1998 PLP 118 (MLD)

Mr. Syed Mamnoon Hassan, learned Special Prosecutor has cited (1) Sugni Chand Dayaram Jatwani v. Pakistan (through the Ministry of Rehabilitation Karachi) and others (PLD 1961 SC 523-530) (2) Akhtar v. The State (PLD 1961 (W.P.) Lahore 1049) (3) The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) and (4) Sher Muhammad alias Shera v. The State (PLD 1990 Kar. 271) in rebuttal to the contentions of Ch. Iftikhar Ahmed, learned counsel for accused Syed Muzaffar Hussain Shah mentioned in Misc. Application No.85 of 1997 and paragraphs 9, 10 and 11 of the Application No.109 of 1997 in question stating herein that the Ehtesab Ordinance, 1996 has lapsed and a new law i.e. Ehtesab Act of 1997 (Act IX of 1997) which through section 31 of the said Act repealed P.P.O. 16 and P.P.O. 17 and the Ehtesab Ordinance 1997, and saved the proceeding under P.P.O. 16 and P.P.O. 17, and that of the Ehtesab Ordinance of 1997, but did not save the proceeding initiated under the Ehtesab Ordinance of 1996. That Ehtesab Ordinance, 1996 was a temporary statute and expired after four months from the date of its promulgation and both the successor laws, i.e. the Ehtesab Ordinance, 1996 and the Ehtesab Act, 1997,, intentionally omitted to save proceedings initiated under the Ehtesab Ordinance, 1996. That section 6 of the General Clauses Act cannot be invoked in regard to statutes, which ate of a temporary nature. That general rule is that where a temporary statute expires, the proceedings against a person under it will ipso facto terminate, and further trial and proceedings would be coram non judice. At the time of hearing of the arguments, the learned counsel for the accused Syed Muzaffar Hussain Shah did not press the application containing the above contentions, accordingly, application was dismissed as not pressed. The case law cited by Mr. Syed Mamnoon Hassan, Special Prosecutor referred hereinabove mainly pertains to the authorities of the Hon'ble superior Courts to the effect that under General Clauses Act, the proceedings so initiated can come to a logical end and proceedings by lapse of Ordinance automatically does not abate though there may not be a clause to save the proceedings initiated under the Ordinance. With due respect to the authorities referred by Mr. Syed Mamnoon Hassan, further, discussion, to these authorities is not necessary, in view of the fact that learned counsel for the accused/applicant at the very initially stage did not press the application. On 15-7-1997, after examination of Iqbal Ahmed Investigating Officer, who was re-called on the application of learned Special Prosecutor, under the circumstances, after his examination, the Special Prosecutor closed the side on behalf of the prosecution and by consent, hearing of Miscellaneous Applications Nos.85 of 1997 and 109 of 1997 was adjourned for 17-7-1997. I would like to refer the evidence adduced by the prosecution in support of the case as stated hereinabove, prosecution has been able to produce three P.Ws. The star witness of the prosecution is Muhammad Yousuf Gull, P.W.1 his examination-in-chief is very short which is reproduced as follows:-- "I was Chief Officer of Zila Council, Mirpur Khas from 21st November, 1989 till some time in the year 1993. I am aware of the facts of the case. In the year 1992, one Haji Ghulam Rasool Junejo was Chairman of the Zila Council, Mirpurkhas, who tabled a Resolution before the Council that the electricity should be provided to Haider Farm. He further informed the Council that the funds for such electrification will be provided by Provincial Government. I was present in that Session. Haider Farm is owned by accused Syed Muzaffar Hussain Shah, who at the relevant time was Chief Minister of Sindh. " In support of his case he produced the resolution of the District Council, estimate and orders for re-appropriation of the amount. In his entire examination-in-chief this witness or other two witnesses have not stated that either at the instance or pressure, directly or indirectly was exercised by accused Syed Muzaffar Hussain Shah in tabling the resolution before the District Council which according to record produced by the prosecution was unanimously carried over. Syed Muzaffar Hussain Shah, the accused was not even present during the session of the District Council, the re-appropriation orders were passed by the accused Syed Muzaffar Hussain Shah at the request of Muhammad Yousuf Gull, the Chief Officer who says in his examination-in-chief as follows:-- "On my last representation (Exh.4/10-C dated 21-1-1993 accused passed orders for re-appropriation. I also received a letter from Additional Secretary to. Chief Minister Sindh dated 15-3-1993 disclosing the order of accused for re-appropriation." So far the allegation of the prosecution is that electrification and face lifting of the area around the area, being the family farm known as Hyder Farm of accused Syed Muzaffar Hussain Shah, as a result of which electrification work of Hyder Farm at the cost of Rs.24,27,378 was completed. It would be pertinent to point out that electrification was provided in accordance with the resolution unanimously adopted by the District Council Mirpurkhas and according to Muhammad Yousuf Gull, Chief Officer, District Council in his cross examination has stated:-- Q. "I suggest it to you that Zila Council Mirpurkhas was fully authorised to approve a development scheme as of the scheme involved in this case. A. It is correct that Zila Council was competent to approve such scheme through any resolution." The Zila Council being an elected body of the Zila was competent to pass the resolution and carried out the scheme, moreover the electrification and street lights provided to the road, fall within the territorial limit of Zila Council furthermore according to Muhammad Yousuf Gull the road on which electrification was provided was constructed by Highway Department, the same road leads to Taluka Chachro and also leads to Union Council Khajrari where one school, one public health