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Petitioner: THE STATE VS Respondent: Syed IFTIKHAR HUSSAIN GILANI
Court Name: Peshawar High Court Judge(s): Wali Muhammad Khan Title: THE STATE vs Syed IFTIKHAR HUSSAIN GILANI Case No.: Special Case No. 1 of 1990 Date of Judgment:1991-05-16 Reported As: PLD 1991 Peshawar 143 Result: Order Accordingly
JUDGMENT
JUDGMENT ' 1. Syed Iftikhar Hussain Gilani (accused herein) was holding the portfolio of Minister for Law and Justice in the previous cabinet of Mutrama Benazir Bhutto which was dissolved by the President of the Islamic Republic of Pakistan on 6th of August, 1990. In the Budget for the year 1989-90 a sum of Rs. 50 million was allocated as a special grant for the strengthening of judiciary. On 13-6-1990 the accused submitted a summary to the then Prime Minister (office copy Ex.P.W.1/15), proposing the creation of non-lapsable Legal Aid Fund for the benefit of the needy and deserving persons and for according sanction to the transfer of Rs.2 million out of the unspent amount of Rs.2.798 million out of the fund for strengthening of judiciary. It was specifically mentioned therein that the fund would be administered personally by the Law and Justice Minister in accordance with the normal codal formalities. The original summary was returned by the then Prime Minister with the following endorsement in her own hand, (Ex. P.W.1/16):- "We may keep the amount which is still available in legal fund. ' Approved. ' B.B. ' Dt.14-6-1990." ' The accused issued a D.O. Letter(Ex.P.W.1/17) to the Minister of State for Finance, Economic Affairs and Planning and Development, Ministry of Finance, Islamabad on the same day, on 14-6-1990, informing him of the approval of the Prime Minister, for establishment of Legal Aid Fund and transfer of Rs.27,94,000 the unspent amount from the fund of strengthening of judiciary, to the same fund and for necessary action at their end. The Finance Division conveyed their approval vide Ex.P.W.1/19 with a direction to the Law and Justice Division to formulate accounting procedure in
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consultation with the Auditor-General of Pakistan and the Budget Wing of their Division. Accordingly a letter dated 18-6-1990 (Ex.P.W.1/20) was addressed to the Auditor-General Lahore requesting him for the allotment of a fund account number and also for indicating the accounting procedure to run the aforesaid non-lapseable fund. The Auditor-General's reply thereto dated 19- 6-1990 (Ex.P.W.i/21) is reproduced verbatim:-- "No. 201/14. Ac.II/P/90 dated 19-6-1990. ' To ' The Secretary to Government of Pakistan, Ministry of Law, Justice and Provincial Coordination, (Law and Justice Division), Islamabad. ' Atten; Mr.Abdul Jalil Siddiqui, Dy.Secretary. ' SUB: ESTABLISHMENT OF FUNDS FOR LEGAL AID. Sir, ' I have the honour to refer to Ministry of Law, Justice and Provincial Coordination (Law and Justice Division), Islamabad letter No.F.6(1)/ 90-B & A , dated 18-6-1990. (2) Attention is invited to Article 80 of the Constitution according to which the allocations sanctioned in the Schedule of Authorised Expenditure of a financial year, if remaining unspent, will lapse to the Consolidated Fund on 30th June. In the light of this provision and in accordance with Article 43 of Audit Code, approval of the Legislature would be needed to keep the allocations of the Consolidated Fund in the Public Account under a Reserve Fund to be opened for the purpose or in a non-lapseable P.L.A./Assignment Account. (3) In view of the above, the following actions may be taken before opening of a new head of account: (I) A Reserve Fund for this purpose may be opened with the approval of the Legislature and a formal Government Sanction duly endorsed by Finance Division issued. As the fund would be non- lapseable and funds sanctioned for the financial year 1989-90 are desired to be carried forward to the next financial year and arc not to lapse on 30th June, 1990, approval of the Legislature will be necessary. (ii) Accounting procedure may please be drafted and sent to the A.G.P.R., Islamabad for preliminary examination and then obtaining approval of the Auditor-General of Pakistan. (4) However, to