1998 PLP 1264 (MLD)

(d) Najib Ahmed, Assistant Director K.D.A.- P.W.4 ; (e) I.D. Mangi, Inspector, Anti-Corruption Establishment and the Investigation Officer - P.W. 5;

4. The accused Nos. 2 and 3 submitted certain documents/notifications alongwith their section 342, Cr.P.C. statements and chose not to be examined on oath. On the other had, the accused No. 1 submitted like statement and additionally chose to be examined on oath.????????

5. I have examined the record, perused the statement and testimonies, and given serious thoughts to the contentions advanced by the learned counsel. In my humble opinion the matter revolves round the determination of the following issues:-- (a) Whether at material times there in fact existed a complete ban against the conversion of amenity plots to any other use; (b) whether at material times there in fact existed a complete ban against disposal of State land in view whereof the plot in question was illegally allotted by way of regularisation ; (c) whether any loss to the exchequer or otherwise had been caused by accepting Rs. 200 as the allotment/regularisation fee per yard i.e. whether the said rate was commensurate with the market rate ; (d) in case there existed the ban as vehemently contested by the prosecution as to whether the accused No.? 1 possessed the requisite powers to grant approval; (e) whether the case ought to have been heard by a Bench comprising three learned Judges rather than by Single Judge ; (f) whether the Ehtesab Law is inapplicable to accused No. 3 since at material times he was only employed in Grade-19;

6. The foremost question which warrants immediate determination is whether at the times when the accused No. 1 granted approval for conversion there existed any ban on such exercise of power. The prosecution has cited the Sindh (Amendment) Act No. XVII of 1974 and Article 52 of the K.D.A. Order 1957 to make, out a case for such ban. In the Ehtesab Reference also (vide para 2) the learned Chief Ehtesab Commissioner had referred to this statute as well as section 52 of the K.D.A. Order 195? 1 have been able to lay my hands on the Act No. XVII of 1974 which appears at PLD 1975 Sindh Statutes

6. It reads as under :-- SINDH LAND REVENUE FIRST DRAFT ASSESSMENT LISTS (VALIDATION) ACT, 1974 An Act to validate the first draft assessment lists made under the Sindh Land Revenue Flat Rate Assessment Rules, 1973 (Gazette of Sindh, Extraordinary, Part IV, 9th November 1974) (First published after having received the assent of the Governor of Sindh in the Gazette of Sindh (Extraordinary). dated 9th November, 1974). No.? PAS/Legis./Bill-22/74,

The Sindh Land Revenue First Draft Assessment Lists (Validation) Bill, 1974 having been passed by the Provincial Assembly of Sindh on 5th November, 1974 and assented to by the Governor of Sindh on 9th November, 1974 is hereby published as an Act of the Legislature of Sindh

Preamble.

Whereas it is expedient to validate the first draft assessment lists made under the Sindh Land Revenue Flat Rate Assessment Rules, 1973; It is hereby enacted as follows:--

1. Short title.

This Act may be called the Sindh Land Revenue First Draft Assessment Lists (Validation) Act 1974.

2. Validation of draft assessment lists.--First Draft Assessment Lists made under the Siadh Land Revenue Flat Rate Assessment Rules, 1973 shall, notwithstanding that the public notice thereof, as required by sub-rule (2) of rule 7 of the said Rules, was not given, be deemed to be and always to have been valid and legally effective and any order or judgment of a Court affecting the validity of any of such Lists shall be of no legal effect.

3. Reveal of Sindh Ordinance X of 1974.

The Sindh Land Revenue First, Draft Assessment Lists (Validation) Ordinance, 1974, is hereby repealed. " Likewise Article 52 of the K.D.A. Order 1957 is also reproduced herein below:-- "Combination of improvement scheme.

The Authority may at any time include in a combined scheme the improvement scheme framed or proposed to be framed for two or more areas."

7. The above statute has no correlation with ban on conversion of amenity plots. Furthermore Article 52 pertains to the combination of improvement schemes. As such the latter is also hardly relevant to the present controversy but surprisingly Mr. Muhammad Mohsin Panhwar the then Chairman, Enquiries & Anti-Corruption Establishment, Services and General Administration Department, Government of Sindh referred the matter on 15th January, 1997 to the learned Chief Ehtesab Commissioner without bothering to even look into the statute and/ or law, and thus, erroneously referred to "Sindh (Amendment) Act No. XVII of 1974 and clause 52 of the K.D.A. Order No. 5 of 1957", and in the instant Reference sent by the learned Chief Ehtesab Commissioner (Ex. 12/3) the same mistake has been made (vide para. 2 of the Ehtesab Reference, dated 20th January, 1997).

