2005 PLP 1305 (YLR)

SARMAD JALAL OSMANY, J.

This appeal impugns the judgment, dated 29-5-2000, passed by the learned Accountability Court No.1 in Reference No.18 of 2000 whereby the appellant was convicted and sentenced to suffer R.I. for seven years as well as pay a fine of Rs.2,00,000 in default of which he was to undergo a further sentence of one year's S.I.

2. The facts of the case in brief per Reference No.18 of 2000 are that the appellant who at the relevant time was serving as Secretary, Land Utilization Department, Board of Revenue, Government of Sindh, processed the application of co-accused Abu Bakar addressed to absconding accused Syed Abdullah Shah (the then Chief Minister, Sindh) requesting that the land admeasuring 4 acres already leased out to him (co-accused Abu Bakar) for purpose of poultry farming for thirty years be converted into a lease for 99 years for industrial/residential/ commercial purposes at the rate of Rs.25,000 per acre, in relaxation of the policy/ban thereto. A summary was floated by the appellant without the concurrence of the Finance Department in flagrant violation of the Sindh Government Rules of Business, recommending such conversion, which was approved by the absconding accused, Syed Abdullah Shah at the rate of Rs.50,000 per Acre. Thereafter the appellant issued the conversion order and ultimately the lease agreement was executed in favour of co-accused Abu Bakar. Consequently, the appellant is charged with colluding and conniving/abetting with the main accused, Syed Abdullah Shah in his capacity as a holder of public office in causing colossal loss to the exchequer by disposing of Government land at throwaway prices as the land in the vicinity was valued at Rs.4,89,000 per acre. Hence, the appellant is alleged to have committed offences under section 9 of the NAB Ordinance, which are liable to be punished under section 10 thereof.

3. A charge was framed against the appellant/accused and co-accused Abu Bakar as accused Syed Abdullah Shah was declared an absconder. Both of them pleaded not guilty to the charge and demanded their trial.

4. The prosecution in support of its case examined P.W.1 Abdul Jabbar who produced the attested photocopy of the application addressed by co-accused Abu Bakar to absconding accused, Syed Abdullah Shah as Exh.9/1 along with copy of Ejazatnama as Exh. 9/2, attested photocopy of summary authored by the Appellant as Exh.9/3, attested photocopy of the application addressed to the D.C., District Malir, as Exh.9/4, attested photocopy of the Notification as Exh. 9/5 and attested photocopy of list of plots as Exh.9/7. P.W.2, Muhammad Ishaq Lashari, who produced letter, dated 31-5-1994 issued to the Mukhtiarkar from the office of D.C. Malir East, as Exh.10/1; P.W.3, Muhammad Salik Mukhraj, who produced attested copy of the letter authored by Secretary, Government of Sindh, Land Utilization Department and addressed to D.C. Karachi East, as Exh.11/1, attested photocopy of Ejazatnama as Exh. 11/2, attested photocopy of order of the Deputy Commissioner Karachi East, dated 3-3-1993 as Exh. 11/3, attested photocopy of NIC as Exh.11/4, attested photocopy of Ejazatnama in favour of accused Abu Bakar as Exh.11/5, attested photocopy of letter dated 19-2-1992 as Exh.11/6, attested photocopy of voucher from Mukhtiarkar as Exh. 11/7, attested photocopy of letter, dated 30-1-1994 of Secretary to Government of Sindh addressed to D.C. Karachi East as Exh.11/8, attested photocopy of letter dated 31-1-1994 of Deputy Commissioner addressed to Mukhtiarkar District Malir, as Exh.11/9, attested photocopy of lease agreement as Exh. 11/10, attested photocopy of challan as Exh. 11/11, attested photocopy of letter of Mukhtiarkar as Exh.11/13, attested photocopy of receipt of Tapedar as Exh. 11/14 and attested photocopy of Deh Form No.II as Exh.11/15; P.W.4, Muhammad Zafar Balouch, who produced photocopy of Notification as Exh. 12/1 and attested photocopy of extract as Exh.12/2 and P.W.5, Ansar Ahmed Investigating Officer who produced attested photocopy of inquiry report as Exh.14/1. Thereafter the prosecution closed its side.

