WAHID BUX BROHI, J.---Appellant Ramesh M. Udeshi, through this appeal, has impugned the judgment dated 29-7-2000 passed by the Accountability Court No,1 Province of Sindh, Karachi whereby he has been convicted under section 10 of the National Accountability Bureau Ordinance, 1999 (hereinbelow to be referred to as the Ordinance or NAB Ordinance) and sentenced to rigorous imprisonment for 7 years and fine of Rs,200,000 and in case of non-payment of fine to further undergo simple imprisonment for one year.
2. This case arises out of Reference No,20 of 2000 made by the Chairman, National Accountability Bureau. As per reference, the facts concisely stated are that one Mir Lutfullah Talpur (accused No,3 in the Reference ) hiswife and 5 sons (accused Nos.4 to 9) made an application without bearing any date to the then Chief Minister Sindh namely Syed Abdullah Shah (accused No,1) requesting conversion of their leased Barani lands admeasuring 96 Acres situated in Naclass 90 and 91 Deh Kotirero District Malir into Agricultural/Residential/Industrial for a period of 99 years lease instead of 30 years. Syed Abdullah Shah, the then Chief Minister recorded his minutes on the margin of the said application: "Request is allowed." and marked the same to Ramesh M. Udeshi, Secretary, Board of Revenue, Land Utilization Department, Government of Sindh, the appellant herein (accused No,2 in the said Reference). The appellant, without obtaining a report from the concerned Deputy Commissioner floated a summary (containing 5 paragraphs) to the said Chief Minister for his approval at the rate of Rs,5,000 per acre and routed the summary through Secretary Finance and Chief Secretary. The Finance Department obtained comments from the Deputy Commissioner East through appellant, as regards the market value of the land in question wherein the Deputy Commissioner disclosed that the actual rate of Deh Kotirero was between Rs,300,000 to Rs,4,00,000.
The Finance Department passed on the matter with such note (paras. 6 and 7) to the Chief Minister through the Chief Secretary who opposed the Conversion. Consequently, the Chief Minister approved the recommendation of the Chief Secretary and rejected the proposal in the summary.
3. Again, the appellant on 3-9-1995, submitted a copy of the same above mentioned summary to the Chief Minister to the extent of paras. 1 to 5 only concealing the remaining portion, that contained the notes of finance Secretary and the Chief Secretary and the order of Chief Minister.
This summary was approved by the Chief Minister under his signature dated 4-10-1995 and in pursuance of the order of Chief Minister, the appellant issued a letter to concerned Deputy Commissioner for issuing conversion letter in favour of Mir Lutfullah Talpur, his wife and 5 sons (hereinbelow to be referred to as "beneficiaries"). It is accordingly alleged that the land in question was thus disposed of at throwaway price by the appellant and the Chief Minister to the beneficiaries causing loss to the public exchequer to the tune of Rs,2,93,20,000 and as such the accused persons including the appellant committed an offence under section 9 of the N.A.B.
Ordinance which is punishable under section 10 thereof.
4. On the basis of aforesaid Reference the Accountability Court took cognizance of the offence and issued non-bailable warrants against the accused persons excepting the appellant who was already in custody. The beneficiaries, however, entered into plea bargaining within the meaning of section 25 of the N.A.B. Ordinance whereupon the questioned order dated 8-10-1995 passed by the Board of Revenue (Land Utilization) Department, Government of Sindh allowing conversion in favour of the beneficiaries stood cancelled and the amount deposited in that respect was also forfeited to the State and the beneficiaries were disqualified for 21 years from being elected, chosen, appointed or nominated as member of representation of any public office or any statutory or local authority of Government within the meaning of proviso to section 15 (a) of the Ordinance.
The Chief Minister Syed Abdullah Shah was declared proclaimed offender and the trial was conducted in presence of only the appellant.
