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Petitioner: The STATE VS Respondent: ANWAR SAIF ULLAH KHAN
Court Name: Supreme Court of Pakistan Judge(s): Asif Saeed Khan Khosa, Umar Ata Bandial, Iqbal Hameed-ur-Rehman Title: The STATE vs ANWAR SAIF ULLAH KHAN Case No.: Criminal Appeal No.264 of 2006,Criminal Appeal No.1912 of 2000 Date of Judgment:2016-01-20 Reported As: PLD 2016 Supreme Court 276 Result: Appeal allowed
JUDGMENT
JUDGMENT ASIF SAEED KHAN KHOSA, J.---In his capacity as a Federal Minister Anwar Saif Ullah Khan respondent forced his will upon a reluctant Chairman of a public sector Corporation and after relaxing the relevant rules he got 145 persons appointed to various jobs against the requirements of the Corporation only to please his political friends in the Parliament. The Lahore High Court, Lahore held that what the respondent did was in accord with the prevalent practice. Such implied acceptance of a culture of political patronage cannot be approved by us. The High Court had concluded that the respondent had no criminal intent in the matter. With respect to the High Court, we do not agree. 2. The facts of the case are that the respondent served as a Minister for Petroleum and Natural Resources in the Federal Cabinet from 28.11.1994 to 05.11.1996. On 10.05.1997 a Reference was filed against the respondent by the Chief Ehtesab Commissioner before the Lahore High Court, Lahore under section 14(1) of the Ehtesab Ordinance, 1996 with an allegation of indulging in corruption and corrupt practices while holding a public office and upon promulgation of Ordinance No. XVIII of 1999 the said Reference stood transferred to the Accountability Court, Lahore, was numbered as Reference No. 4-B of 1999 and was treated as a Reference filed by the National Accountability Bureau under the National Accountability Ordinance, 1999. The precise allegation leveled the respondent was that in his capacity as the Federal Minister for Petroleum and Natural Resources he had misused his authority by prevailing upon the Chairman, Oil and Gas Development Corporation and getting 145 persons recommended by some parliamentarians appointed to various jobs in the Oil and Gas Development Corporation and for this purpose he had relaxed the relevant rules. On 15.05.2000 the Accountability Court, Lahore framed a charge against the respondent for an offence
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under section 9(a)(vi) of the National Accountability Ordinance, 1999 to which the respondent pleaded not guilty and claimed a trial. The prosecution produced eight witnesses in support of its case against the respondent whereafter the respondent's statement under section 342, Cr.P.C. Was recorded wherein he denied and controverted the allegations leveled against him and professed his innocence. The respondent made his statement on oath under section 340(2), Cr.P.C. Before the trial court when he appeared as DW1. Upon conclusion of the trial the learned Judge, Accountability Court, Lahore convicted the respondent for an offence under section 3(1)(d) of the Ehtesab Ordinance, 1996 read with section 35 of the National Accountability Ordinance, 1999 vide judgment dated 30.11.2000 and sentenced the respondent to simple imprisonment for one year and a fine of Rs.50,00,000/- or in default of payment thereof to undergo simple imprisonment for one year. The benefit under section 382-B, Cr.P.C. Was extended to the respondent. The Accountability Court also passed a consequential order under section 15 of the National Accountability Ordinance, 1999 disqualifying the respondent from contesting an election or holding a public office for a specified period. The respondent challenged his conviction and sentence before the Lahore High Court, Lahore through Criminal Appeal No. 1912 of 2000 which was heard and allowed by a learned Division Bench of the said Court vide judgment dated 13.06.2002 and the respondent was acquitted of the charge. The State has assailed the respondent's acquittal by the Lahore High Court, Lahore through the present appeal by leave of this Court granted on 10.05.2006. 3. In support of this appeal the learned Deputy Prosecutor-General Accountability appearing for the appellant/State has argued that the actus reus of relaxing the relevant rules and approving appointment of 145 persons to different posts in the Oil and Gas Development Corporation had never been denied or disputed by the respondent and the mens rea for the exercise was nothing but obliging some parliamentarians which intention was unconstitutional and illegal besides being criminally culpable and, thus, the Lahore High Court, Lahore was not justified in acquitting the respondent of the charge by holding that the prosecution had failed to prove any criminal intent on the part of the respondent. In support of his submissions the learned Deputy Prosecutor-General Accountability has placed reliance upon the cases of Mushtaq Ahmed Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043) and