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Petitioner: M. ANWAR SAIFULLAH KHAN VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Mian Saqib Nisar, Tasaddaq Hussain Jillani Title: M. ANWAR SAIFULLAH KHAN vs THE STATE Case No.: Criminal Appeal No,1912 of 2000 Date of Judgment:2002-06-13 Reported As: PLD 2002 Lahore 458 Result: Appeal allowed
JUDGMENT
JUDGMENT TASSADUQ HUSSAIN JILANI, J.---Appellant M. Anwar Saifullah Khan, the former Minister for Petroleum and Natural Resources was tried by the learned Judge Accountability Court, Lahore under section 9(a)(vi) of the National Accountability Bureau Ordinance (Ordinance No,XVIII of 1999). Vide judgment dated 30-11-2000 he was convicted under section 3(1)(d) of the Ehtesab Ordinance read with section 35 of the National Accountability Bureau Ordinance, 1999 and sentenced to imprisonment for one year and a tine of Rs,50,00,000 (Rupees fifty lacs only) in default whereof he was further directed to undergo imprisonment for one year. Benefit of section 382-B, Cr.P.C. Was extended to him. He was also burdened to face consequences of section 15 of the Ordinance in terms of which he stands disqualified to hold public office for a period of ten years. 2. The prosecution case in the Reference tiled briefly stated is that the appellant, while holding the public office as a Minister for Petroleum and Natural Resources, abused his official position by issuing direction to the Chairman, O.G.D.C. To 'appoint 145 persons in the said Organization allegedly in violation of law and the relevant rules. The charge framed against him was as under:-- "(i) That while holding public office as Federal Minister for Petroleum and Natural Resources, Incharge Oil and Gas Development Corporation, by misusing his authority, directed the Chairman Oil and Gas Development Corporation on 16-9-1996 to appoint 145 persons in Oil and Gas Development Corporation in flagrant violation of the Rules and procedure as laid down in Service Rules of O.G.D.C. And subsequently approved their appointments on 16-10-1996 without lawful authority.
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(ii) That 27 persons amongst 145 approved by you joined service while the remaining could not join service due to the ban imposed by the Government in November, 1996. (iii) That he being a holder of public office misused his authority by way of allowing pecuniary advantage to 27 persons and attempting to allow pecuniary advantage to the remaining 118 persons and thus he committed the offence of corruption and corrupt practices as defined under section 9(a)(vi) read with the Schedule of Offences annexed to the said Ordinance and punishable under section 10 of the NAB Ordinance No,XVIII of 1999 which is within the cognizance of this Court." 3. Besides the documentary evidence (Exh.PB/1 to Exh.PB/145, Exh.PW4/1 to Exh.PW4/3, Exh.PW5/1 to Exh.PW5/19, Exh.PW6/1, Exh.PW6/8, Exh.PW6/9, Mark-A, Mark-B, Mark-C, Exh.PA, Exh.PB, Exh.PB/1 to Exh.PB/3, Mark-B, Exh.PW6/2 to Exh.PW67), the prosecution examined the following witnesses:-- P.W.1 Ijaz Ahmad Khan, Chief Personnel Officer of O.G.D.C.: He was Incharge of the Recruitment Section of the O.G.D.C. He stated that the appointments were made by the Chairman of O.G.D.C. But the same were processed through the Recruitment Section of which he was the Incharge. He is author of the note Exh.PA through which the summary for appointments was initiated which was ultimately okayed by the Minister (appellant). P.W.2 Saeed Ahmad Khokhar, Manager, Process and Plans O.G.D.C.: In those days he was acting as Manager (Personnel) and stated that he agreed with para. 4 of the note (Exh.PA) and sent the same to the Chairman, O.G.D.C. He added that on 16-10-1996 the note was received back by him which reflected that the Minister had accorded approval to it. P.W.3 Mobeen Ehsan, Former Chairman of O.G.D.C.: He stated that Mr.R.A. Hashmi, Principal Staff Officer to the Minister (appellant) sent a note bearing approval of the Minister (appellant) regarding the appointment of 145 applicants. According to him, he sent Exh.PB to the effect that the O.G.D.C. Was already overstaffed and the appointments in question would be a burden on the budget. He, however, added that the approval of the Minister (appellant) was solicited which was ultimately granted and the appointments were made by him pursuant thereto. P.W.4 Akhtar Hussain, Chief Staff Officer of O.G.D.C.: He stated that in January and February, 1997 he received three files pertaining to the appointment of Amanat Ali, Hayatullah and Muhammad Zulfiqar. They joined service from the day they assumed charge. P.W.5 Abdul Mateen Ahmad, Chief Personnel Officer of O.G.D.C.: According to him he received nineteen files pertaining to the recruitment of persons mentioned therein. P.W.6 R.A. Hashmi, Ex-Principal Staff Officer: He was the Principal Staff Officer to the appellant when he was serving as Minister. He acknowledged to have issued note Exit PW6/1 . P.W.7 Gulzar Ahmad Chughtai, Deputy Director FIA (Crimes Wing, Rawalpindi: He investigated the case and submitted challan. 4. The appellant-accused when examined under section 342, Cr.P.C. Denied the charge. According to him, the Organization was never overstaffed, the profits of the said organization had soared from rupees thirty nine crores in 1993-94 to over rupees three hundred crores in 1995-96; that the overtime paid to the staff during the year 1995-96 was close to Rs,2.5 Crores; that the Chairman himself had sought approval for the appointments in question; that he neither solicited the appointments nor exerted any pressure on the Chairman, O.G.D.C., who was the appointing authority; that he had no special interest in any appointee; that out of the one hundred and forty- five appointees only twenty-seven persons joined service; that all the afore-referred twenty-seven
