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Petitioner: Mian MANZOOR AHMAD WATTOO VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mian Saqib Nisar, Tasaddaq Hussain Jillani Title: Mian MANZOOR AHMAD WATTOO vs THE STATE Case No.: Criminal Appeal No, 24 of 2001 Date of Judgment:2002-08-08 Reported As: 2002 YLR 2362 Result: Appeal accepted
JUDGMENT
JUDGMENT SAQIB NISAR, J.---Learned Judge, Accountability Court No,II, Lahore, through his judgment, dated 6-1-2001, has convicted the appellant on the charges of corruption and corrupt practices, within the meaning of section 4 of the Ehtesab Ordinance, 1997, read with section 35 of the NAB Ordinance, 1999 and sentenced him, for imprisonment for a period of three years and burdened with a fine of one crore rupees; in default of payment of fine, the appellant has to undergo further imprisonment for one year. The appellant has also been disqualified to contest the election or to hold the public office under section 15 of the NAB Ordinance, 1999. 2. The above conviction has been passed in a Reference No,7 of 1997, originally filed on 23-1-1997 against the appellant. by the Chief Ehtesab Commissioner under section 14(1) of the Ehtesab Ordinance CXI of 1996, before the Ehtesab Bench (the Bench) of this Court. 3. The precise allegations in the reference, are that "concrete case of financial malfeasance has been identified, whereby the Chief Minister chose to provide financial assistance of Rs,10,61,125 to M/s M.S. Design Tex out of discretionary grant. This amount was drawn against a PLA Cheque No,A- 477162 dated 9-3-1995. The financial assistance to M/s Design Tex, a commercial enterprise, from the discretionary grant is certainly not covered under the rules framed for the utilization of discretionary grant, namely, The Chief Minister's Discretionary Grant Rules, 1988, notified on 22-2- 1988, framed under section 22 read with section 21, of the Punjab Ministers Salaries (Allowance and Privileges) Act, 1975. Rule 2 thereof". It is further alleged in the reference, that the object for which the amount was spent falls nowhere in the vicinity of the purpose specified in the said rule; rather it is quite contrary to the spirit thereof and thus the appellant has committed an offence within the meaning of above law.
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4. The case of the prosecution against the appellant is that he as a Chief Minister of the Province of Punjab, had got refurnished the Chief Minister's Secretariat, i,e, 90 Shahrae-e-Quaid-e-Azam from. M/s Design Tex and issued the aforesaid cheque, from his discretionary grant on 19-3-1995. The reference was registered as Reference No,7 of 1997 and the following charge was framed against the appellant on 22-4-1997: "(1) That while as Chief Minister, of the Province of Punjab, you, exceeded your power with mala fide intention and illegally and improperly provided pecuniary advantage to M/s. D.S. Design Tex and gave them a cheque of Rs,10,61,125 out of the discretionary grant which was drawn against PLA Cheque No,A-477162 dated 9-3-1995. This expenditure was not permissible under the Discretionary Grant Rules, 1988 framed under section 22 read with section 21 of the Pun;ab Minister Salaries (Allowance and privileges) Act, 1975. (2) That you by your illegal act caused wrongful loss to the exchequer to the tune of Rs,10,51,125 and thereby committed an offence punishable under section 4 of the Ehtesab Ordinance, 1997 within the cognizance of this Ehtesab Bench and we hereby direct that you be tried by this Ehtesab Bench of the aforesaid charge." 5. The prosecution on 21-5-1997, examined Mr. Muhammad Umar, Treasury Officer, Lahore, as P.W.1, who tendered in evidence, the cheque dated 19-3-1995, Exh.PA; the statement of Mr. Salman Siddique, the then Secretary to the Chief Minister was recorded as. P.W.2 and closed its evidence. It may be pertinent to state here that during the pendency of the reference, Ehtesab Act 'XX of 1997, came into force on 1-2-1997, which repealed the earlier enactment, followed by Ehtesab Act IX of 1997, enforced on 31-5-1997, repealing the second Ordinance, however, the proceedings continued before the Bench, in view of the saving clause qua the pending matters, when finally, the NAB Ordinance, 1999, was promulgated, therefore, the reference stood transferred to the Accountability Court on 16-12-1999, where it was registered as Reference No,A.C. 5 of 1999. After recording of the statement of the accused-appellant under section 342, Cr.P.C., the Accountability Court summoned the owner of M/s Design Tex in terms of the following order:-- "Statement of the accused under section 342, Cr.P.C. has been recorded. The accused in his statement has disclosed that M/s. Design Tex had supplied furniture for the extended building of the Chief Minister's Secretariat 90- Shahrah-e-Quaid-e-Azam Lahore under the orders of C & W. In order to understand the real nature of the transaction, I consider it just and proper to summon the proprietor of M/s Design Tex alongwith