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Petitioner: MUHAMMAD SAEED MEHDI VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Nawaz Abbasi Title: MUHAMMAD SAEED MEHDI vs THE STATE Case No.: Writ Petition No,1675 of 2001 Date of Judgment:2001-08-15 Reported As: PLD 2002 Lahore 124 Result: Petition dismissed
JUDGMENT
JUDGMENT This is a petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, through which the petitioner namely Muhammad Saeed Mehdi, a member of the District Management Group of Central Superior Service, is under arrest since 7-4-2000 in a case under section 9(a)(iii) (vi) of the National Accountability Bureau Ordinance; 1999. The petitioner alongwith two others namely Asif Ali Zardari and Shafi M.Sehwani was challaned to face the trial in the Reference No,6 of 2000 under section 18(g) read with section 24 of the National Accountability Bureau Ordinance, 1999, before an Accountability Court established under the said Ordinance. 2. The petitioner was being charged for the following allegations:-- (a) That he while holding the post of Chairman,' Capital Development Authority, in December, 1993, through misuse of his authority and official position sanctioned an amount of Rs,0.6 millions to the Environment Directorate, C.D.A. For the expenditure of landscaping near Gate No,3 of the Prime Minister's House, Islamabad, in breach of the Rules. (b) That an amount of Rs,10 lacs was approved for construction of one suite, two stable-sheds, 4- guard rooms with toilets near Gate No,3 of the Prime Minister's House. The report under section 173, Cr.P.C. In the Reference is read as under:-- "For this purpose, as a first step he directed Saeed Mehdi, the then Chairman, C.D.A. For landscaping near Gate No,3 of Prime Minister's House. At this Saeed Mehdi without any proper requisition from Prime Minister House directed Mr. Akbar Nawaz, then Director, M.P.O. Of C.D.A. On 25-11-1993 to shift a bulldozer to P.M.'s House who complied with the directions. Spot inspection showed excessive scope of work at which Mian Mahmood, Deputy Director M.P.O. Who had visited the spot reported that three bulldozers were required and M.P.O. Had no funds and work of
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landscaping was job of Environment Directorate, therefore, an amount of Rs,6 lacs may be placed at the disposal of Environment Directorate. Mr. Saeed Mehdi approved proposal at which A.F.O. Formally allocated funds of Rs,0.6 millions on 4-12-1993 to Environment Directorate who started the work of landscaping. Asif Ali Zardari during that period had also directed Mr. Abdul Hamid Bhatti, Assistant Engineer Pak P.W.D. Performing duties in Prime Minister House for construction of Polo Pit who informed him that extra work cannot be taken in the hand without the approval of the Military Secretary, controlling incharge of Pime Minister House. Therefore, the Assistant Engineer politely declined at which Asif Ali Zardari became arrogant and went back with great anger. Thereafter, on 28-4-1994 Ali Mubarik Masud, Deputy Director Special Projects under the directions of Shafi M. Sehwani, the then Vice-Chairman C.D.A. Went to Prime Minister. House where Tahir Niazi and Allah Ditta, Polo Instructor of Asif Ali Zardari earmarked area for construction of one suite, two stable sheds and four guard rooms with toilets alongside the stables. Shafi M. Sehwani then Vice- Chairman, C.D.A. Without seeing that requirement was not from any lawful authority of Prime Minister House and without any feasibility report approved the proposal of the work on 2-5-1994 with slight modification i,e, two guard rooms instead of four and Saeed Mehdi then Chairman approved the allocation of Rs,1.00 million without any legal justification. Then, an estimate of Rs,15,85,600 for constriction of stable sheds for 16 horses near gate number 3 of Prime Minister House was put up by Deputy Director and Director Special Project, which was later on reduced to Rs,11,18,380. The file shows that under the cover of urgency no tenders were floated instead quotation from approved contractors were obtained and quotations of Messrs Moeen Sons (Pvt.) for an amount of Rs,12,29,994 on 23-6-1994 was ultimately approved by "Shafi Sehwani, the then Chairman. He did not bother to see that there was no requisition from the competent authority of P.M. House and that also no justification existed. It has also come in evidence that requirements of constructions of stables, rooms with toilets and a suite were forwarded by Special Project Division to Directorate of Architecture CDA and Mr. M.D. General Director Architecture got prepared the drawings for said works. The said designs were shown to Asif Ali Zardari by the said Director and Mr. Mubarik Masud, Deputy Director, Special Projects but the designs were not liked by Asif Ali Zardari who desired that the design be prepared according to the requirements provided to CDA. Consequently drawings were amended and provided to Directorate of Special