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Petitioner: AL JIHAD TRUST And Others VS Respondent: Mian MANZOOR AHMAD WATTOO And Other
Court Name: Lahore High Court Judge(s): Abdul Majeed Tiwana Title: AL JIHAD TRUST And Others vs Mian MANZOOR AHMAD WATTOO And Other Case No.: Writ Petition No.8622 of 1993 Date of Judgment:1993-08-25 Reported As: 1996 MLD 1789 Result: Order accordingly
JUDGMENT
JUDGMENT During the hearing of suo Motu Writ Petition No. 1993, regarding the illegal allotment of plots by Mian Manzoor Ahmad Wattoo, the outgoing Chief Minister of the Punjab, especially during the last night of his tenure, a news item came to the notice of this Court to the effect that, besides the aforesaid allotments, he had also misappropriated huge funds from the Provincial Bait-ul--Maal for the 'Long March' being organized by him with the support of Pakistan People's Party and in that connection his two political associates, namely, Mr. S. M. Bashir and Malik Haider Usman on 11-7- 1993 had, at his instance, withdrawn from the Fund of Provincial Bait-ul-Maal a sum of Rs.50,00,000 each, by two different cheques. Since the proceedings were primarily being taken on the press reports about the maladministration and misappropriation of public money, the learned Acting Advocate-General of the Punjab was directed to cause the production of the record of Provincial Bait-ul-Maal with a view to ascertain the authenticity of the news item. At the same time, Mr. S.M. Bashir and Malik Haider Usman, against whom there were direct allegations of misappropriation of the said funds at the behest of the Chief Minister, were also asked to appear on the next date of hearing and explain their respective position vis-a-vis the news item in the 'Daily Jang' of 18th ultimo. 2. In reasons to the notice issued for 8-8-1993, Mr. S.M. Bashir and Malik Haider Usman put in appearance and requested for adjournment in order to engage a counsel and to submit written reply. They, were allowed. In compliance with the above direction, the learned Acting Advocate- General placed on the file two statements regarding the appropriation and use of Bait-ul--Maal Fund by the Chief Minister's Secretariat and also brought Mr. G. M.. Sikandar, the Secretary to the
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Chief Minister, for making statement, if necessary for explaining the statements with the help of relevant record. 3. On 19-8-1993 Mr. S. M. Bashir and Malik Haider Usman represented by their counsel Syed Sharif Hussain Bokhari, Advocate, put in appearance as respondents and it was thought proper to segregate their case from the main writ petition and it was accordingly separated into W.P. No. 8622 of 1993, which is now in hand. On the same day, in this writ petition Mr. S.M. Bashir and Malik Haider Usman submitted their joint written statement. Since, as per statement of Bait-ul-maal expenditure already submitted by the learned Law Officer, a cheque of Rs. 50,00,000 in the name of Lahore Cadet School, Gulberg, for its construction was issued through Malik Haider Usman and Sardar NasruPah Khan Derashak, a former Minister, the latter (Mr. Derashak) was asked to appear on the next date of hearing. The statement of Mr. G.M. Sikander, Secretary to the Chief Minister, was partly recorded and the proceedings were adjourned to 22-8-1993. 4. On this date of hearing Sh. Muhammad Salim, an Advocate from Rawalpindi, who was one of the petitioners, in the main Writ Petition No.7459 of 1993, having joined those proceedings along with AI-Jihad Trust represented by Mr. Habib-ul-Wahab Al-Khari, Advocate on their own request, also put in appearance in this writ petition as petitioner. So far as proceedings herein are concerned, statement of Mr. G.M. Sikander, Secretary to the Chief Minister, Punjab, was partly recorded in the presence of the aforesaid petition Syed Tassadaq Hussain Jilani, Acting Advocate-General and Mr. Sharif Hussain Bokhari, Advocate for Malik Haider Usman and S.M. Bashir. However, Sardar Nasrullah Khan Derashak, a former Provincial Minister, who was summoned for this date, did not turn up and Mr. Sharif Hussain Bokhari, Advocate, who was representing the other two respondents, undertook to bring him on the following day. Thus, with the participation of Sh. Muhammad Salim, Advocate as petitioner herein, this writ petition, technically speaking ceased to be a suo Motu writ petition. Any how the proceedings were adjourned to 23-8-1993. 