2002 PLP 3655 (YLR)

Mr. Abdul Hafeez Pirzada, learned counsel representing Pir Maqsood Hussain Sarhandi, relied upon the judgment of this Court whereby proceedings against Maqbool Ahmed Shaikh, initiated by this accountability reference, were quashed. He submitted that the case of present applicants is not different from the case of Maqbool Ahmed Shaikh. He submitted that the decision of a Division Bench of the Court is binding on another Division Bench. Mr. Abdul Hafeez Pirzada submitted that there is a definite finding of a Division Bench of this Court, in the order dated 5th October, 2001, that the learned counsel appearing on behalf of the Government as well as National Accountability Bureau conceded that neither any loss has been caused to the Government in this case, nor any law has been violated. He submitted that the learned counsel appearing for the NAB cannot now resile from this admission which has attained finality because no appeal was filed against that judgment. Mr. Pirzada submitted that the evidence of witnesses recorded under section 512, Cr.P.C. was available when the application of Maqbool Ahmed Shaikh was heard and decided by the High Court. Mr. Ali Ahmed Junejo, appearing for Ghulam Sarwar Qureshi and Mr. Sardar Zulqarnain, holding brief for Mr. Kamal Azfar, Advocate, for applicant Hassan Ali adopted the arguments of Mr Pirzada. Mr. Anwar Tariq, learned Deputy Prosecutor General, NAB submitted that evidence of three prosecution witnesses has been recorded under section 512, Cr.P.C. because the applicants had absconded. He referred to the evidence of one of these witnesses, namely, Muhammad Khalid Qaimkhani as Assistant Account Officer in the office of Deputy Director Food Karachi. The evidence of this witness recorded under 512, Cr.P.C. without cross examination, as well as his statement recorded under section 161, Cr.P.C. were available when the case of co‑accused Maqbool Ahmed Shaikh was decided. We have perused the statement of this witness recorded under section 161, Cr.P.C. He has stated that tenders were called twice for transportation of wheat to Karachi but the tenders were without any response and by that time stock position had become very critical and emergent steps were required to be taken for shifting wheat to Karachi and, since no party was coming forward for rescue of the department at that critical juncture, Messrs Must Hassan Enterprise offered their services for shifting wheat from interior Sindh to Karachi. He stated that the contractor (Present accused Hassan Ali) performed the assigned task with due responsibility and transported stock very speedily, however, there was a shortage of 776.977 tons valuing Rs.7.886 Million which was deducted from the claim, leaving a balance of Rs.1.620 Million. The witness further stated that the shortage was also deducted from the claim of the contractor. The witness finally stated at since the huge amount of contractor was outstanding against Government and shortage of wheat and other dues were deducted, no loss was caused to the Government. According to the reference filed by the NAB Authorities, Maqbool Ahmed Shiakh, Ex‑Minister Food, Government of Sindh was the principal accused who, in collusion, and in connivance, with Pir Maqsood Hussain Sarhandi and Ghulam Sarwar Qureshi, extended undue benefit to accused Hassan Ali by awarding a contract for transportation of wheat in violation of law and caused huge loss to the public exchequer. The questions, thus, necessary for decision would be: Whether the contract was awarded in violation of law? Whether any loss was caused to the public exchequer by award of the contract? Whether any undue benefit was extended to Hassan Ali by award of the contract? And Individual role and liability of each accused? A question was repeatedly put to the learned counsel representing the National Accountability Bureau, in these proceedings as well as in the case of Maqbool Ahmed Shaikh decided earlier, to describe the specific provision of law that has been violated by the award of the contract. In response to this question, Mr. Anwar Tariq, learned Deputy Prosecutor General, N.A.B, has submitted a copy of Letter No.BA- I/Food/20‑39/84‑85 dated 26‑1‑1987 issues by Government of Sindh, Food Department. Through this letter, the decisions taken in the Deputy Director's meeting dated 10‑4‑1986 were conveyed to Divisional Deputy Directors Food in Sindh. Thus, according to the NAB Authorities, this is the law that was violated by award of the contract in this case. Obviously, this is not a law. These were merely administrative instructions, violation whereof could be dealt with by way of administrative and departmental action. Courts of law do not take cognizance of violation of such administrative instructions. Courts take cognizance of violation of law, and in the present case there is no law that has been violated. About the loss caused to the public exchequer, in the case of Maqbool Ahmed Shaikh it was stated on behalf of the Government of Sindh as well as the National Accountability Bureau that no loss was caused to the Government. Here also, the prosecution witness, whose evidence has been relied upon and referred to by Mr. Anwar Tarique, says that no loss has been caused to the Government. The witness is Muhammad Khalid Qaimkhani, Assistant Accounts Officer in the office of Deputy Director Food Karachi. Regarding allegation of undue benefit to accused Hassan Ali, the prosecution witness named above says that Hassan Ali came for rescue in the critical situation when other contractors were not coming forward in response to the tenders. He stated that the shortage was adjusted from the funds of this accused with the Government and yet huge amount of the contractor is outstanding against the Government. There is thus nothing to suggest undue benefit to the contractor in the circumstances. Since there is no violation of law, there is no legal liability of any of the accused in this case, of which the Court may take cognizance on this reference. Mr. Anwar Tarique contended that in the first instance, the accused‑applicants should approach the Accountability Court for acquittal under section 265‑K, Cr.P.C. this is a case where there is no violation of law, as already discussed, and, therefore, a Court of law cannot take cognizance. There is, therefore, no need to resort to this technical formality. The proceedings in the case against the principal accused Maqbool Ahmed Shaikh have already been quashed and this quashment has not been questioned before the Supreme Court. The facts and circumstances, discussed above fully justify quashment of the proceedings against the present applicants pending before the Accountability Court on Reference No.46 of 2000. Applications are, accordingly, allowed and the proceedings are queashed. H.B.T./M‑390/K Application allowed.