1993 P Cr (PLP)

(2) The person entrusted (a) dishonestly misappropriating or converting to its own use that property; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation-- (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust.

8. Admittedly the applicant was working as Chief Minister, Government of Sindh, when he had sanctioned the grant of land to different builders. Article 139 of the Constitution of Islamic Republic of Pakistan, 1973, deals with the conduct of business of Provincial Government in the following (l) All executive actions of the Provincial Government shall be expressed to be taken in the name of the Governor. The Governor shall by rule specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instrument so authenticated shall not be questioned in any Court on the ground that it was not made or executed by the Governor. (3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government." 9, in exercise of the powers vested in the Governor, the Sindh Government Rules of Business, 1986, were framed which are effective from 20th November, 1986. Needless to say that these rules have got statutory status and the business of Government of Sindh is conducted in accordance with these rules. Rule 7 of the Sindh Government Rules of Business, 1986, relates to the powers of the Chief Minister in the following words:-- "(i) The Chief Minister may allocate to a Minister one or more Departments or part of a Department, but the Chief Minister shall have powers t0 pass order in any case concerning any Department without consulting the Minister of that Department. (ii) The Chief Minister may, in respect of any Department, delegate all or any of his powers under these rules to the Minister or Secretary of that Department. (iii) Any order passed by the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Government."

10. It is thus apparent that the Chief Minister who is the Chief Executive of the Province acts as "Government" while taking decision in cases referred to him under Rule 17 of the Sindh Government Rules of Business, 1986. During the course of arguments the photo copy of the summary dated 5-7-1989 was placed on record, which disclosed that it was initiated by Mr. Ayaz Hussain Ansari, Secretary to Government of Sindh, Land Utilization Department, Karachi, with the following recommendations contained in para. 13 thereof:-- "Since the available land is 55-20 acres only, all the applicants -Construction Companies cannot be accommodated. It is, therefore, proposed that the following Construction Companies may be allotted ten acres in each in Block No.17 of K.D.A. Scheme No.36, situated in Deh Okewari by private negotiation at the rate of Rs.260 per sq. yard as under:-- (i) Messrs Kamran Builders. (ii) Messrs Imran Builders. (iii) Messrs Mudassar Builders. (iv) Messrs Mohsin Construction Co. (v) Messrs Jabbar and Company. the price of land shall be subject to concurrence of the Finance Department and the land shall be utilised in accordance with lay-out plan to be approved by K.DA. as per rules." This recommendation was approved by the applicant as the Chief Minister of the Province, who had further directed to obtain the views of the Finance Minister about the price of the land. Obviously, therefore, it was the Finance Mini9ter who had concurred with the recommendation regarding the fixation of the price of the land. On the face of the record the applicant acted in accordance with the procedure laid down by the Sindh Government Rules of Business, 19866, In conducting the affairs of the Government things are often done which may subsequently be found to be wrong, but every wrong decision by the Chief Executive of the Province does not invite penal action. In this case none of the civil servants responsible for floating the summary and the beneficiaries of this deal was prosecuted. Co-accused Asif Ali Zardari, for whose benefit the applicant is said to have taken this decision was also acquitted as the charge against him was found to be groundless, but still the proceedings pending against the applicant were allowed to continue, although as observed above he simply approved the recommendations made by the Secretary, to Government of Sindh, Land Utilization Department, Karachi.

11. Again the contents of F.I.R. and the statements of witnesses recorded during the course of investigation do not make out any case under section 406, I P.P.C. Two things are essential to constitute an offence under section 406, P.M., in the first place there must be a trust or dominion and in the second place dishonesty. However, where there is question of error of judgment only on the part of accused, he cannot be held liable for any such offence, specially when as the Chief Executive of the Province he has to take such decisions every day. On these facts how does the case stand? To my mind therefore, it is quite clear that if I were to allow these proceedings to continue I would be allowing a farce to be enacted to the great harassment of the applicant.

12. The matter was indeed argued very ably and exhaustively on both the sides and it was reserved for judgment when on 9-9-1992 the following application was moved under section 561-A, Cr.P.C.:-- "It is submitted on behalf of the petitioner as follows:-- (1) That the above matter was argued before this Honourable Court when a submission was made that the pieces of land leased out to Messrs Kamran Builders and others at particular prices suggested by the Member, Land Utilization Board of Revenue were cancelled. But subsequently the leases were restored to all the 4 parties, at the same price and on the same terms and conditions. (2) That the documents confirming the position could not bet filed earlier as those could not be obtained despite best efforts. (3) That the above documents have come to the possession of the petitioner now. (4) It is, therefore, prayed that the petitioner may be allowed to file the documents showing that the lease has been restored to all the 4 parties at the same price and on the same terms and conditions by the subsequent Government which in essence is the allegation against the petitioner."

13. Faced with this situation, Mr. Abdul Hakeem Bijarani, learned AA.-G. for State, fording himself on the horns of dilemma, conceded and I think rightly, that in view of the documents placed on record whereby the action taken by the applicant was ratified by his successor, he was not in a position to support the prosecution of the applicant.

14. Having regard to the above factual and legal position, I am of the view that "to allow the case to proceed would be to allow a mock trial to proceed, with no purpose". In the result the application filed under section 561-A, Cr.P.C, is allowed and the proceedings pending against the applicant under section 406/109, P.P.C. (Crime No.497 of 1990), New Town P.S. before the trial Court are quashed. N.H.Q./Q-74/K Proceedings quashed