5. On this date of hearing, besides Sh. Muhammad Salim, Advocate as petitioner, Syed Tassadduq Hussain Jilani, Acting Advocate-General, appeared along with Mr. G.M. Sikandar, Secretary to the Chief Minister. Mr. S.M. Bashir and Malik Haider Usman also appeared alongwith their counsel Syed Sharif Hussain Bokhari, Advocate. Sardar Latif Khan Khosa, Advocate, accompanied by Sardar Nasrullh Khan Derashak put in appearance and sought adjournment for filing written' statement on the following day. Statement of Mr. G.M. Sikander, Secretary to the Chief Minister was completed. Statements of Mr.Arif Bhatti, Manager, Bank of the Punjab the Mall, Lahore and Mr. Amir Controller, Office of the Chief Minister, were recorded. Since from the statement of Mr. G.M.Sikander it appeared the Bait-ul-Maal Council headed by Sh. Manzoor Elahi, as its Ameen, who is now Care- taker Chief Minister of the Punjab had apparently without lawful authority transferred a sum of Rs. 9,22,66,908 from Punjab Bait-ul-Maal fund to the Chief Minister's Secretariat, he was asked to submit his comments as under what circumstances did the Bait-ul-Maal Council in its 12th meeting, dated 12-9-1992, which was chaired by him, had transferred the aforesaid amount to the Chief Minister's Secretariat for disbursement to the flood affectees? The proceedings the comments of Sh. Manzoor Elahi, the Ameen of Bait-ul-Maal, were received. Excepting Sh. Muhammad Salim, Advocate as petitioner and Syed Tasadduq Hussain Jilani, Acting Advocate-- General, one else appeared. Since enquiry stood completed, the record was perused. 6. Before proceeding further it may be mentioned here that these proceedings, which are more of inquisitorial nature than of accusatorial character, are being held by the Court in the exercise of its Constitutional jurisdiction in public interest under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Article 2A thereof (inter alia, providing for the Islamic Social Justice) coupled with Quetta Declaration of Chief Justices Conference of Public Interest Litigation and Fundamental Rights read with section 3 which declares Shariah as the supreme law of the country), section 4 (enjoining interpretation of all laws in the light of Shariah) and section 5
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(making the observance of Shariah obligatory on all Muslim citizens of Pakistan) of the Enforcement of Shariah Act, 1991, besides the basic principles of law that the welfare of the society is the supreme law, and 'where there is wrong there is a remedy'. 7. Since the matter concerning a portion of Bait-ul-Maal funds being used by the Chief Minister as a part of his discretionary grant needed somewhat intensive probe, it inevitably brought in the collateral subject of his ordinary or statutory discretionary grant as also of the funds being used by him from Jehaiz Fund. Therefore, a detailed statement of Mr. G.M. Sikander, Secretary to the Chief Minister, has been recorded with the help of relevant record, particularly with reference to statements/copies of documents from Annexure-I to Annexure --XXI. The statement of Mr. Muhammad Arif Bhatti, Manager, Bank of Punjab the Mall Branch, Lahore and that of Mr. Aamir Zamir, Controller, Chief Minister's Secretariat have been recorded with the assistance of the record being maintained by them. 8. The statement of Mr. G.M. Sikander reveals as to how the annual discretionary grant of the Chief Ministers of the Punjab which was originally only a sum of Rs.40,000 as specified in section 21 of the Punjab Ministers (Salaries, Allowances and Privileges) Act, 1975, with the passage of time, particularly after the restoration of democracy in 1985, has now swelled into crores of rupees and has also included in its ambit un-authorisdly if not altogether unlawfully, huge amounts, first from Jehaiz Fund and then from the .Punjab Bait-ul-Maal Fund, both being administered by the Social Welfare and Zakat Department of the Government of the Punjab through the respective bodies, the one administering the Jehaiz Fund having been constituted under the executive order pursuant to Cabinet decision, and the one managing the Bait-ul-Maal Fund having been constituted through a legislative measure. 