P L D 2002 Lahore 458 (PLP)

(i)

(ii)

(iii)

(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. " . Section 3(1)(d) of the Ehtesab Ordinance, 1997 "

3. Corruption and corrupt practices.‑‑(1) (a)

(b)

... (c)

... (d) if he, by corrupt, dishonest or illegal means obtains of seeks for himself or for any other person' aan' property, valuable thing, pecuniary advantage or undue favour."

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:‑‑ Islamabad, September 15, 1996.

1. As Minister is s kindly aware that we have been under tremendous pressure from the Parliamentarians to cater for their essential requirements of recruitment in the O.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 file 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 to 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.Ijaz 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 maybe 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 45‑11‑1996 to 26‑11‑1996 .. .. ..It is correct that before appointments the Prime Minister had also trade 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.PW5/19). 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 O.G.D.C. officials that these applicants should be adjusted in derogation of the prevalent O.G.D.C. Rules of Recruitment, policy or law. The object of sending this note to the O.G.D.C. was for the applications to be examined and their opinion obtained as to whether the applicants could be accommodated as per O.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 O.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) I 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 O.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 on more than one occasion, disagreed with prevailed. Exhs.DWl/16 and DW1/17 are cases in point. In Mian Ghulam Muhammad Ahmad Khan Maneka v. President of public 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 t in mind that the Reference filed against the appellant did not seek judicial I 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. C 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 Mciean & 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 wilt, 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 to 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 ' 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 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(l) 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 construe) even a recommendation made by a public servant 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 w s 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 t 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 R5; observed as follows:‑‑ "We have given our considered thought to the point in question and do believe and hol4 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 tile 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. M.B.A./M-1261/L Appeal allowed.