Projects. Similarly, on different occasions Mr. Asif Ali Zardari had been issuing directions to CDA's officers in connection with construction of Polo-Ground etc. Then on 12-6-1995, Shafi M.Sehwani then Chairman, C.D.A. Directed D.G. Environment and Deputy D.G. (Works-1) for starting additional works of water supply line, one more underground tank and another polo ground. He also directed that these works may be started and completed on urgent basis without further delay and also to report progress weekly. Similarly, other allied work i,e, retaining walls, sitting dias at polo ground, drainage work, roads, car park, electrification of polo grounds area, horses tracks etc. Were executed by the C.D.A. It has also been found that before start of all the works PC-1 was not prepared and administrative approval for the works was also not obtained from the CDWP. No specific funds for polo ground and ancillary construction were available. The expenditure was met illegally from the lump provision available for other approved schemes of P.M.'s House included in the (PSDP) Public Sector Development Programme and Capital grant of C.D.A. For the years 1993-94; 1994-95 and 1995-96. The PC-1 was prepared by C.D.A. In January, 1995, when the work was near completion, costing Rs,39,786 millions and was sent to Planning Division through Cabinet Division in February, 1995. In PC-I the works of polo-ground polo pits and horses stables were not mentioned and the same were concealed by naming the same as landscaping work, horticulture. This was done in order to avoid objections on the works being executed without lawful authority. But the C.D.A. Had to disclose these works on objection from Planning Division mentioned in working paper for the CDWP
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conveyed to Chairman CDA through letter dated 17-10-1995. In meeting of CDWP dated 10-1-1996, the Chairman, CDWP had taken a very serious view of non-submission of PC-1 before starting the work not obtaining anticipatory approval before incurring the expenditure and violation of the financial and administrative procedures and deferred the consideration of the project. On 26-5-1996, an explanatory note signed by Zafar Iqbal, then Chairman, C.D.A. Was sent to Planning Division through Cabinet Division and through this note the CDWP was misled as it was mentioned in the note that 'the consolidated PC-I comprising of various items of work noted above were accorded priority and executed a pressing demands of Prime Minister's House authorities.' In fact there was no requisition/demand from competent authority i,e, Military Secretary to Prime Minister who was the, controlling officer of Prime Minister House, rather the works were done on verbal directions of Asif Ali Zardari, spouse of then Prime Minister and he had no legal authority to issue such instructions. On 4-7-1996 after receipt of above explanatory note of Chairman, C.D.A., the CDWP ultimately accorded ex post facto approval at a cost of Rs,39.386 millions with the direction that in future CDA should not incur any expenditure without approval of the competent authority. It has also been found that during the period, the PC-1 remained under consideration, the CDA continued execution of additional works on polo ground and ancillary construction and the total amount of expenditure rose to Rs,52.297 million, break-up of which is as under:-- 1. Environment Directorate. Rs, 19.381(m) 2. Road IV Directorate. Rs, 22.325(m) 3. Directorate. Rs, 4.000(m) 4. Special Project-II DirectorateRs, 3.642(m) 5. Water Meter Directorate Rs, 1.438(m) 6. W & S Zone "B" Directorate.Rs, 0.709(m) Total: Rs, 52.297(m) The C.D.A. Also did not obtain approval/sanction of CDWP for the revised amount of Rs,52.297 million. The investigation revealed that the work which started from an amount of Rs,6 lacs was ultimately completed for an amount of Rs,52.97 millions which was a direct loss to the Government Exchequer/CDA just to fulfil the desire of an unauthorised person i,e, Asif Ali Zardari. This amount was also spent in violation of the rule 10(iv) of the Financial Rules of Property GFR Vol-1 of the Government of Pakistan, as the work was not in public interest. The Audit Department of Government of Pakistan has also conducted special audit of this project and held the whole expenditure as unjustified and wasteful. Version of accused persons was obtained and the same has not been found plausible. It has also been found that 47 private horses for polo were kept in the stable sheds constructed in Prime Minister House Complex. It has been found that on the illegal order/directions of Asif AU Zardari, husband of then Prime Minister. Mr. Saeed Mehdi, Mr.Shafi M.Sehwani and Mr.Zafar Iqbal (deceased) as Chairman, C.D.A. Converted an amount Rs,52.297 millions from Public Exchequer/C.D.A. Funds for illegal construction and development of polo-grounds and allied facilities. They violated legal financial and administrative requirements by obeying illegal order/directions of Asif Ali Zardari and misused and misapplied public funds/CDA funds for the construction of a project which they knew' and had reasons to believe was for the personal use and enjoyment of Asif Ali Zardari. Thus, they committed the offence of corruption and corrupt practices. Asif Ali Zardari aided and abetted the offence of