5. The appellant in his statement under section 342, Cr.P.C. denied the prosecution case stating that he is innocent. He did not examine himself under oath but he produced four witnesses in his defence, namely, D.W.1 Abdul Wahab, Section Officer, Law Department, Government of Sindh who produced attested photocopy of the letter, dated 13-5-1990 sent to the Secretary Land Utilization Department from Law Department, Government of Sindh, as Exh. 19/1, D.W.2, Nasimul Ghani, Deputy Secretary, Land Utilization, Board of Revenue, who produced attested photocopy of the letter of Land Utilization Department sent to the Secretary to Government of Sindh as Exh.20/1, attested photocopy of Notification, dated 16-11-1998 as Exh. 20/2, attested photocopy of summary as Exh.20/3, attested photocopy of summary as Exh.20/4, attested photocopy of list of conversion of State land pertaining to the year 1990-96 as Exh.20/5, D.W.3, Deparkash, Sub-Registrar, T Division No.XIII Karachi who produced attested photocopies of entries of register maintained in the office of the Sub-Registrar as Exh.21/1 to 21/10 and D.W.4, Khairo Khan, Tapedar in the office of Mukhtiarkar District Malir who produced attested photocopy of sketch as Exh.23/1.

6. In support of the appeal Mrs. Ismat Mehdi has firstly submitted that a bare perusal of the summary floated by the appellant would disclose that all material facts pertaining to the application of co-accused Abu Bakar, including the official policy, the powers of absconding accused Syed Abdullah Shah and the past precedents were fully disclosed by the appellant. Consequently, there is no element of mens rea, insofar as the role of the appellant is concerned, which is further substantiated by the fact that there is no allegation against him of any dishonest gain. Furthermore, per learned counsel all the P.Ws. are unanimous in their deposition that in the past, the land in the area had been converted at the maximum rate of Rs.50,000 per acre i.e. from a poultry farming lease to a commercial/residential/ industrial lease and hence there cannot be any question of any loss to the exchequer at all. At the most, therefore, the appellant could be guilty of committing an irregularity by not obtaining the consent of the Finance Department before floating the summary in question which can only give rise to disciplinary proceedings against him. Per learned counsel in an identical situation this Court has acquitted the appellant in Criminal Acctt. Appeals Nos.1 and 2 of 2000. Learned counsel has also relied upon the cases of Saifuddin v. Muhammad Ashfaque Piracha 1986 CLC 1819, Anwar Saifullah Khan v. The State PLD 2002 Lah. 458, Tariq Javed Afridi v. The State PLD 2002 Lah. 233, Murad Ali Shah v. Government of Sindh PLD 2002 Kar. 24, Mir Munawar Ali Talpur v. The State PLD 2003 SC 46, Ramesh Udeshi v. The State PLD 2004 Kar. 224, Aftab Ahmed Khan Sherpao v. The State PLD 2001 Pesh. 80, Ramesh Udeshi v. The State PLD 2003 Kar. 423, Gahno v. The State PLD 1964 W.P. Kar. 437, State v. Rabnawaz PLD 1974 SC 87 and unreported judgment of this Court in Crl. Misc. Application No.274 of 1998.

7. On the other hand, Mr. Muhammad Anwer Tariq has submitted that the mens rea of the appellant is floating on the surface of his summary i.e. if he knew that the proposed conversion was unlawful he should have said as much. Conversely, the appellant cleverly camouflaged the negative aspects of the matter while highlighting absconding accused Syed Abdullah Shah's powers to condone/relax the ban imposed by the Government on such conversions. Per the learned D.P.G. under section 10(1) of the Colonization Act the Government of Sindh has the power to relax the rules and not the Chief Minister for which proposition he has cited Abdul Haq v. Province of Sindh PLD 2000 Kar. 224 and Messrs Qasimabad Enterprises v. Province of Sindh 1997 CLC 1246.

