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Petitioner: M. SIDDIQUE-UL-FAROOQUE VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Muhammad Mujeebullah Siddiqui, S. A. Sarwana Title: M. SIDDIQUE-UL-FAROOQUE vs THE STATE Case No.: Criminal Accountability Appeal No,18 of 2000 Date of Judgment:2001-08-30 Reported As: PLD 2002 Karachi 24 Result: Order accordingly
JUDGMENT
JUDGMENT MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---This appeal under section 32 of the National Accountability Bureau Ordinance, 1999 (hereinafter referred to as the N.A.B. Ordinance) is directed against the judgment dated 30-10-2000, by the Accountability Court No,IV, Karachi, convicting the appellant under section 10(a) of the NAB Ordinance, for committing corruption and corrupt practices as defined in section 9(a)(iii) and (vi) of the said Ordinance and awarding sentence of rigorous imprisonment for 5 years and to pay fine of Rs,2,00,000 and in default of payment of fine to further undergo R.I. For one year. He has been further disqualified to contest elections and to hold public office for 21 years under section 15 of the NAB Ordinance. The benefit of section 382-B, Cr.P.C. Has been extended to the appellant. The relevant facts are that the appellant is a former Chairman, House Building Finance Corporation. He joined the Corporation on two years contract on 1-5-1998 and was arrested on 18- 10-1999 by military police. He remained in the custody of National Accountability Bureau from 25- 12-1999 and his whereabouts were not known. Ultimately a petition under Article 184(3) of the Constitution of Islamic Republic of Pakistan, 1973, was filed before the Hon'ble Supreme Court of Pakistan, for issuance of 'a writ of Habeas Corpus. The appellant was produced before the Hon'ble Supreme Court on 18-5-2000. Some material was produced before the Supreme Court in support of his detention and time was sought to file challan against him in Accountability Court. On 31-5-2000, the Chairman National Accountability Bureau filed a reference against the appellant before the Accountability Court No,4, Karachi, under section 18-G of the NAB Ordinance. The reference reads as follows: "Reference No,2 of 2000
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State-- -Complainant versus Siddique-ul-Farooque son of Faqir Muhammad Reference under section 18-G, NAB Ordinance No,XVIII of 1999 Brief facts of the case are that an investigation into the corruption/corrupt practices in respect of illegal appointments on the basis of contract/daily wages, misappropriation of entertainment funds in the shape of gifts by accused Siddique-ul-Farooque, the then Chairman, H.B.F.C. Was initiated by NAB_______ During the course of investigation, it was established that accused Siddique-ul-Farooque by abusing his official position as Chairman, H.B.F.C. Made illegal appointments on contract/daily wages during the period when the Government had imposed a ban on appointments. Besides, he also misappropriated the entertainment funds meant for the dignitaries and other guests visiting H.B.F.C. In connection with official business which he illegally, fraudulently and dishonestly gave in the shape of gifts to various Government officials, political figures of his own choice, and favorites, for which he was not authorized to do so. During his tenure of office as Chairman/MD, H.B.F.C. He got a resolution passed by the Board of Directors of H.B.F.C. In its meeting No,5/99 held on 26-6-1999 in which he obtained approval for:-- The right sizing in H.B.F.C. Of hiring the services or independent consultants of his own choice. To assess the number of employees ready to proceed on retirement, voluntarily To recruit professional from the market on merit. The accused officer recruited 88 persons without advertisement and complying with the mandatory laid down procedure without approval of the competent authority and thereby caused wrongful loss of Rs,56,88,525 to the State exchequer. The accused officer criminally misappropriated the entertainment funds placed at the disposal of H.B.F.C. To the tune of Rs,1,05,000 and thereby caused loss to the I-1.B F.C. From the above facts and evidence so far collected, it has been established that accused Siddique-ul-Farooque, in the capacity of Chairman by abusing his official position caused wrongful loss to the national exchequer by way of recruiting staff on the basis of contract and daily wages, without the approval/sanction of Government of Pakistan which he was legally bound to obtain from the Ministry of Finance as well as Prime Minister's Secretariat. Besides, this he also misused the Entertainment funds of H.B.F.C. Accused Siddique-ul-Farooque, the then Chairman/MD, H.B.F.C. Fraudulently and dishonestly with criminal intent and as holder of a public office has committed the offences under section 9(a)(iii) (iv)(vi) punishable under section 10(a)(b) of National Accountability Bureau Ordinance, 1999. The investigation of the reference is still underway as it involves a number of transactions