2002 PLP 2362 (YLR)

10. In view of the submission made by the learned counsel for the parties, the following questions arise for our consideration: (1) Whether on the enforcement of the Ehtesab Ordinance X of 1997 and Ehtesab Act, IX of 1997, reference in question has abated in toto and whether in view of the judgment of the Supreme Court reported as PLD 2000 SC 26, the appellant can neither be tried nor convicted under section 3(1)(d) of the two repealed Ordinances and the Ehtesab Act, 1997. (2) Whether the Court below has exceeded its jurisdiction under section 540, Cr.P.C. and has collected evidence beyond the scope of the case and the charge against the appellant, thus such evidence should be excluded from consideration. (3) Whether on account of the evidence originally led by the prosecution and even considering that the Court below has validly collected the evidence against the accused, a case for the non‑supply of the furniture has been proved against him. (4) Whether the appellant under the Chief Minister's Discretionary Grant Rules, 1988 could make payment of the disputed amount to M/s Design Tex for the furnishing of his Secretariat and if no, whether such unauthorized action results into an offences under sections 3(1)(c) and 30)(d) of Ehtesab Ordinance, 1996/ 1997.

11. For the first part of this question, no lengthy discussion is required, because the point has been conclusively settled by the Honourable Supreme Court, in the judgment reported as PLD 2000 SC 26, where it has been held as follows: "In these circumstances, in our view, there was a clear intention on part of the Legislature while promulgating Ordinance, XX to provide continuity to the provisions of Ordinance, CXI. Therefore, in spite of the facts, that section 28 of the Ordinance (XX, did not specifically save the proceedings instituted under Ordinance, CXI, there was a clear intention on part of the Legislature to keep the proceedings instituted under Ordinance, CXI alive under Ordinance, XX. We are according of the view that proceedings initiated under Ordinance, XCI could be continued under Ordinance, XX after repeal of Ordinance, CXI".

12. For the other part, while disposing of Criminal Appeal No.444 of 2000, titled Mian Manzoor Ahmed Wattoo v. The State, we have considered the effect of the judgment and it has been held that the view of the Honourable Supreme Court expressed at page 43 is not in the nature of a passing observation, rather the Court has finally settled the proposition that the proceedings under the previous Ehtesab Laws, can only be A continued, if those relates to the Offences defined under the Ehtesab Act IX of 1997. Thus in view of the omission of the words "any other person" in section 3(1)(d) of the Ehtesab Act, which words were therein two Ordinances, the appellant cannot be convicted under section 3(1)(d) of the Ehtesab Ordinance CXI of 1996, or XX of 1997. Because the offence in the Act, is only restricted if any pecuniary advantages, undue B favour, etc. has been obtained or sought by the holder of public office for himself. his spouse or dependents. In the instant case, as alleged by the prosecution and even considering the statements of C. W.2 to C.W.4, no pecuniary advantage, etc. has been proved qua the persons, mentioned in section 3(1)(d) of the Act. The question is accordingly answered.

13. We propose to take up these questions together, because the discussion, the material and answers are interlinked. While considering the first question, suffice it to say that under the first part of section 540, Cr.P.C., the Court has the discretion to examine any person as a witness. But the second cart makes this obligatory for the Court for the purposes of just decision of the case. The Court cannot sit as a idle spectator, and leave itself at the mercy, of the parties, rather in the line with its true purpose of doing justice, the section enables the Court to examine any person at any stage of the proceedings, which is deemed by the Court essential for the just decision of the case. However, this power is neither unfettered nor unlimited, it cannot be left to the whim and caprice of the Court to exercise the power as desired by it; it is riot permissible for the Court to assume the whole of an investigator, in the sense to start holding a roving inquiry and dish the evidence for either the prosecution or the defence, which results in filling up the lacunas of their case and shall i disadvantageous to the other side. It is undoubtedly impermissible for the Court to travel beyond the case of the prosecution and start probing and holding an inquiry to set out a new case against the defence. The Court in the exercise of its power should confine to collect evidence for the just decision of the case i.e. the case propounded by the prosecution and cannot go outside the four corner of the prosecution case. In support of the above reliance, can be placed upon judgments reported as Muhammad Usman, and others v. The State (1991 MLD 17), State v. Bashir Khashkhith (1992 MLD 432) and Mst. Safdar Jan v. State (1997 PCr.LJ 1553).

