P L D 2002 Karachi 72 (PLP)

MUHAMMAD ROSHAN ESSANI, J.‑‑‑The appellant being aggrieved and dissatisfied by the judgment dated 23rd May, 2000 passed in Case No. 3 of 1999 by the Accountability Court No. l at Karachi, acquitting the respondents Nos. l to 5 of charges under sections 3 and 4 of the Ehtesab Ordinance, 1996 has assailed the said judgment through the above acquittal appeal. The brief facts of the prosecution case as disclosed in the Ehtesab Reference No. 10 of 1997, wherein the above respondents were sent up are reproduced hereinbelow in extenso: IN THE SINDH HIGH COURT (KARACHI) STATE versus

1. Jam Mashooq Ali, Ex‑PMA and Minister, Industries and Mineral Development, Government of Sindh.

2. Mr. Shamim Ahmed Junejo. Director, Shunaid Weaving Mills. 210 R.S. Msquare Shaheed‑e‑Millat Road, off Shara‑e‑Faisal, Karachi.

3. Mrs. Farzana Faheem, House No.A‑679, Block 12, Federal "B" Area, Karachi.

4. Bizal s/o Diuzi, Prop. M/s. Bilal Corporation, M. Khan Compound, Juna Kumar Wara, Karachi.

5. Mr. Amin Sadiq. Prop. Al‑Amin Enterprise, Shop No.1‑37, Hasho Centre, Abdullah Haroon Road, Karachi. Subject: REFERENCE UNDER SECTION 14 (1) OF THE EHTESAB ORDINANCE, 1990 Respectfully Sheweth:

1. That Mr. Jam Mashooq Ali s/o Mr. Jam Sadiq Ali, r/o Jam Nawaz Ali Taluka Sinjhoro, District Sanghar (hereinafter called accused No. 1) was elected as Member of Provincial Assembly Sindh during the General Election 1988.

2. That the accused No. l held the office of Minister for Industries and Mineral Development, Government of Sindh.

3. That the accused No. l in his capacity as Ministry allotted five acres industrial plot to accused No.2 Shamim Ahmed Junejo in addition to two plots already allotted to him. Mr. Shamim Ahmed Junejo neither raised the construction nor set up the industry but sold away the plot for gain.

4. That, the accused No. l also allotted industrial land to accused Nos. 3 to 5 (Mrs. Farzana Faheem, Bilal Corporation and Al‑Amin Enterprises), Mrs. Farzana Faheem sold away the plot for grain. Neither feasibility Department.

5. That, above acts of omission and commission by accused No.1 amount to corruption and corrupt practices within the meaning of section 3 of the Entesab Ordinance, 1996.

6. That, accused No. l was holder of public office within the meaning of section 2(f) of the Ehtesab Ordinance, 1996, while accused Nos.2 to 5 are beneficiaries within the meaning of section 4(2) of the said Ordinance.

7. That, inquiry in the matter was conducted by Sindh Enquiries and Anti‑Corruption Establishment.

8. That on the basis of record and the evidence collected a prima facie case is made out against all the accused for trial under sections 3 and 4 of the Ehtesab Ordinance, 1996.