and criminal omissions and commissions on the part of accused Siddique-ul-Farooque and others connected with the transactions. A number of missing links are to be connected and number of witnesses are to be examined and relevant record is also to be collected. Hence this interim reference is submitted to proceed further against the accused by this Honorably Court. List of witnesses and documents are attached with the interim reference. The Accountability Court, framed the following charge on 16-8-2000:-- CHARGE I, Muhammad Jawaid Alam, Judge, Accountability Court No,IV, Sindh, Karachi do hereby charge you; Siddique-ul-Farooque son of Faqir Muhammad As under:-- "That you have been Managing Director/Chairman of House Building Finance Corporation, Karachi, from 2-5-1998 to October, 1999 and as such have been holding of a public office within the
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meaning of clause(m) of section 5 of NAB Ordinance, 1999. That you during the said period abused your official position, misused your authority and to gain benefits and to favour your men unauthorized and illegally made appointments in H.B.F.C. On contract/daily wages basis despite the ban on appointments imposed by the Government and about 88 persons were recruited without complying with mandatory procedure and without approval of the competent authority and thereby you caused wrongful loss amounting to Rs,56,88,525 to the Government Exchequer. And that you by abusing your official position and authority fraudulently and dishonestly misappropriated the entertainment funds of House Building Finance Corporation to the tune of Rs,1,05,000 which were meant for the dignitaries and other guests visiting H.B.F.C. In connection with the official business but .You illegally, fraudulently and dishonestly used it to send gifts to various political figures of your choice, your favourites, Government officials for which you were not authorised under the law. And that you have committed the abovesaid acts which come within the purview of offence of corruption and corrupt practices defined under section 9(a)(iii)(iv) and (vi) of NAB Ordinance, 1999 read with section 409, P.P C. Punishable under section 10 of NAB Ordinance, 1999, within the cognizance of this Court." The appellant/accused pleaded not guilty to the charge and stated as follows:-- "Whatever I have done I have done honestly, according to law, I have committed no offence whatsoever but I have been victimized politically because I have been close aid to the former Prime Minister Mian Nawaz Sharif. I do not plead guilty." The prosecution in support of its allegations and to establish the charge examined P.W.1, Muhammad Dawood, General Manager, H.B.F.C. Exh.7, P.W.2, Karamat Ali, Chief Manager (Services), H.B.F.C., Exh.8, P.W.3, Jawaid Ahmed Khan, Cashier, H.B.F.C. Exh.9, P.W.4, Abdul Qadir, General Manager (Personnel), H.B.F.C. Exh.10, P.W.5, Muhammad Wasim, Assistant Manager (Audit Division), H.B.F.C., Exh.11, P.W.6, Miss Nasreen Mehdi, General Manager (Audit and Instructions Division), H.B.F.C. Exh.12, P.W.7, Syed Sohail Fahmi, Manager, Allied Bank of Pakistan, F.T.C. Branch, Karachi, Exti.14, P.W.8, Rahila Anwar, Private Secretary to Chairman, H.B.F.C, Exh.15, P.W.9, Muhammad Akram Tariq, Manager, H.B.F.C., Exh.16, P.W.10, Mian Habib Ahmed, Assistant Director F.I.A., Investigating Officer, Exii.17 and P.W.11, Ghulam Farooque, Assistant Director, F.I.A., the Second Investigating Officer, Exh .18. The appellant/accused was examined under section 342, Cr.P.C. The appellant stated that he was appointed Chairman, H.B.F.C. On 2-5-1998 and his services were terminated on 8-2-2000. In reply to a question that during the period 1996-99 there was ban on fresh appointments imposed by the Federal Government, in the Government Departments, organizations and corporations, including the H.B.F.C. The appellant stated that "ban was only on regular appointment/fresh appointment but it was not on daily wages and contract basis appointments made for three months period". In reply to another question that as Managing Director/Chairman of H.B.F.C. The appellant misused his authority and official position to favour his men unauthorisedly in violation of the rules and regulations and made appointments in H.B.F.C. On contract and daily wages basis and thereby caused wrongful loss to Government exchequer, he stated that he did not misuse any power and authority. He further stated that he did not favour any person who was either related to him or in any way was his favorite. He took the plea that he made all the appointments on merits, against vacancy and according to the budgetary provisions. He further stated that the Ministry of Finance and Board of Directors of H.B.F.C., have also approved these appointments. The appellant has admitted all the appointments alleged to have been made by him on contract/daily wages basis and has stated that all the appointments are according to rules and the law. In respect of misappropriation of funds by abuse of official position and authority and use of entertainment funds for sending gifts/fruits to the political figures of appellant's choice and favorite
