MUHAMMAD NAWAZ ABBASI, J.--Ehtesab Reference No,11 of 1997 was filed against the appellant, namely Mir Munawar Ali Talpur, ex-Minister for Local Government Rural Development, Government of Sindh alongwith two others namely Ahmed Khan Abro and Abdul Razzaq Khan Afridi for trial by the Ehtesab Bench of High Court of Sindh at Karachi. The learned Single Judge, exercising the power of Ehtesab Court under the Ehtesab Act, 1997 upon conclusion of the trial having found the appellant and his co-accused guilty of the charge, convicted and sentenced them vide judgment dated 11-11-1998 as under:-- Mir Munawar Ali Talpur and Abdul Razzaq Khan Afridi were convicted under section 3 of the Ehtesab Act, 1997 and were sentenced to R.I. For three years each with fine of Rs,15,00,000 each and in default of payment of fine to undergo R.I. For one year each. Ahmed Khan Abro was sentenced to R.I. For two years with fine of Rs,3,00,000 and in default of payment of fine to undergo R.I. For six months.
2. The operation of the impugned judgment was suspended by this Court vide order dated 30-11- 1998 and appellant was allowed bail subject to deposit of fine as directed by the learned trial Court and furnishing of bail bond in the sum of rupees one lac with P.R. Bond in the like amount to the satisfaction of Nazir of the High Court of Sindh.
3. The charge against the appellant was framed under Ehtesab Ordinance, 1996 by the Ehtesab Bench of the High Court of Sindh. The charge is read as under:- "That you accused Mir Munawar Ali Talpur, being a holder of public office in your capacity as ex- Minister, Local Government of Sindh at the relevant time in abuse of your official position and with mala fide, illegal and dishonest intention with a view to earn illegal gratification and money for yourself and for providing illegal and fraudulent gain and profits to other accused approved the award of Octroi Contract of Town Committee, Khoski for the year 1996-97 to accused Abdul Razak at a meager price of Rs,52,44,000 which was also in violation of the rules and procedure for awarding such contracts and was also opposed by the then Secretary, Local Government, Noor Ahmed Shah and thereby caused loss of Rs,32,44,000 to the Government of Sindh and Town Committee, Khoski. And that you accused Ahmed Khan Abro, being the Town Officer, Town Committee, Khoski at the relevant time in abuse of your above office knowing that a fixed and upset auction price of the above Octroi Contract was Rs,52,44,000 and further that the then Secretary, Local Government, had opposed the offer of Rs,20,00,000 and thereby caused a loss of Rs,32,44,000 by your above illegal, dishonest and fraudulent act to the Government of Sindh and Town Committee, Khoski; And that you accused Abdul Razak Khan being a closed associate with illegal, dishonest and fraudulent intention to provide illegal gratification and offer to accused Mir Munawar Ali Talpur and Ahmed Khan Abro and for earning illegal, dishonest and fraudulent gain and profits for yourself fell in line with and instigated and persuaded accused Mir Munawar Ali Talpur, to order the award of the above' contract to you against a meager price, thereby causing a loss of Rs,32,44,000; And that all of accused acting in collusion and connivance with each other with mala fide, illegal and dishonest intentions conjointly committed the offence/offences defined under section 3 of the Ehtesab Ordinance and punishable under section 4 of the Ehtesab Ordinance, within the cognizance of this Court, and we, hereby direct that you be tried by us for the aforesaid offence. Given under our hands and seal of this Court, this 14th day of May, 1997.
(Sd.)
Wajihuddin Ahmed, J.
(Sd.)
SaiyedSaeedAshhad, J.
(Sd.)
Mushtaq A. Memon, J."