14. Having set down the above criteria, while answering this and the other question, we consciously have made extensive reference to the additional evidence recorded by the Court. Because the Court below has endeavoured to collect the same for the just decision of the case, and therefore, it has to be evaluated if it was so expedient for such case. The case of the prosecution in the reference is that financial assistance was provided by the accused to M/s Design Tex by misusing his discretionary grant. It is not the case of the prosecution even in evidence, originally led by it, the goods for which the payment was made were never supplied and the entire transaction is fake and fraudulent. The justification to record further evidence, as per the initial order of the trial Court dated 15‑1‑2000, was in view of the first statement of the accused under section 342, Cr.P.C., in which he mentioned that the supply by M/s. Design Tex was made under the orders of C&W Department, this version obviously was contradictory to the statement of P.W.2, who in pith and substance stated that C&W was not involved and no cross‑examination was conducted by the appellant side. Thus in order to clear the confusion, at the best, the statement of Mr. Ahad, the record of C&W Department or re‑examination of P.W.2, on this limited point may be necessary. But to collect the rest of the evidence, on the subject that the goods were supplied or otherwise and probe and to hold inquiry, in this behalf, had no nexus with the allegations in the reference of the charge against the appellant. It has been conceded before us by Mr. Sher Zaman that the appellant can only be convicted if the allegations levelled in the reference and if the charge framed have been proved. Thus the evidence was absolutely, irrelevant for a just decision of the case, set up by the prosecution, we are, therefore, constrained to hold that such evidence being the result of improper exercise of the jurisdiction of the Court and beyond the mandate of section 540, Cr.P.C., is liable to be ignored as inadmissible.

15. Attending to the third question, the clear and straightforward case set up by the prosecution in the reference, against the appellant, is that he has provided financial assistance of Rs.10,61,125 M/s Design Tex, out of his discretionary grant, through Cheque Exh.PA, dated 9‑3‑1996. It is unambiguously specified in the reference, that according to the Chief Minister's Discretionary Grant Rules, 1988, the appellant had no power or authority to utilize the amount for the purpose of refurnishing of the Secretariat. Obviously the charge framed against the appellant, also spells out, the same aiicgations. In pursuance of proving its case, the prosecution has examined two witnesses namely Mr. Muhammad Umar, Treasury Officer, as P. W .1, who has proved the factum of payment of M/s Design Tex and as Exh.PA. The defence has not refuted his statement. P. W.2, Salman Siddique, the then Secretary to the Chief Minister under whose signature, the cheques 'was issued, while initially appearing has proved two facts, (1) the cheque was issued under the order of the appellant. (2) Normally, it is the function. of the C&W Department, to construct, maintain, repair and furnish government buildings and arrange for the required funds. Again this is not controverted by the defence in his cross examination. However, in the cross- examination, he admitted that it was not a financial assistance to M/s Design Tex, meaning thereby that the payment was for the job done or the goods supplied by it.