Syed Mubashir Raza Jaffri and others v Employees Old-Age Benefits Institutions (EOBI) through President of Board, Board of Trustees and others (2014 SCMR 949). As against that the learned counsel for the respondent has argued that the view formed by the Lahore High Court, Lahore in the matter was a view which was reasonable and a disagreement with such view does not provide a valid basis for interfering with a judgment of acquittal. In support of this argument the learned counsel for the respondent has relied upon the judgment passed by this Court in the case of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11) wherein different principles for interference in a judgment of acquittal had been laid down in detail. He has also argued that the case in hand was a case of an alleged commission of a criminal offence and, thus, the evidence led by the prosecution had to be assessed on the basis of the actus reus and the mens rea which did not coincide in this case so as to make the offending action of the respondent a criminal offence. In this regard he has submitted that after receiving requests from some parliamentarians the respondent had referred the matter of appointments to the Chairman, Oil and Gas Development Corporation, the respondent had relaxed the relevant rules and had approved the making of appointments when he was advised that he had the requisite jurisdiction to relax the rules and the actual appointments were made by the Chairman, Oil and Gas Development Corporation and not by the respondent. He has also argued that before relaxing the rules and granting approval for making of the appointments the respondent had been informed that there was already in existence a prevailing practice whereby the Federal Minister for Petroleum and Natural Resources could grant the requisite approval for appointments after relaxation of the rules as a special case.
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It has been maintained by the learned counsel for the respondent that following a prevalent practice negated the element of mens rea on the part of the respondent which was crucially important for transforming the respondent's actus reus into a criminal offence. The learned counsel for the respondent has gone on to argue that Ijaz Ahmed Khan (PW1) had stated before the trial court that the required appointments were to be made after fulfillment of certain conditions, Mobeen Ehsan (PW3) had deposed about his own authority to recruit and had never stated that the respondent had pressurized him in that regard, Akhtar Hussain (PW4) had stated before the trial court that the recruitments in question were made in accordance with the Rules of the Oil and Gas Development Corporation, Abdul Mateen Ahmed (PW5) had also stated the same thing as was stated by Akhtar Hussain (PW4) and R. A. Hashmi (PW6) had clearly deposed before the trial court that the respondent had not applied any pressure upon anybody in the matter of appointment of the relevant persons nor any dictation was given in that regard by the respondent to the Oil and Gas Development Corporation. It has, thus, been maintained by the learned counsel for the respondent that there was no criminal intent in the matter on the part of the respondent and, therefore, the Lahore High Court, Lahore was quite justified in acquitting him. The learned counsel for the respondent has read out the relevant portions of the impugned judgment passed by the Lahore High Court, Lahore and has submitted that the grounds weighing with the High Court for acquitting the respondent were sound and, therefore, the respondent's acquittal does not warrant any interference by this Court. The learned counsel for the respondent has also drawn our attention towards Exhibit-DW1/2 which contained the government's policy in respect of Oil and Gas Development Corporation and laid down the requirement of appointments and recruitment through a Selection Board but according to the same policy the Federal Minister concerned could approve a departure from the requirement of advertisement. It has been maintained by the learned counsel for the respondent that the respondent had granted such approval qualifying that such departure would be made in cases of urgency and for ensuring merit. He has also referred to the document brought on the record as Exhibit-DWI/17 showing that the Chairman, Oil and Gas Development Corporation did not usually accept dictation of the Federal Minister. With these submissions the learned counsel for the respondent has maintained that the High Court could have reasonably come to the conclusion it had reached and that the High Court was amply justified in concluding that the requisite mens rea for turning the respondent's action into a criminal offence was lacking in this case. In support of his submissions the learned counsel for the respondent has placed reliance upon the cases of Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233), The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118), M. Siddique-ul-Farooque