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Petitioner: PIR MAZHARUL HAQ and others VS Respondent: THE STATE through Chief Ehtesab JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Nazim Hussain Siddiqui, Javaid Iqbal, Abdul Hameed Dogar Title:PIR MAZHARUL HAQ and others vs THE STATE through Chief Ehtesab
JUDGMENT
Reported As: PLD 2005 Supreme Court 63 Result: Appeals accepted Judgment JUDGMENT ' JAVED IQBAL, J.---The above captioned appeals are preferred against the judgment dated 20-11- 1997 whereby the appellants were sentenced to undergo rigorous imprisonment for five years each and further to pay a fine of rupees twenty lacs each or in default of payment of fine to suffer rigorous imprisonment for two more years each, which are being disposed of by this common judgment. 2. Precisely stated that facts of the cases are that Ehtesab Reference No,8 of 1997 was filed under section 14(1) of the Ehtesab Ordinance,1996 by the Chief Ehtesab Commissioner against the appellants which is reproduced herein below for ready reference: "IN THE SINDH HIGH COURT KARACHI STATE v. 1 Pir Mazharul Hach Ex-Minister for Housing, Town Planning Department, Government of Sindh. 2. Abdul Razzak son of Tar Muhammad Owner/Beneficiary, R/o H.No,30/3, Overseas Housing Society Alamgir New Town, Karachi. 3. Mr. Shah Mansoor Alam, Ex-Member (A&L) KDA, Karachi. SUBJECT: REFERENCE UDNER SECTION 14(1) OF THE EHTESAB ORDINANCE, 1996 ' Respectfully Shewth: (1) That, accused No,2 (beneficiary) disclosed himself as occupant of the amenity Plot Section No,St-3, Sector 12/C, North Karachi Township, applied for its regularization to KDA on 18-8-1993.
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(2) That, the Director (Recoveries) KDA in his note opposed the regularization on the ground that conversion of amenity plots into commercial, residential or industrial use was strictly prohibited under Sindh (Amendment) Act, No,XVII of 1974 and clause-52 of the KDA Order No,5 of 1957. (3) That, the Director General KDA, ordered to place the case before governing body, however, accused No,3 suppressing the facts and without recourse to governing body submitted the case for approval to Minister accused No,1) for regularization through Director General KDA which was accordingly approved by accused No,1 at the rate of Rs,200 per square yard. (4) That, the market value of the plot at the relevant price was Rs,1,200 per square yard and there was complete ban imposed by Sindh Government for disposal of State land, therefore, accused No,1 and No,3 in connivance with accused No,2 have caused substantial financial loss to the State exchequer to the tune of Rs,2.7 millions. (5) That, accused No,1 is holder of public office within meaning of Ehtesab Ordinance, 1996, while accused No,3 is abettor and accused No,2 is beneficiary. (6) That, the enquiry was conducted by Enquiries and Anti-Corruption Establishment and on the basis of oral and documentary evidence collected, a prima facie case is made out against all the accused for trial under sections 3 and 4 of the Ehtesab Ordinance, 1996. (7) That the relevant record with list of witnesses, gist of allegations with annexures are enclosed. (Sd.) CHIEF EHTESAB COMMISSIONER." 3. The charge was framed on 14-5-1997 which is reproduced herein below:-- "CHARGE ' We (1) Wajihuddin Ahmed, (2) Saiyed Saeed Ashhad, and (3) Mushtaq A. Memon, JJ ' Do hereby charge you accused:-- ( 1 ) Pir Mazhar-ul-Haq, Ex-Minister for Law and Parliamentary Affairs, Province of Sindh. (2) Abdul Razzaq son of Tar Muhammad, House No,30/3, Overseas Housing Society Alamgir New Town, Karachi, and (3) Shah Mansoor Alam, Ex-Member (A&L) KDA, Karachi ' as under:--- ' That you accused Pir Mazharul Haq, being holder of Public Office in your capacity as Ex-Minister for Law and Parliamentary Affairs H&TP of Sindh in abuse of your official position with mala fide, illegal and dishonest intention with a view to earn illegal gratification and money for yourself and for providing illegal and fraudulent gains and profits to other accused person, allotted/approved regularization of amenity plot in ST-3, Sector 12/C, North Karachi Township measuring in spite of ban on sale/disposal of State land except through public auction and at a throw away price of Rs,200 per sq. Yds as against the prevailing market price of Rs,120Q per sq yds in the area, thereby causing a loss of Rs,2.7 Millions to the Government of Sindh. ' AND that you accused Shah Mansoor Alam also being a holder of Public Office in your capacity as Ex-member, (A&L) KDA, suppressed the note of Director (Recoveries) KDA opposing the regularization with mala fide and dishonest intention recommended allotment and/or regularization of the said plot in favour of accused Abdul Razzaq at the rate of Rs,200 per sq.Yds as against the then prevailing price in the area of Rs,1,200 per sq. Yds with a view to obtain illegal gratifications and benefits for yourself and accused Pir Mazharul Haq and provide illegal, dishonest and fraudulent gains and profits to accused Abdul Razzaq and caused a loss of Rs,2.7 Million to the Government of Sindh. ' AND that you accused Abdul Razzaq requested for allotment of the above land on a meagre price by offering illegal gratification, benefits and favour to accused Pir Mazharul Haq and Shah Mansoor
