonable doubt to sustain conviction under section 9(a)(iv) of the National Accountability Ordinance as it is in evidence that the appellant directed the Chairman, O.G.D.C. To make the appointments in question through corrupt, dishonest means and in utter violation of the rules and regulations governing the Oil and Gas Development Corporation.
(ii) That although the charge was framed under section 9(a)(vi) of the NAB Ordinance which stipulates misuse of authority to get any benefit "for himself or any other person" and the conviction has been recorded under section 3(1)(d) of the Ehtesab Ordinance, 1997 but this is a minor irregularity and has, in no manner, prejudiced the case of the appellant as the charge was composite and the alleged transaction covered both the afore-referred penal clauses.
(iii) That the entire conduct of the appellant in the transaction, subject-matter of the trial, reflects a corrupt propensity, illegal and blatant misuse of authority which justifies the conviction and sentence.
(iv) That a bare reading of sections 9(a)(iv) and 9(a)(vi) of the NAB Ordinance would show that the moment an illegality is established, the offence is complete and no mens rea is required to prove the offence. The onus was on the appellant to prove his innocence. He has failed to discharge the onus and the appeal. Therefore, has no merit.
(v) It is in evidence that the appellant, in his capacity as Minister for Petroleum and Natural Resources issued a direction for appointment of 145 persons of which he had no authority and influenced the Chairman, O.G.D.C. To issue the appointment order.
(vi) That the appellant was fully aware that as per the rules the posts had to be advertised and the appointments had to be made through open competition. He not only issued direction for their appointments but saw to it that the reference he had sent in this regard, was given effect to by Chairman, O.G.D.C. The entire chain of events starting from initiating initial note from his office and the issuance of final appointment orders, proves appellant's dishonest intent and conduct. Relying on the judgment of this Court in Hakim Ali Zardari v. The State (PU 2002 Crl.Cases Lahore 499) he contended that the twin . Test approved by this Court in the said judgment, if applied in the instant case, would fully establish the case against the appellant.
8. Heard.
9. Having considered the charge framed against the appellant, the impugned judgment, the evidence led, the arguments addressed at the bar and the case-law cited in support thereof, we are of the view that the questions which have cropped up for consideration, broadly speaking, are as under:--
(i) Whether the appellant directed Chairman, O.G.D.C. To appoint 145 persons in the said Organization in violation of rules and procedure?
(ii) Whether every erroneous order of mistake of law would tantamount to misuse of authority within the mischief of section 9(a)(vi) of the NAB Ordinance, 1999?
(iii) Whether in the face of the evidence led, has it been proved that the appellant obtained for himself or for any other person a pecuniary advantage or favour through corrupt, dishonest, improper or illegal means to warrant conviction under section 3(1)(d) of the Ehtesab Ordinance, 1997? Before any detailed discussion on the issues raised is undertaken it would be of relevance to reproduce section 9(a)(vi) of the National Accountability Ordinance, 1999 under which the appellant was charged but not convicted and section 3(1)(d) of the Ehtesab Ordinance, 1997 under which he was convicted. Those read as under:-- Section 9(a)(vi) of NAB Ordinance, 1999 Section 3(1)(d) of the Ehtesab Ordinance, 1997 "9. Corruption and corrupt practices.- "3. Corruption and corrupt practices.--(1)
(a)... (a). .. ..
(i). (b)..
(ii) (c) ..
(iii). (d) if he, by corrupt, dishonest or illegal means obtains or seeks for himself or for any other person any property , valuable thing, pecuniary advantage or undue favour ."
(iv)..
(v).
(vi) misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so. [or wilfully fails to exercise his authority to prevent the agent, or rendition of any undue benefit or favour which he could have prevented by exercising his authority .
10. The prosecution has placed on record the note (Exh.PW6/1) initiated by the Principal Staff Officer Mr. R. A. Hashmi P.W. Which reads as under:-- "OFFICE OF THE MINISTER FOR PETROLEUM AND NATURAL RESOURCES Islamabad, September 15, 1996.
1. As Minister is kindly aware that we have been under tremendous pressure from the Parliamentarians. To cater for their essential requirements of recruitment in the 0.G.D.C.. Since Budget Sessions we have been withstanding this pressure and telling them that their requests for recruitment will be acceded to as soon as the position is eased. We have since prepared a list of applicants based on the recommendations of the Parliamentarians. Minister has already been pleased to go through the list and has since approved it.