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Government officials in order to gain benefits and pecuniary advantages, the appellant has stated as follows:-- "I have not gained any personal benefits from any one. I did not misuse any authority nor did I commit any distrust regarding entertainment fund. The said items of gift were sent to improve the image building of H.B.F.C. And all the persons to whom the gifts were sent were directly or indirectly concerned in improvement of H.B.F.C. I have already got audited the said funds on calling special audit/inquiry team of State Bank of Pakistan." The appellant further stated that he is innocent and is a victim of political rivalry of the present regime. He has produced a report dated 2-9-1999, which he had sent to Governor, State Bank of Pakistan and to Wafaqi Mohtasib. He produced a copy of report sent to the President of Pakistan, in the year 1998, Exh.20/2. The appellant did not examine himself on oath and did not produce any witness in defence. However at the request of learned counsel for the appellant, C.W. Jalis-ur-Rehman, Assistant Manager (Personnel) Exh.23, was examined, as a Court witness, who produced certain documents maintained by H.B.F.C. Including the attested photo copies of the minutes of Board of Directors of H.B.F.C. Meeting dated 12-2-2000 and copy of the minutes of meeting dated 29-11-1986 and administrative circular dated 29-11-1986, Exh.23/4. The learned trial Court has narrated the statements of prosecution witnesses in detail, in the impugned judgment and has framed the following points for determination: POINTS FOR DETERMINATION Whether the appointments made in H.B.F.C. On contract/daily wages basis were on the orders of accused Siddique-ul-Farooque in violation of rules and regulations by misusing his official authority? Whether the accused misappropriated the entertainment funds of House Building Finance Corporation by sending gifts to his favourite personalities to obtain gains and benefits? What offence, if any, the accused has committed? The learned trial Court after referring to the various provisions of law pertaining to the appointments, specifically referred to some appointments which are as follows: "Exh.11/1 is an application of one Muhammad Ismail addressed to Managing Director, H.B.F.C. For employment as Manager. A note sheet speaks that this application was received and on the reason that the candidate holds a Master's Degree, he was appointed as Manager, Grade-II Zonal Office, Lahore on contract basis on monthly salary of Rs,8,000 per month. Exh.11/2 is an application of Habibullah addressed to Chairman, H.B.F.C. For suitable job, the order on note sheet discloses that on the reason of holding a B.Com. Degree this candidate was appointed as Manager Grade-II for 90 days on monthly remuneration of Rs,12,000 per month. Exh.11/3, in this case Ch. Muhammad Ishaque applied to the M.D., H.B.F.C. For the post of Computer Programmer and on the reason that the candidate appears to be a suitable helping hand in Urdu Computer Program he was appointed as Assistant Manager on contract basis on monthly remuneration of Rs,9,000. Exh.11/4, in this case the application of Syeda Amber Kamal was directly given to the accused for his appointment in a suitable position, the accused passed the orders on the application straightaway "please evaluate the applicant report back. She will contact you on 8-7-1999 at 9-00." She was appointed as Computer Programmer on fixed remuneration of Rs,7,000 per month. Exh.11/5, in this case, Tehmina Urooj had applied for a suitable post and on the reason that she will be helpful for future planned. Computerization, she was appointed as Computer Programmer on fixed remuneration of Rs,7,000 per month. Exh.11/6 is a case of Altaf Hussain Junejo, he made an application direct to the accused Siddique- ul-Farooq who straightaway passed orders: "Please appoint at the rate of Rs,8,000 per month for a
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period of three months on contract basis". Neither in the orders nor in the application the post applied for is mentioned; however, he was appointed as Assistant Manager. Exh. 11/7 is a case of Jawaid Mehdi, he applied for a suitable post and he was appointed on the orders of Managing Director accused being beneficial to H.B.F.C. As Manager in Finance Department on monthly salary of Rs,12,000. Exh.11/8 is an application of one Abdul Sattar Mughal Advocate for legal consultant, he was appointed as consultant on monthly fee of Rs,10,000 for two hours a day from 1-00 p.m. Exh.11/9 is an application of Rabia Basri of Rawalpindi for a suitable post, she was appointed on fixed remuneration of Rs,5,000 per month as Assistant. Exh.11/10 is a case of Jamil Ahmed, he applied for Assistant and he was taken on fixed remuneration of Rs,5,000 per month. Exh.11/11 is a case of M. Iftikhar Raza, he applied