IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioners seek leave to appeal against the judgment, dated 29th December, 2003 passedby learned Division Bench of the High Court of Balochistan, Quetta, in Crirninal Ehtesab Appeals Nos.55 and 56 of 2001.
2. Precisely stating facts of the case are that both the petitioners were sent up to face trial before the Accountability Court for the commission of following acts:--
(i) That the appellants in connivance and collusion with each other illegally disposed of 321 plots of Municipal Committee, Ziarat on lesser/cheap rates by preparing forged documents and giving fake allotment numbers, although they were not authorized under the rules and law to allot any such plot since there was ban by the Provincial Government on the allotment of plots.
(ii) That appellant Muhammad Yousaf who was Junior Clerk in Municipal Committee, Ziarat had actively aided and assisted the appellants Shaukat Ali Shah and Abdul Nabi in the allotments of abovesaid plots, thereby all of them caused a loss of.
Rs,1,20,63,456 to the Government exchequer.
3. Petitioners who faced trial alongwith another accused namely Shaukat Ali Shah did not plead guilty to the charge.
Prosecution led evidence to substantiate accusation against them. Learned trial Court on having recorded the evidence of prosecution, examined the accused persons facing trial under section 342, Cr:P.C. And opportunity was also given to them to make statements on oath as their own witnesses within the contemplation of section 340(2), Cr.P.C. And also to produce defence evidence, if desired by them, however, they did not avail this opportunity. Learned trial Court, on completion of trial, convicted/ sentenced the petitioners as well as Shaukat Ali Shah details whereof to the extent of petitioners case are as under:-- Sr. No, Name of accused Under section Sentence
1. Abdul Nabi 10, 11 and 12 of the NAB Ordinance, 1999Three year's R.I. Fine of Rs.10,000,00, in default one year R.I. Disqualified for ten years to hold any public office or contest election and also not allowed to apply for or allow any financial facility in form of loan or advance from any bank or financial institution for a period of ten years. Benefit of section 382-B, Cr.P.C.
2. Muhammad Yousaf 10. 11 and 12 of the NAB Ordinance, 1999Three yearsR.I. Fine of Rs.5,00,000, in default one year R.I, Disqualified for ten years to hold any public office or contest election and also not allowed to apply for or allow any financial facility in form of loan or advance from any bank or financial institution for a period of ten years.
Benefit of section 382-B, Cr.P.C.
4. Appeals were filed by the petitioners before the High Court challenging the above conviction/sentence but without any success as the same have been for by means of impugned judgment. As such instant petition for leave to appeal has been filed.
(4-A). It may be noted that Shaukat Ali Shah, Chief Officer, has also filed appeal before the High Court against his conviction/sentence awarded to him by the Accountability Court and after the dismissal of the same, he had not approached this Court.
5. It is contended by learned counsel on behalf of petitioner that as far as Abdul Nabi convict is concerned, he had obtained permission from the Competent Authority before issuing Pattas of 36 plots, therefore, the learned trial Court as well as High Court, without having taken into consideration this aspect of the case, have convicted/sentenced to the petitioner which has caused injustice to him.
(5-A). It is to be seen that learned High Court has thoroughly examined the available record and on the basis of the same made observation that "no such approval or sanction of the Competent Authority is available on record. According to the appellants the prosecution with mala fide intention withheld sanctions/approvals in order to falsely implicate 'them in the case". Despite of such stand, on behalf of petitioners, the record was perused by the High Court and it was held that "no such sanction or approval is available", with the further observation that "in such circumstances after the specific denial of the prosecution about the existence of any such document which could show that the Competent Authority has approved the allotments of the disputed lands and in pursuance of those approval the appellants have issued disputed Pattas, it was for the appellants/defence to have produced such record which according to them was available in the office of Secretary, Local Government. In pursuance whereof it can safely beinferred that no such sanction or approval was available on record and these Pattas have been issued in violation of rules and notifications without sanction of the Competent Authority".
Learned counsel, to substantiate his plea, has drawn our attention toward certain documents which are available on record particularly Letter No,1446, dated 12th July, 1980 issued by the Chairman of District Council Sibi in pursuance whereof a plot was transferred in the name of Mushtaq Ahmed Mirza and statedly this very plot was subsequently transferred by the original allottee in the name of Nooruddin by submitting an application on 18th October, 1993 and the Competent Authority passed order on the same, therefore, petitioner issued the Patta in compliance with the said order. It may be noted that all the three documents have not been exhibited on record nor any of the witnesses before the trial Court were confronted with them.
Inasmuch as there is no order regarding granting sanction/approval for the transfer of plot from the name of Mushtaq Ahmed Mirza on the name of Nooruddin. Therefore, we are of the opinion that the plea raised by the learned counsel has no substance. It is to be noted that if at all the petitioner was conscious that he has acted under the lawful authority, there was no hurdle in his way to bring on record these documents in order to show that he was not responsible for illegal transfer in the names of different persons from time to time but in absence whereof no other inference can be drawn except that the petitioner intentionally not produced such documents in his defence in order to discharge the burden which has shifted upon him in view of his stand that prosecution has withheld these documents with it. Therefore, we are of the opinion that the petitioner has rightly been held liable for illegal transfer of plots by issuing Pattas without approval of the Competent Authority.
6. Learned counsel next contended that there are so many persons who being the employees of the Municipal Committee have been transferring the plots in the names of the different persons, but no action has been taken against them.