2. Before the Chairman O.G.D.C. Is requested to issue appointment letters, Minister any like to see., (Sd.) (R.A.Hashmi), The Minister." Principal Staff Officer. Alongwith the note was attached a list of 105 applicants alongwith their qualifications but there was no indication as to the posts against which they were to be appointed. The Minister endorsed the afore-referred note back to the Principal Staff Officer with the remark "OK" and the latter sent to the Chairman, O.G.D.C. Through the Chief Personnel Officer of the Organization who, vide Exh.PA, proposed as under:-- "3. Principal Staff Officer to the Federal .Minister for Petroleum and Natural Resources has conveyed the approval of the Minister for appointment of 145 applicants in O.G.D.C. Against various posts.
4. In this respect. It is submitted that appointments in O.G.D.C. Are made against the advertised post after necessary test and interview. However, in the recent past, a number of appointments have been made on the directives of the Prime Minister's Secretariat without advertising the post, as a special case. In the instant case if the directives of the Honourable Minister are carried out, approval will be required for relaxation of existing policy and the rules. In such case the applicants will be appointed on the basis of qualification and experience will be given the same designation as offered to the Prime Minister's Secretariat under Phase-I, Phase-II and Phase-III of appointment and the special cases.
5. Approval may kindly be solicited from the. Minister for Petroleum and Natural Resources for appointment of 145 in relaxation to the rules, as a special case.
6. Submitted please." When the tile was put up before the Manager Personnel he endorsed para. 4 and sent the file to the Chairman, O.G.D.C. That para. 5 and above be considered. The Chairman, O.G.D.C., in turn observed as under (Exh.PB):-- "8. With reference to para. 1 of the note of the Principal Staff Officer, the factual position has been briefly explained in para.
4. It may be added that existing work force in the O.G.D.C. Is considerably in excess of its requirements and a severe burden on its budget. However, the proposal at para. 5 is submitted for consideration and approval." The appellant finally approved the afore-referred note on 16-10-1996 and sent the matter back to the Chairman, O.G.D.C..
11. The Federal Government of which the appellant was a Minister was dismissed on 5-11-1996 and all the appointment orders, except three, were issued, by the Chairman, O.G.D.C. (P.W.3) after dismissal of the Government. Only 27 persons, out of 145, assumed the charge, and admittedly the nature of posts of all these appointees was temporary, were appointed against posts of Helpers, Assistants, Assistant Plant Operators, Junior Assistants, Lower Division Clerks and their basic salary did not exceed Rs,2,100 per month.
12. The learned trial found the appellant to have issued the directions for appointments 'and thereby guilty of misuse of authority within the meaning of section 3(2)(c) of PPO No,16 of 1977 and section 3(1)(d) of the Ehtesab Ordinance, 1997 read with section 35 of the NAB Ordinance, 1999. The Court observed as under:- "He entertained the applications from the Parliamentarians, made selection of 145 persons and asked the Chairman, O.G.D.C. To issue appointment letters without lawful authority."
13. A bare reading of Exh.PW6/1, which was sent to the appellant, would indicate that a list of 145 applicants, without any reference to the specific posts against which they sought appointment, was put up before the Minister (appellant) with an endorsement/approval that there was pressure from the Parliamentarians for recruitments; that the said pressure was resisted for quite some time and that the Minister may go through the list before the matter is sent to the Chairman, O.G.D.C.
The file was sent to the Chairman, O.G.D.C. Through the Chief Personnel Officer (P.W.1) who, in para. 4 of the file, observed as under:- ".. Approval will be required for relaxation of existing policy and the rules. In such case, the applicants will be appointed on the basis of qualification and experience and will be given the same designation as offered to the Prime Minister's Secretariat under Phase-I, Phase-II, Phase-III of appointment and the special cases." In para. 5 he remarked as under:-- "Approval may kindly be solicited from the Minister for Petroleum and Natural Resources for appointment of 145 in relaxation to the rules, as a special case."
The file was then sent to the Manager Personnel (P. W.2) who referred the matter to the Chairman, O.G.D.C. On 30th September, 1996 to consider the aforementioned paras. 4 and 5. The latter did not find any cavil with the proposal on factual and legal, narrated in para. 4, but made an observation that the O.G.D.C. Was overstaffed and a severe burden on budget. However, he sent the reference to the Minister (appellant) for relaxation of rules as a special case (in terms of para. 5 referred to above) for consideration and approval. Having received the afore-referred file, the Minister (appellant) extended the requisite approval.