16. The prosecution, after examining the two witnesses and by producing the cheques Exh.PA, closed its evidence. So far the case of the prosecution is absolutely in line with the reference and the charge. Mian Ahad, C.W.1 in his statement‑in‑chief, deposed "I supplied furniture rind provided professional interior design services .to refurnish Chief Minister Secretariat on verbal orders of Mr. Salman Siddique, the then Secretary to the Chief Minister, Punjab.": He further stated "I cannot produce the acknowledgment, receipts from the persons who received the supply in respect of C. W.1/B and C. W.1/C. However, the acknowledgement receipts were obtained in respect of the goods supplied through the last bill Exhs.C.W.1‑D‑1, D2, D3, D4 and D5, bear the signature of persons who received the goods at 90 Shahrah‑e‑Quaid‑e Azam. In the cross‑examination conducted by the prosecution, while denying a suggestion and answering a question, he stated "it is incorrect to suggest that the payment of Rs.10,61,125 was made to me on the basis of a fake bill, voluntered I received these amounts for the supplies n ade by me. The payment of Rs.10.61,125 was made to me in connection with my second bill Exh.C.W.I/B". (It should be C. W. I /Q., No significant cross‑examination was made by the defence to this witness, as his statement supported the defence version. But answering a defence question, he deposed "It is correct that the goods supplied by me and as mentioned in the bills were found in the said office when I went there for getting up" From the statement of C. W.1, the undisputed yfacts, which emerges on the record, are that the refreshing was not conducted under the orders of C&W, rather on verbal orders of the P.W.2, and without a written contract being there. Though, he affirmed the supply of the goods and their availability on the site, however, the Court further thought expedient to record the statements of the other Court witnesses. The ratio of the statement of C.W.2, is, that the normal procedure for the furnishing of 90 Shahrah‑‑e‑ Quaid‑e‑Azam was not adopted. C&W Department, the responsible section of the Government was not involved; the matter was directly dealt with by the Chief Minister, and his Secretary, there is no written contract, between the government and M/s Design Tex for the supply of the furniture; (C. W.3, Malik Daim, is the Assistant Controller of 90‑Shahrah‑e Quaid‑e‑Azam, posted there since 1990, which includes the relevant period, he produced the stock register and stated in his statement‑in‑chief "The bill Exh.C.W.1/C is before me. The articles mentioned in this bill do not find mention in the stock register. Had these items been delivered at 90‑Shahrah‑e Quaid‑e‑Azam. It must .have been mentioned in the stock register. Whenever, I received any article for the said office. I made entry in the stock register. In answering a question, by the prosecutor, the witness stated "It is Correct that the goods mentioned in the bill Exh.C.W.1/B were supplied by M/s Design Tex and the payment thereof was made from the S&GAD, regular budget. These goods are entered in the stock register. I have seen the tall which have been exhibited as Exh.C.W.2/1 to Exh.C2/16 (this is the same document exhibited as C.W.1/C). The goods mentioned in these bills were never received to Chief Minister Secretariat at 90, Shahrah r‑Quaid‑e‑Azam, nor these goods find mention in the stork register. The goods mentioned in these bills are not lying in the Chief Minister Secretariat". But in the cross‑examination of the defence; this witness made some very important admission, he stated "All these goods which are purchased from the regular budget and which I actually received are entered in the stock register. The goods belonging to other departments and other goods purchased from the Chief Minister's grant, if handed over to me are entered in the stock register. The goods, which are from the discretionary grant, are not delivered to us. Staff of the Chief Minister, may answer this question". Further answering a. question of the defence counsel, he deposed "It is not in my knowledge that I did not enter the good supplied by M/s Design Tex because these goods were not purchased from the regular budget of the Chief Ministers Secretariat and that the staff of the Chief Minister was concerned with it'". He also stated "It is in my knowledge that Mian Ahad of Design Tex had furnished the upper storey of 90‑Shahrah e‑Quaid‑e‑Azam." He also deposed that "It is correct that I have made today's statement in regard to the goods because there is no entry in the stock register." From this statement, it is clear that the goods purchased from the discretionary grant of Chief Minister, were never delivered to the staff of the Secretariat and thus were not incorporated in the stock register. Besides, the witnesses had deposed about the non‑supply of goods only on account of the absence of the items in the stock register, and not his personal knowledge. C.W.4, Alla‑ud‑Din, was the caretaker of 90‑Shahrah‑e-Quaid‑e‑Azam, he in his examination‑in‑chief stated that except the articles mentioned in the Exh.C.W.1/B, no articles find mention in the stock register, the payment of the bill Exh.C.W.1/B, way made out of the S&GAD budget for 90 Shahrah‑e‑Quaid‑e‑Azam. The prosecution cross‑examined the witness and the following questions and answers are relevant. Q. No.

1. Have you seen the bills (C. W.2/1 to CW.2/16).? A. Yes. Q.No.2. Did you receive the articles mentioned in the aforesaid bills.? A. These articles were also not received at Chief Minister Secretariat, therefore, these articles are not entered in the stock register nor these are available at spot. However, in the cross‑examination of the defence counsel, the witness stated "'The entries to the stock register are made by myself, the comptroller, cashier and also by the caretaker. Simultaneously, the articles brought at 90‑ Shah rah‑e‑Quaid‑e‑Azam, are received by anyone of them. The articles received by others are not in my knowledge. It is correct that entries in the stock register relates to the purchase made out of the regular budget of S&GAD. It is correct that the articles purchased out of the discretionary grant is maintained by the Chief Minister's Secretariat." Again through his statement, it is not proved that the goods covered by Exh.C.W.1/C or Exh.C.W.2/16, were never supplied at the site; moreover, there is an admission by him that goods which are purchased from the discretionary grant of Chief Minister, were not entered in the stock register.

