2012 PLP 1757 (SCMR)

MUHAMMAD ATHAR SAEED, J.

This petition for Leave to Appeal was filed against the judgment of the Lahore High Court, Lahore dated 13-2-2009 in Service Appeal No.3 of 2007 whereby an appeal filed against the order dated 6-9-2006 of the authority which found the appellant guilty of charges of misconduct and corruption and ordered for his compulsory retirement from service with immediate effect, was dismissed.

2. On 5-8-2009 this Court granted leave to appeal to consider whether the appellant was guilty of misconduct for his role in a pure private transaction and whether there was any evidence to show that the appellant had misused his judicial office to gain any benefits for himself or for any other person and further whether the amount transferred to the appellant's account could be treated as appellant's assets when the same was transferred to his account temporarily for onward transmission.

3. Brief facts of the case are that one Muhammad Yaqoob son of Late Ch. Lal Din, a British National of Pakistani origin had filed a complaint against the present appellant Rao Shafey Ali Khan who was a Judicial Officer stating that the appellant had persuaded him to purchase land in Chak No.4, DNB Tehsil Yazman, District Bahawalpur. According to the complainant he had initially paid him Sterling Pound 19750.00 against a receipt for the purchase of 6 squares of land. He further transmitted another sum of Rs.800,000.00. He further stated that the present appellant instead of transferring 6 squares of land transferred 3 squares of land to the complainant whereas remaining 3 squares of land were transferred to his brother illegally. He also complained that he was maltreated by the brother and relatives of the appellant.

4. On the receipt of the complaint the learned Chief Justice of the Lahore High Court directed that an enquiry be conducted through Member Inspection Team who in the preliminary enquiry opined that regular enquiry was needed to be conducted in this case. The learned Chief Justice then appointed Mr. Justice Sardar Muhammad Aslam Judge of Lahore High Court as he then was to conduct the regular enquiry. In such enquiry the following twelve charges were framed against the appellant:-- I. That the complainant Muhammad Yaqoob son of Late Ch. Lal Din, who had some matrimonial dispute with his wife at Bahawalpur, where you were posted as Senior Civil Judge, was got introduced to you through a Senor Judicial Officer, where after you both developed friendship inter se, which further matured into close relations between you. II. That taking advantage of financial position of the complainant being well off residing in UK, you induced him to purchase 6 squares of land in chak No.4/DNB, Tehsil Yazman, District Bahawalpur, at the rate of Rs.1,00,000 per square shown to him through your real brother Muhammad Iqbal Khan and for this purpose the complainant made you the following payments:-- (i) 19750 Sterling Pound on 25-12-1994, receipt whereof was acknowledged by you. (ii) 16561.45 Sterling Pound equal to Pak Rs.8,00,000 transmitted by United Bank Limited, Hounslow Mitts (UK) in your PLS Account No.2576-1, New Sabzi Mandi Branch, Bahawalpur, on 22-1-1995. III. That after exchange of correspondence, you through letter dated 13-9-1995 forwarded copies of Judgments/decrees of the civil Court and the High Court intimating about the purchase of 600 kanals of land in the name of above named Muhammad Yaqoob and demanding additional amount of rupees two lac per square for purposes of bulldozing land and for purchase of tractor, etc. acknowledging the receipt of rupees two lac. IV. That after transfer of three squares of land, you committed to fulfil your promise to transfer the remaining three squares of land, which remained under litigation, as is evident from your letter dated 22-4-1997, but never transferred the said land to the complainant. V. That the land, possession whereof was given to the complainant, was not the one that was shown to him in the first instance and the complainant had to invest huge amount to make this barren land cultivable, including payment of Rs.1,60,000 to your above named brother for construction of the water course. VI. That you got three squares of land in Chak No.4/DNB, Tehsil Yazman, which was originally shown to the complainant and for which you had received rupees six lac for levelling purposes, transferred in the names of your brother Muhammad Iqbal and other relatives and thus defrauded the complainant by misusing your position as a Judicial Officer and in breach of trust reposed in you by the complainant. VII. That you received a number of gifts valuing 700 Sterling Pounds from the complainant. VIII. That not only the complainant was not transferred the remaining three squares of land as promised by you but also during the development of three squares of land, of which possession was delivered to the complainant, you had been backing your brother Muhammad Iqbal Khan, who along with others made murderous attack upon the complainant, at one occasion breaking his eight teeth followed by criminal action against the culprits. IX. That you received the huge amount from the complainant without prior permission of the competent authority and even failed to declare the same in your assets or other returns for the relevant years and thus, violated the Conduct Rules. X. That acquiring property in the names of your brother and other relatives with the amount received from the complainant, coupled with the property declared in your assets, shows greed on your part to amass property through means other means other than legal. XI. That the sale and purchase of property given in your assets is disproportionate with the source of income from the immovable property owned by you, for instance,-- (a) you were granted permission to sell seven and half acres of agricultural land in Shikarpur (Sindh) for Rs.52,000 (as per assets ending 31-12-1985) and nine acres of land in Londhran for Rs.6,30,000 in October, 1984 through High Court letters dated 23-10-1984 and 16-3-1986 respectively; (b) You were granted permission to purchase Car in open market out of income of your agricultural and urban property, vide High Court letter dated 5-8-1996; (c) You purchased 18 acres of land in Mouze Sumra, district Lodhran, for Rs.22.50 lac as per declaration ending 31-12-1990 but neither the source of money is indicated nor is it mentioned that it was purchased with the prior permission of the competent authority. XII. That your aforesaid acts are unbecoming of a gentlemen more so a Judicial Officer.