9. As the record indicates, the annual discretionary grant of the Chief Minister of the Punjab by virtue of section 21 of the Punjab Ministers (Salaries, Allowances and Privileges) Act, 1975 was Rs.40,000. Due to the imposition of the Third Martial Law in the year 1977, the Office of Chief Minister ceased to function. On the lifting of this Martial Law, when this office was first became the first Chief Minister and considering this grant as inadequate, through his Secretary vide letter dated 15-7- 1985, asked the Finance Department for its upward revision. The Finance Department, instead of suggesting amendment in section 21 (ibid), on the analogy of what was being done on Sindh Province, proposed the institution of a separate fund known as Chief - Minister's Discretionary Grant (Utilization) Fund and proposed to release a sum of Rs.300,000 and placed the same at the discretion of the Chief Minister through a supplementary allocation. The summary submitted by the Finance Department to that effect was approved by the Chief Minister himself on 25-8-1985 and pursuant to this policy decision, the Finance Department issued a Notification/order on 3-9- 1985, indicating certain guidelines for the utilization to- this fund/as in paragraph No.3 thereof. It appears that subsequently a move was made for amending section 21 of the said Act and it was eventually amended by the Amending Act X of 1985 w.e.f. 7-11-1985 by which the annual discretionary grant of the Chief Minister was enhanced from Rs.40,000 to Rs.100,000 side by side the Chief Minister continued to utilize his discretionary grant from the aforesaid fund set up under the executive order, dated 3-9-1985. In this fund the first allocation in the year 1985-86 was Rs.31,10,000 as against Rs.300,000 suggested in the summary approved by the Chief Minister. This vast difference remains inexplicable. Out of this grant, he spent Rs.12,04,000. In the Financial year 1986- 87 the grant was increased to Rs.96,00,000 and ,he expended Rs.1,13,45,850. In the year 1987-88 the annual allocation of discretionary grant was further increased to Rs.2 crores and the expenditure of this year was Rs.1,85,75,385. In the year 1988-89 the annual allocation of the discretionary grant was further augmented to Rs.2,49,65,471 out of which a sum of Rs.2,20,33,164 was spent by him. It may be mentioned here that during the period from 7-11-1985 to 14-1-1989 when section 21 of the Punjab Act X of 1975 was further amended with retrospective effect by Amending Act III of 1989, the
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statutory discretionary grant of the Chief Minister remained Rs.100,000 per annum. Perhaps realising the mistake of unauthorised spendings to the tune of crores of rupees during this period, the Finance Department moved for inserting a vague but comprehensive amendment in section 21 (ibid) and by virtue of the Punjab Amending Act III of 1989, the words, "An appropriate amount" were inserted for the words ' Rs.100,000. This amendment was given retrospective effect from 1-7-1985 obviously to validate unauthorised over-spending from the fund instituted through the executive order. This amending law, to my mind, was of doubtful validity as the amendment so made went clearly outside the scope, intention and parameter of the Act itself and under the cover of this amendment the Chief Minister of the Punjab ever since 1-7-1987 continued to spend, rather arbitrarily squander away, public money to the tune of crore of rupees. The last annual discretionary grant for the year 1992-93 under section 21 (ibid) was Rs.4,45,67,850 and the expenditure from it was Rs.3,13,81,024. In the three-month mini budget for the year 1993-94, it was Rs. One crore and out of it, the expenditure during the period from 1-7-1993 to 18-7-1993 was Rs.9,60,43,352. 