14. Mr.Ljaz Muhammad Khan, Chief Personnel Officer of O.G.D.C. Appeared as P.W.1. He is author of paras. 4 and 5 of Exh.PA and acknowledged to have written the note and of having suggested that relaxation of rules was required to make the requisite appointments and admitted to have solicited the approval of the Minister (appellant). He admitted that the appointments were temporary and it was an ongoing practice. He said:-- Those who are appointed against temporary posts are appointed on work-charge basis which mean on temporary basis... ...The notification of appointment of 27 persons are 'on the record. It is correct that according to these notifications these persons were appointed against temporary posts. It may be correct that the P.D.F. Government headed by Mrs. Benazir Bhutto was dismissed on 5-11-1996 and that the Care-taker Government had been installed on 6-11-1996 by the President.
It is correct that only three persons out of those 27 namely Abdullah son of Haji Muhammad Nawaz, Samair Afzal Chauhan son of Muhammad Afzal Chohan and Mohsin Zaman Shah son of Noor Zaman Shah had joined the O.G.D.C. Before 5-11-1996. It is correct that 16 more persons out of those 27 joined O.G.D.C. Service during the period from 5-11-1996 to 26-11-1996.. .. ..It is correct that before appointments the Prime Minister had also made appointments of 300 persons in similar way'." While appearing as P.W.2 Saeed Ahmad Khokhar, Manager Process and Plans (Acting Manager Personnel), in cross-examination submitted as under:-- "For O.G.D.C's project there were temporary posts created for the purpose of the said projects.
Those who were recruited temporarily for projects engaged on work-charge basis.... Recruitments in O.G.D.C. Are also made on temporary basis to the best of my knowledge It is correct that appointments in the instant case were made against temporary posts. It is correct that the services of the appointees in accordance with the terms and conditions offered to them were temporary." Mobeen Ehsan, Former Chairman, O.G.D.C., appeared as P.W.3. Contrary to his note (Exh.PB) regarding the budgetary position of O.G.D.C. He could not deny in cross-examination that the O.G.D.C. Earned a profit of Rs,187.4278 crores in the year 1994-95 and a profit of Rs,301.693 crores during the year 1995-96. His replies to such questions were evasive and he could not even tell as to the percentage of the profit of O.G.D.C. During his tenure. To a question as to whether the rules/service regulations of the O.G.D.C. Had been notified by the Government or not, his reply was that "I have no information". He lastly submitted that during his tenure as Chairman, O.G.D.C. He did not make any addition in the staff of the Organization. Akhtar Hussain, Chief Staff Officer of O.G.D.C., appeared as P.W.4. He admitted in cross- examination that "in this case Recruitment Section had given the endorsement that the rules have been complied with" Abdul Mateen Ahmad, Chief Personnel Officer, O.G.D.C., appeared as P.W.5. He was then the Deputy Chief Personnel Officer (A) and issued appointment notification (Exh.PW5/1) to Exh.PWS/19). He admitted in cross-examination that "the Recruitment Branch had ensured that the recruitments were made according to the policy and rules of the O.G.D.C.". R.A.Hashmi, Principal Staff Officer O.G.D.C., appeared as P.W.6. He admitted -in cross-examination that there was pressure from the Parliamentarians for recruitments; that the appellant was resisting the said pressure; that the decision on these application was taken in September/October, 1996 as the financial position of O.G.D.C. Had improved and it earned a profit of approximately 300 crores after paying all the taxes for the year 30th June, 1996. He admitted that the Minister (appellant) had given the following guidelines for short listing the application:-
(i) It should be on all Pakistan Basis and Maximum number of Parliamentarians should be accommodated.
(ii) The merits which should be reflected from the Education, Qualification of the applicants as well as the experience. He further admitted that suitability of each applicant had to be determined by the O.G.D.C. And the Minister before sending the note to the O.G.D.C. Did not exert any pressure to get the applicants appointed in the O,G.D.C.. He lastly added that "Mr.Anwar Saifullah (appellant) had also not exerted any pressure and had not issued any directive to the 0.G.D.C. Officials that these applicants should be adjusted in derogation of the prevalent 0.G.D.C. Rules of Recruitment, policy or law. The object of sending this note to the 0.G.D.C. Was for the applications to be examined and their opinion obtained as to whether the applicants could be accommodated as per 0.G.D.C. Policy, rules and the prevalent law". Gulzar Ahmad Chughtai, Deputy Director F.I.A., appeared as P. W.7. He investigated the case. In cross-examination he admitted that he did not ascertain as to whether the 0.G.D.C. Rules had been approved by the Government or not.