facilitate the matter and to avoid delay, the detailed head "3312023-Fund for Legal Aid" subordinate to major head, "3000000 Deposits and Reserves-B not Bearing Interest and minor head "3300000-Reserve Funds' is earmarked for this purpose. The proper authorization will be made on the fulfilment of the above requirements. ' Your obedient servant, (Sd.) (Mrs. Tanweer Hamid) Assistant Auditor-General (Accounts)." ' It appears that the directions contained in the above-quoted letter could not be fulfilled as the session of the National Assembly could not be convened for paucity of time. Consequently, the Accountant-General, Pakistan Revenues, Islamabad was addressed a letter (Ex.P.W.1/22) by Muhammad Amin, Section Officer (P.W.1) soliciting sanction for opening of a Non-interest bearing Lapseable Personal Ledger Account on account of Legal Aid to be operated by Syed Iftikhar Gilani, Minister for Law and Justice and his specimen signatures were annexed thereto. The Accountant- General was also requested vide (Ex.P.W.1/25) to authorise Treasury Officer Islamabad for the transfer of Rs.2,799,000 (Rupees two point seven nine nine million) to the Lapseable Personal Ledger Account, titled "Fund for Legal Aid" to be operated by the Minister for Law and Justice. 2. The Accountant-General vide (Ex.P.W.1/26) authorised the Federal Treasury Officer, Islamabad to open a Lapseable Personal Ledger Account in the Government Treasury, subject to the condition that the account will be lapseable at the end of the financial year. Through another letter
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(Ex.P.W.1/27) the Accountant-General authorised the Treasury Officer to transfer the amount of Rs.2.799 million to the Personal Ledger Account of the Minister for Law and Justice and Provincial Coordination and the Federal Treasury Officer vide letter dated 26-6-1990 (Ex.P.W.1/28) intimated the accused the opening of lapsable Personal Ledger Account titled "Expenditbre of Law and Justice Division on Legal Aid" as per the direction of the Accountant General in his name. It is worthwhile to mention here that the copies of the above narrated correspondence were specifically sent to Muhammad Amin, Section Officer (P.W.1) which proves that he was the concerned officer dealing with the matter in issue. 3. On 26-6-1990 Cheque No.A000801 for Rs. One million was issued by the accused in the name of Muhammad Ayub Drawing and Disbursing Officer (P.W.5) alongwith the requisite schedule (Ex.P.W.l/32) showing inter alia, that the Cheque is issued in the name of payee, Muhammad Ayub, D.D.O. Law and Justice Division, for distribution under Fund for Legal Aid. This amount was drawn by the payee on 27-6-1990 and handed over to the accused through Amjid Ali, Additional Secretary and in token of the receipt thereof the accused issued regular receipt Ex.P.W.1/3. The other Cheque No.A000802 for a sum of Rs.1.798 Million on 28-6-1990 was also issued in the name of D.D.O. Law and Justice Division alongwith a similar schedule (Ex.P.W.1/31) and the same was also encashed by Muhammad Ayub DDO (PW5) and the amount handed over to the accused through Amjid Ali, Additional Secretary for which amount also a duly signed receipt Ex.P.W.1/4 was handed over by the accused. 4. As stated earlier the National Assembly as well as the Cabinet was dissolved by the President on 6th of August, 1990. Since the Ministry for Law and Justice Division was not possessed of the details of any expenditure incurred by the accused from the Legal Aid Fund, Muhammad Amin Section Officer (P.W.1) who had been dealing with this particular case, sent a written report dated 29-8- 1990 (Ex.P.W.1/1) to the Director, F.I.A. Rawalpindi on the basis whereof a case F.I.R. No. 34 (Ex.P.W.1/2) under section 409 P.P.C. Read with section 5(2), Prevention of Corruption Act was duly registered by Malik Bashir Ahmad, Assistant Director F.I.A. (P.W.6) incorporating the contents of the report therein. The section of law was however, later on changed under legal advice, and Article 3 of President's (Post-Proclamation) Order No.16 of 1977 (hereinafter to be referred to as P.P.O. No.16 of 1977) was substituted for the original section of law. 