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Petitioner: THE STATE VS Respondent: SHAFI M. SEHWANI and anothers
Court Name: Lahore High Court Judge(s): Ihsan-ul-Haq Chaudhry, Abdul Hafeez Cheema Title: THE STATE vs SHAFI M. SEHWANI and anothers Case No.: Reference No,3 of 1997 Date of Judgment:1997-04-22 Reported As: PLD 1997 Lahore 563 Result: Order accordingly
JUDGMENT
JUDGMENT IHSAN-UL-HAQ CHAUDHRY, J.---Shaft Muhammad Sehwani (60) son of Khuda Bakhsh Qureshi, resident of House No,5 9th Avenue, F-8/1, former Member Planning and then Chairman, CDA, accused, along with co-accused Abdul Qadir Shaukat (68) son of Muhammad Din of House No,12, Street No,9, F-8/2, Islamabad, have been sent up for trial under section 14 of Ehtesab Ordinance, 1996, by the learned Chief Ehtesab Commissioner vide his order dated 31-12-1996. The case was entrusted to this Bench by the Hon'ble Chief Justice. 2.The facts of the case, which could be collected from the relevant record, briefly are that in keeping with the modern trends, CDA decided to have a swimming pool in Markaz F-6, Islamabad and plot of 2200 sq. Yds. Was allocated for this purpose. This was initially allotted to M/s Abdul Majeed Farooqi and Ch. Muhammad Najeeb at the rate of Rs,50 per sq. Yard on 8-8-1974 as a lease for 33 years extendable for two more similar terms. The allottee failed to evince proper interest in the completion of the project as per conditions of allotment and in pursuance of the request of Abdul Qadir Shaukat accused, the plot wa,, transferred to him (A.Q. Shaukat) on 18-5- 1980. 3.According to the conditions of allotment the plot was meant for the construction of swimming pool with heating arrangements so as to control the temperature of water at a personable degree and also to provide allied facilities such as massage, physiotherapy, cabin for change of clothes, public shower baths etc. The construction of a few cabins for refreshment was also permissible inside the premises of pool. Flagrantly violating the plan envisaged by C.D.A., accused No,2 constructed as many as 18 shops and committed many other visible major violations. The building was to be completed by 1-2-1981 according to the approved plan. It was, however, in view of the
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violations and deviations made in the approved plan and failure of the allottee to complete the swimming pool according to the terms and conditions that the allotment was withdrawn on 23-1- 1985 and the agreement terminated. 4.Accused No,2, however, made a request for restoration of the plot and during this process Deputy Director, Buildings and Buildings Control proposed that either the authority should stand firm on cancellation of allotment and resume the possession of the plot or restore the plot on the condition of removal of construction on the first floor and the swimming pool along with attached facilities must be completed and put into operation within a period of three months. He further proposed that the price difference, if any, between the price of the commercial plot and swimming pool in Markaz F-6 should be charged from the allottee. 5.Shafi M.Sehwani accused No,1, who was Member Planning and whose authority appeared to be next to that of the Chairman, asked for that difference of price from the Deputy Director, B & BC. This officer, however, referred the case to Director Estate Management vide Para. No,601/N for reply, who with reference to Memo. Issued by the finance wing on 2-1-1984 reported that the prevalent rate for restoration in Markaz was Rs,1,000 per sq. Yard. The Deputy Director B & BC on 1-6-1989 vide his note again invited the attention of A.E.O towards Para. No, 659/N and observed that observation had not been attended to correctly by the Estate Management Directorate as only prevailing rate of Markaz i,e, Rs,1,000 per sq. Yard had been given. In Para. No,663/N, dated 3-6-1986 the Estate Management Office replied that the plot of swimming pool was located in Markaz and as such the prevailing rate mentioned in the aforesaid para would be applicable in this case. It was further mentioned that swimming pool being placed in Markaz, the price of other plots in Markaz shall be applicable to the swimming pool plot. The Member Planning vide his Para. No,666/N observed, "Yes, it should not be less than Rs,1,000 and this is to the best advantage of the allottee," and added, "please discuss." it appears that subsequently, accused No, 1 visited the site and accused No,2 also met him there. Accused No,1, however, completely suppressed the mention of Rs,1,000 per sq. Yard as restoration charges and put the case entirely on a different track and continued to write notes showing deviations and irregularities and proposing regularization of these irregularities on payment of certain charges and quoted wrong precedent. Ultimately, Mr. Mazhar Rail, who was Additional Secretary in the Interior Division and was holding additional charge of Chairman, C.D.A. Agreed to the wrong suggestion of Shafi M. Sehwani that a sum of Rs,100 per sq. Yard may be charged from the allottee for violations committed by him in construction on the plot. This was done intentionally by Shafi Sehwani accused to provide undue benefit to his co-accused, A.Q. Shaukat. The Chairman was thus clearly misled by the wrong suggestion of Sehwani accused and eventually a loss of Rs,18,70,000 was caused to the State exchequer. 