4. The relevant facts of the prosecution case, as contained in the Reference are that Local Government and Rural Development Department, Government of Sindh, -invited tenders for grant of octroi contract for bus stand, petrol pump and sugar mill at Khoski through auction vide advertisement published on 7-5:1996, 14-5-1996 and 19-5-1996 in daily Jang and daily Ibrat. The reserved/upset price for the contracts was fixed at Rs,52,44,000 but none participated in the auction. Subsequently AbdurRazzaq Khan Afridi wrote a letter directly to the appellant who was holding the portfolio of Minister for Local Government and Rural Development Department, Government of Sindh wherein he made an offer of Rs,20,00,000 for grant of contract of the octroi post to him. The appellant directed for call of the comments of the Director, Local Government Department, Hyderabad, who sought comments of Mr. Ahmad Khan Abro, Town Officer, Town Committee, IChoski and the Town Officer vide letter dated 13-6-1996 sent his comments in favour of acceptance of the offer of Rs,20,00,000 for grant of contracts to Abdul Razzaq Khan. Afridi.The Director Local. Government, Hyderabad, sent the comments of Town Officer, Town Commettee, Khoski vide letter dated 17-6-1996 to the Secretary, Local Government and Rural Development Department, Government of Sindh, with the following 'remarks:- "Town Officer, Town Committee, Khoski, recommended the above offer looking to the above circumstances. Under the circumstances explained above, the same may be considered since, in the departmental recovery there is apprehension of loss."
The Secretary, Local Government Rural Development Department, 'Government of Sindh, however, put up the summary before the appellant on 24-6-1996 with the proposal that Deputy Commissioner, Badin, be asked to hold fresh auction with official bid of Rs,52,44,000 with inclusion of 15% increase in the contractual amount of Rs,45,60,000 of the last year instead of 15% increase on the actual recovery of Rs,17,45,000 of Octroi charges made by the department on abandoning the contract by the contractor. It was also pointed out in the summary that the two sugar mills would expectedly be in operation from the next year and the octroi income would reasonably be increased whereas the offer made by Abdur Razzaq Khan Afridi was only 14.61% above the actual recovery of the last year, therefore, re-auction of the octroi post would be in the interest of the Committee. It is stated that the appellant instead of accepting the proposal of re-auction made by the Secretary, Local Government and Rural Development Department, Government of Sindh, directed for acceptance of offer of Abdur Razzaq Khan Afridi with the following observation:- "I have observed that these two sugar mills will not come in the jurisdiction of Town Committee, Khoski, and will not affect the income of the said Town Committee, hence offer given by Abdul Razzak is hereby confirmed in the interest of Council." Consequently, the octroi contract was awarded to Abdur Razzaq Khan Afridi for Rs,20,00,000 vide letter dated 26-6-1996 and agreement was executed, accordingly.
5. The prosecution in support of the charge produced two witnesses namely Liaqat Ali, the then Director, Local Government (P.W.1) and Muhammad Sohail, Inspector Anti-Corruption who investigated the case (P.W.2). Dr. Aftab Ahmed Qureshi appeared as C.W. Who had conducted medical examination of the appellant while in custody. Liaqat Ali (P.W.1) the star witness of the prosecution case, deposed that advertisements were made in the newspapers for award of the contract of bus stand, petrol pump and sugar mills at Khoski through auction and placed on record the newspapers of the relevant dates containing the publication in addition to the copy of notification relating to Octroi Rules. The witness stated that three separate dates were fixed for auction through advertisement but none attended the auction proceedings and added that subsequent to the dates of auction, he received a letter from the Local Government and Rural Development Department, Government of Sindh, wherein under the direction of Minister, comments were called. The witness placed on record the said letter and the letter written by him to the Town Officer, Town Committee,Khoski and the letter through Which he sent the comments of Town officer with his own recommendations to the Government of Sindh. The witness stated that during the year 1993-94 the contract for the said octroi posts was awarded for Rs,19,52,727 and for the year 1994-95 this contract was awarded for Rs,23,00,000 and that the contractual amount for the year 199596 was only for