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persons, except three, joined service after the dismissal of the P.D.F. Government in which he was the Minister; that although he was no longer Minister yet those appointees were allowed to continue in service till date; that the present Reference had been tiled on account of the mala fide influence exerted by Gulzar Khan who was twice sacked by the Government in which he was the Minister; that the former bore ill-will against the appellant and thought that the appellant was responsible for his dismissal; that the Reference was tiled during the Prime Ministership of Mr.Nawaz Sharif who, in his earlier tenure as Prime Minister, was dismissed in 1993 by appellant's father-in-law Mr.Ghulam Ishaque Khan, the then President of Pakistan; that Mr.Nawaz Sharif bore personal grudge against .The appellant on that account; that the then Chairman of the Ehtesab Bureau (Mr.Saifur Rehman Khan), under the direction of Mr.Nawaz Sharif, filed the instant Reference to wreak vengeance and to politically tarnish appellant's image. He added that P.W. I., in his capacity as Incharge of the concerned section, had endorsed the proposal; that P. W.3 was the then Chariman, O.D.G.C. And the appointing authority fully endorsed the proposal and had sent the note for soliciting appellant's approval and that he was trying to wriggle out of the whole affair for dishonest reasons. Explaining the pressure of parliamentarian regarding providing jobs to their respective constituents, he added as under:-- There were hundreds of applications pending in the Minister's Office and the Parliamentarians, all elected people representing the entire country, were demanding that we should fulfil our moral and legal obligation to provide jobs to the unemployed applicants. It was in this context that after 2 years, during which the O.G.D.C. Regained full financial health, a list of applicants was forwarded to O.G.D.C. For consideration as per O.G.D.C.'s policy, rules and regulations. The appointments were made on temporary basis. 27 persons actually joined of whom as many as 24 were inducted after I had ceased to be Minister after dismissal of Prime Minister Benazir Bhutto's Government on 5-11-1996. All the applicants fulfilled the prescribed requirements with respect to age, qualification, suitability etc. 5. In defence, the appellant appeared as his own witness and reiterated his defence pleas taken in his statement under section 342, Cr.P.C. He reterred to his services as Member of the. National Assembly from N.-W.F.P., as Senator and as Minister. He referred to the Petroleum Policy of 1994, to the foreign investment during his tenure, the activities of PARCO. Sui Southern Gas Company Limited, Sui Northern Gas Pipelines Limited and other related developments. Regarding the appointments in question he explained that he had directed his Principal Staff Officer that the criterion of the individual merit pertaining to age, qualification and experience for the post in question should be strictly observed and there should be no discrimination on the basis of locality, District or Province. The proposal regarding appointments, he added, was duly recommended by the concerned officer and the appointing authority endorsed the note that the appellant could relax the rules and appointments could be made; that only the Chairman, O.G.D.C. Was vested with the authority to make the appointments and that if the Chairman had chosen not to appoint any applicant he would not have interfered with his decision. Stressing that all the appointments were temporary and he seized to be a Minister after three weeks from the date he accorded the approval, yet, except three, all the appointment orders were issued by the Chairman, O.G.D.C. And they were allowed to continue in service till date although their services could be dispensed with by way of a simple notice. Regarding mala fides on the part of the appointing authority i,e, Chairman of O.G.D.C., he stated that "the mala fides of the Chairman is also evident from the fact that in his cross-examination he has stated that he had not made any appointment in O.G.D.C. During his tenure as Chairman, while it has now transpired, after examination of O.G.D.C. Record, that he had appointed 68 persons in O.G.D.C. On 13-10-1996 and another 325 persons on 14-11-1995. The certified copies of appointments/notes put up to Chairman with the list of appointees which also bear signatures of the then Chairman Mr.Mobeen Ahsan which I have identified are Exh.DW1/8 and