10. Here it would be interesting to note that the Prime Minister of Pakistan under section 7: of the Prime Minister (Salary, Allowance and Privileges) Act, 1975 read with first item of the Second Schedule appended thereto, the annual discretionary grant of the Prime Minister even now is Rs.4,00,000 only as against the-so-called present annual discretionary grant of about Rs.4 crores of the Chief Minister of the Punjab. 11. To be a little more precise, as per record of the Chief Minister's Secretariat, Mian Nawaz Sharif during his tenure as Chief Minister of the Punjab from 7-3-1985 to 6-8-1990 spent discretionary grant of Rs.8,98,99,075; Mr. Ghulam Haider Wyne during his tenure as such from 7-8-1990 to 25-4- 1993 spent discretionary grant of Rs.9,72,46,258 while Mian Manzoor Ahmad Wattoo during his Chief Ministership from 24-4-1993 expended a sum of Rs.1,38,29,482 but the cheques amounting to Rs.36,18,000 were either dishonoured on account of lack of funds or the same were withheld by the care--taker Government. 12. Mian Nawaz Sharif, the Chief Minister probably still not satisfied with the volume of the discretionary grant, started exploring other avenues to augment it. It appears that in the year 1987- 88 the Federal Government set up Jehaiz Fund with an amount of Rs.200 millions to provide assistance to the marriageable poor girls. 80% of this amount was allocated to the Provinces on the basis of their respective population and in this way the Punjab got a share of Rs.92,752 millions. A similar fund was instituted by the Punjab Government during this year and the initial allocation thereof was Rs.100 millions. The Federal Government itself specified the constitution of Jehez Committees at the Provincial level which were to work under the administrative control of Provincial Social Welfare Department. The committee in each District consisted of the Deputy Commissioner as Chairman, Chairman, District Council; Chairman, District Zakat Committee; Assistant Commissioner of the Sub-Division or Mayor or Chairman of the Municipal Corporation as members and Assistant Director, Social Welfare as its member/Secretary, the maximum amount payable for the marriage of girl initially was Rs.3,000 but it was subsequently raised to Rs.5,000 out of the annual allocation from this fund, the Social Welfare Department on 6-3-1990 submitted a summary to Mian Nawaz Sharif, the Chief Minister, suggesting to reserve 30% of the total allocation of Jehaz fund for its utilization at the Provincial Headquarters by the Minister for Social Welfare. Mian Nawaz Sharif agreed to the increase of reserve portion of the fund from 20% to 30% of the total allocation but he decided to utilize this part of the fund himself as his discretionary grant in addition to the statutory one as already explained, and directed the money to be placed at his disposal. Anyhow, during his tenure he utilized only a sum of Rs.11,85,000 approximately, most of which he sent down to the Deputy Commissioners of certain districts for distribution amongst the needy but with the association of public representatives, who were inducted in the District
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Committee through a letter dated 2-4-1989 issued by the Social Welfare Department of the Government of the Punjab, this letter also reserved some percentage of the fund for the poor families of industrial workers. The change in the constitution of the Jehez Committees and in their mandate was made without consulting the Federal Government perhaps with a view to oblige the public representatives and the class of industrial workers generally. This change went beyond the scope of Jehez Fund which was meant only for the financial assistance of the poor marriageable girls and not to poor industrial workers in general. In any case, from this fund, a total amount of Rs.6,64,85,000 was placed at the discretion of the Chief Minister by the Social Welfare Department and out of this amount, a sum of Rs.4,68,01,999 was spent by the Chief Ministers during the period from 23-4-1990 to 18-7-1993 leaving a balance of Rs.98,53,064 on the day Mr. Wattoo was removed. To be a little more specific, Mr. Ghulam Haider Wyne during his tenure from 7-8-1990 to 25-4-1993 spent a sum of Rs.4,49,71,000 while Mr. Manzoor Ahmed Wattoo spent Rs.6,45,000 during his tenure of a little less than three months. 