2004 PLP 1178 (SCMR)

4. Both the appellants were confronted with aforesaid charges which they refuted and pleaded innocence and claimed trial.

5. In order to establish its case, the prosecution examined P.W.1 Syed Ali Tajammul Wasti, Director Estate Management CDA, P.W.2 Mazhar Rafi Chairman CDA, P.W.3, Muhammad Asghar Rai, Deputy Director, Building Control Cell, CDA, P.W.4 Muhammad Ishaque Khan, Deputy Director (Litigation) Law Directorate, CDA, P.W.5 Khan Muhammad Niazi, Inspector, F.I.A., P.W.6 Matiullah Khan, S.‑I., F.I.A. and P.W.7 Muhammad Yaqub Rashid, Inspector, F:I.A.

6. Mian Nasratullah, Special Prosecutor for State gave up P.Ws., namely Muhammad Ramzan Malik, Muhammad Khan, Muhammad Riaz, Gulzar Ahmad Chughtai and Khalid Iqbal and closed prosecution evidence.

7. Appellants in their respective statements recorded under section 342, Cr.P.C. denied the charges and pleaded that they had been involved due to some ulterior motive. They, however, examined themselves on oath as D. W.1 and D. W.2 respectively.

8. On conclusion, both of them were found guilty and were convicted and sentenced as stated above.

9. We have heard Messrs Aitzaz Ahsan, learned Senior Advocate Supreme Court for appellant Shafi Muhammad Sehwani, Raja Muhammad Anwar, learned Senior Advocate Supreme Court for appellant Abdul Qadir Shaukat and Ms. Nahida Mehboob Elahi, Standing Counsel on behalf of State and have gone through the record and the proceedings of the case in minute particulars:

10. Mr. Aitzaz Ahsan, learned counsel for appellant Shafi Muhammad Sehwani contended that the prosecution has failed to prove beyond any doubt that the appellant is guilty of corruption or corrupt practice, therefore, conviction and sentence awarded to him is not sustainable in law. He further contended that there is no evidence on record to show that appellant has caused any loss to the Government or obtained an illegal gain or undue favour or benefit for himself. According to him, the plot in question was cancelled for six times and restored for seven times. In fact this was not the cancellation of plot but it was that of its regularization which was finally regularized by the competent authority and appellant Abdul Qadir Shaukat was asked to make the payment of charges, of Rs.13,29,866 which was accordingly paid by him vide Pay Orders and Deposit Calls in United Bank Limited, Muslim Commercial Bank and Allied Bank Limited, Rawalpindi and Islamabad in September, 1993. He further argued that appellant has not committed any offence but has acted in accordance with the rules and regulations and the summary regarding regularization of plot for commercial use was finally approved by the then Chairman, CDA at the rate of Rs.100 per sq. yard.

11. Raja Muhammad Anwar, learned counsel for appellant Abdul Qadir Shaukat contended that none of the witnesses examined at trial has impleaded the appellant in any manner with the commission of offence, as such, he was falsely implicated and made a scapegoat. Though the plot in question said to have been cancelled in the name of appellant Abdul Qadir Shaukat, yet it was being restored and was regularized and as per direction of CDA, he deposited the amount of Rs.113,29,866 as regularization charges: According to him, the issue, was even decided by Wafaqi Mohtasib who directed CDA to implement the provisions of agreement, dated 4‑9‑1980 within 30 days. CDA filed application for review, which too was dismissed by Wafaqi Mohtasib on 21‑3‑1988. It was on the direction of Wafaqi Mohtasib, CDA approved the revised plan of swimming pool on 20‑7‑1988. He lastly contended that none of the appellants had gained any benefit out of the above matter nor the Government sustained any loss, thus, the conviction and sentence awarded to the appellants was not at all justified in law.

12. Ms. Naheeda Mehboob Elahi, learned Standing Counsel General on behalf of the NAB has supported the impugned judgment and argued that though there was no direct evidence of corruption or corrupt practices against the appellants but the circumstances under which the matter of restoration .of allotment and regularization of illegal construction sufficiently indicate that the loss was caused to the State exchequer for personal interest and extraneous consideration by the appellants. According to her, the case of prosecution is that appellant Shafi Muhammad Sehwani misled the Chairman in the matter of regularization of the plot in question and the shops constructed over it which is clear from Note No.666 on the summary of the plot. She, however, when confronted with the prosecution evidence conceded that prosecution has not been able to adduce incriminating evidence connecting appellant Abdul Qadir Shaukat, appellant with the commission of offence.