8. Now it is to be seen as to whether the approval granting the conversion had been done legally and after following the prescribed procedure as laid down by law. In this respect Article 52-A of the K.D.A. Order, 1957 is of singular pertinence which is being reproduced as under for convenience:-- "52-A.(1) The authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of Government, submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries play-grounds, gardens, parks, community centres, mosques, graveyards or such other purpose and the Commissioner shall notify such details in the official Gazette. (2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose. (3) The Commissioner shall, on receipt of an application under sub?-section (2), invite objections from the general public through a notice published in one English and any vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.?????? (4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations alongwith the application and other connected papers to Government for orders". Article 52-A (1) stipulates that - certain amenity plots may be reserved for purposes of building, road, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, graveyards or such other purpose as the Commissioner shall notify in the official gazette. Article 52-A(2) provides that the K.D.A. or the relevant Housing Authority may at any time prior to utilization of the amenity plots apply to the Commissioner for conversion of such plots to any other purpose. Correspondingly, Article 52-A (3) further states that the Commissioner shall upon receipt of the application by the K.D.A. or the Housing Authority, seeking conversion of the amenity plots invite objections from the general public through notices published in newspapers (as prescribed) against the proposed conversion. The commissioner in turn is then under a further obligation to await the expiry of 30 days from the date of invitation of public objections before passing any order and the public at large has also to submit the objections within the said 30 days. Article 52-A(4) further provides that the Commissioner shall not only entertain such objections but also hear the persons desirous of being heard before sending his recommendations, the application for conversion and the connected papers for further orueis to the Government. Admittedly, in the present case this entire procedure has been by?passed. In the first place it was the K.D.A. alone which had to make the application for conversion to the Commissioner who in turn had to invite public objections within 30 days. Some officers of the K.D.A. had recommended the matter to be placed before the Governing Body since under Article 4 of the K.D.A. Order, 1957 the general direction and administration of the K.D.A. and its affairs vest in the Governing Body which is empowered to exercise all powers and do all acts and things which may be exercised or done by the K.D.A. The matter never found its way to the Governing Body. Had it been so routed to the Governing Body the Commissioner could have been involved in the process of conversion as provided by Article 52-A considering that under Article 5 of the K.D.A. Order the Commissioner is a member and an ex-officio Chairman of the Governing Body. In this manner, the Director General, K.D.A. who had sent the recommendation to the accused No.? 1 as also the accused No. 3 who had put up the summary before the Accused No.? 1 and also the Accused No.? 1 who had sanctioned the final approval have acted unlawfully, illegally and with utter disregard to the operative legal procedures. For none of these said persons there could be any defence that they were not conversant with the operative laws since firstly, ignorance of law is no excuse and secondly, these persons have violated the law which had concerned the working and procedures of their own department. On top of such recalcitrance it may be stated without reservation that amenity plots in a particular scheme are meant for the purpose of certain activities which are necessary to the advancement of the public interest. Thus, the conversion of amentity plots illegally and without following the operative procedure is an illegality on a higher pedestal since the aggrieved persons in such an eventuality are the public at large. There is some dispute with regard to the market price at which the plot in issue was allotted by way of regularization. Such controversy and the extent of the loss caused to the exchequer disappears in the background since herein the loss caused to the public at large by the illegal conversion of an amenity plot stands established and gains predominance. The loss to the public at large in terms of the deprivation of the use of the present amenity plot is so serious and fundamental that it far exceeds the loss which may have occasioned to the exchequer and accordingly it is also unnecessary to consider the latter aspect.

9. The other aspect of the matter is whether the Accused No. l had any power to relax the procedure embedded in Article 52-A of the K.D.A. Order 1957. Once again there is no such statutory power which could have allowed the Accused No. 1 to have acted in relaxation of the procedure prescribed for conversion of the plot earmarked for amenity purposes. According to the Hon'ble Supreme Court in Shehla Zia v. WAPDA PLD 1994 FSC 693, Article 9 of the Constitution of Pakistan (1973) guarantees right of life which, inter alia, includes the enjoyment of all such facilities and amenities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. An action illegally depriving the people at large of the right of the use of an amenity plot would also militate against Article 9 of the Constitution. The question of the Accused No. 1 relaxing the prescribed procedure for conversion as found in law does not arise as no such power has been reserved by law, let alone any possibility of his relaxing the Constitutional guarantee contained in Article 9 of the Constitution.

10. The prosecution has also advanced the argument that in terms, of Government of Sindh, Services and General Administration Department Notification dated 4-12-1993 (Annexure 12/4) the sale/disposal of Government land at material times was completely banned. I do not think that it is necessary to give any finding on this argument since I have already come to the conclusion that the very conversion of the amenity plot in question was illegal in view whereon I find and hold all the three accused guilty under section 3 of the Ehtesab Act, 1997 and sentence them to terms spelt out in the concluding r paragraph of this Judgment.

