1994 PLP 728 (SCMR)

According to the learned counsel for the appellant the following statement of Syed Muhammad Taqi Kazmi (P.W.1) completely exonerates the appellant:‑‑ "(i) The entries regarding measurements of construction work recorded in the measurement books by the technical staff are always taken to be a proof of the fact that according to the staff who is incharge of the Programme the work had been completed at the spot for which payments are to be made. (ii) It is correct that whatever amounts have been paid to the Contractors against the three disputed Schemes they were made on the basis of entries in the measurement books made by the technical staff i.e. the Engineer which was evidence of the fact that at the spot the work had been done."

9. The learned counsel' for the appellant further submitted that the appellant had not received the Guidelines or the instructions governing the Peoples Works Programme, nor had they any statutory force. The appellant could not be prosecuted for violation or non‑observance of it. The statutory Rules applicable were the Punjab Local Council (Works) Rules, 1981 and no provision of it was shown to have been violated.

10. By referring to the dictionary meaning of words (i) maladministration, (ii) wilful, (iii) abuse, and decisions given in Mrs. Benazir Bhutto v. The Federation of Pakistan and others (1991 Monthly Law Digest 2622 (Karachi)), Chief Secretary/Referring Authority, Azad Jammu & Kashmir Government v. Sardar Muhammad Abdul Qayyum Khan PLD 1983 SC (AJ&K) 95, Sheikh Mujibur Rahman and another v. The State PLD 1964 Dacca 330 at page 357 and State v. Awtar Krishna AIR 1957 Allahabad 88, the learned counsel contended that no case of misconduct was made out.

11. Finally it was contended that the appellant was maliciously made a victim in the course of political battle then going on so visibly and Viciously to the knowledge of everyone between the Provincial Government of the Punjab and the Federal Government. His prosecution was, according to him, selective, purposive and unjustified.

12. Mr. Muhammad Sardar Khan, the learned Attorney‑General for Pakistan supported the judgment of the Special Court.

13. P.P.O. 17 of 1977 under which the reference was filed in the Special Court defines "misconduct" in Article 2(a), as hereunder:‑‑-- "`Misconduct' refers to conduct after December 1970, and includes bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys or moneys collected, whether by public subscription or otherwise and any other abuse of whatsoever kind of power or position, and any attempt at, or abetment of, such misconduct." Article 10 of P.P.O.17 of 1977 contains `saving' in the following words:‑‑ "No proceeding under this Order shall lie against any person who holds or has held an office mentioned in Article 4 for anything which has been in good faith done or intended to be done in pursuance of or in exercise of powers vested, or in good faith believed to be vested, in him at the material time by virtue of that office:" Article 5 of P.P.O. 17 of 1977 empowers the Special Court as hereunder:‑‑ "

5. Enquiry by Special Court. etc.‑‑‑In a case in which the Special Court has issued to the respondent a notice under paragraph (b) of clause (3) of Article 4, the Special Court shall after such further scrutiny of records and such enquiry as it thinks fit and ;titer giving the respondent an opportunity of being heard, record its findings and, in case the respondent is found guilty, he shall stand disqualified for a period of seven years from being elected or chosen as a member of Parliament or of a Provincial Assembly."

14. The Government of Pakistan, Ministry of Local Government and Rural Development, Islamabad had issued instructions which were to provide the guidelines for the initiation, execution and completion of the Peoples Works Programme. The forward of document described as PIP‑3 by its clause 9 provided as hereunder:‑‑ "The programme would be Federal in concept and framework but would operate through a decentralized organization. As such, the proposed People's Programme would in the first phase by administered as a Federal Programme." The Procedure/Methodology for the Release of Funds required as provided in paragraph 19 in the document referred to above (PIP‑3) in its introduction that the "second and third instalments are released subject to utilization of funds already released and on satisfactory physical progress to be verified by the District Administrator". Paragraph 24 provided as hereunder:‑‑ "The District Administrator and the district engineer will regularly visit the sites of the Schemes being implemented in their district and record their observations in the inspection register. The executing agency will rectify defects if any, pointed out by the inspecting officer. The executing agency will cause a copy of the note, alongwith a brief description of the action taken thereon, sent to the District Administrator and the A.D.G. (Please see Annexure I for latest instruction)." In paragraph 25 of the Form PIP‑3 just referred to, the responsibilities of the District Administrators are prescribed as hereunder:‑‑ "Responsibilities of District Administrators.‑‑‑The District Administrator shall be responsible for the following duties:‑‑ (i) Observe in all transactions, provisions of rules framed under the bye? laws of the Committee. (ii) Keep a true and accurate account of all the assets and liabilities of the Committee including amounts received, and spent. (iii) Keep all the books and records of the Committee correct and up‑to? date. (iv) Prepare and lay before the Committee for its consideration and approval the income and expenditure statement and annual budget proposal for his office before sending them to the Additional Director‑General. (v) Take the necessary action on audit and inspection reports of the officers/persons authorised in this behalf. (vi) Convene special meetings whenever required." The instructions as contained in Annexure III to the document just referred to, on the incurrence of expenditure from Development Funds provided to District Committees provide, amongst others, as hereunder:‑‑ "(1) Development funds referred to above will be kept in a separate current account opened in a main branch of National Bank of Pakistan at every District Headquarter. (2) The account will be operated under the supervision of the District Administrator by any two of the three officers of the District Committee viz. Planning Officer, Civil Engineer and Accountant. (3) Only crossed cheques will be issued under the signature of the above two officers, so specified by the District Administrator and National Bank of Pakistan informed accordingly. (4) The Manager of the Branch will be specifically instructed not to entertain any cheque unless accompanied by a covering letter signed by the District Administrator. (5) No cheque will be issued unless prior approval of the District Administrator was in writing has been obtained."

