P L D 2002 Lahore 95 (PLP)

MIAN NAZIR AKHTAR, J.

By this judgment we propose to decide this appeal alongwith Criminal Appeal No. 1159 of 2000 in which common questions of law and facts are involved.

2. The appellant was tried by the Judge Accountability Court, Attock for an offence under section 10 read with section 9(a)(vi) of the National Accountability Bureau Ordinance, 1999 and was convicted by the Court vide its judgment dated 15-7-2000 under section 9(a)(vi) of the Ordinance and sentenced to R.I. for 14 years with a fine of Rs.5,00,00,000 (Rupees five crores) and in default of payment of fine to undergo R.I. for a period of three years. The co-accused Anzar Hussain Zaidi (appellant in Criminal Appeal No. 1159 of 2000) was also convicted for the same offence and sentenced to R.I. for,10 years with a tine of Rs.50,00,000 (Rupees fifty lacs) and in default of payment to undergo R.I. for 3 years. The Court disqualified the appellant under section 15 of the Ordinance from being elected, chosen, appointed or nominated as a member or a representative of any public office or any statutory or local authority of the Government of Pakistan for a period of 21 years.

3. At the relevant time the appellant was serving as Minister, Local Government, Government of Sindh while Anzar Hussain Zaidi co-convict was serving as Administrator, Karachi Metropolitan Corporation (hereinafter referred to as the Corporation). The foundation of the prosecution case is award of a contract to Messrs Bolan Enterprises (hereinafter referred to as the firm) for collection of octroi dues fur goods entering the limits of the Corporation through rail/road side for the years 1997-98. The agreement EXh.P.H. was executed on 5-7-1997 between Anzar Hussain Zaidi, the then Administrator Corporation and the firm. The prosecution case is that the contract was illegally granted to the firm and was wrongly confirmed by the Government of Sindh under the influence of the Minister, the appellant. It was claimed that the contractor did not have any lawful right to collect sea dues for goods emanating from Port Qasim but in view of clause 6(10) of the agreement wherein the words "Port Bin Qasim" were inserted subsequently and letter Exh.P.Q. issued by the Government of Sindh, the firm succeeded in collecting sea dues from Port Qasim source at least to the tune of Rs.3,48,00,000 within a period of about 3 months and thereafter could not make further collections in view of the judgment of the Sindh High Court. The matter, was probed into under the directions of the Chief Ehtesab Commissioner and it was found that a case under section 3 of the Ehtesab Act, 1997 was made out against the appellant and his co-accused. However, before a reference could be filed under the said Act, the Act was repealed and substituted by the present National Accountability Bureau Ordinance, 1999. Again the matter was examined by the Chairman NAB and an investigation was conducted as a result of which Reference No. 1 of 2000 was tiled against the appellant and seven others. Out of the eight accused, the present appellant as well as Anzar Hussain Zaidi were convicted while their co-accused remained fugitives from the law. ?????