5. A perusal of the enquiry report shows that charges Nos.1, 9, 10, 11 and 12 were stated to have been proved against the appellant whereas charges Nos.2 and 6 were partially proved while the remaining charges were not proved against the appellant. Notice under the relevant law was served upon the appellant along with enquiry report to which he had submitted a detailed reply and subsequently a final show-cause notice was issued to him on 6-4-2006 and the appellant was provided an opportunity of personal hearing before Mr. Justice Jawwad S. Khawaja (a sitting Judge of this Court and a Judge of learned Lahore High Court as his lordship then was). The authority found the appellant guilty of charges of misconduct and corruption and ordered his compulsory retirement from service with immediate effect through order dated 26-9-2006. The appellant filed a review petition before the High Court which was not decided within 90 days and therefore he filed an appeal before the learned Lahore High Court which was heard by a larger Bench and dismissed by the impugned judgment. Hence this appeal.

6. We have heard Hafiz S.A. Rahman learned Senior Advocate Supreme Court for the appellant and Mr. Mudasar Khalid Abbasi, AAG Punjab who appeared along with Muhammad Shahid Hussain Additional Registrar, Lahore High Court.

7. The learned Senior Advocate Supreme Court for the appellant narrating the facts of the case submitted that the appellant joined the Punjab Judicial Services as Civil Judge on 31-5-1975 and served at various positions including Judge Banking Court Sargodha. He always received good ACRs and there was never a complaint or a black mark against him. He argued that, according to the complainant Muhammad Yaqoob, the appellant was introduced to the complainant through Justice Ausaf Ali Khan the then Judge of the Lahore High Court because the complainant had some matrimonial dispute with his wife at Bahawalpur. He did not deny the above assertion of the complainant. He further agued that after the initial meeting he had developed friendship with the complainant and when the complainant had expressed his intention of returning back to Pakistan and showed interest in purchase of agricultural land he in good faith and in order to facilitate his friend arranged with his elder brother and another brother who were dealing in agricultural properties to purchase some prime property for the complainant and in this connection he received almost 17,00,000 in foreign currency in his account which according to him was immediately transferred to his brother for payment to various vendees. He submitted that it was in fact the complainant who had become greedy and wanted to avail the supply of water from the water canal, which was purchased by his brother and relatives, without making any contribution for the purchase of this water canal and on his brother's refusal to allow him to avail supply of water from this canal the complainant in order to pressurize the family filed a concocted complaint before the honourable Chief Justice. He argued that he had been all along declaring the transactions in his bank account resulting in purchase of properties and other assets and all such transactions and assets have been declared by him in his yearly declaration filed and all such transactions were made after obtaining the relevant permission from the relevant authorities and were declared in his yearly statement of declaration made except the purchase of property at Lodhran for which seeking permission was erroneously not resorted to. He argued that the amounts of the complainant were initially transferred to his bank account because his brother Iqbal Ahmed did not maintain a bank account. He also mentioned that the complainant only had trust in him and was not willing to send the money to anybody else. He argued that he had acted in good faith only to facilitate a friend and was not involved in any manner with the transaction which was made by the complainant except in the capacity of a go-between between the complainant and his brother and the transaction was not declared as permission was not sought because the money had come in his account only for a transitory period as amanat to be utilized for the purchase of land which the complainant wanted to purchase. He argued that he was involved in the entire transaction in good faith only because of his personal friendship with the complainant and not to achieve any benefit for himself or his family members. Although he conceded that he decided the case in respect of land which was later on acquired by his brother and nephews but claimed that before deciding the case he was not aware that this land will later on be purchased by his brother and nephew and had passed the judgment in accordance with law in good faith and