6.Both the accused were confronted with the aforesaid charge, which they refuted and pleaded their innocence and claimed trial. 7.The prosecution has examined 7 witnesses in al; in order to substantiate its case. Syed Ali Tajammul Wasti (P.W.1) was Director Estate Management C.D.A., at the relevant time. Mazhar Rafi (P.W.2) was holding additional charge of Chairman, C.D.A. When he was reportedly misled by Sehwani accused. Muhammad Asghar Rai (P.W.3) was Deputy Director, Building Control Cell, C.D.A. At the relevant time. Muhammad Ishaque Khan, Deputy Director (Litigation) Law Directorate, C.D.A., deposed as P.W.4, whereas Khan Muhammad Niazi, Inspector F.I.A. Appeared as P.W.S. Matiullah Khan, S.I. F.I.A., testified as P.W.6 and Muhammad Yaqub Rashid, Inspector F.I.A., who had partly investigated this case, deposed as P.W.7. Mian Nusratullah, Special Prosecutor for State, gave up Muhammad Ramzan Malik being hostile because he was an accused along with accused No,1 in another Ehtesab case. He also gave up Muhammad Khan, Muhammad Riaz, Gulraz Ahmad Chughtai and Khalid Iqbal, P. Ws. Being unnecessary and closed prosecution evidence.
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8.Both the accused were examined under section 342, Cr.P.C. And desired to adduce evidence to disprove the charge against them. Eventually they appeared themselves as D.W.1 and D.W.2 and closed their evidence. 9.It would be convenient with a view to appreciate, as to whether the prosecution has been able to bring home the guilt to the accused successfully, to give hereunder a brief resume of the evidence led by the parties. Syed Ali Tajammul Wasti (P.W.1) who was Director Estate Management, C.E).A., at the relevant time, stated that the file was put up before him on 11-6-1986 and he recorded note No,665 (Exh.P.W.1/5). This note was recorded in the light of Para. No,662 recorded by Assistant Estate Management Officer. Sehwani accused agreed to this note vide Para. No,666 where after he (P.W.) remained on Hajj leave and did not deal with the matter. Back he came in September, 1986 and issued letter requiring the allottee to pay Rs, 100 per sq. Yard instead of Rs,1,000 per sq. Yard. According to him, thus, a loss of Rs,18,70,000 WEIS caused to C.D.A. In an answer to a question from learned counsel for accused No,1, he stated that Rs,1,000 per sq. Yard was the prevalent market rate of F-6 Markaz and not difference of price. He further stated that the fact of the matter was that Member Planning, accused No,1, had agreed to the price of Rs, J .000 per sq. Yard but as the matter, also, pertained to the violations committed by the allottee, therefore, after agreeing to the price the matter was referred to Deputy Director, B & BC vide notes Nos.666 and 667. He conceded that thereafter the Chairman enquired vide Para. No, 671 as to the amount on which the plot was originally allotted and the prevalent market price. He volunteered that Sehwani accused had not indicated any price in his note No,670, therefore, the price was asked for by the Chairman. It was correct that Schwani accused in reply to the queries of the chairman, recorded notes Nos.672 and 673 (Exh.D/9) and submitted the file to the Chairman. The Chairman then asked for original terms and conditions vide notes Nos. 674 and 675. He, however, agreed to these Paras. And ordered restoration of the plot. He conceded that plot was against cancelled on 2-11-1986 on account of the failure of the allottee to pay the requisite amount. According to him, Sehwani accused, of his own, requisitioned this file and directed to he put up before him vide his note No,704 dated 8-10-1986. The file was accordingly put up before him on 23-10-1986 and he recorded his not No,708 proposing withdrawal of the plot. As such letter (Exh.D/13) cancelling the plot was issued by him. Subsequently, accused Abdul Qadir Shoukat informed that he had deposited a sum of Rs,13,29,866 with a view to compound the irregularities but there was no receipt available on record. This amount was fixed for the purposes detailed in letter Exh.D23. A.Q. Shaukat accused had allegedly paid the amount for regularization at the rate of Rs,604 per sq. Yard. 10 Mazhar Rafi (P.W.2) recounted the events which led him to pass the order, endorsing the notes recorded by Sehwani accused and stated that he had additional charge of Chairman, C.D.A. And was misled by Shafi accused and ultimately when truth dawned upon him he recalled his order. He stated that he believed Shafi accused being a senior member of C.D.A. And was led to agree to his misleading notes. When asked as to how he came to know that he had been misled and wrong reports were made to him, he stated that he had directed the Director Enforcement to enquire into the matter and it was in pursuance of his report that he ordered cancellation. He conceded that he did not base the cancellation or withdrawal of the allotment on the grounds or reasons of report of Director enforcement but as advised by the office only on the ground that the allottee had failed to make payment of Rs,2,22,000 as calculated by the office. 