4. In para. one of the reference a part of the judgment of the Sindh High Court passed on 17-4-1998 in Writ Petition No.D-1778 of 1997 was quoted. It is reproduced below for ready reference:-- ?While allowing the petition in terms, with costs of Rs.100,000 each against the contractor and the K.M.C., we would expect an inquiry against all relevant officers in accordance with the observations already recorded and the matter would be taken care of by the Chief Secretary of the Province, report being submitted within two months. Outcome of the above on-going inquiry would be placed before us within 10 days. In addition copies of this order would be forwarded to the Chief Ehtesab Commissioner as also to the Provincial Ombudsman for appropriate action including such as may commend itself pertaining to the role of the Minister in charge, namely Dr. Farooq Sattar. Needless to add that none of this could be brought about by the Additional Chief Secretary alone. Political patronage and political complicity is a forgone conclusion in such a scenario. It should also be checked as to what political linkage existed, when the goings on in Zahid Hussain's case (ibid) were taking place. Reports within two months. Forward copy also to the erstwhile Chief Secretary, Sindh, who had hitherto been dealing with this dispute. In the light of the above-quoted para. of the judgment, the case was investigated and then the present Reference filed against the appellant. He was formally charged by the Court on 23-5-2000. The charge reads as under:-- "I, Mr. Farrukh Lateef, Judge Accountability Court, Attock Fort, constituted under the National Accountability Bureau Ordinance, 1999, do hereby charge you, (i)???????? Dr. Muhammad Farooq Sattar s/o Abdul Sattar, former Senior Minister Local Government, Government of Sindh, resident of House No.268, PIB Colony,, Karachi, and (ii)??????? Mr.Anzar Hussain Zaidi s/o Shafi Ahmad Zaidi, former. Administrator, K.M.C? resident of A/131, Block 1, Gulshan-e?-Iqbal, Karachi as follows:-- That in the year 1997, you Dr. Muhammad Farooq Sattar and Mr. Anzar Hussain Zaidi being holders of public office, respectively Minister Local Government, Government of Sindh and Administrator, K.M.C. alongwith your co-accused Mr. Ahmed Maqsood Hameedi, the then Secretary Local Government (accused No.3 since absconding, in collusion with each other and with accused Nos.4 to .8 in the reference, partners of Messrs Bolan Enterprises (since. absconding) misused your authority while awarding contract to the said Firm for the collection of octroi for the year 1997-98 regarding rail/road route in order to give undue favour and benefit to the said Firm in allowing it vide Condition No.6(10) of the Contract, to collect octroi on goods imported from P.Q.A. source, which is sea route and to which the said contract did not relate under the terms and conditions on which it was awarded and the said Firm did not have any lawful right to collect octroi in respect of goods issued from P.Q.A'. source, as a result whereof you caused the said Firm to make undue pecuniary gain at least to the tune of Rs.3,48,00,000 within a period of three months up, to 12-I1-1997 whereafter further collection of the octroi could not be made by it due to the appointment of the official assignee by the Hon'ble Sindh High Court on 13-11-1997, and thus you both committed an offence punishable under section 10 read with section 9(a)(vi) of the National Accountability Bureau Ordinance, 1999 which is within the cognizance of this Court. I hereby direct that you both be tried by this Court on the said charge. " The charge was read out and explained to the appellant who did not plead guilty and claimed to be tried. In support of its case the prosecution produced 10 witnesses and closed its evidence.