5. At the trial, formal charge was framed, and the appellant pleaded "not guilty" to the same. The prosecution examined 3 witnesses namely: P.W.1 Abdul Jabbar, Assistant, Board of Revenue (Land Utilization) Department, Government of Sindh; P.W.2 Ganhwar Ali, Assistant Commissioner; and P.W.3 Muhammad Yousuf Rajput, Assistant Director F.I.A/Investigating Officer. They produced the relevant documents also. Statement of appellant was recorded under section 342, Cr.P.C. Wherein he denied the case of prosecution and pleaded innocence as according to him, he had not derived any personal benefit nor were the beneficiaries known or related to him and that the summary was floated as per requirements of law. In his defence he examined two witnesses namely: Ghulam Hussain Mallah, Deputy Secretary, Law Department, Government of Sindh: and Dr. Naseemul Ghani Sahto, Deputy Secretary, Board of Revenue (Land Utilization) Department, Government of Sindh. The defence witnesses also produced some documents. After hearing the Special Prosecutor and the Advocate for the appellant the learned Accountability Court held the appellant guilty and convicted him for the offence alleged and passed the sentence as mentioned earlier.
6 We have heard Ms.Ismat Mehdi, learned counsel for appellant and Mr. M. Anwar Tariq learned D.P.G., NAB and with their assistance read the evidence recorded at the trial and perused the documentary evidence. .
7. In view of the admitted position obtaining from the evidence on record it is noted that the documentary evidence produced by the witnesses for prosecution as also the defence witnesses, turns to be the most eminent material for determining the main point that the offence was committed within the meaning of section 9 of the Ordinance. P.W.1, Abdul Jabbar was serving as Senior Clerk in Land Utilization Department of Board of Revenue at the relevant time i,e, in the year 1994. He deposed that Mir L,utfullah Talpur, one of the beneficiaries and 10 others made an application for conversion of lease of agricultural land into Agricultural/Residential/ Industrial purpose for 99 years. Alongwith the application the office received order of Deputy Commissioner in respect of 30 years lease in favour of those applicants. He produced the copies of application and five orders of the Deputy Commissioner as Exh.13/1 to 13/6. His evidence further shows that in view of the above application the appellant floated a summary (Exli.13/7) to the Chief Minister through Secretary Finance and Chief Secretary. The Secretary Finance before recording his view, asked for the following information through his letter dated 4-4-1994 (Exh.13/8):--
(1) The comments of Deputy Commissioner East and Commissioner Karachi Division .
(2) Revenue Sketch/Site Plan.
(3) Prevailing market rate of the locality/adjoining area vis-a-vis Agricultural/Residential/Industrial for last 12 months.
8. The Land Utilization Department forwarded the said letter to the Deputy Commissioner Karachi (Malir) who submitted his reply through Commissioner vide Exh.13/10 stating therein that the accurate rate in Deh Kotirero/Joreji is Rs 3,00,000 and Rs,4,00,000, but in recent past the Government has charged Rs,5,000 per acre in conversion charges in Deh Joreji. The Deputy Commissioner further pointed out in his comments that Deh Kotirero, Deh Chuhar and part of Deh Joreji had come within the proposed site of new Secretariat (Sindh) and no new lease was to be granted and that steps be taken for cancellation of existing leases. He also pointed out that in compliance with the aforesaid decision notice had been served upon the said applicant and his relatives (beneficiaries). Keeping in view these comments the Finance Secretary added paras. 6 and 7 (Exh.13/12) to the earlier summary floated by the appellant, which paras. Run as under:-- "6. Administrative Department was asked to furnish prevailing market rate of the land obtaining in the locality/adjoining area during last 12 months. In turn Administrative Department asked Deputy Commissioner, Milk, Karachi to provide requisite information. The Deputy Commissioner Malir, Karachi, has inter alia reported that the accurate rate in Deh Kotirero/Jereji is Rs,3 lac to Rs,4 lac per acre (Annexure H).
7. Furthermore, Deputy Commissioner Malir Karachi has reported that land in question falls within the site reserved for construction of new Sindh Secretariat Complex. As per Government decision new leases have been restricted and steps are taken for escalation of existing leases. Accordingly, notices have been served upon the applicant and his relatives for cancellation of existing 30 years leases (Annexure H)."
9. The summary passed on through Advisor to Chief Minister for Finance and then to the Chief Secretary who recorded his note that in view of the position given in para 7 the case may be rejected/regretted. On the following day the Chief Minister passed the order; "As proposed by Chief Secretary". The proposal in the summary thus, stood rejected and the summary was returned through the same route and reached Member Board of Revenue (Land Utilization) Department on 28-8-1994.