v. The State (PLD 2002 Karachi 24), Wahid Bakhsh Baloch v. The State (2014 SCMR 985), Mansur-ul-Haque v. Government of Pakistan (PLD 2008 SC 166) and Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 SC 63). While exercising his right of rebuttal the learned Deputy Prosecutor-General Accountability has submitted that the Oil and Gas Development Corporation Rules define a "temporary" employment and the appointment of 145 persons in this case was not temporary appointment because the letters of appointment had mentioned probation which is meant for regular posts only. 4. After hearing the learned counsel for the parties and going through the record of the case and the precedent cases with their assistance we have found that the use of authority by the respondent in the matter of appointment of 145 persons on different posts in the Oil and Gas Development Corporation is not disputed and that the main issue is as to whether such use of authority by the respondent amounted to misuse of authority or not within the purview of section 9(a)(vi) of the National Accountability Ordinance, 1999 which provides as follows: 9. Corruption and Corrupt Practices:
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(a) A holder of a public office, or any other person, is said to commit or to have committed the offence of corruption and corrupt practices:- (vi) if he misuses his authority so as to gain any benefit or favour for himself or any other person, or renders or attempts to render or willfully fails to exercise his authority to prevent the grant or rendition of any undue benefit or favour which he could have prevented by exercising his authority. ' Section 14(d) of the National Accountability Ordinance, 1999 is relevant to a charge under section 9(a)(vi) of the said Ordinance and the same reads as under: 14. Presumption against accused accepting illegal gratification: (d) In any trial of an offence under clauses (vi) and (vii) of section 9, the burden of proof that he used his authority, or issued any directive, or authorised the issuance of any policy or statutory rule or order (SRO), or made any grant or allowed any concession, in the public interest, fairly, justly and for the advancement of the purpose of the enactment under which the authority was used, directive or policy or rule or order was issued or grant was made or concession was allowed shall lie on the accused, and in the absence of such proof the accused shall be guilty of the offence, and his conviction shall not be invalid by the reason that it is based solely on such presumption; ' Provided that the prosecution shall first make out a reasonable case against the accused charged under clause (vi) or clause (vii) of subsection (a) of section 9. ' Another issue germane to the above mentioned main issue is as to whether any misuse of authority by the respondent in the matter could be said to have been committed with criminal intent so as to make his action culpable or not. 5. The provisions of sections 9(a)(vi) and 14(d) of the National Accountability Ordinance, 1999 have been discussed and analyzed by this Court in some previous cases in the context of allegations regarding misuse of authority and it may be useful to refer to those cases first before discussing the merits of the present case. In the case of Pir Mazharul Haq and others v. The State through Chief Ehtesab Commissioner, Islamabad (PLD 2005 SC 63) a Provincial Minister according approval regarding regularization of a plot was acquitted by this Court and it was observed as follows: "28. In criminal cases the general rule is that the accused must always be presumed to be innocent and the onus of proving everything essential to the establishment of the offence is on the prosecution. All that may be necessary for the accused is to offer some explanations of the prosecution evidence and if this appears to be reasonable even though not beyond doubt and to be consistent with the innocence of accused, he should be given the benefit of it. The proof of the case against accused must depend for its support not upon the absence or want of any explanation on the part of the accused but upon the positive and affirmative evidence of the guilt that is led by the prosecution to substantiate accusation. There is no cavil with the proposition and judicial consensus seems to be that "if on the facts proved no hypothesis consistent with the innocence of the accused can be suggested, the conviction must be upheld. If however, such facts can be reconciled with any reasonable hypothesis compatible with the innocence of the accused the case will have to be treated as one of no evidence and the conviction and the sentence will in that case have to be quashed." 29. We are not persuaded to agree with learned Deputy Prosecutor General NAB that conviction could have been awarded in view of the provision as contained in section 14 of NAB Ordinance, 1999 for the simple reason that "the section cannot be used to undermine the well established rule of law that save in very exceptional class of cases, the burden to prove the guilt of the accused is on the prosecution and never shifts. The section does not affect the onus of providing the guilt of an accused, which always rests on the prosecution and it does not cast any burden on an accused person to prove that no crime was committed, by proving facts specially within his knowledge, nor does it warrant the conclusion that if anything is unexplained, which the Court thinks the accused could explain, he ought therefore to be found guilty." ---