5. P.W.I Muhammad Ibrahim Qureshi stated that in the year 1997 he was posted as Director-General, Local Government, Karachi and was a Member of the Auction Committee constituted for holding auction of lease? hold rights for collection of octroi from rail/road side octroi post; that two other members of the Committee were Ch. Shafique, Director Octroi and Mr. Umar Khan, Finance Advisor; that the bids were invited three times on 22nd, 24th and 28th of April, 1997 but no one came forward to participate in the auction; that after about a month he learnt that the offer of Messrs Bolan Enterprises for collection of octroi was confirmed and that it was done without the recommendation of the Auction Committee. In cross?-examination, he denied the suggestion that after failure of auction proceedings on three times, a recommendation was made by the Auction Committee that upset price may be increased by 15 % to accept private offer and if necessary, the 3% margin be also given. However, he admitted that he had recommended 3% reduction from the contractual amount of the last year in his capacity as Director Local Government and not as a member of the Auction Committee. He was duly confronted with para. 92 of the minutes in which his capacity was mentioned as Member of Auction Committee. He further stated, "I cannot say as to whether or not the Port Qasim factor was taken into account by the competent authority while fixing the upset price throughout my tenure. Throughout my tenure, I did not receive any complaint from any Octroi Contractor or intending Octroi Contractor about improper fixation of upset price". P.W.2 is Khaliq Waqar, Deputy Director Octroi. He stated that according to his information the offer of Messrs Bolan Enterprises was not 'sent to the Auction Committee by the Administrator, K.M.C.; that it was processed at a higher level and was accepted. He stated that after Port Qasim became fully functional on 8-10-1997 the sea side recovery at Karachi Port Trust was suddenly reduced up to the level of about 25 % . He stated in cross-examination that in his statement under section 161 of the Cr.P.C. he had mentioned about the losses suffered by the Corporation. He was confronted with his statement Exh.D.A. in which it was not so recorded. He stated that if the offer (made by Messrs Bolan Enterprises) had not been accepted till 30-6-1997, then the octroi would have been collected by the K.M.C. P.W.3, Aftab Ahmad, was Assistant Accounts Officer Octroi Department, K.M.C. and produced noting sheet regarding auction of leasehold rights for collection of octroi through K.M.C. Airport Octroi Post and road/rail octroi post for the year 1997-98. P.W.A, Zubair Pervaiz, was the Section Officer (VI) in the Local Government Department, Government of Sindh. He stated that it was his duty to deal with the affairs of the K. M. C. and octroi contract of KMC. In cross-examination he admitted that the record for octroi contracts of all the years was maintained in the Local Government Department's Section in which he was posted. He stated that he had no knowledge about the upset price of the octroi contract for the years 1994-95, 1995-96 and 1996-97. He stated that he had no knowledge whether the upset price for contracts pertaining to the years 1994 to 1997 was fixed after considering the Port Qasim factor. He denied the suggestion that he was purposely concealing from the Court the fact that the Port Qasim was included in the contracts for the years 1994 to 1997. He admitted that if the offer made by Messrs Bolan Enterprises was not accepted till 30-6-1997, then K.M.C. would have collected the Octroi. He admitted, "it is correct that if the contract is not given for collection of octroi, the recovery of octroi by K.M.C. itself is usually less". He also admitted, "we checked the amount and found that the upset price mentioned in EXh.P.J: was correctly calculated by adding 15 % to the last year contractual amount, P. W.5 Hassan Imam was in a Deputy Director Administration, K.M.C. He stated that in March, 1997 Government of Sindh, Local Government Department issued a policy regarding award of contract for collection of octroi; that in accordance with the policy. K.M.C. invited offers through open auction, notices of auction were published in the newspapers and auction proceedings were held thrice but no one participated; that it came to his knowledge that Messrs Bolan Enterprises made an offer to the Administrator, K.M.C. for collection of octroi for the year 1997-98; that a letter was issued by the Government of Sindh, Local Government Department that the contract for collection of octroi for the year 1997-98 be awarded to Messrs Bolan Enterprises; that the terms and conditions were drafted on the pattern of the contract for the previous year 1995-96 and that the agreement was executed between Messrs Bolan Enterprises