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corruption and corrupt practices by issuing illegal order/directions. Thus, he is also guilty of the offence of corruption and corrupt practices under section 10 of the NAB Ordinance." 3. Learned counsel for the petitioner in support of this petition has placed on record the following documents:-- (1) The conviction slip attached with the Reference in which the date of arrest of the petitioner is mentioned as 7-4-2000. (2) The letter-containing request of Deputy Director (Operation) MPO, Capital Development Authority, for sanction of Rs,6 lacs for the landscaping near Gate No,3 of the Prime Minister's House Complex, Islamabad. (3) The letter of the Deputy Director, Special Projects Division-II, CDA, Islamabad with the proposal of construction of suits, guardrooms and two stable sheds near Gate No,3, Prime Minister's House Complex accompanied with the Noting of the concerned official/officer in the CDA including the Financial Adviser. (4) Notification dated 1 1 th January, 1990, relating to the financial powers of the Chairman, CDA. (5) The minutes of the meeting held on 4-7-1996 in connection with the construction in question in the Prime Minister's House Complex at Islamabad. (6) The copy of the order of the Accountability Court-I, Attock. Fort, passed in an application moved by the State for separation of trial of Shafi M.Sehwani. (7) The copy of an order dated 17-3-2001 passed by the Accountability Court by virtue of which the proceedings in the trial were adjourned sine die because of the ailment of Shafi ' M.Sehwani with an observation that the prosecution may inform the Court for fixation of the case on improvement of condition for the said accused. 4. Learned counsel for the petitioner has raised the following contentions in support of this petition:-- (i) That the bare perusal of the report under section 173, Cr.P.C. Dated 11-5-2000 on the basis of which the Reference against the petitioner and others was submitted before the Accountability Court would show that the same does not contain the allegations of corruption, misappropriation of funds or of embezzlement or even mismanagement of finances. (ii) That it was in the competence of the petitioner as Chairman, CDA to sanction such an amount for the landscaping in routine as competent authority to be sent by the concerned Directorate of the CDA and that neither the amount in question was sanctioned for construction of polo ground nor the report under section 173, Cr.P.C. Contained such an allegation. Learned counsel submitted that in fact, the amount in question was being required for an official project which was sanctioned on the recommendation of the Chief Engineer CDA/Member Engineering, for expenditure of fuel for machinery to be used in the project. (iii) That on the approval of the proposal of the landscaping by the Deputy Director (Operation) MPO, Director MPO and the Chief Engineer, for the purpose of security of the Prime Minister's House, the expenditure was to be necessarily sanctioned. (iv) That the approval of expenditure of another sum of Rs,10 Lacs for the construction of one suite, two stable-sheds; four guard-rooms with toilets was made through bridge financing for the construction of polo ground which was approved by the then Vice-Chairman of the C.D.A. Namely Shafi M. Sehwani being the competent authority. The learned counsel clarified that the approval of bridge financing of Rs,1 million was for construction work in the Prime Minister's House Complex and not for the construction of polo-ground and that in any case, the petitioner was not concerned with the approval of the Project. (v) That the re-appropriation or bridge financing is a recognised rule of financial arrangement to meet the requirement of a particular project and in case funds are not readily available in the relevant Head, the same are temporarily borrowed from another Head. Learned counsel argued