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30. It hardly needs any elaboration that "the ordinary rule that applies to criminal trials, viz., that the onus lies on the prosecution to prove the guilt of the accused, is not in any way modified by the rule of evidence contained in this section which cannot be used to make up for the inability of the prosecution to produce evidence of circumstances necessary to prove the guilt of the accused. It is only in cases where the facts proved by the evidence give rise to a reasonable inference of guilt unless the same is rebutted, that such inference can be negative by proof of some fact which, in its nature, can only be within the special knowledge of the accused. If the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence." --- --- 31. It would be a misconception of law that every accused who faced trial in the Accountability Court or against whom a reference has been sent the "presumption as envisaged in section 14 of the NAB Ordinance, 1999" would start running against him. Where the prosecution has failed to discharge the onus of "proof" by adducing cogent, concrete and forthright evidence the presumption of guilt would not arise against him and thus the question of conviction would have not arisen. The said proposition has been clarified by this Court in case titled Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), operative portion whereof is reproduced herein above for ready reference:-- "Be that as it may, the prosecution has to establish the preliminary facts whereafter the onus shifts and the defence is called upon to disprove the presumption. This is also the consistent stand taken by Mr. Abid Hassan Minto as well as the learned Attorney-General who adopted his arguments. This interpretation appears to be reasonable in the context of the background of the NAB Ordinance and the rationale of promulgating the same notwithstanding the phraseology used therein. We are also of the view that the above provisions do not constitute a bill of attainer, 'which actually means that by legislative action an accused is held guilty and punishable. For safer dispensation of justice and in the interest of good governance, efficiency in the administrative and organizational set-up, we deem it necessary to issue the following directions for effective operation of section 14 (d). (1) The prosecution shall first make out a reasonable case against the accused charged under section 9(a)(vi) and (vii) of the NAB. (2) In case the prosecution succeeds in making out a reasonable case to the satisfaction of the Accountability Court, the prosecution would be deemed to have discharged the prima facie burden of proof and then the burden of proof shall shift to the accused to rebut the presumption of guilt." ---- 32. In no circumstances the defence should be expected to prove the accusation. In a similar wake of event while discussing the question of presumption it was held in Rehmat v. State PLD 1977 SC 515 as follows: -- "Needless to emphasise that in spite of section 106 of the Evidence Act in a criminal case the onus rests on the prosecution to prove the guilt of the accused beyond reasonable doubt and this section cannot be construed to mean that the onus at any stage shifts on to the accused to prove his innocence or make up for the liability and failure of the prosecution to produce evidence to establish the guilt of the accused. Nor does it relieve the prosecution of the burden to bring the guilt home to the accused. It is only after the prosecution has on the evidence adduced by it, succeeded in raising reasonable inference of the guilt of the accused, unless the same is rebutted, that this section wherever applicable, comes into play and the accused may negative the inference by proof of some facts within his special knowledge. If, however, the prosecution fails to prove the essential ingredients of the offence, no duty is cast on the accused to prove his innocence." 33. In the light of what, has been discussed herein above we are of the view that prosecution has failed to establish the guilt beyond shadow of doubt. The appeals preferred on behalf of appellants