and K.M.C. In cross-examination, he stated that he was not a member of the Committee which fixed the upset price for the year 1997-98 or the previous years. He further stated that a complaint was received against the giving of contract on low price to the contractor for the year 1997-98 but immediately corrected himself by saying that no such complaint was received. P.W.6 Bagh Ali Ghumro was Section Officer (VI) in the Local Government Department, Government of Sindh, in August, 1997. He received D.O. letter dated 18-8-1997 (Exh.P.O.) addressed to Messrs Bolan. Enterprises by Director Octroi, K.M.C. On this letter he prepared a Note Sheet on the subject of Diverted Cargo which was produced as Exh.P.P. accordance with the directions of Additional Chief Secretary,' he had prepared a draft and put up the same before the Additional Chief Secretary who approved it and accordingly he issued letter Exh.P.Q. on the same day, In cross-examination he admitted that he did not send his Note Sheet (Exh.P.P.) and letter (Exh.P.Q.) to the Minister, Dr. Farooq Sattar, for confirmation and perusal. P.W.7, Muhammad Anees, was P.A. to the Director Octroi, Mr. Muhammad Masood Aslam. He produced a photocopy of the letter Exh.P.R. which was objected to by the Defence as being inadmissible. P.W.8, Syed Abdul Ghani Zaidi was the Assistant Director of Octroi, Super Highway Post, K.M.C. He stated that the contract for collection of octroi for road/rail side was awarded to Messrs Bolan Enterprises: that a writ was filed in the High Court by Mushtaq Kamboh and on 13-11-1997 on the order of the High Court, a post for collection of octroi at Port Qasim was established; that the High Court had appointed an official assignee to supervise that post and also directed that a representative of the K.M.C. and Union Council Darsano Chano should also work with him; that he was deputed by the K.M.C. to work with the official assignee; that during the period from 13-11-1997 to 30-6-1998, approximately Rs.21,53,00,000 were collected: P.W.9 is K.B. Nohani who had conducted investigation into the case in the light of the judgment of the Sindh High Court and recorded statements of 10 witnesses. After completing the investigation he had submitted the report on 20-7-1999, which was returned with some objections and he prepared a revised report and returned it to the Deputy Director, ACE, Karachi on 6-8-1999. He admitted in cross-examination, "I did not attempt to verify what rules were violated while awarding the contract in question. Secretary to the Local Bodies, Government of Sindh, with the approval of the Minister was the competent authority to award and approve the contract". P. W.10 is Muhammad Yousaf Rajput, DSP/Assistant Director ACE, Karachi. He conducted investigation into the case on the directions of the Deputy Chairman, NAB and submitted his report to the Director Anti-?Corruption (E) on 22-10-1999. The matter was referred back to him on 31-1-2000 for further investigation. He conducted further investigation and prepared the final report on 11-2-2000 and took the appellant and his co-?accused Anzar Hussain Zaidi into custody and produced the accused before the Court, who were remanded to judicial custody. In his final report he mentioned that the accused persons in collusion with each other deliberately, malafidely awarded the road and rail side contract for collection of octroi for 1997-98 and that they included clause 6:10 in the contract malafidely in violation of the terms and conditions of the said contract in which they authorised the contractor to collect the octroi from the goods coming from Port Qasim. In cross-examination he stated that the contract was signed under the directions of Minister Local Government, Dr: Farooq Sattar and the Additional Chief Secretary. After recording oral evidence the Prosecutor-?General NAB tendered in evidence the following documents and closed the prosecution evidence:-- (i)???????? Page 21 of Dawn Karachi, dated April 30, 1997 containing the advertisement of Qasim International Container Terminal as Exh. P. BB; (ii)??????? Page No. 17 of Dawn Karachi dated 23-2-1997 containing a news item about Q.I.C.T. as Exh.P.CC; (iii)?????? Ist page of Dawn 'Economics and Business Review dated 26-7-1995 containing news item relating to accord signed for construction of Container Terminal Exh.P.DD; and the picture on page IV of the same Economics and Business Review showing the signing of the agreement Exh.P.DD/1. (iv)?????? 1st page of Business Recorder dated 7-1-1997 containing the news item concerning 1st Container Terminal at Port Qasim, Exh. P. EE; (v) ?????? Page 14 of Business Recorder dated 26-7-1995 Exh.P.FF and page No. 13 of the same newspaper Exh.P.FF/1; (vi)?????? Page No. 16 of the News Karachi dated 13-6-1997 Exh.P.GG; (vii) ???? Page No. 13 of the News Karachi dated 26-7-1995 Exh.P.HH