8. The learned D.P.G.A. has next submitted that according to the Rules of Business of the Sindh Government the summary should have been routed through the Chief Secretary and the Finance Department, which were bypassed and hence, a prima case, has been established. Accordingly, per section 14(d) of the NAB Ordinance the onus shifts to the accused to disprove the charges against him. In support of his contention the learned D.P.G. has cited Ramesh Udeshi v. The State PLD 2003 Kar.

423. He has also submitted that everyone including the Governor and the Chief Minister is bound by the Constitution and the law viz. the Rules of Business. In support of this submission he has cited The State v. Syed Abdullah Shah and others 1998 MLD 216 and Abdul Haq v. Province of Sindh (supra). Per the learned D.P.G. Crl. Acctt. Appeals Nos.1 and 2 of 2000 do not concern the same summary but is a similar case and since all criminal cases proceed on their facts/merits, the decisions in these two appeals have no bearing on the present matter. Finally, the learned D.P.G. has submitted that in the circumstances of the case it is abundantly clear that the appellant could have prevented the loss to the exchequer by using his authority to advise the absconding accused of the illegality in the matter, which he failed to do, thus, violating section 9(a)(vi) and 9(a)(xii) of the NAB Ordinance for which he has cited Secretary, Jaipur Development Authority v. Daulat Maljain (1997) 1 SC Cases 35.

9. We have heard the learned counsel as well as the learned D.P.G. and have gone through the record of the case.

10. It would be seen that the main charge against the appellant is the floatation of the joint summary in question, in violation of the law/instructions, particularly the Sindh Government Rules of Business, recommending the allotment of State land at throwaway prices to co-accused Abu Bakar and others. The appellant has also been charged with conveying the instructions of absconding accused Syed Abdullah Shah to the Deputy Commissioner, Malir Karachi whereby the land in question was allotted to co-accused Abu Bakar and others and hence the appellant in collusion with the other co-accused caused unlawful gain to co-accused Abu Bakar as well as obtained unlawful benefit for himself. As the gist of the charge is hence available in the summary in question, it would be beneficial to reproduce the same:-- Summary for the Chief Minister Sindh Sub: Conversion of poultry farming leases from 30 years leases in Dehs Rehri, Gangiaro Khano and in Deh Dih Karachi East for Industrial/ Residential/Commercial purposes at the prescribed rate of Rs.25,000 per acre on prescribed rate of Rs.50,000 per acre. Chief Minister Sindh may kindly peruse his following orders/ directives on the various following applications for conversion of poultry farming lease period from 30 years into industrial/ residential/ commercial purposes on 99 years at the prescribed rate of Rs.25,000 per acre. The name of applicants, area leased out Naclass No.Deh, and orders of Chief Minister Sindh are shown against each. S.No. Name of Applicant/ lessee Area held on lease Naclass No.Deh as per application Orders directives of Chief Minister 1. 2. 3. 4. 5.