his good faith can be judged by the fact that his judgment was upheld by the honourable High Court and this Court. He argued that the learned Enquiry Officer has not proceeded in accordance with the facts of the case and has held certain charges to be proved without any basis whatsoever and the learned authority and the High Court have also erred in upholding the contents of the enquiry and inflicting on him the punishment of compulsory retirement from services. He argued that this Court has constantly held that the Service Tribunal and this Court has the powers to modify the sentence imposed by departmental authorities and, therefore, the High Court on the basis of the facts was required to decide whether the punishment imposed on him commensurate with the nature of allegations proved against him and should have modified the sentence. He further argued without conceding that at the most he may be guilty of negligence and argued that compulsory retirement does not commensurate with this charge. In support of his contentions he relied on the following judgments:-- (1) M.A. RAHMAN v. FEDERATION OF PAKISTAN and others (1988 SCMR 691.) (2) INSPECTOR-GENERAL (PRISONS) N.-W.F.P., v. Syed JAFFAR SHAH, Ex-Assistant Superintendent Jail and others (2006 SCMR 815) (3) AUDITOR-GENERAL OF PAKISTAN and another v. IKRAMULLAH KHAN (2002 SCMR 584). (4) AUDITOR-GENERAL OF PAKISTAN and others v. MUHAMMAD ALI and others (2006 SCMR 60). He, therefore, prayed that the impugned order of the High Court and the Notification of his compulsory retirement may be set aside and the authority may be directed to compute his emoluments as if he had retired on attaining the age of superannuation.

8. The learned A.A.-G. has strongly opposed the arguments of the learned Senior Advocate Supreme Court for the appellant and supported the order of the learned High Court. He submitted that the appellant in his replies and statements has admitted the relationship with the complainant. He has also admitted the transaction which the complainant had alleged and the deposit of amount appears in bank account. He further submitted that the appellant has also conceded that he had decreed the suit in respect of the property which was later on acquired by his brother and nephews and the fact that the appellant had shown that he was involved in a number of property transactions over the years leads to the conclusion that the appellant was hand in glove with his family members in carrying on the business of sale and purchase of agricultural properties. He argued that the appellant has also conceded that he had not acquired permission for purchase of the property at Lodhran due to a genuine error and not for mala fide reasons. He further argued that the appellant's contention that the money was deposited in his account as his brother did not maintain a bank account was proved to be wrong as later on it transpired from the evidence that his brother Iqbal maintained a Bank Account No.7784, Muslim Commercial Bank Ltd., Bahawalpur. The learned AAG also referred to the statement of the appellant wherein he had admitted that his brothers and sisters treated him as elder of the family and since all of them were well off and insurance claim was also received on the accidental death of his brother which was deposited in his account and a number of deposits in his account were made by his other brothers but all these accounts were treated by him as Amanat. The learned AAG further argued that in his statement the appellant had given details of the various transactions involving sale and purchase of land which were made by him from year to year and the number of these transactions lead to the conclusion that besides serving as Judicial Officer the appellant was actively involved in the business of buying and selling of property which according to the learned AAG was not in accordance with the provisions of section 11 of the West Pakistan Government Servants (Conduct) Rules, 1966. The learned AAG also read out before us an undated letter and letter dated 22-4-1997 of the appellant and pointed out that the contents of these letters belie the claim of the appellant that he was not actually involved and was only acting as facilitator for the transaction to assist the complainant for the purchase of the property at his request because in these letters he has discussed the transaction and admitted his involvement in the deal in association with the complainant. The learned AAG argued that the lower forums have been lenient and the appellant not only being guilty of misconduct also misused his office and played fraud with a citizen of Pakistan and was therefore liable to be terminated instead of being compulsorily retired. He therefore prayed that the impugned order be upheld and the appeal be dismissed.