10. From the above documents it is crystal clear that the matter ended with the order of the Chief Minister passed on 24-8-1994 when he approved the proposal of the Chief Secretary that the case may be rejected/regretted. In principle, the chapter stood closed and the appellant should have informed the applicants/beneficiaries that their request has been rejected and the prayer for conversion of the lease for 99 years and for different purpose could not C be granted, but surprisingly the copy of the same summary labelled as 'DUPLICATE' was placed before the Chief Minister Sindh without routing it through Chief Secretary/Secretary Finance as was done in the case of the earlier summary (Exh.13/7), as discussed above. The dispatch endorsement dated 23-2-1995 on the margin of both the summaries is the same. Last mentioned summary was produced by the same witness Abdul Jabbar as Exh.13/13. On a bare perusal, it shows that it has been marked to 'CHIEF MINISTER Sindh' whereas the summary (Exh.13/7) bears the words; "Chief Minister (THROUGH CHIEF SECRETARY/SECRETARY FINANCE)." The last summary (Exh.13/13) was not returned back through the Chief Secretary, but the Chief Minister in his hand marked it to "Member, Land Utilization". On this summary the Chief Minister passed the order "As in para 5." para 5 of the summary reads as under:-- "5. In view of the position explained above, if the Chief Minister, Sindh inclined to consider the request of the applicants, the same may be allowed U/Secretary 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 in relaxation of existing policy/Rules of business as well as ban imposed by the Government at the rate of Rs,5,000 per acre."
11. In pursuance of the above order the appellant, under his signature, issued the order in the form of letter addressed to Deputy Commissioner, Karachi Malir granting the request of beneficiaries. It would be beneficial to reproduce the contents of the letter as it would demonstrate the implementation of the order of the Chief Minister, which runs as under:- "In exercise of the powers conferred under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912, the Government of Sindh in Land Utilization Department with the approval of the competent authority has been pleased to convert an area of 96-0 acres in NC Nos. 908 91 Deh Kotirero 1 Malir from agricultural purposes on 30 years into agricultural/industrial/ commercial residential purposes on 99 years in favour of Mir Lutfullah Talpur and 10 others family members at the rate of Rs,5,000 per acre in relaxation of existing policy as well as ban."
12. On a careful examination of the signatures on these documents it can be judged with naked eye that the signature of the appellant dated 23-2-1994 on the first summary (Exh.13/7) and his signature dated 23-2-1994 on the second summary (Exh.13/13) is almost the same and this fact has not been denied. Further, the second summary, which has been implemented, also bears the same signature dated 8-10-1995 which seems to have been put by the appellant on return of the summary. The same signature appears on the letter dated 8-10-1995 (Exh.14/14) informing the Deputy Commissioner, Karachi Malir about grant of the request of beneficiaries. These signatures are not denied. It is worth-mentioning that the same signature appears on the first summary when it was returned back after rejection of the summary, this signature bears date 28-8-1994. The signature on Exh.21 whereby the defence closed its side, and the signature at the bottom of the statement of accused recorded on 21-7-2000 by the Court also appear to be the same. Similarly, the copies of the letters Exh.13/15, 13/16, and 13/17 issued by the appellant in respect of BAN on Allotment of State/Government land, on simple comparison appear to be the same. In this view of the matter it cannot be contended on behalf of the appellant that he had no knowledge of the rejection of the summary. Question No,8 in the statement recorded under section 342, Cr.P.C., relates to this point. The question and answer thereto are. Therefore, reproduced hereinbelow in extenso for the sake of convenience:-- "Q.No,8.--It has come in evidence that despite the above rejection of summary floated by you, you with mala fide intention again floated the photostat copy of the same summary mentioning duplicate on it and ignoring/hiding the para No, And 7 added by Finance Department and rejection order for approval of accused No,1 Syed Abdullah Shah and the same was allowed despite of earlier rejection. What have you to say?