13. Mr. Ghulam Haider Wyne during his Chief Ministership tapped yet another source for further augmenting his discretionary grant. The Punjab Bait--ul-Maal Act, 1992 which was previously an Ordinance, set up Bait-ul-Maal Council consisting of 15 members to be headed by an Ameen. Out of them, five were its official members, namely Secretary, Social Welfare and Zakat Department; Secretary, Finance Department; Secretary Health Department; Secretary, Education Department and Director-General Social Welfare, Department and the remaining ten members were to be non- official. As the notification indicates Sh. Manzoor Ellahi, the present care-taker Chief Minister of the Punjab, was its Ameen, Raja Zafar-ul-Haq, Senator; Mian Muhammad Yaseen Wattoo, Ex-MNA; Mr. Sikander Hayat Malhi, Ex-MPA Dr. Muhammad Afzal Aizaz; Ex-MPA Malik Faiz-ul-Hassan, a respectable from Lahore; Mr. Aziz Zulfiqar, an Industrialist from Gujranwala; Mr. S.M. Bashir, Joint Secretary, Punjab Muslim League; and Mian Masood Ahmid an office--bearer of JUP; were its non- official members. In the letter, dated 9-8-1992, written by the Secretary to Mr. Ghulam Haider Wyne, Chief Minister, obviously under his directions, the Bait-ul-Maal Council was asked to earmark Rs. One crore from Bait-ul-Maal Fund for the assistance of the poor and needy and the amount so earmarked was to be utilized for complying with the directives of the Chief Minister. The fund, however, continued to be formally operated by the Social Welfare Department. During the next financial year 1992-93, the Bait-ul-Maal Council either of its own accord to oblige the Chief Minister, or under his verbal directions, earmarked Rs one crore from Bait-ul--Maal Fund and placed the same at the disposal of the Chief Minister Secretariat. However, this amount somehow or other, remained unutilized. Subsequently, vide letter, dated 11-9-1992, the Chief Minister, Mr. Ghulam Haider Wyne through his Secretary asked the Punjab Bait-ul-Maal Fund for distribution to the flood affectees and the Council in its 12th meeting, dated 12-9-11:92, decided to transfer this amount of Rs.10 crores to the discretionary grant of the Chief Minister but actually a sum of Rs.9,22,66,908 was transferred, after taking it out from the fixed deposit, as only this much amount was available. 14. Here I may refer to the comments of Sh. Manzoor Elahi, the Ameen of Bait-ul-Maal (now care- taker Chief Minister of the Punjab) which he has submitted in response to the order of this Court. He says that on 10-9-1992, Secretary to the Chief Minister of the Punjab, telephonically conveyed to him the desire of the Chief Minister for the immediate transfer of reserved Bait-ul--Maal Fund of Rs.10 crores, which was lying in fixed deposit in a Bank, to him for disbursement amongst the flood affectees in the Punjab. According to him, he categorically refused to transfer this amount in his individual capacity, and that too on his verbal order, without seeking the concurrence of the Bait- ul-Maal Council. He, however, assured the Secretary to the Chief Minister that on the receipt of the formal reference, the matter would be placed before Bait-ul-Maal Council for decision which was competent to decide under section 5(vi) of the Punjab Biat-ul-Maal Act, 1991 for the utilization of fund for 'any other purpose'. He adds that on the receipt of the letter, dated 11-9-1992 the matter
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was placed before the Punjab Bait-ul-Maal Council and the Council, during its 12th meeting, despite some members being not oblivious of the autonomous status of the Council, unanimously resolved to place the said amount at the disposal of the Chief Minister for specific purpose as defined, one of which was the utilization of the fund for the benefit of flood affectees. In short, he has tried to justify the transfer of Bait-ul-Maal Fund to the Chief Minister's Secretariat on the strength of unanimity of the Bait-ul-Maal Council. 