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Exh.DW1/9". Explaining the general practice of making appointments in O.G.D.C., the appellant made particular reference to the appointments made in the past and present times and also placing the appointment letters on record he stated as under:-- "Within the O.G.D.C.'s number of absolutely illegal appointments of retired army officers have been made by the present MD, O.G.D.C., who himself is a serving Major-General. But no reference has been filed qua these appointments while my lawful approval of a legitimate proposal made by O.G.D.C. Officials has been made the subject of the instant mala fide Reference. I have obtained the certified copies of the record of O.G.D.C. Under the orders of this Court. Exh.DW1/1 is the copy of the notings on the recruitment file of Mr.Khadim Hussain, Exh.DW1/2 is the copy of the letter dated 26-9- 1994 of Mr.Rifat Asghari, the then Chairman, bearing the order (Mark-A) passed by the accused on 28-9-1994. Exh.DW1/3, Exh.DW1/4 and Exh.DW1/5 are the printed copies of the Annual Reports published by the O.G.D.C. Exh.DW1/6 is the copy of the statement showing overtime payments from July, 1985 to June, 1996. Exh.DW1/7 is the certified copy of the statement of Insarul Haq, recorded by this Court on 28-10-1999. Exh.DW1/8 is the copy of the noting on the file of recruitment of 68 persons (consisting of 3 pages). Exh.DW 1/9 is also the copy of noting on the file of recruitment of 385 persons in O.G.D.C. (consisting of 10 pages), Exh.DW1/10 is the copy of the mfnifesto of PPP (Senior Coalition Partner in the Government). I also produce certified copies of personal files of 5 Army Officers who have been recruited in 0.G.D.C. Recently in flagrant violation of the O.G.D.C. Rules and Policies. The certified copy of the file of Brigadier Rizwan Ashraf is Exh.DW1/11 (consisting of 30 pages), of Col.(Retd.) Sher Baz Exh.DW1/12, of Major (Retd.) Muhammad Afzal (consisting of 17 pages) as Exh.DW1/13, of Lt.-Col. (Retd.) Qazi Imtiaz Ahmad (consisting of 17 pages) as Exh.DW1/14 and Brig. Rana Mushtaq Ahmad (consisting of 29 pages) as Exh.DW1/15. The noting portion of personal files of Mr.Qudratullah Khan Sundrani, O.G.D.C. 2422-F (consisting of 6 pages) Exh.DW1/16, of Abdul Sattar Jamali Exh.DW1/17, of Mr.Shahid Hussain Shah (consisting of 5 pages) Exh.DW1/18, of Mr.Zafar Abbas Rizvi (consisting of 3 pages) Exh.DW1/19. I also produce the record of appointments made by Mobeen Ahsan, Chairman, O.G.D.C. Under Phase-III in violation of Service Rules during this tenure Exh.DW1/20. In the end I tender in evidence certified copy of the record of appointment of Mr.Muharnmad lqbal Consultant Technician. This file shows correct procedure for the appointment of Consultant as opposed to the present recruitment of the Retired Officers of the Armed Forces as Consultants (consisting of the 46 pages) Exh.DW1/21." 6. Khawaja Haris Ahmad, Advocate/learned counsel for the appellant, in support of this appeal made following submissions:- i) That the prosecution has failed to adduce evidence to prove the charges framed against the appellant. (ii) That the appellant had given no direction to appoint anyone. His office just had referred the applications to the competent Authority i,e, Chairman, O.G.D.C. Who was fully authorized to appoint or not to appoint. (iii) That no law or rule was violated because the rules in question had not been notified when the appointments were made and even if those rules had been notified they were not applicable to the temporary appointments and admittedly all the impugned appointments were temporary. (iv) That the appointment orders in all the cases, except three, were issued after the PDF Government (of which the appellant was the -Minister) had been dismissed. The Chairman, O.G.D.C. Who was the competent Authority could refuse to issue appointment orders as the appellant was no longer the Minister by then. The Chairman could even dispense with services of those employees with one month's notice as provided in the terms and conditions of their appointment. This circumstance would indicate that it- was the Chairman who, of his own volition,
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made the appointments and allowed those appointees to continue although the appellant was no longer the Minister. (v) That admittedly it was the Chairman, O.G.D.C. Who had made the appointments in question. He was the one who rendered favour to the appointees resulting in pecuniary advantage but he was never arrayed as an accused and tried. This would adversely reflect on the bona tides of the entire prosecution case against the appellant. (vi) That mens rea is an essential requirement to prove a crime. The evidence led by the prosecution has failed to prove the . Existence of mens rea insofar as the conduct of the appellant is concerned. (vii) That at worst the appellant could be accused of an act reflecting mistake of civil law. He was wrongly advised by the competent Authority that he had the power to relax rules but that would not make it a criminal offence. (viii) In support of the submissions learned counsel for the appellant relied on the following case- law:-- (I) Dr.Farooq Sattar v. The State and others (PLD 2002 Lahore 95). (II) Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233). (III) The State v. Jam Mashooq All and others (PLD 2002 Karachi 72). (IV) The President of Pakistan v. Mrs. Benazir Bhutto (1994 MLD 1969). (V) Mian Muhammad Nawaz Sharif v. Special Court and others (1998 PCr.LJ 162). (VI) Harris's Criminal Law by Ian Mclean & Peter Morrish on General Principles of Criminal Responsibility Mistake of Civil Law, at page 49 (Twenty Second Edition by Sweet and Maxwell Limited). 