' Ans. It is incorrect. I send all the pages of summary containing para 1 to 7 but it returned from Chief Minister office only para 1 to 5 with order of approval of summary."
13. The above answer is patently evasive and the explanation furnished by the appellant is neither plausible nor believable, for the page 3 of the first summary (Exh.13/12) which contains note of Finance Secretary and Chief Secretary both dated 23-8-1994 shows that the Chief Secretary recorded his note on 23-8-1994 and the Chief Minister passed order on 24-8-1994 and then there is stamp showing that it was received back in the office of Chief Secretary on 25-8-1994. Further, there is another stamp of Board of Revenue (Land Utilization) Department indicating that under- Inward No,2698 the file was received in the said Department on 28-8-1994 and the signature of the appellant bears the same date i,e, 28-8-1994, therefore, the plea that the appellant had no knowledge of the order passed on the first summary cannot be accepted.
14. Nevertheless, it may be noted that earlier in pursuance of the queries made by Finance Department the Land Utilization Department of Board of Revenue, of which the appellant was Secretary, had received U.O. No,FD-EXP.VI/LGC-335/94 dated 4-4-1994 on 7-4-1994 under Inward No,938 and this letter (Exh.13/8) bears the signature of the appellant on 7-4-1994, since the letter was addressed to the Secretary himself. In pursuance of the above queries the Land Utilization Department had written a letter dated 9-4-1994, (Exh.13/9) to the Deputy Commissioner Karachi Malir who made compliance and furnished the required information directly to the Commissioner, Karachi Division forwarding a copy thereof to the Deputy Secretary, (Land Utilization) Department, Government of Sindh and this copy (Exh.13/10) also bears the signature of the appellant with date 27-6-1994 and the stamp of Land Utilization Department also bears the Inward entry of the same date. On getting such information the Land Utilization Department, through their U.O. Letter dated 1- 8-1994 (Exh.13/11) forwarded compliance report and made a specific mention at para 3 of their letter that the Department's summary on the subject was being returned therewith. It is significant to mention that a summary of Chief Minister is not like an ordinary document to be dealt with only by officers of the lower infrastructure to the exclusion of the Secretary of the Department. But it is an official reference in pursuance of rule 17(i) of the Sindh Government Rules of Business, 1986 (hereinbelow to be referred to as 'the Rules'), the text whereof runs as under:-- "17.--(i) A case submitted to the Chief Minister shall include a Summary containing the relevant facts, points for decision and specific recommendations of the Minister and, if there is no Minister, of the Chief Secretary: ' Provided that in cases relating to service matters, the summary shall be routed through the Chief Secretary."
15, Consequently, the summary has to pass through the hands of the Secretary, who is official Head of the Department as prescribed under rule 4(ii) of the above said Rules and as such it cannot be believed that the appellant being Secretary of the Land Utilization Department had absolutely no knowledge of the correspondence referred to above and sending of the summary back to Finance Department after making compliance of the query.
16. Again, it is interesting to note that the second summary (Exh.13/13), which the appellant claims to have been returned to him bears, on the top of it, the word; 'DUPLICATE'. If, as claimed by the appellant, this was the same original summary forwarded by him, why it was labeled with '
DUPLICATE' although it bears the same Dispatch No,726 dated 23-2-1994 of the Land Utilization Department under their stamp as the original summary (Exh.13/7). It is also amazing to find that the second summary, besides bearing the first dispatch number as aforesaid, bears another stamp showing Dispatch No,1820 dated 2-10-1995. These circumstances indicate how in collusive manner the case was manipulated and second summary was shuffled in under the garb of duplicate summary of the original. It cannot be denied that even under Rule 17(ii) of the Sindh Government Rules of Business, 1986 the summary was to be routed back through the Chief Secretary after passing of an order by the Chief Minister. The said rule reads asunder:-- "17(i)...
17(ii) All summaries on which the Chief Minister has passed orders shall on their way back to the respective departments, be routed through the Chief Secretary."