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Alam and for earning illegal, dishonest and fraudulent gain and profits for yourself fell in line with and instigated and persuaded accused Pir Mazharul Haq to order the allotment/regularization of the above plot of land against the Government policy-relating to sale/disposal of State land and at a throw away price, thereby causing a loss of Rs,2.7 Million to the Government of Sindh. ' AND that all of you three accused acting in collusion and connivance with each other with mala fide, illegal and dishonest intention conjointly committed the offence/offence punishable under sections 3 and 4 of the Ehtesab Ordinance, within the cognizance of the Ehtesab Bench, and we, hereby direct that you be tried by us for the aforesaid offence. ' Given under our hands and seal of this Court. This 14th day of May, 1997." 4. A careful scrutiny of the charges would reveal that following allegations were levelled against the appellants:-- (a) Allotment/regularization of amenity plot being holder of public office with a mala fide, illegal and dishonest intention for providing illegal and fraudulent gains and profits to the other co- accused. (b) Allotment of amenity plot in spite of ban causing loss of Rs,2.7 million to the Government of Sindh as it was allotted on the throw away price of Rs,200 per square yard and against the then prevalent market price of Rs,1,200 per square yard. 5. In order to substantiate the allegations, the prosecution produced Tasawar Hussain, Additional Director (Lands), KDA (P.W.1) Abdul Karim, Assistant Director, KDA (P.W.2), Rana S. Ali Shahenshah, Additional Director (Lands), KDA (P.W.3), Najeeb Ahmed, Assistant Director, KDA (P.W.4) and I.D. Mangi,' Inspector, Anti-Corruption Establishment/Investigating Officer (P.W.5). 6. The statement of appellant Pir Mazhar-ul-Haq, Ex-Minister Housing and Town Planning, Government of Sindh, was recorded under section 342, Cr.P.C. Who refuted all the allegations. He also got recorded his statement on oath under section 340(2), Cr.P.C., relevant portion whereof is reproduced as under:- "Summary pertaining to the plot in question was put up before me on 31-1-1994 by my office staff. It was sent by D.G., K.D.A. And was presented before me by my Private Secretary. In the summary there were only certain annexures mentioned in the summary and no other file was annexed with the summary. At no stage I had given any instructions or directions regarding disposal of this summary. Although, in the summary a fixed rate was mentioned but what was the rate prevailing at market value at that time was not mentioned in the summary. I had approved the proposal submitted by the then D.G., K.D.A. When I approved the proposal contained in that summary there was no ban on regularization of the plots. I produce photostat copy of the notification dated 20-3- 1994 regarding imposition of ban on regularization of plots as Ex.--.I have never met accused No,2 and I have never 'dealt with him in any manner. By my approval of the said summary no loss at all was caused to the National Exchequer. Neither I committed any illegality nor I caused any loss or gained anything or showed any favouritism while approving the proposal of the then D.G. K.D.A." 7. The statement of appellant Abdul Razzak (beneficiary) was also recorded under section 342 Cr. P.C. Who denied all the charges and stated in a categoric manner that nothing was deposed against him by any of the prosecution witnesses. He also got recorded his statement on oath under section 340(2), Cr.P.C. Wherein he refuted in an, unequivocal manner the allegation of offering illegal gratification to Pir Mazhar-ulHaq, and Shah Mansoor Alam, Member (Admn. & Lands) K.D.A. To obtain benefit, favour for earning illegal, dishonest and fraudulent gains or any profit for himself. He also denied the allegation that due to his instigation or persuasion the allotment of plot was made. He also explained that the value of the plot in question, as per notification of the Collector/Chief Inspector of Stamps, Karachi dated 29-6-1995 was fixed as Rs,127 per square yard, hence the question of any loss to the public exchequer does not arise.