9. We have examined the case in the light of the arguments of the learned counsel and have carefully perused the records of the case and the judgments relied on by the learned counsel and have also gone through the enquiry report, the order of the authority and the impugned order.

10. We have seen that all the three forums below have thoroughly examined the facts of the case and have come to the conclusion that the appellant was guilty of severe misconduct, misuse of his office and was acting in bad faith when he admittedly facilitated the property deal on behalf of the complainant. It seems prima facie apparent that he was in fact not facilitating the complainant due to friendship only but the facilitation with the connivance of his brothers and nephews was to defraud the complainant. One of the main arguments of the learned Senior Advocate Supreme Court for the appellant is that the bank transaction involving the money sent by the complainant was a pure transitory transaction as the money was received as an Amanat and was within a few days transferred to the vendors of the property and therefore no permission was needed from the concerned authority for executing such transaction nor it was required to be declared in the statement of his assets. This argument is fallacious and against the principles of accountancy because even if some money has been received as Amanat or in trust and is lying in the bank on the date of the declaration of assets it should be declared as asset and on the liability side it should be declared in the name of the person on whose behalf such Amanat or money in trust has been received and if such transaction has been concluded before the date of declaration of assets then it should be shown as squared up account. We are clear in our minds that government servant has to explain all the deposits credited to its bank account. We have also examined Section 11 of West Pakistan Government Servants (Conduct) Rules, 1966 a bare reading of which leads to the conclusion that when a government servant intends to transact any purchase or sale or make disposal by any other means of movable or immovable property exceeding in value Rs. 25,000 with any person he shall apply for permission to transact such deal and once the money for such transactions is reflected in the bank account of the appellant, we are of the view, he is required to seek permission even though the amount of transaction given in the transaction of purchase of immovable property may be on behalf of any other person. We have also gone through the letters written by the appellant to the complainant. We would like to reproduce the following extracts from the letter dated 22-4-1997:-- These extracts completely shatter the appellant's claim that he was only acting as facilitator without being entitled or liable to any gain or loss on such transaction. As already pointed out the authorities below have discussed in detail the charges against the appellant and his reply to such charges and in our opinion have reached the correct conclusion in holding that the appellant was guilty of grave misconduct and was dealing with the purchase and sale of property like a property dealer. The enquiry officer has also on the basis of the evidence available before him falsified the appellant's claim that the money was received in the account of the appellant because his brother Rao Iqbal was not maintaining a bank account whereas in the enquiry it was proved that his brother was maintaining a PLS Account No.7784 Muslim Commercial Bank Ltd. Bahawalpur. We have also examined the judgments relied on by the learned Advocate Supreme Court. In all these judgments this Court has held that the punishment has to commensurate with the offence and if the punishment does not commensurate with the offence then the Service Tribunal and this Court have the powers to modify the punishment either by enhancing it or reducing it to commensurate with the offence. There can be no cavil to this proposition. However, in this case we are of the considered view that the forums below have property thrashed out the evidence in the case and had reached the right conclusion that the appellant is not only guilty of severe misconduct but prima facie has been involved in the property even for purposes of business and had defrauded the complainant and therefore in our view the punishment of compulsory retirement commensurate with the offence committed.

11. In the light of the above we are disposing of the grounds on the basis of which leave to appeal was granted, in the following manner. (i) We find the appellant guilty of misconduct for his role in a transaction which may be considered private, but was executed with a mala fide intention to defraud a person and therefore was unbecoming of a Judicial Officer. (ii) It is prima facie clear that the appellant had been misusing his judicial office to help and assist his brothers and nephews in acquiring or disposing of properties profits and gains of which were shared by him and this tantamounts to abuse of judicial powers. (iii) We have already highlighted the circumstances in which the amounts transferred to the appellant's account for onwards transmission and what were the obligations of the appellant in respect of such amount transferred to his account. We therefore dismiss this appeal being meritless. No order as to costs. MWA/S-20/SC Appeal dismissed.