7. Mr.Ahmer Bilal Sufi, the learned Deputy Prosecutor-General for National Accountability Bureau supported the impugned judgment and contended as under:-- (i) That the prosecution, in the light of the evidence led during the trial, has proved its case beyond reasonable doubt to sustain conviction under section 9(a)(iv) of the National Accountability Ordinance as it is in evidence that the appellant directed the Chairman, O.G.D.C. To make the appointments in question through corrupt, dishonest means and in utter violation of the rules and regulations governing the Oil and Gas Development Corporation. (ii) That although the charge was framed under section 9(a)(vi) of the NAB Ordinance which stipulates misuse of authority to get any benefit "for himself or any other person" and the conviction has been recorded under section 3(1)(d) of the Ehtesab Ordinance, 1997 but this is a minor irregularity and has, in no manner, prejudiced the case of the appellant as the charge was composite and the alleged transaction covered both the afore-referred penal clauses. (iii) That the entire conduct of the appellant in the transaction, subject-matter of the trial, reflects a corrupt propensity, illegal and blatant misuse of authority which justifies the conviction and sentence. (iv) That a bare reading of sections 9(a)(iv) and 9(a)(vi) of the NAB Ordinance would show that the moment an illegality is established, the offence is complete and no mens rea is required to prove the offence. The onus was on the appellant to prove his innocence. He has failed to discharge the onus and the appeal. Therefore, has no merit. (v) It is in evidence that the appellant, in his capacity as Minister for Petroleum and Natural Resources issued a direction for appointment of 145 persons of which he had no authority and influenced the Chairman, O.G.D.C. To issue the appointment order. (vi) That the appellant was fully aware that as per the rules the posts had to be advertised and the appointments had to be made through open competition. He not only issued direction for their appointments but saw to it that the reference he had sent in this regard, was given effect to by Chairman, O.G.D.C. The entire chain of events starting from initiating initial note from his office and
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the issuance of final appointment orders, proves appellant's dishonest intent and conduct. Relying on the judgment of this Court in Hakim Ali Zardari v. The State (PU 2002 Crl.Cases Lahore 499) he contended that the twin . Test approved by this Court in the said judgment, if applied in the instant case, would fully establish the case against the appellant. 8. Heard. 9. Having considered the charge framed against the appellant, the impugned judgment, the evidence led, the arguments addressed at the bar and the case-law cited in support thereof, we are of the view that the questions which have cropped up for consideration, broadly speaking, are as under:-- (i) Whether the appellant directed Chairman, O.G.D.C. To appoint 145 persons in the said Organization in violation of rules and procedure? (ii) Whether every erroneous order of mistake of law would tantamount to misuse of authority within the mischief of section 9(a)(vi) of the NAB Ordinance, 1999? (iii) Whether in the face of the evidence led, has it been proved that the appellant obtained for himself or for any other person a pecuniary advantage or favour through corrupt, dishonest, improper or illegal means to warrant conviction under section 3(1)(d) of the Ehtesab Ordinance, 1997? Before any detailed discussion on the issues raised is undertaken it would be of relevance to reproduce section 9(a)(vi) of the National Accountability Ordinance, 1999 under which the appellant was charged but not convicted and section 3(1)(d) of the Ehtesab Ordinance, 1997 under which he was convicted. Those read as under:-- Section 9(a)(vi) of NAB Ordinance, 1999 Section 3(1)(d) of the Ehtesab Ordinance, 1997 "9. Corruption and corrupt practices.- "3. Corruption and corrupt practices.--(1) (a)... (a). .. .. (i). (b).. (ii) (c) .. (iii). (d) if he, by corrupt, dishonest or illegal means obtains or seeks for himself or for any other person any property , valuable thing, pecuniary advantage or undue favour ." (iv).. (v). (vi) misuses his authority so as to gain any benefit or favour for himself or any other person, or to render or attempt to do so. [or wilfully fails to exercise his authority to prevent the agent, or rendition of any undue benefit or favour which he could have prevented by exercising his authority .