17. The statement of Mr. Salman Siddique, second time as P.W.2 was recorded on 9‑10‑2000, he in his examination‑in‑chief, stated the refurnishing was directed by the Chief Minister, who selected M/s Design Tex, after examining the portfolio of some interior decorators as well, there is no report to writing showing delivery of the articles at 90‑Shahrah‑e‑Quaid‑e‑Azam, but deposed that it was not his responsibility to ensure the entries of these articles in the stock register, in prosecution's cross‑examination., the witness stated that he did not point out to the Chief Minister that the Chief Minister, could not utilize the amount from his discretionary grant for the said purpose, because he (the witness) believed that the Chief Minister, could do so. In the cross‑examination of the defence P.W.2 stated "It is correct that certain hotel bills pertaining to the period of Mr. Ghulam Haider Wayne, were paid out of the discretionary grant on the direction of the Finance Department. It is correct that the amount spent on payment of hotel bills as well as the amount paid to M/s Design Tex, on the account of bills as the amount paid to Design Tex, on account of furnishing 90 Shahrah‑e‑Quaid‑e‑Azam, was forwarded to the Finance Department for approval and recoupment, to which the Finance Department approved and recouped. It is not in my knowledge whether any audit objection was ever raised pertaining to these expenditures. It is correct that the payment made to Design Tex, was not in the form of a favour or with intention to cause loss to the government exchequer rather it was to discharge Government liabilities".

18. From all the above‑referred evidence, it is not proved beyond doubt that the goods in question were never supplied at 90‑Shahrah‑e‑Quaid‑e‑Azam, and the entire transaction was fake and shame. Therefore, our answer to the above question is, that neither through the original evidence nor by the one collected by the Court, it is proved on the record that the goods were not supplied I by M/s Design Tex, at 90‑ Shah rah‑c‑Quaid‑e Azam, Lahore. The conviction of the appellant, by the trial Court, thus on the reasonings that the goods have not been supplied, is not sustainable under the law.

19. For resolving this `question, the facts are not much in dispute, between the parties, the admitted position is that the order for refurnishing was placed to M/s Design Tex by P.W.2, on the direction of the appellant: no formal sanction or order was issued: no contract in writing was executed in this behalf, C&W Department, was the responsible body for the maintenance, and refurnishing, etc. of the Secretariat but was not involved in the matter; the purchase manual was not followed in this transaction. Now, on the basis of these facts, it is to be adjudged as to whether the appellant can be charged and convicted for having committed ,in offence within the purview of section 3(1)(c), of the Ordinance or Act IX of 1997, because there is no difference in the language of these enactments. The relevant essential constituents of the offence under the said provisions are, if a holder of a public office, or any other person "dishonestly" or "fraudulently" "misappropriates" any property entrusted to him and under his control as a holder of the public office or willfully allow any other person to do so. In view of the above, an ancillary question arises, whether the decision of the appellant to furnish his Secretariat, which is the first step in the transaction was "dishonest" "fraudulent" and with the intent to "misappropriate" the amount from his discretionary grant. This is neither the case of the prosecution in the reference nor any evidence has been led by it, even from the evidence collected by the Court, this fact is not proved. When the appellant appeared as D.W.4, he deposed in his examination‑in‑chief, that the Secretariat was in bad shape and required refurnishing, this statement was not controverter in the cross‑examination. Therefore it cannot be held that the decision of the accused in this behalf, was dishonest, etc. with the object of misappropriation of the funds.

20. The second relevant question is, whether the utilization of the amount from his discretionary funds, suffered the vices indicated in section 3(1)(c). Undoubtedly, in the normal course, the refurnishing should have been got conducted through C&W Department, by following the rules prescribed in the purchase manual. But if the above process has not been adhered to, is it a case of illegal and improper exercise of his authority and abuse and misuse of his position, or a case of fraud and dishonesty, resulting into misappropriation, falling under the section ibid. In our view, every unauthorized action, violating the law and the prescribed procedure, though may be subject of judicial review in some different jurisdiction, but per see is not an offence under section 3(1)(c). Because as held in the judgment referred to in paragraph No.7, (supra) mens rea or the criminal intent is an essential element for the purpose of convicting a person for a criminal offence. In this case, interpreting the Chief Minister's Discretionary Grant Rules, 1988, even if it is found that the appellant had no power to utilize the funds for the furnishing of the Secretariat, yet the appellant from the evidence on the record, cannot be imputed of acting with a guilty mind.