9. The relevant record alongwith list of witnesses, list of evidence and annexures is enclosed herewith." The trial Court after completing the Codal formalities framed charge against the respondents, Contents thereof are reproduced hereinbelow: "That you accused No.1 Jam Mashooq Ali, being holder of Public Office in your capacity as the then Minister for Industries ant Mineral Development, Government of Sindh, in abuse of you: official position with mala fide and dishonest intention with a view to earn legal gratification and money for yourself and for providing illegal gains, favour and profits to other aforesaid accused allotted between the period February, 1990 to September, 1990 (i) Five acres Industrial Plot to accused No.2 in addition to two plots already allotted to him; (11) Two acres Industrial Plot to accused No.3; (iii) One acre Industrial Plot to accused No.4 and his other beneficiary partner Shabbir Ismail, and (iv) 1/2 acre Industrial Plot to accused No.5, who after acquiring have sold the said Industrial Plots for gain. That you accused Nos.2 to 5 (beneficiaries) acting in collusion and connivance with each other requested the accused No. l for allotment of the aforesaid plots in your favour for illegal and wrongful gratification, benefits and favours to accused No. l and for earning pecuniary benefit/profits and gains for yourselves; And that your above acts of omissions and commissions falls within the definition of corruption and corrupt practices within the meaning of section 3 of the Ehtesab Act, 1997 and punishable under sections 4 thereof within the cognizance of this Court and I, hereby direct that your accused Nos. l to 5 be tried for the aforesaid offence/s. The respondents/accused did not plead guilty to the charge and claimed to be tired. The prosecution in support of its case examined P. W.1 Muhammad Bux, the Chief Administrative Officer as Exh. 14 who produced the photostat copy of application dated 26‑8‑1989 addressed to respondent/accused No. l as Exh.14/I, photo copy of N:O.C. as Exh.14/2, photostat copy of the minutes of the meeting of Allotment Committee held on 18‑12‑1989 as Exh. 14/3, photostat copy of letter dated 14‑12‑1990 as Exh. 14/4, photostat copy of the agreement with regard to sale of share as Exh.14/5, photostat copy of letter regarding change of directors as Exh. 14/6, photostat copy of the application of respondent/accused No.3 addressed to accused No.1 for allotment of Industrial Plot as Exh.14/7, photostat copies of the minutes of the meeting of Allotment Committee as Exh. 14/8, 14/8A to 14/8J, photostat copy of the letter dated 8‑5‑1990 as Exh. 14/9, photostat copy of the letter dated 27‑3‑1991 as Exh.14/10, photostat copy of partnership deed as Exh. 14/11, photostat copy of agreement to licence as Exh. 14/12, Photostat copy of application dated 1‑10‑1996 regarding transfer of the plot No.D/29, admeasuring 2 acres, Site, K.D.A. Scheme No.33, North Karachi as Exh.14/13, photostat copy of agreement to assign as Exh.l/13‑A, photostat copy of application dated 1‑10‑1996 regarding transfer of Plot No.D/29 admeasuring 2 acres in Site K.D.A. Scheme No.33, North Karachi as Exh.14/14, photostat copy of letter of Bijal Corporation as Exh.14/15, photostat copy of the minutes of the meeting of the Board of Directors as Exh.14/16, photostat copy of minutes of the Land Assessment Committee held on 5th May, 1990 as Exh.14/17, photostat copy of offer letter for allotment of land for industrial purpose, as Exh.14/18, photostat copy of partnership deed as Exh. 14/10, photostat copy of letter of Bijal Corporation as Exh. 14/20, photostat copy of letter of Al‑Amin Enterprises as Exh. 14/21, photostat copy of minutes of the meeting of Allotment Committee of SITE Ltd: held on 9‑8‑1990 as Exh. 14/22, photostat copy of minutes of the meeting of Board of Directors of SITE Ltd. held on 27‑8‑1990 as Exh. 14/23, photostat copy of Sindh Industrial Trading Ltd. Manghopir Road, Karachi as Exh.14124, photostat copy of agreement to licence as Exh.14/25, photostat copy of application dated 30‑8‑1992 as Exh.114/26 and pl‑:otostat copy of agreement of assignment as Exh. 14/27, P.W. Abdullah Ismail was examined as Exh. 15 and P.W.3 Inspector Anti‑Corruption Khursheed Ali Khan as Exh. 15 who produced report regarding unauthorized allotment of industrial plots by Jam Mashooq Ali respondent No. l/ accused as Exh. 15/1, original copy of report regarding unauthorized allotment of Industrial Plots as Exh. 15/2, copy of reference under section .14(1) of the then Ehtesab Ordinance, 1996 as Exh. 15/3, photostat copy of form for allotment of land at SITE North Karachi as Exh. 15/4, photostat copy of form for allotment of plot of land at SITE North Karachi as Exh. 15/5 and photostat copy of form for allotment of plot of land at SITE North Karachi as Exh. 15/6. Therefore the Special Prosecution closed the side of the prosecution. Respondent No.1/accused in his statement under section 342, Cr.P.C. denied the prosecution's case and stated that as a Provincial Minister for Industries he remained in office with effect from 6‑12‑1988 to 20‑2‑1990. As a Minister for Industries he had no authority to allot any industrial plot to anyone in Karachi SITE area. The reason was that the SITE is Public Limited Company and they have their own Board of Directors to run the affairs of their company. It is within their exclusive jurisdiction to allot the plot to any individual company or firm as per their own terms and conditions. Karachi North SITE was not a developed area and in order to encourage the people for industrialization in their Province and to set up the industries in new acquired area only recommendations were made. Those were never meant to overrule the procedure of the SITE nor it was meant for allotting tenancy on any concessional terms. The land in North Karachi was disposed of by the Board of Directors SITE and the land was allotted to the applicants as per their choice and not according to the endorsement of the respondent