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8. The statement of appellant Shah Mansoor Alam, Member (Admn. & Lands) K.D.A. Was also recorded who denied all the allegations. He however, did not prefer to get his statement recorded on oath. No defence evidence was led. 9. Ch.Aitzaz Ahsan, learned Advocate Supreme Court entered appearance on behalf of appellant Pir Mazhar-ul-Haq and argued strenuously that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. It is contended that no incriminating evidence worth the name could be led to prove the allegations of corruption, mal practice, fraudulent gains, illegal gratification or abuse of official position and misuse of authority. It is argued emphatically that on the basis of vague and sketchy evidence, the question of any conviction does not arise which aspect of the matter has been ignored without any rhyme and reason by the learned Ehtesab Bench resulting in serious miscarriage of justice. It is further contended that there was no ban on regularization of amenity plots at the relevant time but only a specific procedure was to be followed qua the regularization of plots for which a Regularization Committee was constituted. Had there been some ban the question of constitution of Regularization Committee would have not arisen and more so it was not a case of fresh allotment but on the contrary, it was a case of regularization which was pending with K:D.A since 1974 when appellant Pir Mazhar-ul-Haq was not a Minister. Mr. Aitzaz Ahsan learned Advocate Supreme Court argued that the prosecution has failed to prove the mala fide intent as mentioned in the charge sheet which is required to be proved under section 3(1)(c) of the Ehtesab Act, 1997. It is also argued that the learned Ehtesab Bench for the reasons best known to it failed to examine as to whether criminal intent was there and substantiated by any evidence or otherwise? In order to elaborate his argument, it is contended that there is complete lack of evidence regarding the mens rea which is one of the important ingredient of an offence and required to be proved before any conviction could be awarded which was never adverted to by the learned Ehtesab Bench. It is also argued that the Investigating Officer had conceded that no evidence could be collected to substantiate the factum of criminal intent on the part of the appellants. It is also emphasized that the summary presented to the appellant regarding regularization of plot had not contained the true picture of the facts and it was silent that any deviation from the prescribed procedure was made. 10. Kh. Naveed Ahmed and Mr. Abdul Rahim Qazi, learned Advocate Supreme Court appeared on behalf of Shah Mansoor Alam (appellant in Criminal Appeal No,248 of 1997) and Abdul Razzak (appellant in Criminal Appeal No,260 of 1997) and adopted the arguments of Mr. Aitzaz Ahsan, learned Advocate Supreme Court with further submissions that the prosecution has failed miserably to prove the allegations beyond shadow of doubt and no evidence whatsoever is available on record showing that regularization of the plot was made mala fide or any loss whatsoever was caused to the public exchequer. It is mentioned that the allegation of illegal gratification and regularization of plot in persuasion of appellant Abdul Razzak with the connivance of appellant Shah Mansoor Alam could not be substantiated by leading any documentary or worthy of credence oral evidence. 11. Mrs. Naheeda Mehboob Elahi, learned Standing Counsel appeared for the State and vehemently controverted the view point as canvassed at bar by Mr. Aitzaz Ahsan, learned counsel for the appellant (in Criminal Appeal No,247 of 1997) and supported the judgment impugned for the reasons enumerated therein. She also argued that in spite of ban, amenity plot was allotted by appellant Pir Mazhar-ul-Haq in his capacity as Minister for Law and Parliamentary Affairs and H&TP with connivance of appellant Shah Mansoor Alam, Member (Admn. & Lands) K.D.A. And appellant Abdul Razzak (beneficiary) in flagrant violation of his official authority which is a classic example of misuse and abuse of authority whereby huge loss worth whereof runs into millions was caused to the public exchequer. Mrs. Naheeda Mehboob Elahi, urged with vehemence that the matters
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pertaining to allotment of plots should have been referred to Governing Body but the prescribed procedure was violated by appellant Shah Mansoor Alam the then Member (Admn. & Lands) K.D.A with whose active connivance the plot in question was allotted to appellant Abdul Razzak by appellant Pir Mazhar-ul-Haq who had no authority whatsoever to make such allotment which was done with ulterior motive and mala fide intentions. 