15. An analysis of the documentary evidence and oral evidence led by the prosecution would lead to the following inferences/conclusions:--
(i) As per noting (Exh.PA) and the statement of P.W.3 there was no specific direction by the appellant for appointment of any particular individual against any particular post. A proposal alongwith list of applicants was placed before him suggesting that he had power to relax the rules: that there were precedents of such appointments being made. The said proposal was endorsed by the competent Authority i,e, Chairman, O.G.D.C. (P.W.3) and the appellant approved the proposal.
(ii) All appointments made were temporary in nature. Regulation 4(c) of O.G.D.C. Regulations stipulates that those regulations shall not apply to "a person employed purely on temporary basis or against a project".
(iii) That the afore-referred regulations even otherwise had not assumed the status of statutory rules. The Deputy Prosecutor-General (Mr.Ahmer Bilal Sufi, Advocate) having checked from the concerned authorities made a statement that those had not been formally approved and notified in the Official Gazette even till date.
(iv) That even if the afore-referred rules and regulations had been approved and notified none of the prosecution witnesses has alleged that there was any violation of those rules rather they have specifically stated that the said rules and regulations were complied with.
(v) That out of 145 applicants only 27 joined, the appointments/ notifications, only with regard to three, were issued when the appellant was still a Minister and the remaining were issued after he had ceased to be a Minister but all were allowed to continue in service although their services could be dispensed with by a simple notice.
(vi) That as per the statement of P.W.6, who initiated the proposal and P.W.4, Chief Personnel Officer, the appellant had given guidelines to short list the applicants to ensure, firstly that the appointments should be on all Pakistan Basis and maximum number of Parliamentarians may be accommodated and, secondly, that the merit should be reflected from the Education and Qualification of the applicants.
(vii) In the face of the noting on the file (Exh.PA) and the evidence led, it cannot be said that the appellant had not taken reasonable care to know that the proposal for which his approval was solicited was permissible under the rules. He was given to understand in writing by all the concerned officials including the Chairman, O.G.D.C. That there were rules which he could relax and the Chairman, O.G.D.C., pursuant thereto. Could make those appointments and further that there were precedents to that effect.
(viii)That prior to the Appointment orders issued by P.W.3 (Mobeen Ehsan), which are subject- matter of the instant Reference, he (P.W.3) had made 300+68 appointments with regard to which no Reference was filed against anyone.
(ix) No evidence was led to prove as to what wrongful loss was caused to the O.G.D.C..
16. It is the duty of the concerned Secretary, the officer concerned or the competent Authority, as the case may be, to apprise the elected representative of the legal position. Rule 5(14) of the Rules of Business (Central Government) framed under the Constitution mandates as under:-- "(14) If any order passed happens to contravene a law, rule or policy, it shall be the duty of the next below officer to point out this to the authority passing the order."
17. Notwithstanding the mandate of their calling in terms of rule 5(14) of Rules of Business, the Chairman, O.G.D.C. (P.W.3) did not apprise the appellant of the correct legal position that the 0.G.D.C. Regulations/rules were not applicable to temporary employments/jobs and, therefore, no rules needed to be relaxed. The Chairman himself was the competent Authority and he issued the requisite orders. He, therefore, could not absolve himself of the responsibility both morally and legally.
18. It is in evidence that the Chairman. O.G.D.C. Was not only statutorily independent but had on more than one occasion, disagreed with the appellant and his opinion prevailed. Exhs.DW1/16 and DW1/17 are cases in point. In Mian Ghulam Muhammad Ahmad Khan Maneka v. President of Islamic Republic of Pakistan (1995 SCMR 571), a Reference was filed against a former Federal Minister under P.P.O. No,17 of 1977 on the allegation that he obtained a huge loan by abuse of his powers as Federal Minister and the august Supreme Court held that in absence of any positive evidence the allegation of undue influence could not be inferred. In the instant case no prosecution witness has alleged undue influence or pressure rather admittedly all the notifications of appointments, except three, were issued after the appellant was no longer a Minister.
19. Coming to the second question i,e, whether every erroneous order or mistake of civil law would amount to misuse of authority, it has to be kept in mind that the Reference filed against the appellant did not seek judicial review of the appointments made. It was filed under a Penal statute and the prosecution had to prove the charges framed.