15. The notification dated 27‑1‑1990 appointing the appellant as District Administrator was in terms as hereunder:‑‑-- "The competent authority has been pleased to appoint with immediate effect and until further orders Mr. Mumtaz Khan Bhaba, MNA as District Administrator, People's Programme Vehari in place of Agha Salim Khurshid. His duties and functioning will be as specified by the Government and `he will be responsible through Additional Director‑General (PP) Lahore to the Director ‑General, People's Programme, Ministry of Local Government and Rural Development, for all administrative, financial and disciplinary matters. He will not be entitled to any remuneration except TA./DA. for the purpose of meetings of District Committees and touring connected with the work relating to People's Programme."

16. With his reply to the allegations on which the appellant was tried he has filed Exh.R/S which is in the following words:‑‑ "Yesterday I visited 88/WB where soling is under construction through your department. When I reached there I found none of your concerned S.D.O. or any other person present at the opening ceremony of this project. I inquired about it from Malik Hassan, President, P.P.P. Union Council, Zaheerabad. He told that Pak. P.W.D. was informed about the function and they told him that they would be present at the occasion but they did not turn up. The work speed was very poor and the bricks were of low grade, so I have black listed the contractor. Your S.Q.O. has tried to sabotage the programme and has ignored it knowingly. Kindly take proper action and black list the contractor in your record. No payment should be made until the work is done according to the standard. It was addressed to the XEN, Pak P.W.D. Sahiwal.

17. In the background of these documents and recitals it cannot be pleaded with any amount of success that the appellant was ignorant of his duties and responsibilities, that he always acted, as was the earlier practice, on what his subordinates told him, that he was only a signing machine and was not entrusted with the duties of verification, inspection, reporting and accounting.

18. The ordinary dictionary meaning of the word "wilful" as contained in the Concise Oxford Dictionary are "(Of action or state) for which compulsion or ignorance or accident cannot be pleaded as excuse, intentional deliberate, due to perversity or self‑will". The definition itself indicates that the test is of where ignorance cannot be pleaded and not where ignorance is pleaded. Can the appellant in situation like this plead complete ignorance of his duties, responsibilities financial controls, restraining factors and prudences as expected of a man of his status, standing, and involvement in the affairs of the State. Black's Law Dictionary. defines the word "wilful" in a more comprehensive manner as hereunder:‑‑ "A wilful act may be described as one done intentionally, knowingly, and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly heedlessly, or inadvertently. A wilful act differs essentially from a negligent act. The one is positive and the other negative. Premeditated; malicious; done with evil intent, or with a bad motive or purpose, or with indifference to the natural consequences; unlawful; without legal justification." The word 'maladministration' has been defined as wrong administration. The word "abuse" has been scrutinized as pointed out in case of Mrs. Benazir Bhutto 1991 MLD 2622 and includes everything which is contrary to good order established by usage.

19. The act of the appellant in pleading that he was only acting as a signing machine in all cases without (being) aware of his duties, without scrutiny, without visit to the spot is palpably false and is a poor cover for the deliberate omission to administer the project properly, efficiently and in accordance with the instructions governing the project. It need not be emphasized that all persons and authorities entrusted with public funds have to discharge their duties as trustees thereof, accounting for every penny and exercising extraordinary care and caution in utilizing, spending of such finances. The appellant was clearly guilty of wilful maladministration, of abuse of his authority as a Member of National Assembly and District Administrator of Peoples Works Programme. The finding recorded by the Special Court is amply justified from the material on record and needs no interference. AA./M‑1994/K??????????????????????????????????????????????????????????????????????? Appeal dismissed.