5. The appellant was examined under section 342 of the Cr.P.C., who refuted the allegations of corruption and corrupt practices levelled against him. He stated that the contract was awarded by the Administrator of the Corporation in accordance with the Government policy and the rules. Bashir Ahmed Jakhio, Section Officer, Local Government and Rural Department, Government of Sindh was produced as D.W.1.

6. The appellant's learned counsel strenuously urged that the foundation of the case against the appellant is the judgment dated 17-4-1998 passed by the Sindh High Court in Writ Petition No.D.1778 of 1997 filed by a free lance journalist Mushtaq Kamboh; that the prayer made in the writ petition was that the limits of Karachi Metropolitan Corporation be extended so as to include Port Bin Qasim within its limits; that Port Qasim is otherwise situated in the local limits of Union Council "Darsano Channo" which is a Sindhi-speaking area; that Mushtaq Kamboh had filed the writ petition with mala fide intentions of provoking differences and even fight between the Urdu-speaking and Sindhi-speaking persons; that at the relevant time Mohajar Qaunu Movement (MQM) to which the appellant belongs was in majority in the Corporation; that the contract for recovery of octroi was to be awarded through public auction; that after due publicity auctions were held on 20-4-1997, 24-4-1997 and 28-4-1997 but no one came forward to make any bid; that thereafter it was open to the Administrator of the Corporation to award contract to .any person making a reasonable offer with 15 % ,increase above the highest price fixed for the previous year that on 30-6-1997, Messrs Bolan Enterprises Limited made an offer through a written application Exh.P.J. which was accepted by the Administrator; that the other mode stipulated under the relevant rules is that on failure of auction collection of octroi may be made by the officials of the Corporation but if the recovery is less than that of the previous year then the loss is to be made good from the personal resources of the Chief Executive of the Corporation; that collection through Corporation officials ordinarily yields lesser recovery, therefore, the Corporation prefers to award contract to some other person, agency or firm at the rate of 15 % above that of the previous year; that the award of the contract was in the interest of the Corporation and no loss whatsoever, was caused either to the Corporation or the Government; that the Government in exercise of its power under the Sindh Local Bodies Ordinance suppressed the elected Karachi Metropolitan Corporation .and instead appointed Anzar Hussain Zaidi (appellant in Criminal Appeal No. 1159 of 2000) as Administrator of the Corporation in the year 1997; that the Administrator was competent to award the contract which was lawfully executed in favour of the firm; that the judgment passed by the Sindh High Court was set aside by the Hon'ble Supreme Court in Criminal Appeal No.717 of 1998 decided on 26-4-2001; that in this way, the very bottom was knocked out ,of the prosecution case as the apex Court of the country had held the contract to be lawful and valid; that at Port Bin Qasim, the container terminal was set up in the year 1994 but on account of certain economic factors; sufficient quantity of goods were not brought through the said terminal; that with the passage of time, some percentage of business was shifted to Port Bin Qasim at the option of the importers; that this was a normal consequence which could not be equated with legal injury or loss; that although shifting of business to Port Bin Qasim was not a loss in the legal sense, yet the appellant on his part trade an attempt to extend the limits of the Corporation by issuing a Notification under section 13 of the Sindh Local Government Ordinance, 1979 inviting objections to the proposed action; that the Sindhi population raised a chorus of condemnation against it, therefore, no further action was taken on the Notification; that the appellant also wrote letters to Mr. Azam Khan Hoti, Federal Minister for Communications, Mr. Nawaz Sharif, Prime Minister and Mr. Liaqat Jatoi, Chief Minister, Sindh; that there was hardly any occasion for the appellant to use his authority to prevent the firm from collecting octroi at Bhains Colony post for goods entering the limits of the Corporation from Port Qasim as the Court by its interim order dated 13-11-1997 had prevented the firm from collecting octroi at the said post and appointed a Naazir for the said purpose; that the firm had collected Rs.3,48,00,000 during the period from 12-11-1997 to 30-6-1998 while the Naazir had collected Rs.21,53,00,000; that after acceptance of the appeal by the Hon'ble Supreme Court of Pakistan, the said amount of Rs.21,53,00,000 was also paid to the contractor. Therefore, it no longer lies in the mouth of the prosecution to say that the contract was wrongly granted or that any loss was caused to the Corporation or the Government. Khawaja Naveed Ahmad, Advocate for Anzar Hussain Zaidi, appellant in Criminal Appeal No.1159 of 2000 generally adopted the arguments raised by Dr.A. Basit, Advocate and added that there was nothing to show that the appellant had gained any benefit for himself; that the contract was lawfully granted to the firm under the directions of the Minister, Local Government, Government of Sindh, which was upheld by the Hon'ble Supreme Court of Pakistan and that there was no evidence to show that the appellant had misused his authority in any manner.