20. Misuse of authority means the use of authority or power in a manner contrary to law or reflects an unreasonable departure from known precedents or custom. Every misuse of authority is not culpable. To establish the charge of misuse of authority, the prosecution has to establish the two, essential ingredients of the alleged crime i,e, "mens rea" and "actus reus". If either of these is missing, no offence is made out. Mens rea or guilty mind, in context of misuse of authority, would require that the accused had the knowledge that he had no authority to act in the manner he acted or that it was against law or practice in vogue but despite that he issued the instruction or passed the order. In the instant case the documentary evidence led by the prosecution and its own witnesses admit that the appellant was told that he had the authority to relax the rules and the competent authority P.W.3 could make the appointments thereafter. The guilty intent or mens rea is missing. Even the actus reus is doubtful because he had not made the appointments. He merely approved the proposal and sent the matter to the competent authority. At worst he could be accused of mistake of civil law. i,e, ignorance of rules. But a mistake of civil law negates mens rea.
21. There is substance in the argument of the learned counsel for the appellant that every mistake of civil law would not constitute offence because mens rea is an essential ingredient of a crime unless of course it is an offence of strict liability. In Harris's Criminal Law by Ian Mclean & Peter Morrish on General Principles of Criminal Responsibility, Mistake of Civil Law. At page 49 (Twenty- second Edition by Sweet & Maxwell Limited), precisely this aspect was taken note of and it has been held as under:- "Sometimes the actus reus of a crime includes an ingredient the existence or non-existence of which depends upon some rule of civil law. For example, bigamy can only be committed if the accused is already married to someone else. To find out whether or not he is married one must look to the civil law regarding the creation and termination of marriages. Similarly a person does not commit theft if he is entitled to take the goods. If X seizes A's purse in the street and immediately A seizes it back against, A, obviously, cannot be guilty of theft. It follows that if the accused honestly believed that the civil law regards him as unmarried or as entitled to take the goods alleged to be stolen, then he is not guilty of bigamy or respectively ,theft. In both cases the accused would not have the necessary mens rea. It is not clear, however, that there is a general principle that mistakes of the civil law will, as a general rule and in the appropriate circumstances, negative mens rea."
In Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233) (which has been upheld by the august Supreme Court) a learned Division Bench of this Court while commenting on misuse of authority with reference to section 9(a)(vi) has reiterated the view that it is not an offence of strict liability and mens rea is a sine qua non to prove the charge. Explaining the concept of misuse of authority, the Court, at pages 243 and 244, held as under:-- "In plain words misuse of authority would mean a wrong and improper exercise of authority for a purpose not intended by the law. A person may, in exercise of his authority, go wrong due to some ordinary human failing or error but this, per se, will not be actionable under the law. However, if a person knowingly and deliberately follows a wrong course of action and deviates from the purposes of law and proceeds to achieve some other objective either prohibited or not intended by the law then he becomes liable under the law. Therefore, mere erroneous order or lack of jurisdiction on the part of a public functionary will not amount to an offence under section 9(a)(vi) of the Ordinance. However, if a public functionary deliberately uses or exercises his own authority or for that matter usurps the power of another public functionary with the objective of gaining any benefit or advantage for himself or for any other person then he will be guilty of an offence under section 9(a)(vi) of the Ordinance. It is true that mens rea is a necessary constituent for every penal offence except those of strict liability... ... ...The provision of the Ordinance under consideration do not rule out mens rea and make the offence as one of strict liability. The very word of section 9(a)
(vi) read with reference to the object of gaining any benefit or favour makes it abundantly clear that it means a deliberately wrong use of authority by a person to gain any benefit or favour for himself or any other person. Thus, the foundation of mens rea qua the offence under section 9(a)
(vi) of the Ordinance would be found in two elements: first conscious misuse of authority and second, gaining of any benefit or favour by the accused for himself or for any other person." In M. Siddique-ul-Farooque v. The State (PLD 2002 Karachi 24), the accused was tried for making 88 illegal appointments without any test and interviews and in disregard to the mandatory procedure laid down in rules and thereby causing loss to the State exchequer to the tune of Rs,56,88,525. The learned Division Bench while acquitting the accused from the said charge and held that every irregularity is not to be treated as misuse of authority. At page 43, it observed as:under:-- "Almost all the appointments made by the appellant appear to be on merit, and offering reasonable salary, in accordance with he policy already in existence prior io his appointment as M.D., HBFC, in the interest of day-to-day working of the institution, against the existing vacancies and all the appointments were approved even after the arrest of appellant and during the present Government, therefore, we are of. The opinion that the prosecution has utterly failed to establish that the appellant made any appointment to gain benefit or favour for himself or any other person.