1. The SITE charged the amount of the tenancy, therefore no loss has been sustained by the SITE. The endorsements of the respondent 1/accused No. 1 on the alleged applications were not substantially complied with by the SITE Karachi as is evident in each case. In case of respondent/accused Shamim Ahmed Junejo his application was consigned to record by SITE, Karachi and it was not considered at all by the SITE Karachi. In case of accused Mrs. Farzana Fahim, it was recommended for grant of one acre of land for industries to the SITE, But SITE allotted her two acres of land as per their rules and regulations. Similarly in case of accused Bijal recommendation was made for grant of two acres but SITE allotted only one acre of land to Bijal. Further in case of accused Amin Sadiq recommendation was made for grant of one acre of land to the SITE but SITE according to their procedure, rules and regulations allotted 1 /2 acre of land to accused Amin Sadiq. He is, a politician and has contested election in the year 1988 from his ancestral constituency in the interior Sindh and bulk of voters in Karachi. In order to satisfy the voters and office‑bearers and oblige them he made the recommendation on the applications. None of the applicants is either complainant or aggrieved person. In the evidence, adduced before trial Court no allegation of gratification, misuse of power, bribery or any act which culminated in unlawful favour in any favour to the respondent/accused was proved. He claimed to be innocent and prayed for justice. Accused Shamim Ahmed Junejo in his statement under section 342, Cr.P.C. stated‑ that he made application (Exh.14/1) in his capacity as Director Shunaid Weaving Mills Ltd., which is a limited company and not in his personal capacity. He admitted that accused No. l had made endorsement on his application but no action whatsoever was taken due to that endorsement because M.D., SITE was not competent authority to issue N.O.C. He denied that plot was either allotted to him or was sold by him. The competent authority SITE allotted the plot to M/s. Shunaid Weaving Mills Ltd. on consideration of application dated 28‑11‑1989 alongwith application of Mr. Tariq Umar Bhatti. The Director had filed N.O.C. issued by from the Government of Sindh plus paid the prescribed fee and Memorandum of Articles of Association. The same Director received possession of the plot on behalf of Shunaid Weaving Mills and plot is in the name of Shunaid Weaving Mills and has not been sold out. He also denied that he indulged in any act of corruption or corrupt practices. He produced certified copy of letter of Director Tariq Umar Bhatti as Exh:3A alongwith Annexures Exh. 3B, C, D, E and F. He also produced the letter dated 12‑12‑1989 of SITE in response to letter of Mr. Tariq Umar Bhatti dated 28‑11‑1989. He produced letter from Estate Engineer of SITE for handing over the possession of Plot No.C/8 to Mr. Tariq Umar Bhatti as well as memorandum of articles of association, certificate of incorporation issued by the Government of Pakistan. Accused Mrs. Farzana Faheem in her statement under section 342, Cr.P.C. stated that vide application dated 26‑12‑1989 Exh.14/7, she requested the respondent/accused No.1 for allotment of two acres of industrial plot. She admitted that respondent/accused No. l made endorsement on her application for allotment of plot of one acre in Scheme No.33 but the respondent/accused No. l had no power to make allotment. She also admitted that after allotment of industrial plot she did not set up industry. The plot in question was not sold out by her and the same is still in her possession. She denied that she was involved in any act of corruption or corrupt practices. She stated that she is innocent and she has been falsely involved in this reference. Accused Bijal in his statement under section 342, Cr.P.C. stated that he requested respondent/accused No. l vide his application Exh/14/1S for allotment of five acres industrial plot at SITE North, Karachi and respondent/accused No. l put endorsement on his application. He admitted that he subsequently made respondent 4(ii) co‑accused Shabbir Ismail partner in his firm i.e. M/s. Bijal Corporation vide partnership deed dated 16‑6‑1991 vide Exh. 14/19 and thus he was made beneficiary. He denied that after allotment of two acres, no industry was set up and the plot, was sold for gain. He denied that he indulged in corruption or corrupt practices. He stated that he is innocent. Accused Shabbir Ismail in his statement under section 342, Cr.P.C. denied the allegation of the prosecution levelled against him and he stated that he is innocent. Accused Amin Sadiq in his statement under section 342, Cr.P.C. stated that he had applied for allotment of one acre of land to respondent/accused No. l who recommended the same but his recommendation did not materialize and his case was deferred in the meeting of the Board of Directors held on 27‑8‑1990. He was allotted land admeasuring half acre by the Board of Directors, SITE, Karachi in their meeting held on 27‑8‑1990 at the prevailing market rate of Rs.7 lacs per acre as per rules and regulations of the SITE. He stated that he has nothing more .to add except that what he has already stated in reply to question No.1 stated therein above. He denied that he had obtained any pecuniary gain and/or caused any monetary loss. He further stated that he is innocent. The above‑named accused persons neither examined themselves under section 340(2), Cr.P.C. on oath nor examined any witness in their defence. We have heard Mr. Amir Raza Naqvi learned counsel appearing on behalf of the appellant and Mr. A. Razaq D. Soomro, Mr. S.A. Samad Khan, Mr. A.Kazi and Mr. A. Waheed Kanjo, Advocates on behalf of the respondents/accused. Before discussing the evidence adduced by the prosecution it will be pertinent to reproduce hereinbelow the relevant provision of section 3 of the Ehtesab Act, 1997 and section 9 of the National Accountability Bureau Ordinance, 1999. Section 3 of Ehtesab Act, 1997. Corruption and corrupt practices. "(1) A holder of a Public Office, or any other person covered hereby, is said to commit the offence of corruption and corrupt practices.‑‑ (a) if he accepts or obtains from any person any gratification, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860), for doing or for bearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavoure to any person, or for rendering or attempting to render any service or disservice to any person; or (b)________________________________________________ (c) if he dishonestly or fraudulently misappropriates or otherwise coverts for his own use, or for the use of any other person, any property entrusted to him, or under his control, as a holder of a public office or wilfully allows any other person so to do; or (d) ________________________________________________ (e) ________________________________________________ (f) ________________________________________________ "Section 9 of the National Accountability Bureau Ordinance 1999. Corruption and Corrupt practices. (a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices‑‑ (i) If he accepts or obtains from any person or offers any gratification directly or indirectly, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860) for doing or for bearing to do any official act, or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person; or' (ii) ________________________________________________ (iii) ________________________________________________ (iv) ________________________________________________ (v) ________________________________________________ The comparative study of both the relevant provisions of two statutes reproduced hereinabove shows that both the provisions are similar and identical. However in section 9 of National Accountability Bureau Ordinance, 1999 two other sub‑clauses i.e. (vi) and (vii) have been introduced which were not in Ehtesab Act, 1997. The same are also reproduced hereinbelow for the convenience sake: "(vi) Misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so. (vii) If he has issued any directive, policy, or any SRO (Statutory Regulatory Order) or enables any concession or benefit in any taxation matter or law or otherwise so as to benefit himself or any relative or associate or a benamidar." In nutshell the case of the prosecution is that respondent/accused No. l being Minister for Industries and Development, Government of Sindh allotted 4 (four) plots to respondents/accused Nos.2 to 5 illegally in order to favour them and thereby caused loss to public exchequer. The perusal of the record shows that the P.W.1 Muhammad Bux, the Chief Administrative Officer, SITE who is a star witness in the case has belied the accusations made by the prosecution against the respondents/accused. It is stated by him in his evidence before the trial Court that the respondent/accused No.2 Shamim Ahmed made application to respondent/accused No.1 Jam Mashooq Ali for issuance of N.O.C. for allotment of plot in North Karachi Scheme in the name of Shunaid Weaving Mills Ltd. He being a minister endorsed the application to SITE Authorities with a note thereon that the N.O.C. may be given in Scheme No.33 as requested. No action whatsoever was taken on this endorsement. Respondent No.3/accused Mrs. Farzana Faheem made application to respondent No. 1/accused for allotment of industrial plot admeasuring 2 acres. He put an endorsement thereon in terms "Allot a plot of one acre in Scheme No.33". The summary was floated for N.O.C. but the same was returned back, as in the meanwhile the requirement of N.O.C. was dispensed with by the Government. The matter was placed before the Allotment Committee which approved allotment of plot at the rate of Rs.7 lacs per acre. The respondent/accused No.4(i) Bijal made application to respondent/accused No. l for allotment of 5 acres. He put an endorsement thereon in terms "allot two acres of land in Scheme No.33 and report compliance". The request was placed before the Allotment Committee and then before the Board and Board placed the matter before the Land Assessment Committee to determine the area and it decided that one acres of land be allotted to respondent/accused No.4(i) Bijal. He paid 50 % of the cost i.e. Rs.3,50,

