1998 P Cr (PLP)

SH. IJAZ NISAR, C.J.

On 10-6-1994 case F.I.R. No.40 of 1994 was registered at Police Station A.C.E., Lahore against Mian Muhammad Nawaz Sharif under sections 218, 409, 420, 468/109, P.P.C., section 5 of the Prevention of Corruption Act, 1947 and Article 3 of the Holders of Representative Offices (Punishment for Misconduct) Order (16 of 1977) at the instance of Mr. A.U. Saleem, Director-General, L.D.A. on the allegation that he dishonestly allotted seven plots measuring two Kanals each to seven persons in Rachna Blork, Allama Iqbal Town, Lahore against the allotment policy causing a colossal monetary loss to the L.D.A.

2. Following completion of the investigation challan was submitted against the petitioner in the Special Court constituted under P.P.O. 16 of 1977. Before charge-sheet was framed an application under section 265-K, Cr.P.C. was moved on behalf of the petitioner for his acquittal which was dismissed on 26-3-1995.

3. Feeling aggrieved, the petitioner has moved a Constitutional petition before this Court to bring under challenge validity of the abovementioned order.

4. It is, inter alia, contended that no violation had been committed by the petitioner in making the allotments, for, there was no allotment policy about the allotments of two Kanals plots and the one relied upon by the prosecution did not apply to such allotments, that the allotments were made to genuine persons on payment of the reserved price then prevailing and no element of forgery, cheating or criminal misappropriation was involved in making the allotments.

5. Kh. Saeed-uz-Zafar, learned Deputy Attorney-General has opposed the petition and stated that it would be appropriate if the matter is left to be decided after recording the parties' evidence by the Special Court.

6. The learned Special Court observed in the impugned order that the policy framed on 23-12-1986 regarding the allotments of L.D.A. plots was confined to the disposal of plots measuring one Kanal and ten Marlas only and that no specific procedure had been placed on record for the allotment of two Kanals plots. The learned Special Court further observed that no law or statutory rules were placed on record, violation of which was allegedly committed by the petitioner. However, the learned Court considered it appropriate to decide the above question after recording evidence of the parties and, thus, dismissed the application.

7. The record placed before the learned Special Court does not indicate or show any element of cheating, forgery or criminal misappropriation on the part of the petitioner. The only allegation against the petitioner was of having made the allotments in violation of the allotment policy. As observed by the learned Special Court there was no policy to regulate the allotment of two Kanals plots and the policy relied upon by the prosecution pertaining to the allotment of ten Marlas and one Kanal was irrelevant. The prosecution has not placed any material on record in support of the allegation of criminal breach of trust or misappropriation. For the proof of the offence of criminal breach of trust, the law requires that there should have been a dishonest misappropriation of conversion of one's own use the property entrusted to him or its disposal in violation of any direction of law describing the mode in which such trust was to be discharged but in the case before us there is no material to substantiate the allegation of dishonest misappropriation conversion to one's own use or disposal of the property in violation of any direction of law. As already observed there was no law, rule or policy with regard to the allotment of two Kanals plots the violation whereof could be said to constitute the said offence. The ingredients of section 218, P.P.C. are also not made out since there is no allegation against the petitioner of having prepared any incorrect record. Section 5(2) of the Prevention of Corruption Act, 1947 was also not attracted, for, there is no allegation against the petitioner in the F.I.R. nor is there any material in support thereof that the petitioner had made the allotments in question after obtaining illegal gratification or bribe from the allottees. We have also not been able to find any material on record constituting "misconduct" on the part of the petitioner within the meaning of Article 2(A) or P.P.O. 16 of 1977.

9. For the foregoing reasons, we are of the view that there is absolutely no probability of conviction of the petitioner under the aforementioned offences and his trial shall be an exercise in futility. Consequently, we accept the petition, set aside the order of the learned Special Court as being without lawful authority and quash the proceedings against the petitioner arising out of the F.I.R. in question. N.H.Q./M-476/L Petition accepted.