11.Muhammad Asghar Rai (P.W.3) was Deputy Director Building Control Cell, C.D.A., during the days when the offence was allegedly committed by the accused. According to him, he recorded notes Nos. 652 and then 660 and so also note No, 661. Again while dealing with the file he recorded note No,663. Accused No,1 recorded notes Nos.666 and 667. Accused No,1 discussed the matter with him and thereafter he recorded note No, 668. According to record, accused No,1 visited the spot and
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note No,669 was recorded by him (P.W.) on 2-7-1986. According to him by April, 1990 accused No,2 had not been able to construct the swimming pool and provide for the allied facilities like massage etc. And instead shops had been constructed and let out. This tantamounted to non-conforming use of the plot. In cross-examination, he stated that he did not remember having gone to the spot after 1986. He denied that in November 1986 they went to demolish the columns, which were constructed to cover the swimming pool. He was unaware of the compounding of the offence by the C.D.A. After receiving Rs,13,29,866. 12. Muhammad Ishaque Khan (P.W.4) stated in answer to a question from the learned defence counsel that Sehwani accused had indeed asked the office to point out the difference of price of commercial plot and swimming pool plot. He, however, conceded that he had given the sale price of the commercial plot prevalent in the year 1984 and the same was meant for the new allottees. 13.Khan Muhammad Niazi, Inspector F.I.A. (P.W.5) had registered this case vide F.I.R. No,27 of 1996 on 23-11-1996. In cross-examination, he denied that Enquiry Report No,140 of 1988 was referred to Mr. Inamur Rehman Sehri, Deputy Director for verification. He was unaware that this enquiry was found false and the case was closed by the Interior Division. He was equally unaware if the accused No,2 had remained in police custody until 30-11-1996 and was arrested on 26-11-1996. 14.Matiullah Khan, S.I., F.I.A. (P,W,b) partly investigated the case and effected arrest of accused No, I on 24-11-1996 and of the second accused on 26-11-1996 and before that he got permission for investigation from Illaqa Magistrate. In an answer to a question from learned counsel for accused No,2 as to why he had sent A.Q. Shaukat to judicial lock-up On 30-11-1996, the P.W., stated that A.Q. Shaukat accused had told him that he had paid Rs,3,00,000 (three lacs) to Sehwani accused for fully commercialization and regularization of the plot. He further told that the total demand was for rupees six/seven lacs out of which the aforesaid amount had been paid. 15.Muhammad Yaqub Rashid, Inspector F.I.A. (P.W.7) also investigated the case and submitted the challan. 16. Ms allegations in brief, as ascertained from the evidence on record, are that the accused No,1 got the allotment of accused No,2 restored and construction regularised against a payment of Rs,2,20,000 instead of a sum of rupees over eighteen lacs. This way the accused No,2 derived the financial benefit of over rupees eighteen lacs at the cost of the exchequer. The points for determination are-- Firstly, whether accused have committed any offence punishable under section 4 of the Ordinance XX of 1997; and Secondly, whether prosecution has proved the allegations against the accused beyond reasonable doubt. 17.Before we take up above points it is relevant to briefly refer to the legislative history on the point. The first piece of legislation is contained in sections 161 to 169 of the P.P.C. It was realised after the Second World War that these provisions have been proved to be an ineffective check on the corruption in the public sector, therefore, Prevention of Corruption Act II of 1947 (hereinafter to be referred as Act II of 1947) was promulgated, which exclusively held the field till 1977 when the Holders of Representative Offices (Punishment for Misconduct) Order, 1977 (commonly known and hereinafter to be referred as Presidential Order 16 of 1977) and the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (commonly known and hereinafter to be called as Presidential Order 17 of 1977) were promulgated but in spite of this the corruption in all spheres was ever increasing. The result was that the country was being branded as second most corrupt country in the world. The citizens were crying for effective measures to check the corruption but probably Government of the time was not still serious. The result was that it moved a bill in the National Assembly while the opposition moved a bill in the Senate. The National Assembly was dissolved for the last time by the President in exercise of powers under Article 58(2)(b) of the