5. The investigation of the case was entrusted to Najabat Hussain, Inspector F.I.A. (P.W.7). He took into possession the original receipts Ex.P.W.1/3 and Ex.P.W.1/4 vide memo Ex.P.W.1/12, specimen signatures of the accused (Ex.P.W.1/7 and Ex.P.W.1/8), three T-A. Bills containing normal signatures of the accused (Ex.P.W.1/9, Ex.P.W.1/10 and Ex.P.W.1/11) produced to him by PW Muhammad Amin vide memo. Ex.P.W.1/13 on 2-9-1990. On the following day viz. 3-9-1990 he took into possession file No.F- 6(1) 90 B & A of the Law and Justice Division containing documents Ex.PWI/14 to Ex.PW1/32 vide memo. Ex.PW1/33 and the original cheques Ex.PW1/5 and Ex.PW1/6 vide recovery memo. Ex.PW1/35. On the same day he sent the original cheques, original receipts, the specimen routine signatures of the accused and the T.A.Bills, taken into possession by him, to the Handwriting Expert for his opinion which is in positive vide Ex.PW2/1. He recorded the statements of the P.Ws. Under section 161, Cr.P.C., completed the investigation and after obtaining sanction Ex.PW/7/1 of the Federal Government for the prosecution of the accused, submitted complete challan in this Court. 6. The accused put in appearance in compliance with the summons issued to him and after compliance with the provisions under section 265-C, Cr.P.C., charge-sheet under Article 3 of the P.P.O. No.16 of 1977 and section 403, P.P.C. Was framed against him to which he pleaded not guilty and claimed trial. 7. The prosecution produced Muhammad Amin, Section Officer (P.W.1), Munir Ahmad Shah, Inspector FIA (PW2), Muhammad Hamid, Accounts Officer, A.G.P.R. (P.W.3), Nisar Ahmad Goraya, Federal Treasury Officer (P.W.4), Muhammad Ayub, Drawing & Disbursing Officer (PW5), Malik Bashir
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Ahmad, Assistant Director F.I.A. (P.W.6) and Chaudhry Najabat Hussain, Inspector F.I.A. (P.W.7), in support of its case and abandoned the remaining P.Ws. Being unnecessary. 8. Muhammad Amin (P.W.1) is a star witness in this case as he being a Section Officer Incharge Budget and Account Section of the Ministry of Law and Justice Division had been dealing with the matter in issue, set the ball rolling by reporting the matter to F.I.A. He gave the entire history of the case as narrated above and exhibited all the documents pertaining to the case in hand which have already been referred to in the earlier part of this judgment. He positively deposed that the Personal Ledger Accounts arc to be maintained properly and that they are subject to audit. He disclosed that no regular account of the disputed Legal Aid Fund was maintained and an amount of Rs.2.798 million was taken away by the accused and embezzled. He testified to the correctness of the relevant memos. To which he is a marginal witness. He explained that the disputed amount was sanctioned for helping the needy and deserving persons in their litigation including the fees of their counsel as contained in the summary Ex.P.W.1/15, duly approved by the then Prime Minister vide Ex.P.W.1/16. He was cross-examined at length but nothing material could be elicited from him in support of the defence theory rather damaging questions were put to him, the answer whereof went against the accused. For example, at his instance, the witness produced original advance bill for the year 1981-82 bearing token No.14461 dated 29-6-1982 according to which a sum of Rs.6 lac under the head "Grants-in-Aid to the Pakistan Bar Council and Association' (unspent amount) was withdrawn to save it from lapsing and also on account of expected expenditure vide cheque No.D341307 dated 30-6-1982. As a matter of fact the total allocation under the aforementioned head was Rs.10,34,000 which had remained unspent in its entirety during the financial year concerned and out of the same Rs.6 Lac was withdrawn on 30-6-1982 leaving the balance of Rs.4,34,000 lapsed. This entire amount of Rs. 6 lac was spent from time to time until 4-10-1984 and the details of the expenditure have been given in the left hand column and on its reverse (photostat copy Ex.P.W.1/D-3). Since this document had been introduced for the first time in the cross-examination, the learned Special Public Prosecutor