the entire record pertaining to the supply of furniture for the said building". The case was adjourned to 17-1-2000. On this date, the Proprietor of M/s Design Tex was not available being abroad and the learned Judge, instead of awaiting him, observed that, the record of the C & W Department appears to be very much relevant for the just decision of the case, therefore, the Secretary C&W Department was directed to depute some responsible officer to produce the record showing the supply of furniture made by M/s Design Tex. Prom -the subsequent orders it transpires that the Court with the intent of further probe, required more record pertaining to the supply of furniture from the concerned departments, for which a committee was also constituted, by the Court, besides, Mian Ahad was also required to produce supply order, bills and delivery vouchers. Anyhow, on 29-2-2000, the statement of Mian Ahad was recorded as C.W.1, certain documents were also received in evidence, through his statement, some officials were further required to be examined as Court witnesses. From the order sheet of the Court and from the impugned judgment, it is clear the defence seriously subjected to this nature of inquiry and examination of the Court witnesses. But the Court in its order, dated 6-3-2000, responded that "the anxiety of the Court is simply to ascertain whether the amount question was actually utilized for lawful purposes in a legal manner or not". It was further directed that "It can be gathered from the
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statement of Mian Ahad C.W.1 that Mr. Salaman Siddique P.W.1 has not disclosed the entire facts and circumstances under which he had issued the cheque in question. I, therefore, consider it necessary to recall and re-examine Mr. Salman Siddique in connection with all the payments made to Design Tex International for the re-furnishing of 90-Shahrah-e-Quaid-e-Azam." The Court thus directed Mr.Salaman Siddique, to collect the relevant record of the payments made to the Design Tex from the Discretionary Grant during the years 1994-96 alongwith the sanction orders. On 9-5-2000, learned Court passed the order "The charge against the accused is that he provided pecuniary advantage to M/s Design Tex of Mian Ahad C.W.1. Salman Siddique in his statement as P.W.1 has given a chit to the accused by stating that aforesaid cheque was issue to M/s Design Tex in connection with the furnishing expenditure of 90 Shahrah-e-Quaid-e-Azam. In view of this statement of the sole prosecution witness this Court thought it proper not only to examine Mian Ahad, the beneficiary as a Court witness but also made serious efforts to collect relevant record in order to find out the truth. The Court thereafter directed as under: "All my efforts have proved futile. I have, therefore, no option but to direct the NAB Authorities to produce the entire record relating to the expenditure made by Mian Manzoor Ahmed Watoo, accused in connection with the refurnishing of 90 Shahrah-e-Qauid-e-Azam during the year 1994-95. The Finance Department shall also produce the copies of sanction orders received from the Chief Minister's Secretariat pertaining' to the furnishing of 90 Shahrah-e-Quaid-e-Azam especially from the Chief Minister's Discretionary Grant. The NAB Authorities may seek the assistance of the then staff of the Chief Minister's Secretariat." From the order dated 23-5-2000, it seems that the requisite record was produced before the Court and the Court proceeded to record the statements of Abdul Qayyum C.W.2, who tendered in evidence number of documents; C.W.3 Malik Daim and C.W.4, Allou Din, are the Assistant Comptroller and caretaker respectively of 90 Shahrah-e-Quaid-e-Azam, Lahore. As mentioned above, the learned counsel for the appellant throughout objected to this probe/inquiry and examination of the Court witnesses, but the learned Court did not decide the objections, at the relevant time, rather examined the witnesses subject to the objection of the defence. Mr.Salman Siddique P.W.2 was re-examined on 9-10-2000. The second statement of the appellant/accused under section 342, Cr.P.C. was recorded on 23-10-2000. Appellant in defence examined P.W.1 Muhammad Ashraf, D.W.2 Rana Gul Nasir, and Muhammad Farooq Chaudhry as D.W.3; he appeared as D.W.4 and closed his evidence. Learned NAB Court as mentioned earlier through the impugned judgment, has found the appellant guilty of the offences committed under sections 3(1)(c) and 3 (1)(d) of the Ehtesab Ordinance, 1996 and has passed the conviction. The main reasons for the conviction are: (1) that the accused had no authority to utilize the funds for the purchase of furniture for the Chief Minister's Secretariat, from the discretionary grant; In the words of the judgment "I have, therefore, no doubt in my mind that the utilization of the discretionary grant of the furniture defeats the very purposes for which it was constituted as such it is unwarranted by law and amounts to misappropriation," (2) The amount in dispute has been spent in total disregard of the purchase manual, the appellant was not competent to utilize the discretionary grant for the purchase of furniture, the manner in which it has been done is illegal, improper and makes the entire transaction doubtful, (3) the delivery of the furniture by M/s. Design Tex at 90-Sharah-e-Quaid-e-Azam, has not been proved and (4) The failure to observe the purchase manual issued by the S&GAD Department reflects the criminal intention to misappropriate public money which was entrusted to the accused for a specific purpose. 