(6-A). Suffice it to observe that learned High Court in the impugned judgment has already made following observations in respect of none taking of action against those persons/officers/officials of the Municipal Committee who allotted/granted Pattas in the same manner but no action has been taken against them:-- "It may be a matter of concern for the Authorities to look into it as to why the persons who were prima facie involved in the scam have been let off by the I.O. We are unable to withhold our observation that during hearing of the different appeals it was noticed that in several cases the persons involved in the crime and against whom sufficient material have come on record, prima facie connecting them with the offence have not been arrested/interrogated, or challaned for the reasons best known to the Investigating Officers which is not only earning bad name to the NAB but in this way the purpose and intention for which NAB Ordinance, 1999 was promulgated is being frustrated."
For the above reasons no further observation is called for except adding that it is now for the Competent Authority i.e, NAB to initiate action against like minded persons who are responsible for indulging in suchlike illegal activities relating to transfer of plots in the names of various persons unauthorizedly because discriminate action against corrupt persons had already eroded credibility of the NAB and its such conduct runs against the observations of this Court in the case of Zafar Ali Shah v.
Pervez Musharraf, Chief Executive of Pakistan PLD 2000 SC 869 wherein action of military take-over was validated for one of the reasons that corruption in the country was so rampant amongst the politicians and Government Officers and others due to which economy of the country was about to collapse, relevant paragraphs therefrom are reproduced hereinbelow:-- "232. Now we come to the question whether corruption can be made a ground for justifying intervention by the Armed Forces.
We would be examining this question in a slightly different perspective, inasmuch as, the world community is committed to the policy of showing "zero tolerance" to all types of corruption. It is a said state of affairs that no conceivable steps were initiated to curb the systematic corruption because of lack of transparent accountability during the tenure of the previous Government. The material placed before us indicates that the former Government had shown little interest in eradicating corruption from the society.
233. 'Corruptionis generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all. Offices of trust. It has diverse meanings and far-reaching effects on society, Government and the people. Of late, the culture of corruption and bribe has embedded in our society to the extent that even routine works which should be done without any approach or influence are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. In Anatulay VIII (1988) 2 SCC 602 where Abdul Rahman Anatulay, Chief Minister of Maharashtra wasprosecuted for corruption Sabyasachi Mukharji, J. Lamented as follows:-- "Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is commonplace today. A new value orientation is being undergone in our life and culture. We are at the threshold of the cross-roads of values. It is for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters."
234. Although we are dealing with a case of intervention by the Armed Forces, yet it would be advantageous to allude to the ground of corruption, which came up for consideration in the cases of Kh. Ahmed Tariq Rahim PLD 1992 SC 646, Mian Muhammad Nawaz Sharif PLD 1993 SC 473 and Benazir Bhutto PLD 1998 SC 388 (supra). In the first case, it was observed by Shafiur Rehman, J. That corruption may not have been independently sufficient to warrant such an action, but it can be invoked, referred to and made use of alongwith other more relevant grounds, which are by themselves sufficient to justify the action taken. In Mian Muhammad Nawaz Sharif's case (supra), it was observed that 'if the corruption, nepotism and favouritism are of such a large scale that they have resulted in the breakdown of the Constitutional machinery completely, it may have nexus with the above provisions'. In the third case of Benazir Bhutto, this Court took notice of enormous corruption and treated it as an independent ground on the basis of which an Assembly could be dissolved (Underlining is by way of emphasis). Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed. Recounting the instances of alleged corruption the Federation has pointed out Sharif's ownership of Cayman Island, an offshore company through Al-Towfeek Co. And the case of huge quantity sugar export to India--receiving heavy amounts in rebate. When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of 'corruption eruption', but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must bead dressed adequately and effectively through transparent institutionalized processes.
235. The observations made herein and in the Short Order are not intended to condemn en bloc the politicians and parliamentarians as a class, Undoubtedly, there are good, honest and upright as well as corrupt people in every group of persons. These observations are confined only to the situation which is being attended to in these cases. Any proceedings commenced against any person including the parliamentarians or politicians or members from the general public under the laws of the country will, no doubt, be decided on their own merits in accordance with law and on the basis of the legally admissible material brought before the concerned fora in those proceedings without being influenced by any observations made in this judgment. Put differently, it will be only after the finalization of the proceedings as above that the country will be geared up for resort to democratic principles and corruption-free society which are prerequisite for good governance. This situation has also been recognized by the Commonwealth Finance Ministers Meeting held on 21-23rd September, 1999 at Grand Cayman, Cayman Islands."
7. It is now the duty of NAB to ensure, indiscriminate criminal action against corrupt persons cross the board to establish its credibility amongst the masses, failing which, public exchequer once again shall be looted by the unscrupulous persons who have no interest at all in the well-being of the Nation.
8. Learned counsel next contended that as far as Muhammad Yousaf (petitioner) is concerned he was Junior Clerk and no evidence has been brought on record to involve him in the commission of offence.
(8-A). It is to be noted that number of witnesses have appeared before the trial Court who, in unequivocal terms, stated that he has been receiving illegal gratification from them for the purpose of issuing Pattas or documents in their favour. In this behalf reference may be made to the statements of P.Ws. Ziauddin, Abdul Aziz, Muhammad Jan, Muhammad Usman, Shamsuddin, Muhammad Muqaddam etc. Who have deposed on oath before the Court that they had paid illegal gratification to appellants Shaukat Ali Shah, Abdul Nabi and Muhammad Yousaf, which were received by them on the pretext that the amount paid by them in lieu of the Government taxes but no such record is available which could show that the said amount was in fact Government taxes. These witnesses have been thoroughly cross-examined but nothing could be extracted from them rendering any benefit to the petitioner. Therefore, we are of the opinion that the learned High Court was quite justified in maintaining conviction of Muhammad Yousaf.
9. No other point was argued by the learned counsel for petitioners.
Thus, for the foregoing reasons, we see no substance in the instant petition which is hereby dismissed and leave declined.