7. On the other hand, the learned Deputy Prosecutor-General, NAB, strenuously urged that once a person is charged for commission of an offence under section 9(a)(vi) of the Ordinance, then the burden lies on him under section 14(d) of the Ordinance to prove his innocence by showing that he had used his authority in the public interest, fairly, justly and for the advancement of the object of the enactment under which the authority was used; that there were three stages in the matter of awarding contract and at each stage the facts give rise to a powerful prosecution of guilt against the appellant; that the terms and conditions of auction Exh.P.C., auction notice Exh.P.D., offer made by the firm Exh.P.J. and acceptance of offer. Exh.P.E. do not contain the words "Port Bin Qasim" ; that at the second stage, the firm made a written application Exh.P.L. requesting the Government to follow the terms .of the previous agreements so as to incorporate "Port Bin Qasim" therein; that upon this Government of Sindh wrote letter dated 22-9-1997 Exh.P.F. for immediate action and at the third stage the Director Octroi raised an objection through letter dated 18-8-1997 that benefit of Condition No.6(10) of the agreement could not be given to the contractor; that the Government of Sind1h overruled the objection and issued N.O.C. dated 19-8-1997 Exh.P.Q.. According to the Law Officer, the appellant was the Minister at the relevant time and he exerted his influence in awarding contract to the firm and inserting "Port Bin Qasim" in Condition No.6(10) of the contract; that in this way colossal loss was caused to the Corporation/Government in the matter of recovery of sea dues at the Karachi Port; that in case of any dispute about the recovery of octroi, the matter had to be decided by the Director Octroi as an arbitrator whose decision was to be binding on the parties.

8. There is considerable force in the arguments raised by the learned counsel for the appellant. The mere fact that a person stands charged for trial in the Accountability Court does not give rise to a presumption of guilt in respect of offences under section 9(a)(vi) and (vii) of the Ordinance. If such a view is adopted then the prosecution would be absolved of its duty to lead any evidence and accursed could be called upon to make a statement under section 342 of the Cr. P.C. and then prove his innocence as required under section 14(d) of the Ordinance. Such an interpretation would lead to absurdity and make a money mockery of criminal justice. The stage of showing that the accused had used his authority in the public interest fairly, justly and for the advancement of the purpose of the law, can come only when the prosecution has initially discharged its burden of establishing necessary facts to show that the accused had "misused" his authority so as to gain any benefit for himself or any other person or to render or attempt to do so or wilfully failed to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his, authority. Unless the basic facts constituting "misuse" of authority as contemplated under section 9(a)(vi) of the 07dinance are established, the accused cannot be called upon to prove his innocence within the meaning of section 14(d) of the Ordinance. In this connection, reliance can be placed on a recent judgment of the Hon'ble Supreme Court of Pakistan in the case of Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC

607. The relevant part from the judgment i5 reproduced below for ready reference: "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption; This is also the consistent stand taken by Mr. Abid Hasan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organisational set-up, we deem it necessary to issue the following directions for effective operation of section 14(d): (1)??????? The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi)-and (vii) of the NAB. (2)??????? In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt."