000. Similarly respondent/accused No. 5 Amin Sadiq made application to respondent/accused No. l for allotment of one acre and after completing all the coda] formalities stated hereinabove he was allotted 1/2 acre. He paid Rs.3,50,000 being the full, price of the. land. P.W. /Muhammad Bux has further stated that on the recommendation of respondent No. l/accused no plot was allotted. It will be pertinent to reproduce hereinbelow his admission which is very much relevant for the adjudication of the present matter: "It is correct to suggest that no violation of any rule or regulation was committed by the SITE while allotting the plots to the four applicants. " He has further admitted that the process for allotment of plot to M/s. Shunaid Weaving Mills Ltd, was started on 28‑11‑1989 on the application of Mr. Tariq Bhatti, Director, Shunaid Weaving Mills Ltd. This very admission exonerates the respondent/accused No.2 from the charge of culpability. He also admitted that "regarding allotment of the plot to Shunaid Weaving Mills by SITE. no rule or regulation was violated and no undue concession was given". In cross‑examination it was admitted by him that when the respondent/accused applied for allotment the rate of the land was four lacs per acre but subsequently the Board enhanced the rate to Rs.7 lacs and land in question was allotted on enhanced rate. It has also come on record that on 25‑2‑1990 respondent/accused No. 1 Jam Mashooq Ali was not Minister for Industries, Government of Sindh and application made by respondent/accused No. 2 to respondent/accused No. l and his endorsement thereon was not considered and the same was filed. The relevant findings of the trial Court are reproduced hereinbelow for the convenience sake:‑‑ "The upshot of above, is that prosecution failed to establish that accused No.1 Mashooq Ali, Ex‑MPA and Minister for Industries and Mineral Development Government of Sindh being Holder of Public Office in his capacity, in abuse of his official position with mala fide and dishonest intention with a view to earn illegal gratification and money for himself and for providing illegal gain, favour and profits to accused Nos.2 to