office, one basic health unit and one rural health centre are also situated on this road, to establish this fact specific question in cross-examination was put to the witness and for the decision of this case I would like to reproduce the actual words of the witness deposed in Court in his cross-examination which reads as follows:-- "It is correct that the electric connections/street lights provided to the road fall within the territorial limits of Zila Council. It is correct that it is a public road and was constructed by the Highway Department some five/six years ago when resolution was passed for its improvement. It is correct that this road leads to Taluka Chachro. This road also leads to Union Council Khajrari. It is correct that one school, one public health office, one basic health unit and one rural health centre are also situated on this road. It is correct that the main road to Umer Kot and Kunri also starts from this road. It is correct that this road also passes through 10 to 12 villages. It is correct that in order to reach rural health centre the only route available is through the road on which the street lights were provided." According to the witness, this road is a public road which is used by the public at large and it is not in the exclusive use of the accused Syed Muzaffar Hussain Shah and his family. Moreover according to Exh.4/10-A Muhammad Yousuf Gull himself requested the Provincial Government for change of head and re -appropriation of the funds in order to complete the scheme approved by Zila Council. A specific question was put to the witness in cross-examination to the following effect. Q. "You have suggested change of head as well as re-appropriation of the amount on the ground that due to heavy rains, the funds could not be utilised for the maintenance/construction of roads. A. It is incorrect. My communications were in furtherance of resolution (Exh.4/1-A). Furthermore, in another question he replied as follows:-- Q. "Is it correct that there are other instances for re-appropriation and change of heads. A. It is correct. During my tenure as Chief Officer there were several instances when re-appropriation and change of head were ordered." The witness No.2 Ghulam Muhammad, Sub-Engineer District Council, Mirpur Khas has stated in examination-in-chief which is as follows:-- "In this case, I supervised electrification work. This project was meant for Hyder Farm. I was instructed by my Engineer Idrees to prepare estimate in respect of providing electricity to Hyder Farm or village. Voluntarily adds that I am not aware whether it is a farm or village. I produce estimate which was prepared by me as Exh.5/1. This work was assigned to M/s. Manzoor Electric Works. I also produce Tender Form (consisting of two pages), comparative statement and agreement (consisting of eight pages) as Exh.5/2, Exh.5/3 and Exh.5/4 respectively. I also produce seven contractors bills which were accordingly paid as Exh.5/5 to Exh.5/11. I produce payment receipt through which payments were made to WAPDA alongwith its challan as Exh.5/12-A and Exh.5/12-B respectively. This work was successfully completed. All the required payments were made to the contractor." In cross-examination this witness has stated as follows:-- "Whether the street lights which were provided were on a public road or on private road? I am not aware whether it is a public road or private road. Court Question. "Are you aware of the difference between a public and a private road? Yes, Sir. I am aware of such difference. A public road is used by public at large and the private road is used by the person who owns the same. The road where street lights are installed is being used by public as well as by private persons. " The third witness P.W. Iqbal Ahmed has stated in his examination-in -chief as follows:-- "On 12th January, 1997 I received a Letter bearing No.837, from my Deputy Director to prepare a report in respect of former Chief Minister Syed Muzzaffar Ali Shah. I produce copy of my report as Exh. 6/1. I have incorporated all my efforts and actions in Exh. 6/1. On the basis of Exh. 6/1 Chairman Anti-Corruption Establishment forwarded a report to the Chief Ehtesab Commissioner vide his letter, dated 21st January, 1997, which I produce as Exh. 6/2. " On 15-7-1997 he was % re-called and he produced report as Exh.6/4 in unequivocal terms he has stated in cross-examination to Mr. Ch. Iftikhar Ahmed, learned counsel for the accused, which is as under:-- "It is correct that I have based my report Exh. 6/ 1 on the investigation of Crime No. 18 of 1993. It is correct that I have not examined myself any of the witnesses in the present case. It is correct that the contents of my report Exh. 6/1 are based on the findings of the investigation in Crime No. 18 of 1993. " Furthermore he has also stated that he has not examined accused Syed Muzaffar Hussain Shah while preparing his report Exh.6/l. In cross-examination this witness has stated as follows: "It is correct that I have remained in Mirpur Khas. I have seen the road where the street lights are affixed. It is correct that there is basic health centre, middle school, rural health centre situated on the said highway. I am not aware whether a water storage and pumping station are also situated on the said highway." According to him to a Court question he has stated:-- "I have not examined P.W.1 Yousaf Gull and P.W.2 Ghulam Muhammad Leghari, in the present case." This is the entire case of the prosecution which has already been reproduced hereinabove. The witnesses so far examined by the prosecution in any case have not implicated the accused, if examination-in-chief and cross examination are taken in juxtaposition. The resolution was tabled by the elected Chairman of the District Council which was carried on unanimously and it falls within its jurisdiction. The Hyder Farm is not only a farm but it is also a village where people of Hari class are living which apparently manifests from the report of the Mukhtiarkar which has been produced by lqbal