7. Ch. Mushtaq Ahmed Khan, learned counsel for the appellant has argued that the reference against the appellant was filed under the provisions of Ordinance CXI of 1996, but while repealing this Ordinance through Ordinance XX of 1997, which though is on the same subject, the references
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pending under the former Ordinance, were not saved, resultantly, the reference in question has abated. It is stated that even if the reference is saved, the appellant can only be tried and convicted under the offences defined in the Ehtesab Act, 1997, and as the words "any other person" has been omitted in section 3(1)(d) of the Act, therefore, in view of the judgment of the Honourable Supreme Court reported as PLD 2000 SC 26 (Federation of Pakistan v. Haji Nawaz Khokhar), the appellant cannot be convicted under section 3(1)(d) of the Ordinance. It is further argued that the expenditure of the amount covered by the cheque Exh.PA was competently made by the appellant, for the purpose of refurnishing the Chief Minister Secretariat from his discretionary grant, in any case, this expenditure was regularized by the Finance Department, and the amount was recouped, consequently, the irregularity if any stood cured. He has also submitted that for the conviction of a criminal offence, mens rea is a sine qua non, which the prosecution has miserably failed to prove on the record. In this regard, he has relied upon PLD 2002 Lah. 369 (Hakim Ali Zardari v. State) PLD 2002 Karachi 72 (Jam Mashooq Ali's case) and Dr. Farooq. Sattar v. The State (PLD 2002 Lahore 95) 8. Mr. Mushtaq Ahmed, has further contended that the additional evidence recorded by the Court, should be excluded from consideration, because the Court has made illegal and unauthorized inquiry to dish evidence against the appellant which is not permissible under the law, rather prohibited. In this behalf, reliance has been placed on Mst. Benazir BhuttoPresident of Pakistan (1992 SCMR 140), Mst. Safdar Jan v. The State (1997 PCr.LJ 1553), Muhammad Usman v. The State (1991 MLD 17), The State v. Bashir Khaskhail (1992 MLD 432), Asif Ali Zardari v. The State (2001 SCMR 568), and (Muhammad Ismail Chaudhry v. Abdul Khaleque Saudagar (PLD 1960 SC 301). It is also submitted that though the discretion must essentially be "reasonably" and "fairly" exercised. But if the Chief Minister in his wisdom and discretion had decided to refurnishing his office, and for that matter, has made the payment from his discretionary grant, he cannot be imputed to have acted "dishonestly" or "fraudulently", or guilty of "misappropriation" or "conversion" so as to attract the penal consequences of section 3(1)(c) of the Ordinance/Act, 1997. Because it is settled law that a section defining an offence must be strictly construed and applied, however, the proof in this behalf is conspicuously missing on the record. 9. Conversely, Mr. Sher Zaman, Deputy Attorney-General, who appears for the prosecution, has argued that the charge against the appellant has been framed under section 4 of the Ehtesab Ordinance, 1997 for the commission of offences under sections 3(1)(c) and 3(1)(d) thereof. From the evidence on the record, charge has been fully proved, this is also the finding of the learned trial Court, which is based upon proper reading and appreciation of the evidence. He has referred to the documentary evidence such as Exhs.C.W.1/C and Exh.CW-1/16 and the statements of C.W.2 to CW-4 to argue that the goods for which payment was made through the Cheque Exh.PA were never supplied by M/s Design Tex, thus it is a clear case of misappropriation, dishonesty, and fraud, so as to attract section 3(12)(c) of the Ordinance/Act. It is argued that report Exh.C.W.4/A which proves the non-delivery of the item, has not been rebutted by the appellant. The appellant has filed to produce in defence, the sanction order, the recoupment of the bill Exh.C.W.l/C, by the Finance Department, the inventory of the furniture referred to in the statement of D.W.1, the video and the photographs of the furniture and the furnishing mentioned by D.W.1 and D.W.3, therefore, the presumption of withholding the evidence under Article 129(g) of the Qanun-e-Shandat Order, 1984, should be drawn against the appellant. He has also argued that assuming, the articles were supplied, however, the payment for such goods could not be made from the discretionary funds at the disposal of the appellant under the Chief Minister Discretionary Grant Rules, 1988, because clause 2(1)(v) of the rules, envisaging "any other purpose which he may be deemed appropriate by the Chief Minister," is general in nature, and should be read subservient to the purposes mentioned in the proceedings clauses, which specifically identify the object for which the fund was created