10. The prosecution has placed on record the note (Exh.PW6/1) initiated by the Principal Staff Officer Mr. R. A. Hashmi P.W. Which reads as under:-- "OFFICE OF THE MINISTER FOR PETROLEUM AND NATURAL RESOURCES Islamabad, September 15, 1996. 1. As Minister is kindly aware that we have been under tremendous pressure from the Parliamentarians. To cater for their essential requirements of recruitment in the 0.G.D.C.. Since
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Budget Sessions we have been withstanding this pressure and telling them that their requests for recruitment will be acceded to as soon as the position is eased. We have since prepared a list of applicants based on the recommendations of the Parliamentarians. Minister has already been pleased to go through the list and has since approved it. 2. Before the Chairman O.G.D.C. Is requested to issue appointment letters, Minister any like to see., (Sd.) (R.A.Hashmi), The Minister." Principal Staff Officer. Alongwith the note was attached a list of 105 applicants alongwith their qualifications but there was no indication as to the posts against which they were to be appointed. The Minister endorsed the afore-referred note back to the Principal Staff Officer with the remark "OK" and the latter sent to the Chairman, O.G.D.C. Through the Chief Personnel Officer of the Organization who, vide Exh.PA, proposed as under:-- "3. Principal Staff Officer to the Federal .Minister for Petroleum and Natural Resources has conveyed the approval of the Minister for appointment of 145 applicants in O.G.D.C. Against various posts. 4. In this respect. It is submitted that appointments in O.G.D.C. Are made against the advertised post after necessary test and interview. However, in the recent past, a number of appointments have been made on the directives of the Prime Minister's Secretariat without advertising the post, as a special case. In the instant case if the directives of the Honourable Minister are carried out, approval will be required for relaxation of existing policy and the rules. In such case the applicants will be appointed on the basis of qualification and experience will be given the same designation as offered to the Prime Minister's Secretariat under Phase-I, Phase-II and Phase-III of appointment and the special cases. 5. Approval may kindly be solicited from the. Minister for Petroleum and Natural Resources for appointment of 145 in relaxation to the rules, as a special case. 6. Submitted please." When the tile was put up before the Manager Personnel he endorsed para. 4 and sent the file to the Chairman, O.G.D.C. That para. 5 and above be considered. The Chairman, O.G.D.C., in turn observed as under (Exh.PB):-- "8. With reference to para. 1 of the note of the Principal Staff Officer, the factual position has been briefly explained in para. 4. It may be added that existing work force in the O.G.D.C. Is considerably in excess of its requirements and a severe burden on its budget. However, the proposal at para. 5 is submitted for consideration and approval." The appellant finally approved the afore-referred note on 16-10-1996 and sent the matter back to the Chairman, O.G.D.C.. 11. The Federal Government of which the appellant was a Minister was dismissed on 5-11-1996 and all the appointment orders, except three, were issued, by the Chairman, O.G.D.C. (P.W.3) after dismissal of the Government. Only 27 persons, out of 145, assumed the charge, and admittedly the nature of posts of all these appointees was temporary, were appointed against posts of Helpers, Assistants, Assistant Plant Operators, Junior Assistants, Lower Division Clerks and their basic salary did not exceed Rs,2,100 per month. 12. The learned trial found the appellant to have issued the directions for appointments 'and thereby guilty of misuse of authority within the meaning of section 3(2)(c) of PPO No,16 of 1977 and section 3(1)(d) of the Ehtesab Ordinance, 1997 read with section 35 of the NAB Ordinance, 1999. The Court observed as under:- "He entertained the applications from the Parliamentarians, made selection of 145 persons and asked the Chairman, O.G.D.C. To issue appointment letters without lawful authority."
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13. A bare reading of Exh.PW6/1, which was sent to the appellant, would indicate that a list of 145 applicants, without any reference to the specific posts against which they sought appointment, was put up before the…
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