was permitted to cross-examine the witness only regarding the said document. In reply to questions by the Special Public Prosecutor the witness showed the bill/vouchers, receipts, entries in the Cash Book and stated that each item of payment out of the said saving spreading over about two years was duly supported by vouchers and entries in the Cash Book, duly initiated by the Drawing and Disbursing Officer. He produced a statement (Ex.P.W.1/X-2 comprising of three sheets) showing the disbursement of the said amount and the specimen copies of Cash Book Ex.P.W.1/X-1 and Ex.P.W.1/X-3. According to him the said amount remained in the chest maintained by the Ministry under the control of Cashier and Drawing and Disbursing Officer and was open to inspection and scrutiny by superior officers at any time and that at no stage the said amount of Rs.6 lac remained in the personal custody of any official of the Ministry. He was also questioned about letter Ex.P.W.1/30 in which the witness had admitted that the amount had been utilized, with a minor saving of Rs.1,000. The witness offered an intelligent explanation to the word utilization and stated that by utilization he meant that the said amount had been withdrawn by the Minister from the Treasury and never meant that the Minister had utilised it. He, however, conceded that the account was to be maintained, administered and operated by the Minister at his discretion. He frankly conceded that he did not draft any accounting procedure or sent it to A.G.P.R. Through his superiors because there was no time at their disposal for complying with the said direction. When questioned about one Muhammad Saced he admitted that he was O.S.D. With the accused and that he had met him once in connection with his T.A./D.A. After the dissolution of the Cabinet but lie never informed him about the maintenance of account by him regarding the disbursement of the disputed amount by the Minister. He stated that he lodged the report with the oral approval of his Secretary to whom a copy of the F.I.R. With a note was put up but the same was not returned. In reply to a question he stated that neither he nor the
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Law Secretary or other Officer of the Ministry ever enquired from the accused on telephone or otherwise as to what had happened to the amount in question. He denied all knowledge of the Law Ministry having twice refused sanction to prosecute the accused for the instant offence. 9. Munir Ahmad Shah (P.W.2) is the Inspector, Handwriting Expert, Technical Wing, F.I.A. Headquarter Islamabad, who compared the signatures of the accused, receipts and cheques Ex.P.W.1/3 to Ex.P.W.1/6 alongwith his admitted signatures viz. Specimen signatures and his signatures on the TA. Bills and submitted his opinion that the signatures on the receipts and cheques Ex.P.W.1/3 to Ex.P.W.1/6 were that of the accused. He proved his report Ex. P.W.2/1, Ex.P.W.2/2 and Ex.P.W.2/3 as correct. He was not cross-examined and his statement shall be presumed to be correct as under the judicial pronouncement of superior Courts the statement of a witness not cross-examined shall be deemed to have been accepted. 10. Muhammad Hamid (P.W.3) is Accounts Officer, A.G.P.R. Islamabad who had produced the original cheques Ex.P.W.1/5 and Ex.P.W.1/6 to the Investigating Officer. He denied the suggestion in the cross-examination that F.I.A. Officials had contacted him at any time between 20th and 27th of August, 1990. 11. Nisar Ahrnad Goraya (P.W.4) is the Federal Treasury Officer, Government of Pakistan Islamabad who passed the original cheques Ex.P.W.1/5 and Ex.P.W.1/6 for payment which were encashed from the State Bank of Pakistan, Islamabad. According to him Personal Ledger Account is opened in the Federal Treasury on the basis of specific objectives for allocation of funds. 