21. Furthermore, according to the relevant rules, the discretionary grant could be utilized by the Chief Minister, for any of the purposes mentioned in clause No.2. The sub‑clauses (I) to (IV) provides, the specific purposes of the utilization of the amount, but clause (V) generally empowers the Chief Minister the use for "any other purposes, which may be deemed appropriate by the Chief Minister." This provision with a bona fide belief, if has been properly construed or misconstrued, by the appellant, considering himself empowered to use the funds for the purposes of refurnishing, how in law such an action without there being any evidence, on the record can be termed as the result of dishonesty and fraud on his part. The argument of Mr. Sher Zairian, that in view of the principles of ejusdem generis, this general power of the Chief Minister is circumvent by the specific purposes in the preceding clauses. Suffice it to say that the interpretation of law is the duty and the prerogative of the Courts. The principles of ejusdem generis is a rule of interpretation of the statutes and is a complex legal question, which is still subject of interpretative dominion of the Courts depending upon the object and the language of a particular law. The appellant as a lay man was not supposed to know such intricate legal principles and in any case his misconception of the law, cannot constitute the commission of a criminal offence by him; especially, when even according to P.W.2, who is a senior bureaucrat, himself believed that the Chief Minister, could use the funds for refurnishing. Moreover, it has come on the record that certain outstanding hotel bills, pertaining to the previous regime was proposed to the appellant, by the Finance Department, to be paid from the discretionary grant; which were duly paid and the amount so spent and the one involved in the case, was recouped by the concerned department. The contention of Mr. Sher Zaman, that this tact has not been established by the appellant, though he availed the opportunity of leading defence evidence, therefore, presumption under section 129(g) of the Qanun‑e‑Shahadat Order, 1984, be drawn against him, suffice it to say that the fact has not only come in the statement of P.W.2, but the appellant while appearing as D.W.4, has made an unequivocal deposition in this behalf, but no cross‑examination, was conducted by the prosecution. It is settled law that any fact deposed in the examination‑in‑chief if not subjected to cross‑examination, shall be deemed to have been admitted by the other side. Thus in the light of the above,. it was not necessary for the appellant to have summoned the record of the Finance Department, therefore, no adverse inference can be drawn against him. In view of the above discussion, we hold that if even the appellant had no authority to use the funds from his discretionary grant for the refurnishing purposes, a mistake of civil law in absence of criminal intent would not constitute an offence. It may pertinently to be added that we have deliberately refrained to express our view on the point raised by Mr. Shef Zaman that by applying the principles of ejusdem generis, the provisions of sub‑clause (2)(1)(v) of the Discretionary Grant Rules, be declared as subservient to the specific purposes mentioned in the rules and also the argument of Mr. Mushtaq Ahmed Khan, that the Chief Minister under the Rules of Business has the power to relax the rules. Because to our mind, in view of the discussion on the subject, these issues are irrelevant for the purposes of disposal of the present appeal.

22. Now coming to the submission of Mr. Sher Zaman Khan, that adverse presumption be drawn against the appellant for withholding the evidence, indicated above, we have already dealt with the question of outstanding hotel bills and the recoupment part. For the remaining, though it is not the case of the prosecution, yet the burden on the question about the non‑supply of .he goods initially was on the shoulder of the prosecution, but from its evidence and even that collected by the trial Court, the requisite burden has not been discharged, therefore, no such interfence can be validly drawn. In the light of above, we find that the prosecution has failed to make out a case against the appellant under section 3(1)(c) or 3(1)(d) (which otherwise has been held inapplicable to the case), of the Ordinance/Act, 1997, therefore, by setting aside the impugned judgment, the appellant is accordingly acquitted. He shall be released forthwith unless detained in any other case. Appeal accepted. N.H.Q./M‑1410/L