9. The charge in the present case is limited to the first part of section 9(a)(vi) of the Ordinance regarding misuse of authority in awarding contract to the firm and allowing it to collect octroi on goods imported from the Port Qasim source to which the contract din not allegedly relate. It may be said at the very outset that the contract was awarded to the firm by Anzar Hussain Zaidi, Administrator of, the Corporation and not by the appellant. So far as the incorporation of the words "Port Bin Qasim" in Condition No.6(10) of the agreement is concerned, this was not specially ordered by the appellant. For this purpose the firm had submitted a written application Exh. P. L. before the Additional Chief Secretary, Government of Sindh in which it, was prayed that the contract be executed on similar terms as were incorporated in the agreements for the previous years. Upon this, the Government of Sindh issued the necessary instructions vide letter dated 5-7-1997 which reads as under:-- ?Government of Sindh is pleased to direct that the agreement should be executed on similar pattern of the terms and conditions as were stipulated previously in the agreement of such nature for the years 1995-96 and 1996-97.? Later the objection raised by the Director Octroi was overruled by the Government of Sindh vide its letter dated 19-8-1997 (Exh.P.Q.) which reads as under: ?Government of Sindh, Local Government Department has no objection to recovery of octroi on the goods discharged at Port Qasim by Messrs Bolan Enterprises, Octroi Contractor, Road/Rail side as per clause 6(10) of the Agreement, executed between K.M.C. and Messrs Bolan Enterprises.? Although, there is no reliable evidence to show that letters Exh.P.F. and Exh.P.Q. were written on the directions of the appellant, the same appear to have been issued in the normal exercise of authority without any element of "misuse" or wrong exercise of authority to gain any benefit personally or confer any benefit on any other person. The authority was issued in the public interest justly and fairly. The effect of these letters was that the practice followed in the previous years regarding recovery of octroi in respect of goods originally received at Port Qasim and then brought within the limits of the Corporation through rail/road, was maintained. Such consistency was absolutely fair and just. The contrary course would have deprived the firm of a legitimate benefit which the previous contractors had been receiving without any objection from any quarter. Moreover, Port Qasim was established for the benefit of importers who could receive delivery of their goods through sea at the said port at their option. Therefore, some goods were bound to be diverted from the Karachi Port to Port Qasim in the normal course. Such diversion is inherent in the scheme of the law and does not constitute any legal injury. After all the Corporation has no legal right to claim that all goods must necessarily be imported through the Karachi Port. The appellant can hardly be held responsible for diversion of goods to Port Qasim. The recovery of sea dues originally made at Karachi Port before Port Qmim became functional had to be diminished proportionately according to the percentage of diversion of goods to Port Qasim. The appellant as well as his co-convict Anzar Hussain Zaidi are not shown to have derived any benefit in the matter of award of contract to the firm. They had, in fact, secured the interest of the Corporation by awarding t the contract for recovery of octroi on the goods entering the limits of the Corporation through rail/road including goods delivered at Port Qasim. In case the contract was not awarded to the firm then the task of recovery of octroi would have fallen on the officials of the Corporation who admittedly are not efficient and recoveries made through them are much lesser as admitted by P.W.4 Zubair Pervaiz. He conceded, "on the other hand, if the offer was not accepted on 30-6-1997, K.M.C. would itself collect the octroi. It is correct that if the contract is not given for collection of octroi, the recovery of octroi by K.M.C. itself is usually less". It may be mentioned that for some unknown reasons the efforts to grant contract for recovery of octroi through public auction did not succeed for the years 1997-98 as well as for the past 3/4 years. In such an eventuality, the recovery can be effected either through the officials of the Corporation or by accepting a reasonable offer made by any party subject to the condition that the offer must be 15 per cent. above the rate of previous year.

10. Keeping in view the fact that recovery through the officials of the Corporation is lesser, the Administrator Corporation rightly adopted the other course of awarding contract to a party making a good offer. As mentioned above, no one came forward to bid at the auctions held on 20-4-1,997, 24-4-1997 and 28-4-1997. Thereafter, things remained quiet till the firm came forward with its offer (Exh.P.J.) and started negotiations with the Administrator. The" final offer was made by the firm in the sum of Rs.55,50,00,000 is embodied in letter dated 30-6-1997 Exh.P.J. It may be mentioned that the recovery of octroi dues had to be made with effect from 1-7-1997, therefore, there is nothing wrong in some haste shown in finalising, the matter. The offer was considered keeping in view the financial interest of the Corporation. It was noted that after increase of 15 % on the basis of contractual amount of the previous year the offer should be for a sum of Rs.56,07,40,