Rs,17,45,000 as the collection of tax was made by the Government itself. The witness has stated nothing in his examination-in-chief either about the reserved/upset price of Rs,52,44,000 for the current year or that the upset price for the year 1995-96 was fixed as Rs,45,60,000. The witness also has not stated anything about the personal interest or financial gain of the Minister in the contract or that grant of contract for Rs,20,00,000 was not in the interest of Town Committee or that the Minister through misuse of his official position, extended any favour to Abdur Razzaq Khan Afridi in the matter of grant of contract. The witness however, in cross- examination stated that the contract for an amount of Rs,45,60,000 for the year 1995-96 was frustrated due to the default of contractor and contractual amount could not be recovered and that only an amount of Rs,17,45,000 could be collected but except the for future, of the security of the contractor, he was not put under any other financial burden for default and abandoning the contract. Muhammad Sohail (P.W.2) Inspector, Anti-Corruption under the directions of Director, Enquiries and Establishment, conducted an inquiry in the case and recorded statements of Ahmed Khan Abro, Town Officer, Abdur Razzaq Afridi contractor as well as the Assistant Director Local Government and submitted his report which was sent to the Chief Ehtesab Commissioner. The witness having secured the copies of the documents and the relevant reports from the concerned officers in the Local Government and Rural Development Department, Government of Sindh, made these documents part of the inquiry report which were subsequently, tendered in the evidence. In the cross-examination, the witness has admitted .That the report submitted by the Town Officer and the Director, Local Government was different to that of the summary submitted by the Secretary, Local Government and Rural Development Department, Government of Sindh to the minister in the following manner:-- "The Director Local Government (DLG), Hyderabad has forwarded auction papers of octroi tax contract of Town Committee, Khoski for the year 1996-97. The council made three attempts to auction the collection rights with an official bid of Rs,5,244,000. The auction notices appeared in the dailies: Jasarat and Ibrat. None, according to the DLG, Hyderabad participated in the auction held on 7-5-1996, 14-5-1996 and 19-5-1996. The reason for the lack of interest by the prospective bidders, as stated by the Town Officer, Town Committee, Khoski is the official bid based on the last year's contractual amount which due to tough competition during the last year was knocked down to a sum of Rs,4,560,000 which was 98.26% above the contractual amount of 1994-95. The 1995-96 contract was subsequently cancelled as the contractor failed to abide by the terms of the contract. The octroi tax was collected departmentally and it amounts to Rs,1,745,000. The Town Officer, Town Committee, Khoski reports that the two Sugar Mills located within the limits of the council which are presently closed will start functioning this year. This would increase the octroi income. In such situation the offer of Rs,2,000,000 given by Mr. Abdul Razzaq Afridi which is 14.61% above the last year's actual recovery when the Sugar Mills remained inoperative, is low. The Deputy Commissioner, Badin be requested to hold the open auction after wide publicity tuner his supervision in the interest of the Council.
(Sd.)
(NUR AHMAD SHAH), SECRETARY, LOCAL GOVERNMENT.
MINISTER, LOCAL GOVERNMENT."
6. The appellant and his co-accused. In their statement under section 342, Criminal Procedure Code pleaded innocence. The appellant also made a statement on oath wherein he denied the allegation. Ahmad Khan Abro while Making a statement on oath stated that during the year 1995- 96 the Town Committee could recover only an amount of Rs,17,45,000 and that he by adding 15% on the said amount suggested the award of contract to Abdul Razzaq Khan Afridi as against his offer of Rs,20,00,000 in good faith. The learned trial Judge however, forming opinion that 15% increase was required to be made on the upset/reserved price of Rs,45,60,000 for the year 1995-96 and not on the actual amount of Rs,17,45,000 recovered in the said year, held the appellant and his co- accused guilty of the charge and further on the basis of Notification dated 10-3-1996 concluded that the award of contract by the Minister, ignoring the advice of the Secretary, Local Government and Rural Development Department, Government of Sindh, was mala fide and observed that ignorance of law would not be an excuse to plead innocence.
