2005 PLP 1854 (MLD)

SARMAD JALAL OSMANY, J.

This Crl. Acct. Revision Application impugns the order dated I1-10-2002 passed by the Learned Accountability court No.IV in NAB Reference 21 of 2002 dismissing the applications filed by the Applicant (and other Co-accused) under section 265-K Cr.P.C. whereby it has been prayed that the case against them be quashed and they be discharged/acquitted.

2. Briefly stated the facts of the matter are that in NAB Reference No.21 of 2002, the Applicant is alleged to have abetted the other co-accused in enabling co-accused/Beneficiary Khub Chand to acquire valuable State land at a throw away price. co-accused Khub Chand had initially applied to co-accused Abdullah Shah (the then Chief Minister of Sindh) for grant of four acres of land for the purpose of a housing scheme which was processed by the applicant through a summary recommending that the said land be granted at the rate of Rs.50,000 per acre whereas the prevailing rate was between Rs.3,00,000 to Rs.4,00,000 per acre. Such summary was approved by co-accused Abdullah Shah whereupon orders were passed by the Applicant allotting the land to co-accused Khub Chand and a 99 years lease was also ordered to be executed. Thereafter co-accused Khub Chand addressed another application to co-accused Abdullah Shah for allotment of alternate land in the same area which was again processed by the applicant and favourable orders obtained. Finally, co-accused Khub Chand addressed yet another application to co-accused Abdullah Shah for grant of alternate land which request was against granted through the summary floated by absconding accused Ali Sher Shaikh. Hence, it is alleged that the applicant being a holder of public office misused his authority by dishonestly and wrongfully favouring co-accused Khub Chand in violation of the Rules of Business thereby causing a colossal to the exchequer. Consequently the applicant is alleged to have committed the offence of corruption and corrupt practice under section 9 of the NAB Ordinance punishable under section 10 thereof.

3. Mrs. Ismat Mehdi appearing for the applicant has firstly submitted that a bare perusal of the two summaries floated by the applicant in response to co-accused Khub Chand requests would disclose that all material facts pertaining to the matter including the official policy, the powers of absconding accused Syed Abdullah Shah and the past precedents were fully disclosed by the applicant. Consequently, there is no element of mens rea, insofar as the role of the applicant is concerned, which is further substantiated by the fact that there is no allegation against him of any dishonest gain. At the most, therefore, the applicant 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. So also learned counsel has submitted that admittedly Khub Chand was put into possession of the lands in question through the Summary floated by absconding accused Ali Sher Sheikh. Per learned counsel in an identical situation this Court acquitted the applicant in Crl. Acctt. Appeals No.1 and 2 of 2000. Learned counsel has also relied upon the cases of Saifuddin v. Muhammad Ashfaque Piracha (1986 CLC 1819). Anwer Saifullah Khan v. The State, (PLD 2002 Lahore 458); Tariq Javed Afridi v. The State (PLD 2002 Lahore 233); Murad Ali Shah v. Government of Sindh (PLD 2002 Karachi 24); Mir Munawar Ali Talpur v. the State PLD 2003 SCMR ), Ramesh Udeshi v. The State PLD 2004 Kar. 224; Aftab Ahmed Khan Sherpao v. The State (PLD 2001 Peshawar 80), Ramesh Udeshi v. The State (PLD 2003 Kar. 423); Gahno v. The State (PLD 1964 WP Karachi 437); State v. Rabnawaz (PLD 1974 SC 87); PLD 1960 SC 109) and the unreported Judgment of this Court in Crl. Misc. Application No.274 of 1998.

4. Next, learned counsel has submitted that in the circumstances of the case there Is no possibility at all of the charges against the applicant being proved and hence the pendency of the proceedings against him before the learned Accountability Court would be an exercise in futility and an abuse of the process of law. In support of her submission, learned counsel relied upon Shahnaz Begum v. Hon'ble Judges of the High Court and another (PLD 1971 SC 677); Adamjee Insurance Company Limited v. Assistant Director Economic Enquiry Wing (1989 PCr.LJ 1921); Anwar Ahmed Khan v. The State (1996 SCMR) 24 and Muhammad Latif v. Sharifan Bibi (1998 SCMR 666).

5. On the other hand the learned ADPGA, NAB has opposed this application on the ground that sufficient evidence is available with the prosecution against the applicant for the purpose of proceedings with his trial. He has emphasized that under section 9 (a) (vi) of the NAB Ordinance, a holder of a public office is said to commit the offence of corruption and corrupt practices if he misuses his authority so as to gain any benefit or favour of himself or for any other person or renders or attempts to render or willfully fails 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. Per learned DPGA the applicant knew or should have known that there existed a ban on the allotment of' government land in the area and that normally when such land is to be allotted/sold that should be done through public advertisement or private negotiation per the prices fixed by the official committee in this regard. Similarly, the applicant should have been aware of the Sindh Government Rules of Business whereby any government land cannot be disposed of without involvement of Ministry of Finance. Hence prima facie, it could be said that the summaries in question cleverly camouflaged the illegality of allotting the land whereas the powers of the Chief Minister were highlighted. Consequently, it could be said that the applicant failed to exercise his authority to prevent the grant of an undue benefit or favour to co-accused Khub Chand within the meaning of section 9(a)(vi) of the NAB Ordinance. Hence he has prayed that the applicant be dismissed.

6. We have heard the learned counsel as well as learned DPGA NAB and our conclusions are as under:--

7. A perusal of the summaries in question would disclose that in the first instance, the applicant has made it abundantly clear that the market value of the land in the area is reported to be in the region of Rs.4 to 5 laces per acre. At the same time, however, it has also been pointed out by the applicant that previously land in the same area had been allotted by the Government at Rs.15,000 per acre and so also the matter regarding price fixation had been referred to the Finance Department to which a reply awaited. Consequently it was recommended by the applicant that the land be allotted to co-accused Khub Chand at Rs.50,000 per acre in relaxation of the Rules and per powers of the Chief Minister under section 10(1) of the Colonization of Government Lands (Sindh) Act 1912 per the legal opinion of the Law Ministry. Thereafter, when the proposal made in the summary was approved by the Chief Minister, the applicant issued a formal order for the grant of land in favour of co-accused Khub Chand. Later, said co-accused applied for alternate land in another area upon which a similar summary was floated by the applicant. Hence it would be seen that the role of the applicant in the entire episode is confined to the floatation of the summaries and the issuance of the formal orders for allotment of the land in favour of co-accused Khub Chand. In view of the foregoing, we are of the opinion that there is hardly any mens rea on the part of the applicant 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 allotment at the rate of Rs.50,000 per acre, based on the legal opinion issued by the Minister of Law. In the circumstances at best, it can be said that perhaps the applicant did not exercise his discretion in advising the Chief Minister against fhe transaction. However, lack of discretion or giving of wrong advice per se cannot in our opinion amount to an offence under A 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 applicant/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 applicant was guilty of stating the incorrect provisions of law in the summary in question, which in our view would not constitute an 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). So also in identical circumstances, we had allowed Cr. Accountability Appeal No.6 of 2000 filed by the applicant Ramesh Udeshi wherein a similar summary floated by him in respect of other beneficiaries was in issue and his role confined to the same.

8. In view of the foregoing fats and circumstances, in our opinion it would be futile to-allow the trial of the applicant to proceed since there is no possibility of his conviction. We had accordingly allowed this Crl. Accountability Revision Application and quashed the proceedings against the applicant vide a short order passed earlier. There are the reasons for the same. N.H.Q./R-47/K Proceedings quashed.