000. Therefore, the Government of Sindh vide its letter dated 30-6-1997 conveyed its confirmation of the offer in the sum of Rs.56,07,40,000 to the Administrator of the Corporation. Accordingly, the agreement (Exh.P.H.) was executed between the Administrator of the Corporation and the firm. Condition No.6(10) of the agreement reads as under:-- ?That the contractor shall collect octroi in the manner, and at the rates prescribed in Octroi Rules, 1964, and Octroi Schedule 'B' as per Notification No.1288/Gen/Oct/92, dated 6-8-1992 and as amended from time to time and shall recover octroi under Schedule 'A' strictly for goods imported from abroad through Bin Qasim and aforesaid octroi posts as per Notification No.SO(IV)/5?1/92, dated 18-1-1993. In the event of any dispute over the assessment of octroi, whose decision shall be final and binding upon the contractor unless set aside by appellate authority as specified in the Octroi Rules.? The words "through Bin Qasim" were incorporated later, on the application of the firm as narrated above. This was perfectly lawful as well as just and. fair keeping in view the terms and conditions of the previous contracts. It is significant to mention that the prosecution suppressed the contracts for the previous years and the defence brought the same on the record as Exhs. DO and DP. The argument raised by the Law Officer on behalf of the NAB that the controversy about the recovery of octroi had to be decided by the Director Octroi as stipulated in Condition No.6(10) of the Agreement is correct so far as disputes pertaining to assessment of octroi and description of goods are concerned. However, this clause has no bearing qua the very right of recovery as has been raised in the reference. Therefore, this question was out of the ambit of the arbitrators authority. There is also weight in the argument raised by the appellant's learned counsel that the appellant made efforts for extension of limits of the Corporation so that the recovery of sea dues at Port Qasim source could be made by the Corporation. For this purpose he issued a "proposed notification" against which angry voices were raised and demonstrations staged. Therefore, it could not prove to be fruitful. The appellant had also written letters to the Governor of Sindh, President of Pakistan and Prime Minister of Pakistan for extension of limits of the Corporation. This shows that the appellant was keen to protect the interest of the Corporation. However, while saying this we do not mean to convey that recovery of sea dues at Port Qasim source amounted to any legal injury. Above all the contract Exh.P.H. about which much ado has been made by the prosecution was declared by the apex Court of the country to be lawful and valid. The judgment of the Sindh High Court a part of which was G made basis for investigation and reference against the appellant has been set aside. Therefore, the very foundation upon which the superstructure of the prosecution case was built is knocked out and with it, the superstructure is razed to the ground. The relevant part from the judgment of the Hon'ble . Supreme Court of Pakistan reads as under:-- ?The perusal of the impugned judgment shows that it is based on conjectures and surmises and is not supported by necessary documents filed by the appellants and the Government functionaries. Respondent No.l is not an aggrieved person as contemplated under Article 199 of the Constitution. Moreover, he had not exhausted available remedies to agitate the matter before the Government of Sindh. Be that as it may, he may be free lancer journalist and filed petition as free lancer pro bono publico. The learned High Court wrongly considered him as an aggrieved person and allowed the petition without sufficient cause, reasons or justification. According to the record, parawise comments and counter-affidavits filed by the Government functionaries it is crystal clear that Port Qasim is located within the Union Council of Darsano Chano which is a rural area and the octroi and other taxes are being charged by the Union Council Darsano Chano established under the Ordinance and the prayer of the respondent that local council limits of Port Qasim be included in the K.M.C. by the writ issued by the High Court is not sustainable in law. Admittedly, it is not within the competence of the High Court to pass such administrative order, which is only prerogative of the concerned Provincial Government under the Ordinance and the Constitution. For the facts, reasons and circumstances, we are of the considered opinion that the contents involved in the writ petition were contractual obligation for which a valid contract was signed between the appellants and the K.M.C. and there is no allegation of breach of the contract. The Government functionaries have stated that the contract was awarded to the appellants under the Act and the Rules with the approval of the Government of Sindh?. In para. 10 of the judgment, the Court was pleased to observe that the case-?law cited in the judgment, of the Sindh High Court was not relevant apart from being "quite different and distinguishable" from the appellant's case. In the concluding para. (No.11) it was held as under: ?In view of what has been stated above, we allow these appeals, set aside the impugned judgment and the amount lying with the Naazir of the High Court of Sindh, with profits so accrued may be paid to the appellants, with no order as to costs." Thus, the highest Court of the country held the contract to be perfectly valid and set aside the judgment of the Sindh High Court as being based on conjectures and surmises. In this view of the matter, it can be safely concluded that the prosecution had miserably failed to establish that the appellant had "misused" his authority within the meaning of the provisions of section 9(a)(vi) of the Ordinance.

11. For the foregoing discussion, the appeal is accepted and the appellant is acquitted of the charge against him. We had already passed a short order on 20-9-2001 accepting the appeal and ordering release of the appellant from jail if not required to be detained in any other case. The above is our detailed judgment containing reasons and shall be read as a part of our short order dated 20-9-2001. N.H.Q./F-78/L ?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.