for suitable post direct to the accused and he was taken on monthly remuneration of Rs,5,000 per month. Exh.11/12 to Exh.11/47 are similar cases, the applications have been given direct to the Chairman, H.B.F.C. For suitable post without referring any advertisement and as per office notes on mere reason that they are qualified persons have been appointed in different cadre from Assistant to drivers and Class-IV employees. Some of the applications bear the direct orders on the application of M.D. For their recruitment/appointment." The learned trial Court thereafter observed that in all the above-referred cases neither any post had been advertised nor any Selection Committee constituted and it appeared that the appointments were made at the will of accused. The trial Court further observed that there is nothing on the record to show that there was any demand or requirement from any department of H.B.F.C. To the appointing authority for any particular post and the appointees were accommodated in the H.B.F.C. On the orders of accused and thereafter their cases were processed. The learned trial Court further observed that in the case of Syeda Amber Kamal, her contact address is of an Assistant Editor Daily Jang, which reflects that she was appointed to please the said Assistant Editor of newspaper. The learned trial Court further observed that there appear no criteria for fixing the remuneration of the employees on the similar posts as one person has been appointed at the salary of Rs,7,000 and others at Rs,12,000 or 8,000. The learned trial Court further held that from the perusal of record of appointments it cannot be said that appointments were made as per rules or against the existing vacancies but it is crystal clear that the appointments were made to please either the candidates or the persons who referred them to the accused and such appointments were on the orders of accused like an emperor of a kingdom. A plea was taken before the learned trial Court that the rules and regulations of Civil Servants do not apply to the employees appointed on contract and daily wages. The learned trial Judge repelled the contention and held that the term employee on daily wages has not been referred in the rules and regulations applicable to civil servants. The term of ad hoc appointment is available in the rules and regulations for which a different criteria is prescribed. The trial Court further held that, "the appointments on contract basis are subject to prior approval of the President of Pakistan on such terms and conditions of the contract and in that case also the necessities of such appointments must be explained for seeking such prior approval". The learned trial Court ultimately held that accused made appointments in violation of rules and regulations during the period of ban imposed by the Government and consequently the Point No,1 was decided in affirmative. Regarding the Point No,2, the learned trial Court held that admittedly the gift items were sent to the different persons on the orders of accused. A list was produced by P.W.3, Javaid Ahmed Khan, containing the names of the persons to whom gift items were sent. The learned trial Court referred names of certain persons to whom gifts were sent which are as follows:--
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(1) Senator Saifur Rehman. (2) Pir Zafarullah Khan, Secretary Housing, Government of Pakistan. (3) Khawaja Zaheer, Additional Secretary, P.M. Secretariat. (4) Col. Mushtaq Fazli. (5) Qamar Zaman Khan P.S. To P.M. Secretariat. (6) Tariq Warsi, Resident Editor Nawa-e-Waqt. (7) Mrs. Maliha Lodhi, The News. (8) Hamid Mir, daily Ausaf. (9) Tahir Khalil, daily Jang. (10) Masood Malik, Chief Reporter, Nawa-e-Waqt. (11) Saood Safir, daily Ummat. (12) Farooq Faisal, Editor Daily Din. (13) Secretary Defence, Government of Pakistan. (14) Nazar Abbas Siddiqui, Secretary Information, Government of Pakistan. (15) Secretary Communication, Government of Pakistan. (16) Inspector-General of Police, Islamabad. (17) Nisar Cheema M.S. Holy Family Hospital, Rawalpindi. (18) Dr. Mutiullah Khan/Dr. Rizwan. The learned trial Court further examined the evidence which proved purchase of gift items on the orders of accused, which consisted of 144 packets of Mixed Nimco, which were dispatched to the Prime Minister's House Islamabad, 20 coconuts, sent to P.M. House, Islamabad, 3 petties of cherry and one of mango sent to Secretary Defence, Additional Secretary Finance, Government of Pakistan, 16 crates of fresh cherry, 3 crates ofmango, 1 crate of Chikoo, 17 cartes of mango Chosa and several crates of coconuts, which were sent to private persons and officials including Prime Minister Muhammad Nawaz Sharif, Mian Muhammad Sharif, father of the then Prime Minister, Muhammad Shahbaz Sharif, Chief Minister of Punjab, N.