6. Mr. Abu Bakar son of M. Dawood 16-0 acres in N.C. 26 Deh Rehri Kyc East Leased out for poultry Farming 30 years lease Conver-sion allowed in relaxation of policy and existing ban (2) As per orders of the Deputy Commissioner, Karachi East mentioned above, the applicants were leased out land as shown against each in Deh Rehri, Gangiaro, Khanto and in Deh Dih for poultry farming purposes as well as Dairy/Barani cultivation purposes. Regarding the question whether these leases are intact, cancelled under suo motu stay or falls in any Scheme of K.D.A. hence it is for the D.C. Karachi East to report the present position/status of land involved as discussed in preceding paragraphs. (3) Besides above, according to existing provisions of the policy/rule/law, there is no such provision/condition to convert poultry/Dairy/Barani cultivation leases into 99 years lease for industrial/ residential/ commercial purposes. According to condition No.14 of the statement of Conditions Notified on 12-5-1975 the commercial plots are to be disposed of through open auction. Condition No.16 (ibid) provides that the industrial plots are to be disposed of open auction or through private negotiations subject to N.O.C. of Industrial Department. Besides, the Government has constituted the Price Fixation Committee under the chairmanship of Minister, Industries for determination of price. Under the Rule 28 of Rules of Business, the price of land has to be fixed with the consultation of Finance Department. (4) Mention may be made that in the previous Government such conversions were allowed in relaxation of existing policy/rule/ laws as well as in Rules of Business by exercising powers envisaged under section 10(1) of Colonization of Government Lands (Sindh) Act, 1912. The rate on which such conversion was allowed is Rs.50,000 per acre in Dehs Rehri, Gangiaro, Khanto and in Deh Dih. Not Rs.50,000 per acre as mentioned in the above applications. (5) In view of the position explained above, if the Chief Minister Sindh's inclined to consider the request of the applicants the same may be allowed under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 duly vetted by Law Department vide its opinion dated 13-5-1990 (Annexure "CC") in relaxation of existing policy/Rules of Business as well as ban imposed by the Government at the rate of Rs.50,000 per acre. (Sd.) 20-1-1994 (Ramesh M. Udeshi) Secretary to Government of Sindh Land Utilization Department. Chief Minister, Sindh (Sd.) 25-1-1994

11. A perusal of the above summary would disclose that in the first instance, the appellant has made it abundantly clear that the land in question has to be disposed of through open auction after the price has been fixed by the Finance/Industrial Department. At the same time, however, it has also been pointed out by the appellant that previously land in the same area had been converted to industrial/commercial purposes at the rate of Rs.50,000 per acre and that per the legal opinion of the Law Department, the Chief Minister could do so under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912. Thereafter when the proposal made in the summary was approved by the Chief Minister, the appellant issued a formal order for conversion of a thirty years lease for four (4) acres of land in favour of accused Abu Bakar to a 99 years which was addressed to the D.C. Malir. The role of the appellant in the entire episode is confined to the floatation of the summary and the issuance of the formal orders for conversion of the lease in favour of co-accused Abu Bakar. Regarding the depositions of the P.Ws., it would be seen that again these are confined to the factum of issuance of the summary in question and the formal orders to the Deputy Commissioner, Malir. Under cross-examination P.W. Abdul Jabbar who used to work as a senior clerk/typist in the office of the Land Utilization Department, Board of Revenue, Karachi, has admitted that previously other Secretaries in the Land Utilization Department had floated similar summaries which he had typed and in which poultry farming leases were converted to commercial/industrial/ residential leases at Rs.50,000 per acre. He also produced the opinion of the Law Department wherein it has been advised that "the Chief Minister has overriding powers in the Rule of Business to pass any order in respect of any department allocated to any Ministry without consulting the Ministry of the particular department. Under the Constitution powers are vested in the Chief Minister and the Ministers, Secretaries and other functionaries of the Government derive their authority from him". The witness has also admitted that after appellant was transferred from his post his successors had also floated similar summaries for disposal of the lands in the Province at the same rate up to the year 1996, however, now the Government has cancelled all such grants from the year 1985 onwards.

12. P.W.2 Muhammad Ishaque Lashari, the then D.C. Malir, has deposed that when he received the order from the appellant regarding conversion of the land in question from poultry farming to commercial/residential purposes at the rate of Rs.50,000 per acre, he issued the necessary instructions to the Mukhtiarkar. Under cross-examination, he has admitted that previously also i.e. from 1990 to 1997 the leases were converted from poultry farming to commercial/residential purposes at the same rate viz. Rs.50,000.