5. Nor able to prove accused Nos.2 to 5 in collusion with accused No. l obtained any illegal benefit of pecuniary gain for themselves. Both the points accordingly answered in negative. " "In view of my finding on points Nos.l and 2 all the accused persons found falsely implicated as such they have not committed any offence and are innocent and hereby acquitted. They are present on bail. Their bail bonds stand cancelled and surety stand discharged." It is cardinal principle of criminal jurisprudence that for constituting a criminal offence mens rea, intention and knowledge are necessary ingredients. In the case of deception, corruption, or fraud it is essential for the prosecution to prove beyond any shadow of doubt that the act complained was tainted with an intention to earn wrongful gain and cause wrongful loss to other party. The respondent/accused No. l was a public representative. He simply forwarded the application to SITE Authorities. His recommendations were not acted upon. The SITE Authorities after observing all the codal formalities allotted the plots in question to respondents/accused Nos.2 to

5. Nothing has been brought on record by the prosecution from which it could be deduced that, by the act of the respondents/accused any wrongful loss was caused to the public exchequer. Thus the culpability of the respondents/accused in the commission of alleged offence has not been proved. There is no iota of evidence that the respondent/accused No. l being holder of public office acted in abuse of his authority and official position with mala fide honest intention with a view to earn illegal gratification and money for himself and for providing illegal gain, favour and profits to respondents/accused Nos.2. to

5. The prosecution has also failed to substantiate that respondents/accused Nos.2 to 5 in collusion or collaboration with respondent/accused No. I earned any illegal benefit or pecuniary gain for themselves. In the cases of Imran Hussain v. Amar Arshad and 2 others reported in 1997 SCMR 438, Zahoor Hussain Shah v. The State and others reported in 1994 SCMR 1257, Yar Muhammad and 3 others v. The State reported in 1992 SCMR 96 it was held that unless the judgment of acquittal passed by the trial Court was perverse, illegal and on perusal of evidence no other conclusion could be made except that the accused was guilty of the offence or there had been complete misreading of evidence leading to miscarriage of justice, the High Court would set aside it. The evidence adduced by the prosecution and discussed hereinabove clearly shows that the trial Court rightly appraised and evaluated the evidence and the impugned judgment did not suffer from stupidity or perversity. Resultantly, the appeal against acquittal of respondents/accused Nos. l to 5 stands dismissed: By a short order dated 28‑8‑2001 we had dismissed the appeal against the acquittal and above are the detailed reasons for the same. S.A.K./M.A.K./S‑158/K