17. Obviously, the above provision of the Rule puts every Secretary of the Department on caution to see that the summary on which the Chief Minister has passed orders, passes through the Chief Secretary. In case compliance of this rule has not been made it is incumbent, in normal course of business as also morally, that the Secretary of the Department should bring this fact to the notice of Chief Secretary before implementing the order; otherwise, it will amount to flagrant violation of the Rules. It is pertinent to emphasise here that even other provisions of these rules such as rules 22 and 23. Under rule 22(d) of the rules he was bound to inform the Minister about the important cases disposed of by him. Additionally, the subsequent order of the Chief Minister was in contravention of policy decision. It was, therefore, legal and moral obligation of the appellant within the meaning of rule 23(iv) of these rules to apprise him, but he refrained from doing so for the obvious reason that the main features militating against the proposal at para 5 of the summary were intentionally concealed with the common intention of extending undue benefit to the beneficiaries and in that backdrop he did not find it suitable to apprise anybody above his rank.
18. The learned Judge, Accountability Court has rightly mentioned in his judgment that it was duty of accused rather his moral duty to point out paras. 6 and 7 of the summary and suggestion of Chief Secretary and also that earlier order of rejection of summary passed by the Chief Minister, but he concealed all this which, on the face of it, is mala fide act on his part. This act, by itself, is sufficient to constitute an act of corrupt practice. Additionally it may be visualized that it was consequentially causing a colossal loss to National Exchequer as the market rate suggested by the Finance Department in para. 6 of the summary was Rs,3 lac to Rs,4 lac per acre which was blatantly ignored, obviously, with mala fide intention. Not only this, it was pointedly mentioned in para. 7 of the summary that the land fell within the site reserved for construction of New Sindh Secretariat Complex and in pursuance of the Government decision, notices had been served upon the beneficiaries for cancellation of existing 30 years leases earlier granted in their favour. These are the hard facts which ought to have been brought to the notice of the Chief Secretary, since these facts had come on record, while possessing the first summary after an effective exercise made in that behalf at the instance of Finance Department. During the arguments the learned counsel for appellant was unable to explain how all this could be justified if it is intended to establish that nothing was with mala tide intention.
19. The learned trial Court has taken into consideration the defence evidence whereby it has been demonstrated that relaxations in grant of leases etc. Of the lands have preciously been made at different stages through different officers and despite ban imposed by the Government on such grants/allotment favourable orders have been passed. Violation of statement of conditions issued under the Colonization Act, 1912 has also been duly considered by the trial Court. But it may be realized that, if any illegality or irregularity is committed in the past, the same cannot be legalized on the ground that it had repeatedly been perpetuated. Even if copies of the above summary produced as defence evidence are taken into consideration it would be conceived that the kind of duplication as in the instant case had never been done in any of those cases such as summaries Exhs.20/1, 20/2 & 20/3.
20. The evidence of defence witness Ghulam Hussain Mallah, Deputy Secretary to Government of Sindh, Law Department is to the extent of production of advice tendered by law Department through their letter dated 13-5-1990 wherein the Law Department has opined that under the Constitution all powers are vested in the Chief Minister and the Ministers, Secretaries and other functionaries of the Government derived their authority from them. In the first instance, it is to be emphasised that this advice mentions the powers vested in the Chief Minister and power does not include an exercise of power in violation of laws. Illegal exercise of power is never permitted by the Constitution or any other law. If goes without saying that exercise of the powers by way of granting the allotment for a new purpose and for a longer period on a plain calculation was to cause great loss to the National Exchequer. Therefore, it was not a bona fide order and the secretary who had concealed the earlier view manifestly approved by the same Chief Minister had undoubtedly, colluded with him later on and allowed the matter to proceed and bring the loss to the National Exchequer by extending benefit to the beneficiaries in whose favour the subsequent order of Chief Minister was implemented with no loss of time. The advice of Law Department is of no avail in the instant case.
21. Learned Accountability Court adverted to all these points in its judgment and reached at the just conclusion that the offence under section 9 of the NAB Ordinance was committed by the appellant on sound principles. The evidence was wholly documentary, the version given by the witnesses for prosecution furnishing any opinion were not enough to dislodge the case otherwise established through the documentary evidence .
22. On the whole, in view of the foregoing discussion, the appeal is without merits and is accordingly dismissed.
23. These are the reasons for the short order announced in Court on 6-2-2003.