13. The next P.W. Muhammad Salik has merely produced the official correspondence with regard to the conversion of the land in favour of accused Abu Bakar, copy of the challan whereby the difference in price was deposited by the said accused etc. Consequently, as such facts are not disputed we do not propose to discuss the deposition of this witness. So also P.W.4 Muhammad Zafar Balouch the Sub-Registrar, having jurisdiction over the transfers of properties in the area, has produced the schedule for determination of prices of the land in question as well as an extract from the register regarding the sales of land in the area.

14. Finally, P.W. Fayyaz Ahmed Khan, the Investigating Officer has deposed that pursuant to his enquiry in the matter he had submitted his report wherein the charge against the appellant and absconding accused Abdullah Shah stood established viz. that of being instrumental in conveying valuable State land at a throw away price to co-accused Abu Bakar thereby giving an unlawful benefit to him.

15. In view of the aforegoing, we are of the opinion that there is hardly any mens rea on the part of the appellant as he had made it abundantly clear in his summary that although under the rules the land in question has to be disposed of through public auction or private negotiation, the Chief Minister could relax the rules under the law and as per past precedent, allow the conversion at the rate of Rs.50,000 per acre, based on the legal opinion issued by the Ministry of Law. So also it would be seen that none of the P.Ws. have stated that the appellant benefited personally from the conversion of the land in question in favour of co-accused Abu Bakar. In fact it is an admitted position that the conversion has since been cancelled by the Government. In the circumstances at best, it can be said that perhaps the appellant did not exercise his discretion in advising the Chief Minister against the transaction. However, lack of discretion or giving of wrong advice per se cannot in our opinion amount to an offence under section 9(a)(vi) of the NAB Ordinance viz. misuse of authority by a holder of public office so as to gain any benefit or favour for himself or for any other person or wilful failure to exercise such authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. Hence unless there is the element of wilfulness and conscious deliberation on the part of the appellant/ accused coupled with undue benefit/gain for himself or for the co-accused, no offence can be made out under section 9(a)(vi). At the most, therefore, it could be said that the appellant was guilty of stating the incorrect provisions of law in the summary in question, which in our view would not constitute in offence, per se, and perhaps may give rise to administrative action against him. In this regard reference can be made to the cases of Aftab Ahmed Khan Sherpao v. The State, Tariq Javed Afridi v. The State, M. Anwar Saifullah Khan v. The State (supra) and Ramesh Udeshi v. The State (supra) Crl. Accountability Appeals Nos.1 and 2 of 2000). Insofar as the case of Ramesh Udeshi v. The State (supra) Criminal Accountability Appeal No.14 of 2000) is concerned which has been cited by the learned D.P.G.A. NAB in our opinion the same is distinguishable. This is for the reasons that in the instant case a learned Division Bench of this Court came to the conclusion that despite the rejection of the proposal of grant of land by the Chief Minister on the objection of the Finance Department, the appellant concealed the relevant paras. of such rejection and was thus, instrumental in obtaining a positive order in favour of the beneficiaries/ accused. In such circumstances, it was held that the offence under section 9(a)(vi) of the NAB Ordinance was fully made out.

16. As regards the D.P.G.A.'s submission that once an accused is charged under section 9(a)(vi) of the NAB Ordinance then under section 4(d) thereof the burden shifts upon him to disprove such charge, we may observe that before the accused is saddled with this onerous liability (which is a departure from the ordinary rules of criminal jurisprudence), the prosecution has firstly to make out a reasonable case against the accused per the proviso to said subsection. In the circumstances of the case, we are of the opinion that no reasonable case has been made out by the prosecution which would make it compulsory for the appellant to prove his innocence.

17. In view of the above discussion, in our opinion, the prosecution has failed to prove the charge against the appellant. Hence vide a short order passed earlier, we had allowed this appeal and consequently acquitted the accused. The above are the reasons for the same. N.H.Q./R-34/K Appeal allowed.