12. Muhammad Ayub, Drawing and Disbursing Officer (P.W.5) stated that the Cheques Ex.P.W.1/5 and Ex. P.W.1/6 were issued in his name which he encashed on 27-6-1990 and 30-6-1990 respectively and handed over the cash to Amjid Ali, Additional Secretary of the Ministry of Law and Justice Division who gave him receipts Ex.P.W.1/3 and Ex.P.W.1/4 respectively, evidencing the receipt of the amount by the accused. He deposed that this amount was not put in the Chest under his control. In reply to a Court question he stated that there are two Drawing and Disbursing Officers in the Ministry of Law and Justice Division, including himself and that the other one is attached to the Solicitor. He added that the disbursement of the disputed amount was the responsibility of the accused and he could maintain the account therefor himself or entrust it to any official. 13. Malik Bashir Ahmad, Assistant Director F.IA. Crimes Circle Rawalpindi (P.W.6) deposed only to the receipt of the report Ex. P.W.1/1 of Muhammad Amin Section Officer (P.W.1) and the registration of the case vide F.I.R. Ex. P.W.1/2 on the basis of the report and entrustment of the investigation to Najabat Htissain Inspector. He was not cross-examined. 14. Chaudhry Najabat Hussain Inspector F.I.A. Crimes Branch Rawalpindi (P.W.7) is the Investigating Officer and 'his statement, more or less, pertains to the recovery of documents enumerated above and other matters connected with the investigation of the case. He admitted to have recorded the statement of Muhammad Saeed under section 161, Cr.P.C. On 17-10-1990. In reply to a question in the cross-examination he stated that the accused produced written statement to Malik Bashir Ahmad (P.W.6) and he did not examine him independently under section 161, Cr.P.C. But the written statement tendered by him to P.W.6 was handed over to him, as he was the Incharge of the investigation. He admitted that the written statement was supported by certain receipts allegedly in token of the payment made by the accused and copy of the register. He conceded that he neither investigated the genuineness of the receipts and the register though shown to him in original, nor examined the executants of the receipts as they had been examined by Malik Bashir Ahmad (P.W.6). The witness denied the suggestion that after 5/6 days of the dissolution of the Cabinet, F.IA. People including himself started visiting the Law Division, making queries, examining witnesses and ultimately coercing P.W. Muhammad Amin to make a report without obtaining written authority from the Law Secretary. He also denied the suggestion that this was done under
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instruction from above and that the instant case had been registered and prosecution launched for political reason to victimise the accused. 15. The accused was examined under section 342, Cr.P.C. In which all necessary questions rising out of the prosecution evidence were put to him for explanation. He admitted the summary (Ex. P.W.1/15) sent to the then Prime Minister, soliciting her sanction to divert the amount of Rs.2.8 million to the Legal Aid Fund, the opening of the Personal Ledger Account on the advice of the Minister for Finance, the issuance of cheques Ex. P.W.1/5 and Ex.P.W.1/6 and the receipts Ex.P.W.1/3 and Ex.P.W.1/4 in token of the receipt of the amounts of the cheques encashed by Muhammad Ayub, (P.W.5) paid to him through Amjid Ali, Additional Secretary. However, he denied the allegation regarding the fraudulent and dishonest misappropriation of the amounts in question and submitted that he had maintained proper regular account of the amounts disbursed by him. In reply to the question as to why he was charged, he replied that the charges levelled against him were result of malice and mala fides of the then Care-taker Government, he being the senior member of Pakistan People's Party, member of Central Executive Committee of the P.P.P. And the Federal Minister of Law and Justice and Provincial Co-ordination, always advocated the supremacy of the Parliament and consistently asked for the repeal of the 8th Amendment. According to him he was targetted as a special case because in the entire country he was the only person being tried under P.P.O. No.16 of 1977 which entails rigorous imprisonment for a period of seven years and not just the disqualification from being chosen a member of the Parliament and it is a classic case of political victimisation and harassm ent for holding an independent opinion on matters of public and national importance. As