13. On merits the prosecution has failed to prove the charges against the appellants. Even not a single witness has implicated appellant Abdul Qadir Shaukat in any manner with the commission of offence. In case if appellant Abdul Qadir Shaukat stands exonerated from the charges, conviction and sentence cannot be sustained on the same charges against the appellant Shafi Muhammad Sehwani. The question of mens rea is missing in this case. Mere irregularity in regularization of the plot and the allegation of misleading the then Chairman, CDA would not constituted the offence falling within the ambit of section 3 of the Ordinance. To further clarify, it would be relevant to refer that the original allotment was made in the year, 1974 at the rate of Rs.50 per sq. yard. It was in 1980 appellant No.2 purchased the plot in question and he figured thereafter in the matter and from 1980 onward the allotment of plot in question was withdrawn for six times and restored for seven times had in fact indicated that it was not the case of cancellation of the plot but was made of regularization. Vide Note No.665 on the summary, the Estate Management Department of CDA on query of Chairman, CDA suggested that the prevalent rate of allotment of land in the Markaz during 1986 was Rs.1,000 per, sq. yard. In fact Rs.100 shown in the summary was regarding the additional charges for regularization of earlier allotment made in 1974. It was in view of which CDA demanded additional charges and other regularization fee to the tune of Rs.13,29,866 vide letter No.CDA/EM‑27(167)/71/3240, dated 7th August, 1993 from appellant Abdul Qadir Shaukat who paid the same and in consequence whereof the said allotment was regularized, approved and sanctioned according to the proposed scheme. Thus, in our view, no case of any sort has been made out warranting the conviction and sentence of appellants as the matter was closed during the year 1993 leaving no justification for initiating criminal proceedings in 1996.

14. In order to eradicate corruption and corrupt practices from the public offices and to provide effective, measures for prosecution and speedy disposal of such cases Ehtesab Ordinance, 1996 (CXI of 1996) was promulgated on 18‑11‑1996. This Ordinance was amended thrice vide Ehtesab (Amendment). Ordinance, 1996 (CXXII of 1996) dated 31‑12‑1996, Ehtesab (Amendment) Ordinance, 1.997 (VII of 1997) dated 17‑1‑1997 and Ehtesab (Second Amendment) Ordinance, 1997 (XI of 1997), dated 27‑1‑1997. Ordinance CXI of 1996 was still in force when it was repealed by Ordinance XX of 1997 which was finally converted into permanent legislation by the then Legislators as Act IX of 1997 (hereinafter referred to as the Act, 1997).

15. The vires of the abovementioned Ehtesab Ordinance and the validity of Ehtesab Act, XI of 1997 were challenged under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 by the respondents in several writ petitions before a Full Bench of Lahore High Court which were disposed of vide judgment, dated 26‑3‑1998 while holding that section 31(2)(c) of the Ehtesab Act, 1997 is discriminatory and violative of the equal protection clause contained in Article 25 of the Constitution of Islamic Republic of Pakistan and cannot be sustained. It was further held that proceedings pending at the time of enforcement of Ehtesab Act, 1997 relating to period prior to 6‑11‑1990 could not continue under the Act. The said judgment was challenged by the Federation of Pakistan and others in Civil Appeals Nos.781 and 785 to 788 of 1999 which were heard and disposed of by a larger Bench consisting of seven learned Judges of this Court vide judgment dated 15th October, 1999 reported as Federation of Pakistan and others v. M. Nawaz Khokhar and others PLD 2000 SC 26 with the dissenting note recorded by Muhammad Bashir Jehangiri, J. It was held that after the promulgation of the Act only holders of public offices C since 6th day of November, 1990 could be prosecuted and proceedings which related to offences committed prior to 6th day of November, 1990 could not be continued under the Act IX after repeal of Ordinance XX of 1997.

16. It has also been held that the provisions of the Act made it clear that it applies .to the holders of the public offices since 6‑11‑1990. To further substantiate the effect of the Act on Ordinance XX of 1997, it would be relevant to reproduce the relevant paragraph from the judgment referred at side line "G" of page 45 of the judgment:‑‑ "The provisions in the Act make it clear that the provisions of the Act applied to the holders of public office since 6th day of November, 1990. As section 31 of the Act provides that proceedings pending under Ordinance XX shall continue under the Act, it necessarily implies that such proceedings could be continued only in accordance with the provisions of the Act. Since the provisions of the Act applied to the holders of the public offices since 6th of November, 1990 the proceedings pending under Ordinance XX in respect of holders of public offices for the period prior to 6th of November, 1990 could not be continued under the Act. We are, therefore, of the view that only those proceedings which were pending under Ordinance XX on the date of promulgation of the Act, were saved and continued which related to offences as defined under the Act by the holders of public offices since 6th day of November, 1990."

17. The other observation recorded at side line "H" of page 46 is also reproduced as under:‑‑ "While examining the effect of saving clause in the Act, we have already held that after the promulgation of the Act only holders of, public offices, since 6th day of November, 1990 could be prosecuted and proceedings which related to offences committed prior to 6th day of November, 1990 could not be continued under the Act IX after repeal of Ordinance XX."

18. Since the appellants were convicted and sentenced under section 4 of the Ehtesab Ordinance, 1996 under Ordinance XX of 1997, as such, the matter is fully covered by the case mentioned (supra). Irrespective of merit, the prosecution case also fails on the legal aspect discussed above.

19. Accordingly the appeals are allowed and conviction and the Ehtesab Court and upheld by the learned High Court are set aside. N.H.Q./S-34/S Appeals accepted.