-W.F.P., Chief Secretary and other Federal Secretaries, Speaker, Punjab Assembly, Speaker National Assembly and other officers of Ministry of Finance, Interior Minister and other Federal Ministers. The 'learned trial Court further observed that it was contended by accused that the said gifts were sent to improve the image building of House Building Finance Corporation and it was the discretion of M.D. To utilize the said funds in this manner and that the expenditure has been approved by the audit team of State Bank of Pakistan. The learned trial Court did not accept the plea taken by the appellant and held that the funds were required to be utilized for specific purpose only for which the same is allocated and the entertainment of the guests visiting the office of that particular department or organization. The discretionary powers do not mean that the authority to whom the discretionary powers are given can utilize it at his own will without any criteria. All powers are subject to some principles and wisdom 'behind such allocation of funds. The learned trial Court held that the appellant utilized entertainment funds in sending fruits and Nimco items to the political figures and to those Government officers who were neither the visitors of H.B.F.C. Nor they were directly concerned in transaction of the business of H.B.F.C., but those were the persons and authorities which were helpful to the accused in his retention in H.B.F.C. As M.S/Chairman. Trial Court further observed that Mian Muhammad Sharif, father of ex-Prime Minister, Muhammad Nawaz Sharif, was amongst those persons to whom gifts were sent, which amounts to political bribe just to seek favour from the ruling party and high officials. With these observations, the learned trial Court decided the Point No,2, in affirmative. Thereafter, the learned trial Court proceeded to examine if the above acts on the part of appellant amount to corruption. He held that, "the corruption is generally defined as abuse of the public office for private gain. However, the scope of corruption has become widened and it also includes the
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abuse of all offices of trust. It has far-reaching effects on the society. He observed that the culture of corruption and bribe has embodied in the society to the extent that even routine works which should be done without any approach of influence are not done without influence. This bribe culture has plagued the society that it has become a way of life and such corruption in political and official circle made the entire administration and society crippled and paralyzed". The learned trial Court asserted that it should be uprooted. He held that an act done in violation of rules and regulations even if it is in good faith cannot be justified and it is to be presumed that the same have been done with mala fide intention and consequently such acts come within the purview of corruption. The learned trial Judge further observed that the corruption can be eradicated only when it is dealt with deterrent with iron hands. He further opined that a holder of public office when is posted, it is always a trust upon him that he will use his authority in that office to protect the rights of the citizen and the public money and will act as per rules and regulations and if the said person uses his authority just to gain and benefit for him or to provide favour to any other person it amounts misusing his authority and offence of breach of trust. With the above observations and findings, the learned trial Court concluded that the acts of accused are within the purview of offence of corruption and corrupt practices as defined under section 9 (a) (iii) and (vi)of the National Accountability Bureau Ordinance. The contention that during his period as MD/Chairman, H.B.F.C., he restored financial discipline and improved its working as admitted by all the prosecution witnesses, did not impress the learned trial Court and it was observed that good performance of holder of a. Public office does not give him licence to commit irregularities and to cross his limits. The learned trial Court ultimately convicted the appellant under section 10(a) of National Accountability Bureau Ordinance, 1999 for commission of corruption and corrupt practices as defined under section 9(a)(iii) and (vi) of the NAB Ordinance and awarded sentence as narrated in the opening part of this judgment. Mr. Choudhary MuhamMad Ikram, learned counsel for the appellant contended that the appointments admittedly made by the appellant do not amount to commission of offence and do not fall within the definition of corruption and corrupt practices defined in section 9(a)(iii) and (vi) of the NAB Ordinance. He has submitted that the prosecution witnesses have admitted that all the appointments have been made by the competent authority under the relevant laws and that very few appointments have been made by the appellant. He has submitted that mostly the contract appointments were for a period of 90 days and daily wages appointments were continuing even prior to the taking over of the post of MD/Chairman by the appellant and the appellant merely continued the appointments in the interest…
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