regards the Legal Aid Fund and the Personal Ledger Account he shifted the responsibility to his Additional Secretary who had told him that there was no accounting procedure laid down for the operation and maintenance of the said fund and that he could operate it at his discretion and further that at the end of the month of June, 1990 he was advised by the Additional Secretary to withdraw the amount in question otherwise it would lapse and the purpose for which the fund was allocated would be defeated. Regarding the custody of the amount he stated that he was advised by the Additional Secretary to keep the money in his personal custody till the disbursement is complete and, therefore, whenever, he would disburse or give some amount out of the same Fund he would obtain proper receipt and ask his O.S.U. Muhammad Saeed to make an entry in the Register maintained by him under his direction. He admitted the exclusive possession of the original Register and the receipts and produced then before the Court at the time of his examination but for perusal and inspection only without exhibiting them on the record. However, he exhibited the photostat copy of the letter . Sent to the Secretary Law and Justice Division and his written.Statement was handed over to the Investigating Team of the F.I.A., Ex. D.A. And Ex.D.A./1. He also exhibited the copy of his statement in the Senate which is Ex. D.A./2. About the non-availability of the account in his Ministry he stated that nobody asked him for the same. He added that an amount of Rs.5 million was at the disposal of the former Federal Minister Mr. Muhammad Aslam Khan Khattak in 1988 as a discretionary grant' but in spite of courteous requests from the Ministry of Communication, he declined to give any account of the money so spent by him and kept on writin4 back "the amount of Rs.5 million has been spent on purposes bona fide". The satins matter was referred to the Law Ministry vide U.O. No. U.O.-6(1)/88 Budget dated 15-4-1990. He also cited the case of one Chaudhry Shaukat Ali, a former Secretary, Election Commissioner of Pakistan against whom a proper report had been lodged by the Ministry of Religious Affairs with the F.I.A. Through. Evacuee Trust Property. .Board on 14-7-1990 that Government money had been embezzled and case may be registered against him and proceeded according to law but two days later on 16-7- 1990 the amount of Rs.30 lac was returned to the Evacuee Trust Property Board and on 13-8-1990 the F.I.A. Withdrew from the case on the ground that since the amount had been realised, it is proposed that Departmental action under the relevant rules may be initiated against the defaulter.
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In the end, he submitted that the amount in .Question was withdrawn bona tide and with honest intention under the advice of the concerned officials of the Ministry and part of it correctly utilised and the balance of Rs.13,15,000 was deposited in the State Bank of Pakistan. He claimed immunity under Article 248 of the Constitution of the Islamic Republic of Pakistan. In reply to the question whether he would like to produce defence he stated that the case against him has not been proved and, therefore, he does not feel any necessity to produce defence. In reply to a further question whether he would like to be examined as his own witness on oath, he gave similar reply that the prosecution has failed to prove its case and, therefore, he does not feel the necessity to appear as his own witness. 16. On the conclusion of the arguments of the learned Special Public Prosecutor, the learned defence counsel submitted an application for requisitioning certain record/files from the Ministry of Law and Justice Division regarding sanction for the prosecution of the accused on 3-4-1991 which was contested by the Special Public Prosecutor through written reply dated 6-4-1991. On the final conclusion of the arguments of the learned counsel for the accused on 20-4-1991 he submitted another application for permission to place on record and exhibit the original receipts (14 in number) and Voucher No.B/2 dated 4-9-1990, annexing the…
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