7. The trial in the case against the appellant commenced before the Ehtesab Bench of the High Court of Sindh established under the Ehtesab Ordinance, 1996, on a reference sent to the Bench by the Chief Ehtesab Commissioner. The Ehtesab Ordinance was repealed by Ehtesab Act IX of 1997 and it was provided under section 31(2) of the Ehtesab Act that notwithstanding the repeal of the Ordinance, the proceedings pending before the Ehtesab Benches of the High Courts established under the Ordinance,would continue and the evidence recorded by the Ehtesab Benches would form part of the record. The acceptance or obtaining gratification other than legal remuneration, from any person as motive or reward as provided under section 161, Pakistan Penal Code in relation to the official acts or extending any favour or disfavor to any person or attempting to render any service or disservice in connection with official business was made an offence under section 3 of the Ehtesab Act, 1997 punishable under section 4 of the said Act. The sentence provided therein may extend to R.I. For a term of seven years or with fine or with both and the forfeiture of the property in the name of accused or in the name of any of his dependents which was obtained by him while holding a public office. Under subsection (2) of section 4 of the Ordinance, a person who gives illegal gratification or abets or assists or aids the holder of a public office or is the beneficiary of the property gained through corruption or corrupt practices, is liable to the same punishment. In the present case, the charge against the appellant, who at the relevant time was Minister for Local Government and Rural Development Department, Government of Sindh, was that he by misuse of his authority extended undue favour to respondent No,3, Abdur Razzaq Khan Afridi, in the grant of contract of octroi charges for an amount muchless to the reserved/upset price and thereby caused substantial loss to the Government for personal gain.
8. Learned counsel for the appellant contended that the appellant while keeping in view the factual position highlighted by the Town Officer and the Director Local Government in their comments genuinely deeming it in the interest of Town Committee awarded the contract for a sum of Rs,20,00,000 and that none of the witnesses has attributed any personal interest or financial gain of the appellant in the contract. Learned counsel added that mere fact that Secretary, Local Government and Rural Development Department, Government of Sindh, made a proposal of re- auction would not be a valid reason for drawing an adverse inference of corruption and corrupt practices. In nutshell, the learned counsel argued that the charge of corruption and. Corrupt practices against the appellant was not being supported by any evidence so much so the violation of the Rules of Business of Government of Sindh and the octroi rules was not proved and the learned trial Judge on the basis of surmises and conjectures, held him guilty of the charge.
9. Learned counsel representing the NAB on the other hand, has argued that the grant of contract in departure to the policy of open auction and the advice of the Secretary, Local Government and Rural Development Department, Government of Sindh, would give rise to a strong presumption that the appellant approved the contract in favour of his co-accused for financial gain and consideration other than the public interest. The learned counsel added that although there was no direct evidence of corruption or corrupt practices but the circumstances under which the contract was granted would sufficiently indicate that the loss was caused to the State exchequer forpersonal interest and extraneous consideration which would be a sound proof of committing an offence of corruption and corrupt practices under section 3 of the Ehtesab Act, 1997 punishable under section 4 of the said Act.
10. We have perused the record with the help of learned counsel for the parties and also heard them at length. The material facts of the case being not in dispute the only question for determination would be as to whether the appellant while holding the office of Minister, Local Government and Rural Development Department, Government of Sindh, approved the contract for extraneous consideration and financial gain and caused loss to the public exchequer or the contract was granted in good faith and with bona fide intention to save the Town Committee from financial loss.
11. The purpose of grant of such contracts through open auction is to watch the public interest and to avoid favour and disfavor by the authorities for personal interest and to ensure the transparent conduct of public affairs. The allegation in the present case was that instead of awarding the contract with 15% increase of the last year confirmed price of Rs,45,50,000 as provided under the rules, the Minister approved the contract for a sum of Rs,20,00,000. This is an admitted fact that during the last year (1995-96) the actual recovery of the octroi charges at the posts in question was Rs,17,50,000 and in the previous years, the contractual amount was almost in the same range.
The witnesses produced by the prosecution have not said anything about the loss if any, caused to the Town Committee or that the contract was awarded in violation of the rules or it involved personal interest of the Minister rather the evidence brought on record by the prosecution would suggest that there was no possibility of offer of more price by any person as no one participated in the auction.