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that the concerned officials including the Financial Advisor having examined and recommended the expenditure through bridge financing placed the same before the petitioner as Chairman of the C.D.A. For approval, which was approved accordingly. (vi) That undoubtedly Rs,0.6 millions was sanctioned for the landscaping whereas approval of Rs,1 million was given for the construction of work in the Prime Minister's House through bridge financing with no personal gain or benefit, rather it was done by the petitioner in discharge of official duty and thus he has committed no wrong under the law. It has been argued by the learned counsel that the fulfilment of the requirement of the Prime Minister's House was neither transgression of authority nor misuse of powers and was also not a financial irregularity to constitute an offence under section 9(b)(iii)(iv) of the National Accountability Bureau Ordinance, 1999. (vii) Learned counsel while concluding his arguments on the facts has raised the following legal questions:-- (a) That an act done in good faith with no intention to cause loss to the Government or an individual or to make a financial gain for want of mens rea would be not a criminal act (b) That in the light of official correspondence, the allegations of misuse of powers and dishonest conversion of funds in his control for a purpose other than the public interest unless as a result of scrutiny is established at the trial that the same was done with mala fide intention and in bad faith, the petitioner would be deemed to be innocent and consequently, the curtailment of his liberty through detention pending disposal of the case would be in violation of Articles 4, 9, 10 and 14 of the Constitution of Islamic Republic of Pakistan, 1973, and in any case the continuous detention for the last about seventeen months without trial would make the same illegal. (c) That the grounds which are relevant for the grant of bail under section 497, Cr.P.C. Without any distinction shall be considered for grant of bail under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, to protect the liberty of a person who is detained in a criminal case in which the provisions of section 497, Cr.P.C. Are not invokable. Learned counsel while placing reliance on Zafar Ali Shah and others v. General Pervaiz Musharaf, Chief Executive of Pakistan and others 2000 SCMR 1137 and Khan Asfand Yar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 Supreme Court 607 contended that the superior Courts while exercising the Constitutional jurisdiction always extend the same to protect the liberty of the citizens notwithstanding the law taking away the powers of grant of bail or suspension of sentence under sections 426 and 497, Cr.P.C. Through a special law. The learned counsel has also cited the following judgments in support of his contentions:-- (i) 1995 SCMR 387; (ii) 2000 SCMR 107; (iii) PLD 2000 Lah. 564; (iv) PLD 2001 SC 607 and (v) 2001 SCMR 294. 5. In addition, it was urged by the learned counsel that the petitioner was also entitled to the grant of bail on medical ground in the light of the Report bearing No,66 dated 13-1-2001 given by the Senior Medical Officer, Central Jail, Rawalpindi. Additionally as per direction of the Accountability Court; vide order dated 10-1-2001 the petitioner was medically checked up by Dr.S.A. Haider at Haider's Clinic, Islamabad, and said doctor advised the petitioner for physiotherapy twice a week for six weeks. The medical report given by Dr. Khaliq Dad Raja would also show that the gap appearing between the vertebrae was suggestive of partial nerve compression and seriousness of the condition and it was opined by the said doctor that ultimately it can permanently develop neurological deficit if proper and adequate medical attention is not provided in a well-equipped hospital. 6. During the pendency of this petition, under the direction of the Accountability Court, the petitioner was referred to the Pakistan Institute of Medical Sciences, Islamabad, for his medical examination and investigation. The Professor Dr. Muhammad Shafique, Consultant Surgeon, Head
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of the Department of Surgery, medically examined the petitioner and through the report dated 1-8- 2001 annexed with this petition gave opinion as under:-- (i) He is suffering from fairly advanced cervical spondylosis with evidence of root compression and has symptoms of vertebrae basalar syndrome. (ii) Lack of proper medical care may lead to further worsening of neurological signs and ever- permanent neurological damage. The Consultant Surgeon has recommended the following treatment:-- (i) To prevent further damage he should have regular monitoring and treatment of cervical spondylosis in the form of cervical traction and SWD from a well-equipped hospital. (ii) With regards prostatism and history of renal stones he needs proper investigations and appropriate treatment. 7. Learned counsel for the petitioner has submitted that the concept of the life and liberty of a citizen in the form of fundamental right is not only confined to the extent of curtailment of his physical liberty but concept of life in its extended meanings would include the essential need of life. Thus, the proper treatment of the disease with which the petitioner is suffering is his fundamental right which cannot be denied in any circumstance and that the detention of the petitioner in Jail without the treatment required by him may either lead to his permanent disability or bring any other serious ailment - to him and , such a situation would definitely be due to the denial of fundamental rights of the petitioner under Articles 4, 9, 10 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. 