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Constitution of Islamic Republic of Pakistan, 1973 before its repeal by the Parliament and thereafter, Caretaker Prime Minister was appointed. The President promulgated Ehtesab Ordinance CXI of 1996, which was twice amended and ultimately Ordinance XX of 1997 was promulgated with effect from 1st February, 1997. 18.The Chief Ehtesab Commissioner was appointed to make references of corruption and corrupt practices' by holder of public office or any other person. The offence was defined in section 3, and made punishable under section 4 of Ordinance XX of 1997. Now we take up the first question whether the accused have committed any offence in terms of section 3, which reads as under:-- "3. Corruption and corrupt practices.--(1) A holder of public office or any other person is said to commit the offence of corruption and corrupt practices--- (a) if he accepts or obtains from any person any gratification, other than legal remuneration, as a motive or reward such as is specified in section 161 of the Pakistan Penal Code (Act XLV of 1860), or for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person: (b) if he accepts or obtains any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be likely to be, concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with his official functions, or from any person whom he knows to be interested in or related to the person so concerned: or (c) if he dishonestly or fraudulently misappropriates or otherwise converts. For his own use or for the use of any other person any property entrusted to him or under his control as a holder of public office or willfully allows any other person so to do; or (d) if he, by corrupt, dishonest, in proper or illegal means obtains or seeks for himself or for any other person any property, valuable thing pecuniary advantage or undue favour; or (e) if he or any of his dependents or benamidars are in possession of any movable or immovable property or pecuniary resources. Disproportionate to his known sources of income which he cannot reasonably account for; or (f) if he commits or causes rigging of election." Subsection (1) clause (d) of section 3 is relevant for the purposes of the present case. The same deals with- I II III Corrupt dishonest improper or illegal meansObtains or seeksFor himself or any other person any property valuable thing pecuniary advantage or undue favour. 19.The Legislature in contradistinction with the previous legislation on the point has used word ' seeks' instead of ' attempts'. This word has not been defined in the Ordinance XX of 1997 or elsewhere, therefore. Both the sides have referred to its dictionary meanings, which are as under:- "seek. To look for: to try to find, get, or achieve: to ask for: to aim at to resort to, betake oneself to: to advance against: to try to search, examine. To go in search or quest or; look for; try to discover or find; To try to secure or acquire; pursue; aim at; strive for; to endeavor or try: Extract from: (1) Chambers 20th Century Dictionary; and (2) Funk & Wagnalls New Standard Dictionary of the English Language." It is clear from the meanings of word seeks that it has widened the net of the law to cover all sort of misconduct resulting in gain or property, valuable thing, pecuniary advantage and undue favour, In the case in hand, the allegations are that accused No,1 improperly, dishonestly and illegally allowed pecuniary benefit to the tune of rupees over eighteen lacs by showing accused No,2 undue
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favour and in that way caused a loss to exchequer. The allegations, therefore, levelled against the accused are covered fairly and squarely by clause (d) of subsection (1) of section 3 of Ordinance, 1997 because in nut-shell the accused No,2 has sought dishonestly, improperly and illegally, pecuniary advantage and undue favour from accused No,1, who in the bare fashion showed him this undue favour and allowed this pecuniary advantage at the cost of the exchequer. The learned Special Prosecutor rightly referred to the judgment of Hon'bie Fedral Court in case of Muhammad Ashraf v. The Crown (PLD 1956 FC 27). The relevant portions read as under:- "After considering the material on the record, we are unable to acceded to the contention raised by the . Learned counsel. In our opinion, the admitted private of profit was a very strong circumstance indicating that Muhammad Ashraf has also been actively. Instigating the two principal accused to resort to the stratagem or diverting the wagons to Badami Bagh instead of re-booking them. It is unthinkable that Muhammad Ramzan should have gratuitously