12. The grant of contract through negotiations for an amount less than the upset price may apparently create an impression that some personal interest of the approving authority was involved but detail scrutiny of the evidence would satisfy the mind and remove such impression.
The Ehtesab Act, 1997 was a special law and under section 8 of the said Act, a presumption of guilt could be raised against an accused but it would not be possible unless the prosecution would succeed in discharging the initial burden of proving the charge. Thus the prerequisite for raising a presumption of guilt under section 8 of the Ehtesab Act, 1997 is the discharge of initial burden by the prosecution. Section 8 of the Act provides as under:-- "Presumption against holder of public office accepting illegal gratification.--(1) Where in any trial of an offence punishable under sections 161 to 165 of the Pakistan Penal Code (Act XLV of 1860), it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person any gratification, other than legal remuneration, or any valuable thing, or any Pecuniary advantage from a person or any agent of a person, for any favour shown or promised to be shown by the accused, it shall be presumed, unless the contrary is proved, that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing or pecuniary advantage for himself or some other person, as the case may be, as a motive or a reward such as is specified in sections 161 to 163 of the said Code, or, as the case may be, without consideration or for a consideration which he believed to be inadequate.
(2) Where in any trial of an offence punishable under section 165-A of the Pakistan Penal Code (Act XLV of 1860), it is proved that any gratification other than legal remuneration or any valuable thing has been given, or offered to be given, or attempted to be given, by any accused person, it shall be presumed, unless the contrary is proved, that he gave, or offered to give, or attempted to give, that gratification, or that valuable thing, as the case may be, as a restive or a reward such as is specified in sections 161 to 163 of the said Code, or as the case may be, without consideration or for a consideration which he believed be inadequate.
(3) In any trial of an offence punishable under this Act, the fact that the accused person or any other person on his behalf, is in possession, for which the accused person cannot satisfactorily account, of property or pecuniary resources disproportionate to his known sources of income, or that such person has, at or about the time of the commission of the offence with which he is charged, obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, the Court shall presume, unless the contrary is proved, that the accused person is guilty of the offence of corruption and corrupt practices and his conviction there for shall not be invalid by reason only that it is based solely on such a presumption."
13. The examination of above section would reveal that for raising the presumption of guilt at the first instance the essential elements of mens rea and intention to commit the crime must be established and then the criminal liability must be proved through the positive evidence. The perusal of record would show that in the instant case, the above two basic elements were not available to suggest criminal liability of the appellant in the transaction and further the prosecution has not been able to bring on record any evidence in proof of the initial burden of personal interest or financial gain of the appellant or abuse of authority by him in the matter to raise a legitimate presumption of guilt. The mere fact that the proposal of re-auction made by the Secretary, Local Government and Rural Development Department, Government of Sindh, was not accepted by the Minister was not a valid ground to raise such a presumption under section 8 of the Ehtesab Act, 1997. It is the prosecution's own case that neither any one participated in the auction nor made an offer even through negotiation above the offer of Rs,20,00,000 for which contract was given which would evidently prove the bona fide of Minister who while keeping in view the recommendations of the Town Officer and the Director Local Government, approved the contract and thus visualizing the situation in the light of the facts in the background, it can safely be concluded that the criminal law was set at motion against the appellant due to the conflict of opinion with the Secretary. It is not understandable that how the mere violation of procedural rules, if any, would constitute an offence of corruption and corrupt practices under Ehtesab Act, 1997 without establishing the criminal intent. The failure of the prosecution to rebut the presumption of innocence of the appellant through any evidence, direct or circumstantial would create a reasonable doubt in his favour to suggest that the contract was approved in good faith and free of any personal interest or any other consideration.
14. For the foregoing reasons, we find that the prosecution has not been able to establish the charge against the appellant beyond reasonable doubt and consequently, the conviction awl sentences awarded to the appellant is set aside. He was allowed bail by this Court vide order dated 30-11-1998, therefore, the bail bonds furnished by him shall be discharged. This appeal is allowed.