11. Here it would be relevant to clarify certain related aspects. The conviction of the accused No. 2 has necessarily followed as he has been the beneficiary who has illegally gained from the illegal conversion of the plot in question. The said accused No. 2 is, thus, also hit and covered by the said section 3 of the Ehtesab Act, 1997. As regards the objection raised by learned counsel for Accused No. 3 that he (accused Shah Mansoor Alam) at material times was posted in Grade-19 and as such could not have been proceeded against under the Ehtesab Act the same is not well-founded. It is correct that under the p Ehtesab Ordinance, 1997 (Ordinance No. XX of 1997) section 2(g)(iv) the "holder of public office" were defined to be the persons who held the post in BPS-20 or above. The said Ordinance No. XX of 1997 was superseded by the present Ehtesab Act, 1997 (Act No.? IX of 1997) which, inter alia, has provided that any proceedings before a Court under the Ordinance No. XX of 1997 shall continue under the present Ehtesab Act (see section 31 (2) (c) of the Ehtesab Act). This would essentially mean that the proceedings even if commenced under the erstwhile Ordinance No. XX of 1997 shall continue under the Ehtesab Act 1997 while taking all qualifications and disqualifications under the latter, i.e. the retroactivity has been inherently expressed. Section 2(i)(iv) of the Ehtesab Act 1997 includes in the definition of the terms "holder or public office" officer in BPS-18 and above. If the qualification of holder of public office is construed under the Ehtesab Act, 1997 the Accused No. 3 would be covered under it for the purposes of the present case. Lastly, the objection of the learned counsel for accused No. 3 that a Single Judge could not have entertained the-present proceedings is also devoid of any force. Section 10(1) of the Ehtesab Act, 1997 provide that the offence under the Ehtesab Act shall be triable by a Bench of the High Court as defined in section 2(f) which in turn stipulates that such Bench may comprise one or more Judges as nominated by the Chief Justice. I have already adverted to section 31(2)(c) of the Ehtesab Act, 1997 which noL only saves earlier proceedings but clearly stipulate that such proceedings are to continue under the present Ehtesab Act while expressing the inherent retroactivity. In any event it is settled law that the matter concerning availability of a forum is procedural and can have retroactive application unless such retroactivity violates vested rights. (See Adnan Afzal v. Capt. Sher Afzal PLD 1969 SC 187; Syed Muhammad Azim and 5 others v. The State and 5 others PLD 1970 Quetta 27; Syed Asgher Ali Shah v. Muhammad Ali PLD` 1988 SC 228; Office Reference No. 259 of 1974 etc; PLD 1994 Karachi 258; Noor Muhammad v. Additional District Judge, Chakwal and 7 others PLD 1994 Lahore 170; Crawford on Statutory Construction, 1940 Edn, P.109; Maxwell on I Interpretations of Statutes; 12th Edn P.125). Nothing is brought on record to show whether any vested right was violated or prejudice caused to the accused by the conduct of trial by one Judge as opposed to three Judges. The upshot of the above discussion is that after having found the three accused guilty now comes the question of sentence and to see whether there exists any mitigating circumstances to award them less punishment. The matter concerns breach of a public duty cast upon the high office such as a Minister who hold such office as a sacred trust on behalf of the populace. The people expect due diligence and care from such a person who is to perform his duties, honestly and competently in the public interest with a view to safeguard the welfare of the people at large and not otherwise. The subject-matter of the present reference i.e. illegal conversion of an amenity plot, is such that the laxity shown by the accused No. 1 attains higher gravity since the illegality directly touches upon the right of life of the people. Therefore, no lenience can be shown to the accused No.?

1. As regards accused No. 3 he too held a public office and ought to have exercised his powers to further the public interest. He ought not to have floated the illegal summary. In relation to accused No. 2 it can be said that he too became oblivious to the great loss that the public suffered by his illegal gain. As such the guilts of the accused Nos. 2 and 3 have the same gravity as that of accused No.

1. Hence in the absence of any mitigating circumstances .I award R.I. for five years to all the three accused and further to pay fine of Rs. 20,00,000 (Rupees Twenty Lacs) each or in default of payment of fine to suffer R.I. for two more years. If applicable they would be entitled to the benefit of section 382-B, Cr.P.C. Since they are on bail therefore they are remanded to judicial custody to serve out the sentences. Office is directed to issue their warrants of commitment. They will be supplied copies of this judgment free of costs immediately after its announcement. The bonds are discharged. A.A./S-132/K????????????????????????????????????????????????????????????????????????????????????? Accused Convicted.