conferred a benefit on. Muhammad Ashraf if the latter had not been interested in the transaction, there should have been no difficulty in retaining his wagon at the Moghalpura Railway Station and diverting the wagon of Muhammad Ramzan only to Badami Bagh. Moreover, as has been observed above the story of the appellant that he did not come into the transaction at all till after the delivery had been taken, is wholly falsified by the test money of Sardar Ali and the documents that were exhibited in this case .... The definition of "criminal misconduct" in section 5 of the Prevention of Corruption Act, 1947, is very wide. a public servant is said to commit the offence of criminal misconduct, inter alia, if he, by corrupt or illegal means or otherwise abuses his position as public servant and obtains for himself or for any other person any valuable thing or pecuniary advantage. Undoubtedly, in this case, pecuniary advantage was gained by Muhammad Ashraf due to the illegal means adopted by the principal offenders. The circumstances point to the irresistible conclusion that Muhammad Ashraf must have abetted Muhammad Sharif and Shamim Ahmed to resort to that illegal means It is clear from the record that accused No,2 had to pay premium at the prevalent market rate i,e, Rs,1,000 per sq. Yard plus compounding/ regularization charges for the illegal construction made by him whereas the allotment was restored, construction of shops and other illegal construction compounded just for Rs,100 per sq. Yard, therefore, these arguments are absolutely without any merit. 20.This brings us to the discussion on next point whether the allegations have been proved against the accused beyond any shadow of reasonable doubt or not? The prosecution examined two sets of witnesses. P.W. I to P.W.4 are the employees of the C.D.A. Whereas P.W 5 to P.W.7 are the officials of F.I.A. While the accused made statements under section 340, Cr.P.C. As D.W.1 and D.W.2. 21.It may be made clear that the prosecution case is mainly based on the written orders/recommendation made by the accused No,1 in respect of restoration of the plot and regularization of illegal construction made by accused No,2. The following basic facts are admitted between the parties.-- (i) that the allotment of accused No, 2 of plot had been cancelled on 23-1-1985 vide Exh.D/16; (ii) that the prevalent market price in the year 1985 of the commercial plots in Markaz was Rs,1.000 per sq. Yard; (iii) that the plot was restored vide letter dated 28-9-1986 Exh.D/17; (iv) that the plot was once again cancelled vide order dated 2-11-1986 for alleged failure of accused No,2 to pay the amount of regularisation and restoration charges; (v) that the above order was set aside by learned Ombudsman vide order Exh.D/18; (vi) that the plot was again cancelled in 1990; (vii) that the plot was again restored vide letter dated 7-8-1993 Exh.D/23. Subject to payment of Rs,13,29.866; and
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(viii)that this allotment was made in 1974 at the rate of Rs50 per sq, yard, which was also the rate for the commercial plots in Markaz. 22.It is also admitted between the parties that this was a commercial plot allotted for construction of covered swimming pool with hot and cold water facility but accused No,2 instead of completing the construction of the swimming pool proceeded to construct 18 shops, which was technically called non-conforming use, therefore, the plot was cancelled for gross violations of the allotment order and illegal construction. The matter was dealt at different levels. Then P.W.3 Asghar Rai recorded paras. 652 to 657 Exh.D/1 (File Exh.P.W.1/1) and submitted the file to Deputy Director- General (Design) with the proposal that either the authority should stand by the action previously taken or present construction/use may be allowed with the condition that the construction of colitis etc. On the first floor should be removed and swimming pool with allied facilities must be put into operation within three months and for this price difference between the price of the commercial plot and swimming pool plot in this Markaz if any should be charged from ex-allottee. The Deputy Director-General (Design) put up the file to accused No,1, who vide his note Exh.D/2 enquired as to what is the difference in rate and also asked for putting up the original plan showing swimming pool and violations/unauthorised shops constructed thereon. P.W.3 pointed out the violations made by the ex-allottee but forwarded the file to D.E.M. For answering query as to difference of price and then sending the case to Member Planning accused No,1 for decision. This is clear from para. 661 Exh.D/3. 23.Thereafter, Muhammad Ishaque Khan P.W.4 recorded para. 662 Exh.D/4 and pointed out that the prevailing rate in Markaz was Rs,1,000 per sq. Yard. The file was sent to P.W.3 once again, who pointed out that the query raised by…
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