12. We have examined the entire record, scanned the evidence with the assistance of learned counsel and also perused the judgment impugned carefully. First of all we intend to examine the evidence led by the prosecution to substantiate the allegations. Tassawar Hussain, Additional Director (Lands), K.D.A. (P.W.1) has stated nothing regarding illegal gratification, mala fide intention or persuasion of appellant Pir Mazhar-ul-Haq. He has however, mentioned that an application for allotment regarding the plot in question was received on 18-8-1993 when appellant Pir Mazhar-ul- Haq was the Minister of Law and Parliamentary Affairs. He also stated that the plot was amenity plot and the Director General, K.D.A. Has recommended to place the question of allotment before the Governing Body, which could not be done. He has further pointed out that there was a ban on the conversion of all categories of plots. He has also mentioned about a note of Director Recoveries in this regard which aspect of the matter went un-challenged. A careful scrutiny of his statement would reveal that appellant Shah Mansoor Alam (Ex. Member, Admn. & Lands), K.D.A. Put up a note which was approved by appellant Pir Mazhar-ul-Haq on the basis whereof allotment was made. It is however, important to mention here at the juncture that the Regularization Committee being the concerned committee has never raised any objection worth the name regarding regularization/allotment of the plot in question. It further reveals from the scrutiny of the statement of Tassawar Hussain, Additional Director (Lands), K.D.A. (P.W.1) that amenity plots and industrial plots were not set to auction. He stated nothing regarding any loss accrued to public exchequer. He however, stated in a categoric manner that the price for such plot was Rs,200 per square yard, which was received regarding the plot in question. He has made it further clear that during this period, no plot was sold beyond the above stipulated price i,e, Rs,200 per square yard. He further clarified that there was no Allotment Committee in existence at the relevant time. As mentioned hereinabove, he has said nothing about corruption, mala fides, illegal gratification, loss to the Government exchequer, connivance and collusion of the appellants. Abdul Karim, Assistant Director, K.D.A. (P.W.2) has stated that the plot in question was amenity plot. He has pointed out that the ban on regularization or allotment of plots was imposed with effect from 20-3-1994. It is curious enough to note that he could not mention exact price of the plot but on the contrary three different figures i,e, Rs,1,200 per square yard, Rs,1,000 per square yard and Rs,200 per square yard were mentioned. He has however, conceded that no such plot was ever sold for more than its fixed price i,e, Rs,200 per square yard. He showed his ignorance that any amenity plot was ever put to auction. A thorough scrutiny of his statement would indicate that it is silent regarding illegal gratification, mala fide or persuasion of the Minister and connivance of the official functionaries. It is notable that he has not pointed out any loss to the public exchequer. Rana S.Ali Shahenshah, Additional Director Lands, K.D.A. (P.W.3) has stated that the plot in question was amenity plot, which was never placed in any meeting of the Governing Body for any decision. The statement is demonstrative of the fact that he was not aware regarding any ban imposed by the Government on regularization or allotment of any plot. He has stated in a crystal clear manner that no direction was issued by appellant Pir Mazhar-ul-Haq in his capacity as Minister, Housing & Town Planning, for placing the case on file concerning allotment of the plot in question before him. It transpired from the scrutiny of the statement that Rana S. Ali Shahenshah (P.W.3) was member of Regularization Committee, who had never objected for the regularization of the plot in question and besides that no such objection was made by any member of the Regularization Committee. There was no objection whatsoever on Exp.P/8/1-4. It is significant to note that he has not mentioned even a
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single word about corruption, illegal gratification and loss to the public exchequer. He has not stated that any direction was or by the Minister for allotment/regularization of plot in question or any influence was exerted by the Minister in this regard. Najeeb Ahmed, Assistant Director, K.D.A. (P.W.4) has stated that the plot in question was amenity plot and moreso that the case of its allotment/regularization was not placed before Governing Body, on the contrary, regularization of the plot was approved by appellant Pir Mazhar-ul-Haq on the recommendation of appellant Shah Mansoor Alam, Ex. Member (Admn. & Lands) K.D.A. He however conceded frankly that regularization of the amenity plot was made and approved by the Regularization Committee. It is also pointed out that the Director General, K.D.A, has also agreed with the Regularization Committee and recommended for its regularization. It 'must not be lost sight of that the Director General, K.D.A. By whom recommendation for regularization/allotment of amenity plot was made, has been exonerated for the reasons best known to the NAB Authorities which however, is against the dictum a laid down in case title Zafar Ali Shah v. Pervez Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869), relevant paragraphs whereof concerning corruption are reproduced herein below for ready reference:- "233. Corruption is generally defined as the abuse of public office for private gain. In view of the fact that scope of corruption has widened, this