Ahmed, Investigating Officer as Exh.6/4 on 15-7-1997. It is a report prepared by Mukhtiarkar Umerkot bearing No.59 dated 10-2-1994, the relevant portion of the report shows as under:-- "Village Hydei Farm is situated in Deh Diat Bah which is un-surveyed state land." According to Mr. Ch. Iftikhar Ahmed, learned counsel for the accused usually in Mufasal Area villages are established on un-surveyed State land, villages approximately consist houses of different caste of people ranging from 50 upto few hundreds. Unfortunate aspect of this case is that the report of the Mukhtiarkar was produced by Investigating Officer and Mukhtiarkar was not produced by the prosecution to enter the witness-box and face the cross-examination, so as to get the proper number of the houses of the village Hyder Farm, because cross examination is the only source through which truth can be had from the mount of a witness but this report was produced through Iqbal Ahmed who has stated in cross-examination to the effect that: "I have not prepared the report which I have submitted have taken out this report from the file of Criminal No. 18 of 1993. The report is dated 10-2-1994. The report which I have submitted, was prepared 2 years prior to its presentation." The whole emphasis of the prosecution is that accused Syed Muzaffar Hussain Shah prevailed upon the District Council and Provincial Highways Department and Deputy Commissioner Mirpurkhas for the above acts whereas from the perusal of the record and the evidence produced referred hereinabove there is no iota of evidence to connect the accused Syed Muzaffar Hussain Shah with the commission of the crime. According to the Rules of Business referred here in the earlier hart of this order, Chief Minister under the Rules is competent to pass orders which are deemed to be orders passed by the Government. The electrification was provided to a public road which is used by public at large which fact has even been admitted by the prosecution witnesses including Investigating officer. Moreover the sanction for re-appropriation of the funds was allowed by the accused Syed Muzaffar Hussain Shah as Chief Minister, on receipt of correspondence and the frequent requests made by Chief Officer Muhammad Yousuf Gull P.W.1, the relevant portion of his deposition has already been reproduced above. Ch. Iftikhar Ahmed, learned counsel for the accused very rightly pointed out that in the under' developed rural areas of the Province of Sindh especially Mirpurkhas and its surrounding area, including Tharparkar large number of the public have not yet been able to see, observe and use the electricity. Moreover, in their lives they have not even seen bulbs themselves, as the process of development so far carried on has not been brought at the door steps of the people of the rural area. The people of far away areas especially in Tharparkar, Mirpurkhas and Umerkot are not having the facility of even potable water. There are numerous people who have not even seen the hand pump from where potable water could be taken by them and their women-folk are getting water from the water-courses and ponds which are in the common use of human beings and animals together. In this state of affairs at the instance and unanimous resolution of District Council, the electrification and face lifting work of a road to village Hyder Farm was carried on for the benefit of the people of the area, and if sanction of the re-appropriation of the funds was allowed by the accused Syed Muzaffar Hussain Shah as the Chief Minister, who according to the Rules of Business referred and re-produced hereinabove framed by the Government was competent to sanction, clearly shows that prosecution has not been able to produce the evidence which can be considered for awarding conviction. The authorities cited by Ch. Iftikhar Ahmed, the learned counsel for the accused are relevant and applicable to the facts of the present case, whereas references and authorities cited by Mr. Syed Mamnoon Hassan, Special Prosecutor are quite different and distinguishable from the facts of the present case. In Ehtesab Reference 3 of 1997 decided by the learned Lahore High Court and Ehtesab Reference No.3 of 1997 decided by learned Ehtesab Bench of this Court, in both these references prosecution was able to produce sufficient evidence so as to prove the case against the accused. Resultantly, the accused in both these cases were convicted, whereas the other authorities on legal point cited by Syed Mamnoon Hassan, learned Special Prosecutor in my humble opinion are not applicable to the circumstances of the present case inasmuch as the counsel for accused/applicant did not press the Application Miscellaneous No.85 of 1997 and did not press the clauses of Miscellaneous Application No. 109 of 1997 referred hereinabove. Consequently the Miscellaneous Application was dismissed as not pressed and paragraphs Nos.9, 10, 11 and 12 were not pressed by the learned counsel for the applicant, whereas learned counsel vehemently placed the submissions totally on the evidence so far recorded by this Court. I am of the considered opinion that this case is fully covered by the provisions of section 465-K of Cr.P.C. which provides:-- "S. 265-K. Power of Court to acquit accused at any stage.

Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence." I have gone through the material placed with the case and have applied my mind, I am of the firm opinion that in view of the facts, circumstances, evidence and the case law referred and discussed hereinabove, which I most respectfully follow, as such in the circumstances, there is no probability or possibility of ' the accused being convicted for the acts, omissions and commissions amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance. Consequently, I allow the application and acquit the accused. Reference stands disposed of. After hearing the parties at length on 17-7-1997, by short order application was granted and accused was acquitted and these are reasons for the same. A.A./S-95/K Accused acquitted.