8. The learned Deputy Prosecutor-General, NAB, on the other hand while opposing this petition has contended as under:-- (1) That the petitioner is also facing prosecution in another Reference in which the proceedings have been completed and only the judgment was to be announced. (2) That this is correct that the amount in question was sanctioned upon completion of normal process but the petitioner being the Chairman of the C.D.A. While acting as competent authority would ultimately be directly responsible for the misuse of funds and would not escape from the criminal liability on the pretext that the irregularity if any was due to the fault of his subordinates. Learned Deputy Prosecutor-General has argued that the matter relating to the misuse of the funds by the petitioner would fall within the ambit of section 9(b)(iii) and (iv) of the National Accountability Bureau Ordinance, 1999, and that the defence plea of wrong advice of the subordinates or that the transaction was carried in good faith would not be a ground to contend that the arrest of the petitioner for commission of an offence under NAB Ordinance, 1999, and his subsequent detention in Jail was without lawful authority. (3) That an act contrary to law even if is done in the official capacity which if involved criminal liability would not be excusable on the ground that it was only an irregularity under the Rules. (4) That the delay in the conclusion of the trial was not due to the fault of the prosecution rather it happened due to the ailment of Shafi M. Sehwani co-accused of the petitioner. The learned Deputy Prosecutor-General submitted that upon rejection of request of the State for separation of trial of Shafi M.Sehwani from the other accused by the trial Court, a Constitutional Petition filed by the State against the said order was still pending before this Court and that the delay in question was either due to an act of God or an act of Court, which would not provide a valid ground for the grant of bail. (5) That the provisions of sub-Article (1)(b)(i) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, is invokable only in a case in which a person is found in an illegal detention and his liberty is being curtailed in violation of the Constitutional guarantees whereas in the present case the petitioner is facing criminal charge before a Court of exclusive jurisdiction under a special law under which the powers of other Courts including this Court under sections 426, 491, 497, 498 and
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561-A, Cr.P.C. Have been taken away by virtue of section 9(b) of the National Accountability Bureau Ordinance, 1999, therefore, the grounds for grant of bail under the above said provisions of law would not as such be available to the petitioner for grant of bail under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The Deputy Prosecutor-General has submitted that the apex Court as well as this Court have not declared the provisions of section 9(b) of the National Accountability Bureau Ordinance, 1999, ultra vires to the Constitution of Islamic Republic of Pakistan, 1973, and despite the law laid down by the apex Court in Khan Asfand Yar Wali's case that bail can be granted by the High Court to an accused of an offence under the NAB Ordinance in its jurisdiction under Article 199 of the Constitution, the ground being taken in support of this petition cannot be considered for declaring the detention of the petitioner illegal or unauthorised. (6) The learned Deputy Prosecutor-General, however, has not denied the right of the petitioner of proper treatment of his disease in the light of the reports submitted by the Specialist and Consultant Surgeon, Pakistan Institutes of Medical Sciences, Islamabad, as indoor patient in a hospital equipped with the medical facility required for his treatment. 9. There is no cavil to the proposition that the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in a case which is brought before it under Article 199(1)(b)(i) relating to the liberty of a person, is empowered to examine the facts and the information laid it to ascertain as to whether the detenu was not being detained without the proper authority and legal remand or that his detention was lack of bona fide and his liberty was being curtailed without any legal justification. The High Court on a complaint made before it for violation of fundamental rights of a person in exercise of its discretionary jurisdiction while stepping into the matter can pass an order which may be found just, legal and equitable in the facts and circumstances of the case. It is an unalienable right of every person to be treated in accordance with law and to enjoy the protection of law as provided Article 4 of the Constitution. Under Article 9 of the Constitution the guarantee of life and liberty has been provided to…
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