The prosecution has not been able to bring any material to show that the appellant appointed any of his relatives or near and dear ones during his tenure. The prosecution has further failed to prove the charge that any wrongful loss was caused to the Government exchequer with the appointments made by the appellant on contractual/daily wages appointments.
It is also to be kept in view that a head of the department, or an institution, may sometimes exceed his normal administrative powers in the interest of institution and under some wrong impression about his authority on the basis of a practice in vogue or on account of a policy framed by the predecessors and continuance thereof without any objections more particularly when it is in the interest of smooth working of the institution. Every such irregularity is not to be treated as miSuse of authority and more particularly is not to be treated as criminal offence. It is established principle of the criminal administration of justice that before convicting any person the prosecution is required to establish beyond any reasonable doubt, all the ingredients constituting an offence and if there is any lacuna, infirmity or doubt it has always to be resolved in favour of an accused person."
22. Coming to the third question i.e whether the appellant obtained for himself or for any other person a pecuniary advantage or favour through "corrupt", "dishonest" or "improper and illegal means", we note that there is nothing in evidence to show that the appointees belonged to appellant's constituency; that anyone of them was his relative or close associate; that the Ci recommendees of any political party were accommodated or any of his close associate derived any pecuniary advantage or benefit from the appointments so made. The prosecution was to prove every element of the charge i,e, that those appointments were made through "corrupt", "dishonest", "improper" or "illegal" means.
23. The afore-referred expressions used in section 3(1)(d) of the Ehtesab Ordinance, 1997 are similar to the ones used in section 5(1) of the Prevention of Corruption Act, 1947 and a question was mooted whether recommendations for a job made by a person could be classified as illegal and corrupt transaction within the meaning of the afore-referred provision. In a rather instructive judgment reported in M.Narayanan Nambiar v. State of Kerala (AIR 1963 Supreme Court 1116), while making observations that such acts would not fall within the mischief of this provision, at page 1118, the Court held as under:-- "That abuse may be by corrupt or illegal means or otherwise than those means. The word 'otherwise' has wide connotation and if no limitation is placed on it the words 'corrupt', 'illegal', and otherwise, mentioned in the clause become surplusage, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words alongwith which it appears in the clause, that is to say, something savouring of dishonest act on his part. The contention of the learned counsel that if the clause is widely construel even a recommendation made by a public servent for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause."
24. As held in M.Siddique-ul-Farooq v. The State (PLD 2002 Karachi 24), an irregular appointment per se would not be a pecuniary advantage or benefit entailing penal consequence unless it is proved that the intent behind or the means adopted to secure the same were dishonest, corrupt or illegal. A person could be charged and convicted under those provisions even if the order passed is perfectly legal if it is proved that it was done in lieu of a bribe in kind or cash. In The State v. Jam Mashooq Ali and others (PLD 2002 Karachi 72), the accused was an Ex- Provincial Minister, he Ws tried for having directed the competent Authority to allot plots but the allotment orders were issued by the competent authority. He was acquitted by the trial Court, the State went in appeal, while upholding the acquittal, a learned Division of Karachi High Court observed that there was no evidence of any pressure exerted by the Minister, of loss or gain, of dishonest intention, of illegal gratification, mens rea was non-existent and mere endorsement ''allot a plot" would not constitute an offence because the formal orders were passed by the competent Authority and not by the Minister. In Aftab Ahmad Khan. Sherpao, Ex-Cheif Minister of N.-W.F.P. v. The State (PLD 2001 Peshawar 80), a Division Bench (in Ehtesab case) set aside conviction of the accused in a case of alleged illegal allotment of plots and, at page 85, Observed as follows:-- "We have given our considered thought to the point in question and do believe and holq that mere irregularities in allotment of plots (which also is not proved) and mere bypassing of some one 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 that effect."
25. The reliance by the learned Deputy Prosecutor-General on Hakim Ali Zardari's case (supra) would be of no avail as it upholds the requirements of mens rea to prove a criminal charge. We have already held that mens rea is missing in the instant case. That being so, the appellant would clear the twin test i,e, subjective and objective approved the said judgment to examine the criminality of a person accused of dishonest conduct.
26. For what has been discussed above we are of the considered view that the prosecution has failed to prove its case against the appellant to sustain the conviction. Resultantly, this appeal is allowed, the impugned judgment dated 30-11-2000 passed by the learned Judge Accountability Court, Lahore is set aside and he is acquitted of the charges framed against him.