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and can be utilized. In this behalf, he has relied upon the principle of jusdem generis and seeks support from Maxwell, interpretation of statute 12th Edition 297, (Mercantile. Traders (Pvt.) Limited v. State Bank of Pakistan (2002 SCMR 250), Jamaat-e-Islami Pakistan v. Federation of Pakistan (PLD 2000 SC 111 at 159) and Don Bosco High School v. Assistant Director (PLD 1989 SC 128). It is also submitted that the appellant if intended to furnish his Secretariat, should have moved to the C&W, which was the only competent and authorized department in that behalf, moreover, the so-called purchase was made without formal sanction, on the verbal order, without a contract in writing, which seriously violate the purchase manual. He argued that the appellant has made four statements before the Court and in each statement has taken a contradictory stand which belies and has reflection on his defence. In reply to the legal question raised by the appellant's counsel about the abatement of the reference and the effect of Honourable Supreme Court's judgment, it is contended that the same is a mere observation. The law points which the appellant side claims to have been finally settled, was never mooted before the Honourable Supreme Court, as there is no discussion on the point in the judgment, resultantly, such observation has no binding effect. 10. In view of the submission made by the learned counsel for the parties, the following questions arise for our consideration: (1)Whether on the enforcement of the Ehtesab Ordinance X of 1997 and Ehtesab Act, IX of 1997, reference in question has abated in toto and whether in view of the judgment of the Supreme Court reported as PLD 2000 SC 26, the appellant can neither be tried nor convicted under section 3(1)(d) of the two repealed Ordinances and the Ehtesab Act, 1997. (2) Whether the Court below has exceeded its jurisdiction under section 540, Cr.P.C. and has collected evidence beyond the scope of the case and the charge against the appellant, thus such evidence should be excluded from consideration. (3)Whether on account of the evidence originally led by the prosecution and even considering that the Court below has validly collected the evidence against the accused, a case for the non-supply of the furniture has been proved against him. (4)Whether the appellant under the Chief Minister's Discretionary Grant Rules, 1988 could make payment of the disputed amount to M/s Design Tex for the furnishing of his Secretariat and if no, whether such unauthorized action results into an offences under sections 3(1)(c) and 3(1)(d) of Ehtesab Ordinance, 1996/1997. QUESTION No,1 11. For the first part of this question, no lengthy discussion is required, because the point has been conclusively settled by the Honourable Supreme Court, in the judgment reported as PLD 2000 SC 26, where it has been held as follows: "In these circumstances, in our view, there was a clear intention on part of the Legislature while promulgating Ordinance, XX to provide continuity to the provisions of Ordinance, CXI. Therefore, in spite of the facts, that section 28 of the Ordinance (XX, did not specifically save the proceedings instituted under Ordinance, CXI, there was a clear intention on part of the Legislature to keep the proceedings, instituted under Ordinance, CXI alive under Ordinance, XX. We are according of the view that 'proceedings initiated under Ordinance, XCI could be continued under Ordinance, XX after repeal of Ordinance, CXI". 12.For the other part, while disposing of Criminal Appeal No,444 of 2000, titled Mian Manzoor Ahmed Wattoo v. The State, we have considered the effect of the judgment and it has been held that the view of the Honourable Supreme Court expressed, at page 43 is not in the nature of a passing observation, rather the Court has finally settled the proposition that the proceedings under the previous Ehtesab Laws, can only be continued, if those relates to the Offences defined under the Ehtesab Act IX of 1997. Thus in view of the omission of the words "any other person" in section 3(1)(d) of the Ehtesab Act, which words were therein two Ordinances, the appellant cannot be