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are hereby accepted and the judgment passed by learned High Court of Sindh Karachi in Ehtesab Reference No. 8 of 1997 is set aside." (underlining has been supplied for emphasis) 6. The case of Mansur-ul-Haque v. Government of Pakistan (PLD 2008 SC 166) was a case of a Chief of the Naval Staff allegedly misusing his authority in the matter of purchase of some naval ships. While acquitting the accused person this Court held as under: "9. It is clear from the above referred portion of the judgment of the High Court that the prosecution has not been able to bring on record any cogent evidence to establish the charge and learned DPGA frankly conceded the factual position in the light of which the trial Court held that the allegation regarding exorbitant price and financial loss to the PNSC or financial gain by the accused, was not proved. Learned counsel for the petitioner has not been able to convince us from the evidence on the record that essential elements of mens rea and intention to commit an offence under section 9(a)(vi) of NAB Ordinance were traceable in the transaction or the accused acted for their personal gain at the cost of causing financial loss to the organization (PNSC) or the ships in question were not of viable technology and were not that of international standard and specification. The mere procedural irregularities in the transaction, would not be sufficient to constitute an offence under section 9(a)(vi) of the ibid Ordinance. This is essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine the question of criminal liability in the transaction. The procedural irregularities may bring an act done in the official capacity within the ambit of misconduct which is distinguishable from criminal misconduct or an act which may constitute an offence and thus unless it is established through the evidence that an act or series of acts done in the transaction constituted an offence, the criminal charge would be groundless. We may 'Point out that notwithstanding the special provision contained in the NAB Ordinance regarding shifting of the burden of proof, the fundamental principle of the law of criminal administration of justice that basic onus is always on the prosecution to establish the commission of an offence is not changed and in the present case, we find that the respondents having negotiated with the seller company abroad in the official capacity entered into the contract of purchase of ships and in the process certain procedural irregularities constituting an act of misconduct in the contemplation of law applicable to their service were probably committed but the same may not constitute a criminal offence under section 9(a)(vi) of NAB Ordinance punishable under section 10 of the said Ordinance or under any other law without proof of the existence of element of dishonest intention of personal gain. The prosecution in the present case has not been able to bring on record any evidence to substantiate the allegation of dishonest intention to cause financial loss to the organization for personal gain to bring the case within the purview of National Accountability Bureau Ordinance, 1999. This is settled law that unless prosecution discharges the initial burden of proving the charge no presumption of guilt can be raised and in the present case, the prosecution except pointing out certain irregularities committed by the respondents in the transaction of purchase of ships for the use of PNSC, has not been able to bring on record any evidence oral or documentary to show that either the price for which the ships were purchased, was exorbitant or the respondents while acting for their personal gain have caused financial loss or any other damage to the organization. In the light of the facts of prosecution case and the circumstances leading to the completion of transaction it is evident on record that the view of the evidence taken by the High Court was unexceptional. ' The National Accountability Bureau Ordinance, 1999, no doubt is a special law and prosecution having the advantage of the provision of section 14(a) of the Ordinance may not under heavy burden to discharge the onus of proving the charge as the Court may on discharge of initial burden of proving prima facie case by the prosecution raise a presumption of guilt but in the light of concept of criminal administration of justice, the prosecution is not absolved of its duty to prove
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the charge beyond reasonable doubt under NAB Ordinance as the burden of proof is only shifted on the person facing charge if the prosecution succeeds in making out a reasonable case by discharging the initial burden of proving the charge. The provision of section 14(d) of the said Ordinance envisages that burden of proof is only shifted to the accused to rebut the allegations if the prosecution succeeds in establishing the preliminary facts to raise the presumption of guilt." (underlining has been supplied for emphasis) 7. In the case of The State and others v. M. Idrees Ghauri and others (2008 SCMR 1118) a public servant accused of misusing his authority' in the matter…
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