15. The Ameen has tried to take shelter behind the provisions of section 5(vi) of the Punjab Bait-ul- Maal Act but in my view- he cannot. Clause (vi) ibid and the words 'any other purpose' figuring therein, are to be interpreted ejusdem generis to the preceding clauses of the section and not insulatedly so as to defeat the very purpose of the Act. The Bait-ul-Maal Council itself could utilise the fund for any collateral purpose and it could not dole it out to a formidable State functionary, who did not figure in the Act in any capacity and almost wrenched the money from the Council by brew-beating it first verbally and then formally in writing which contained an order in the form of a so-called request. I feel constrained to say that the members of the Council and its experienced Ameen should have resisted his illegal demand instead of tacitly submitting to it. By doing so, the Council appears to have violated its charter and incurred a legal liability by allowing the Chief Minister to squander away a huge amount of public money for his political self-projection and self- aggrandizement in the manner hereinafter indicated. 16. In any case, besides the Jehez Fund amounting to crores of rupees, a big chunk of the Bait-ul- Maal Fund also became a part of the so-called discretionary grant of the Punjab Chief Minister and as the subsequent paragraphs would show, he and his successor disported it to their heart's content in order to oblige their greedy friends and a various political associates in lieu of extending their political support to prop up their high chairs. 17. Now with reference to the statements of Mr. G.M. Sikander, Manager Punjab Bank and Mr. Aamir Zamir, Controller of Chief Minister Secretariat, I proceed to demonstrate as to how the statutory discretionary grant obtained through the mala fide amendment of section 21 of Act X of 1975 and the money snatched away from the Jehez Fund and Bait-ul-Maal Fund of the Social Welfare Department was used by the last two Chief Ministers of the Punjab because the details of expenditure incurred from the so-called statutory grant in the-tenure of Mian Nawaz Sharif as Chief Minister has not yet been supplied to this Court and the same are said to be under preparation. 18. So far as Mr. Ghulam Haider Wyne Chief Minister is concerned:--- (a) From the Jehez Fund at his disposal, he distributed a total sum of Rs.4,39,71,000 out of which he personally disbursed to the persons of his own choice a sum of Rs.43,61,000-and a sum of Rs.39,61,000 to the 4 Senators, 41 M.N.As. And 248 M.P.As. As detailed in (Annex XI) who had obtained various sums shown against their respective names for their nominees from public, each at the rate of Rs.5,000. (b)From the discretionary grant under Act X of 1975 he distributed a total sum of Rs.9,60,61,499, out of which he directly disbursed to the persons of his choice -a sum of Rs.5,14,05,622 and a sum of Rs.4,46,55,877 through 232 M.N.As. And M.P.As. As detailed in (Annexure XIV), who had obtained various sums shown against their respective names for their nominees from public but God knows: whether the amounts reached them or not. (c) From the Bait-ul-Maal Fund of Rs.29,84,260, he distributed a sum of Rs.1,87,96,825 directly to the persons of his choice and a sum of Rs.1,10,45,795 through 173 M.N. As. As detailed in (Annexure IV-B); (d) Astonishingly enough, he allocated to his own institution known as Markaz Anjuman Islamia, Mian Chunnu, a sum of Rs.30 lacs from the Bait-ul-Maal Fund. From the same fund he also sanctioned a sum of Rs.11,84,000 for the nominees of Mian Nawaz Sharif, the Prime Minister of Pakistan. Out of this amount, he gave Rs.5 lacs to him through Mr. Madim Hassan Asif, then Deputy Commissioner, Lahore, on 22-3-1993 for disbursement as Eidi to the poor in the Governor House
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where the Prime Minister was present to meet the people at the occasion of Eid-ul-Fitr. Out of this amount a sum of Rs.21,49,957 was refunded to the Chief Minister Secretariat, while a sum of Rs.2,85,050 utilized by the Prime Minister for Eidi is still outstanding against him. Mr. Ghulam Haider Wyne also sanctioned a sum of Rs.One lac in the name of Military Secretary to the Governor for giving ' Eidi' to the staff of the then Governor. (e) Surprisingly enough, he in…
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