definition would include the abuse of all offices of trust. It has diverse meanings and far-reaching effects on society, Government and the people. Of late, the culture of corruption and bribe has embedded in our society to the extent that even routine works which should be done without any approach or influence are commonly known to be done only on some such consideration. This bribe culture has plagued the society to the extent that it has become a way of life. In Anatulay VIII (1988)2 SCC 602 where Abdul Rahman Anatulay, Chief Minister of Maharashtra was prosecuted for corruption Sabyasachi Mukharji, J. Lamented as follows:-- "Values in public life and perspective of values in public life, have undergone serious changes and erosion during the last few decades. What was unheard before is common place today. A new value orientation is being undergone in our life and culture. We are at the threshold of the cross- roads of.Values. It is for the sovereign people of this country to settle these conflicts yet the Courts have a vital role to play in these matters." 234. Although we are dealing with a case of intervention by the Armed Forces, yet it would be advantageous to allude, to the ground of corruption, which came up for consideration in the cases of Kh. Ahmed Tariq Rahim PLD 1992 SC 646, Mian Muhammad Nawaz Sharif PLD 1993 SC 473 and Benazir Bhutto PLD 1998 SC 388 (supra). In the first case, it was observed by Shafiur Rehman, J. That corruption may not have been independently sufficient to warrant such an action, but it can be invoked, referred to and made use of along with other more relevant grounds, which are by themselves sufficient to justify the action taken. In Mian Muhammad Nawaz Sharif's case (supra) it was observed that "if the corruption, nepotism and favouritism are of such a large scale that they have resulted in the breakdown of the Constitutional machinery completely, it may have nexus with the above provisions". In the third case of Benazir Bhutto, this Court took notice of enormous corruption and treated it as an independent ground on the basis of which an Assembly could be dissolved (Underlining is by way of emphasis). Once corruption pervades in the body politic and official circles, then the entire Government/administration becomes completely crippled and paralyzed. Recounting the instances of alleged corruption the Federation has pointed out Sharif's ownership of Cayman Island, and offshore company through Al-Towfeek Co. And the case of huge quantity sugar export to India-receiving heavy amounts in rebate. When corruption permeates in the social, political and financial transactions to such an extent that even proper and honest orders and transactions are suspected to the point of belief being a result of corruption, one is compelled to infer all is not well and corruption has gone deep in the roots. No doubt, this is an age of
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corruption eruption, but during the last few years there have been large scale prosecutions of former world leaders in various countries on the charges of corruption and corrupt practices, in some cases leading to convictions, which phenomenon must not be taken lightly and the issue must be addressed adequately and effectively through transparent institutionalized processes." 13. The guidelines as provided in case titled Abdul Nabi v. State (2004 SCM R 1510) has been ignored which runs as under:-- "7. It is now the duty of NAB to ensure, indiscriminate criminal action against corrupt persons cross the board to establish its credibility amongst the masses, failing which, public exchequer once again shall be looted by the unscrupulous persons who have no interest at all in the well-being of the Nation." 14. The role played by Sabahat Ali Khan, Director General K.D.A. Was highly critical and objectionable. Had he not recommended and agreed with recommendation of Regularization Committee for the allotment/regularization of the plot in question, the position could have been different Sabahat Ali Khan, Director General, K.D.A. Should have been put to trial but he has been absolved as mentioned hereinabove which indicates the policy of pick and choose and it amounts to discrimination, benefit whereof can be given to other accused persons who played similar and equal role. Najeeb Ahmed (P.W.4) has also stated that industrial and amenity plots were not subject to auction. He however, pointed out that the rate of industrial plot for the purpose of sale was fixed as Rs,200 per square yard. He has conceded while answering one of the questions during the cross-examination that Abdul Razzak appellant (in Criminal Appeal No,260 of 1997) has submitted an, application to K.D.A. On 18-8-1993 for regularization of Plot No,ST-3, Sector 12-C, Karachi, in his name as the plot in question remained in his possession for a very long period, subject to payment of prescribed dues under the rules of the K.D.A. He also pointed out while answering one of the questions during the cross-examination that in the scheme where in the plot in question was situated, the rate was fixed Rs,100 per square yard for amenity plots which were not…
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