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convicted under section 3(1)(d) of the Ehtesab Ordinance CXI of 1996, or XX of 1997. Because the offence in the Act, is only restricted if any pecuniary, advantages, undue favour, etc. has been obtained or sought by the holder of public office for himself, his spouse or dependents. In the instant case, as alleged by the prosecution and even considering the statements of C.W.2 to C.W.4, no pecuniary advantage, etc. has been proved qua the persons, mentioned in section 3(1)(d) of the Act. The question is accordingly answered. QUESTIONS NOS. 2 AND 3 13.We propose to take up these questions together, because the discussion, the material and answers are interlinked. While considering the first question, suffice it to say that under the first part of section 540, Cr.P.C., the Court has the discretion to examine any person as a witness. But the second part makes this obligatory for the Court for the purposes of just decision of the case. The Court cannot sit as a idle spectator, and leave itself at the mercy of the parties, rather in the line with its true purpose of doing justice, the section enables the Court to examine any person at any stage of the proceedings, which is deemed by the Court essential for the just decision of the case. However, this power is neither unfettered nor unlimited, it cannot be left to the whim and caprice of the Court to exercise the power as desired by it; it is not permissible for the Court to assume the whole of an investigator, in the sense to start holding a roving inquiry and dish the evidence for either the prosecution or the defence, which results in filling up the lacunas of their case and shall disadvantageous to the other side. It is undoubtedly impermissible for the Court to travel beyond the case of the prosecution and start probing and holding an inquiry to set out a new case against the defence. The Court in the exercise of its power should confine to collect evidence for the just decision of the case i,e, the case propounded by the prosecution and cannot go outside the four corner of the prosecution case. In support of the above reliance, can be placed upon judgments reported as Muhammad Usman, and others v. The State (1991 MLD 17), State v. Bashir Khashkhith (1992 MLD 432) and Mst. Safdar Jan v. State (1997 PCr.LJ 1553). 14. Having set down the above criteria, while answering this and the other question, we consciously have made extensive reference to the additional evidence recorded by the Court. Because the Court below has endeavoured to collect the same for the just decision of the case, and therefore, it has to be evaluated if it was so expedient for such case. The, case of the prosecution in the reference is that financial assistance was provided by the accused to M/s Design Tex by misusing his discretionary grant. It is not the case of the prosecution even in evidence, originally led by it, the goods for which the payment was made were never supplied and the entire transaction is fake and fraudulent. he justification to record further evidence, as per the initial order of the trial Court dated 15-1-2000, was in view of the first statement of the accused under section 342, Cr.P.C., in which he mentioned that the supply by M/s. Design Tex was made under the orders of C&W Department, this version obviously was contradictory to the statement of P.W.2, who in pith and substance stated that C&W was not involved and no cross-examination was conducted by the appellant side. Thus in order to clear the confusion, at the best, the statement of Mr. Ahad, the record of C&W Department or re- examination of P.W.2, on this limited point max be necessary. But to collect the rest of the evidence, on the subject that the goods were supplied or otherwise and probe and to hold inquiry, in this behalf, had no nexus with the allegations in the reference of the charge against the appellant. It has been conceded before us by Mr. Sher Zaman that the appellant can only be convicted if the allegations levelled in the reference and if the charge framed have been proved. Thus the evidence was absolutely, irrelevant for a just decision of the case, set up by the prosecution, we are, therefore, constrained to hold that such evidence being the result of improper exercise of the jurisdiction of the Court and beyond the mandate of section 540, Cr.P.C., is liable to be ignored as inadmissible.
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15.Attending to the third question, the clear and straightforward case set up by the prosecution in the reference, against the appellant, is that he has provided financial assistance of Rs,10,61,125 M/s Design Tex, out of his discretionary grant, through Cheque Exh.PA, dated 9-3-1996. It is unambiguously specified in the reference, that according to the Chief Minister's Discretionary Grant Rules, 1988, the appellant had no power or authority to utilize the amount for the purpose of refurnishing of the Secretariat. Obviously the charge framed against the appellant, also spells out, the same allegations. In pursuance of proving its case, the prosecution has examined two witnesses namely Mr. Muhammad Umar Treasury Officer, as P.W.1, who has proved the factum of payment of M/s Design Tex and as Exh.PA. The defence has not refuted his statement. P.W.2, Salman Siddique, the then Secretary to the Chief Minister under whose signature, the cheques was issued, while initially appearing has proved two facts, (1) the cheque was issued under the order…
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