2006 PLP 1136 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

Brief facts giving rise to the present appeal are that the appellant Abu Bakar addressed an undated application to the then Chief Minister co-accused Syed Abdullah Shah with a request to convert his 4 Acres leased land N.A. Class No.46, Deh Ghaghra District Malir into industrial/ residential/commercial, and to extend the lease period from 30 yeas to 99 years at the rate of Rs.25,000 per acre in relaxation of policy and ban. The application was sent to the Board of Revenue for preparation of summary. On the said application the then Secretary Board of Revenue co-accused Ramesh Udashi floated a summary along with 25 other applications of similar nature, recommending the applications but at the rate of Rs.50,000 per acre. The then Chief Minister approved the summary, which was returned to the Board of Revenue. The then Secretary Board of Revenue issued a letter to the Deputy Commissioner for doing the needful who forwarded the same to the Mukhtiarkar. In pursuance of the said letter, the appellant deposited the amount at the rate of Rs.50,000 per acre in the bank. Then necessary compliance of the order was made.

2. The Chairman NAB received complaint that the said land along with other lands were granted on throwaway price as the rate of the land was Rs.4,89,000 per acre therefore the Government was put to loss. The Chairman, NAB authorized the F.I.A. authorities to investigate the case. After the investigation the papers were sent to the Chairman, NAB who formed the opinion that the Government was put to loss by the then Chief Minister in connivance with the then Secretary Board of Revenue and the appellant therefore he filed the reference before the Accountability Court.

3. The Accountability Court framed charge. The prosecution examined five witnesses. The appellant denied all the allegations of the prosecution. He did not examine himself on oath or lead any evidence in his defence. The learned trial Judge after considering the evidence and hearing the parties' counsel convicted the appellant and co-accused the then Secretary Board of Revenue for an offence punishable under section 10 of the NAB Ordinance and sentenced the appellant to suffer R.I. for seven years, fine of Rs.2 lacs and disqualification as provided under section 15 of the NAB Ordinance under the impugned judgment dated 29-5-2000. The appellant was dissatisfied with the said judgment therefore he has' preferred the appeal.

4. The learned Advocate for the appellant and DPGA for the State have filed their written arguments. We have considered the said arguments and gone through the evidence available on the Court.

5. After going through the material available on the record, we found that the admitted facts are that the appellant had moved an application for conversion of his land to commercial/industrial/residential purpose and to extend the lease period from 30 years to 99 years. The then Chief Minister referred the application for preparation of summary after formally approving the conversion. The summary was floated by the then Secretary Board of Revenue who was also co-accused in the case, along with 25 other similar applications with recommendation that the lease money might be charged at the rate of Rs.50,000 per acre in relaxation of ban as had already been done in other cases. The then Chief Minister approved the summary and returned the matter to the Board of Revenue. The then Secretary Board of Revenue sent a letter to the Deputy Commissioner for doing the needful and then the matter was referred to the Mukhtiarkar who complied with the order.

6. The case of the prosecution is that the rate of the land was Rs.4,89,000 per acre and the appellant in collusion with the then Chief Minister and the Secretary Board of Revenue caused loss to the government exchequer. In order to prove the above allegation the prosecution did not examine any witness to show that the rate of land was Rs.4,89,000 per acre at the time of conversion of land. All the four witnesses from the department did not state anything on the said point. However the prosecution led such evidence through the Investigating Officer who stated that during his inquiry he came to know that the rate of the land was Rs.4,89,000 per acre. This is the only evidence led by the prosecution on the above subject without producing any other evidence to support the statement of the Investigating Officer. No doubt, the Investigating Officer might have conducted inquiry and he might have formed such opinion but his opinion is not binding upon the Court, as he is not expert in the field. The prosecution should have led some other evidence or the source from which the Investigating Officer formed such opinion. Without examination of such witnesses, the statement of Investigating Officer in isolation cannot be relied upon. As such, the prosecution has failed to prove the above allegation.

7. As regards the collusion of the appellant with the then Chief Minister and the Secretary Board of Revenue, it is pertinent to point out that the Secretary Board of Revenue Ramesh Udishi was also tried along with the appellant. He was also convicted by the trial Court but he was acquitted in an appeal filed by him as no case was proved against him of his collusion with the then Chief Minister or the appellant. It is further pointed out that for involving the appellant in the case the prosecution should have examined some evidence apart from moving the application for extension of lease. There is no evidence available on the record to show that the appellant had taken some steps to influence the then Chief Minister or the Secretary Board of Revenue to achieve this objective. Simply moving an application for extension of period of lease and conversion of land is not an offence. Nevertheless it is the right of a person to move such type of application if he finds that he was justified in getting the lease period extended because of various considerations??? such???? as improvements of land, expending money over the same and so on so forth. There is also no evidence in this respect therefore the prosecution has also failed to prove the said point particularly in the presence of acquittal of co-accused the then Secretary Board of Revenue Ramash Udeshi.

8. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt therefore he is entitled to the benefit of doubt, which is accordingly given to him.

9. Consequently, the conviction and sentence awarded to the appellant under the impugned judgment are set aside. The appellant is acquitted and set at liberty. The appeal is allowed. H.B.T./A-37/K??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.