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Petitioner: Sardar MUHAMMAD MUQEEM KHOSO VS Respondent: PRESIDENT OF PAKISTAN
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Saleem Akhter, Ajmal Mian Title: Sardar MUHAMMAD MUQEEM KHOSO vs PRESIDENT OF PAKISTAN Case No.: Civil Appeal No,262-K of 1991Reference No,3 of 1990 Date of Judgment:1993-08-11 Reported As: PLD 1994 Supreme Court 412 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' AJMAL MIAN, J.---This is a direct appeal under Article 7 of the Parliament and Provincial Assemblies (Disqualification for Membership) Order, 1977 (President Order No,17 of 1977), hereinafter referred to as the Order, against the judgment dated 13-10-1991 passed by the Disqualification Tribunal, Karachi, presided over by Mr. Justice Mukhtar Ahmed Junejo, Judge of the High Court of Sindh, hereinafter referred to as the Tribunal, upon Reference No,3 of 1990 made by the President of Pakistan under Article 4 of the Order, accepting the Reference by recording finding that the appellant was guilty of misconduct as defined under the Order and directing that the appellant shall stand disqualified from being elected or chosen as member of the Parliament or a Provincial Assembly for a period of seven years in terms of Article 5 of the Order. 2. The brief facts are that the appellant was elected as a member of the National Assembly from the Constituency No,NA-156 Jacobabad in the election held in 1988. It seems that he submitted an application dated 20-5-1989 (Exh.11) for a loan of Rs,19.54 million alongwith two copies of a feasibility report for setting up a fish farm over an area of 350 acres of land adjacent to village Khatolabad, Jacobabad, hereinafter referred to as the scheme, which is 65 k.m. From Sukkur. The above application was placed on 25-6-1989 before the Project Loans Committee, hereinafter referred to as the Committee, in its 34th meeting as agenda item No,16 alongwith many other items, which resolved as under in respect of the scheme:- "18. Approved. The Committee concluded that there appears to be no objection for sanction of loan subject to the completion of all required formalities. Committee authorised the Chairman to sanction the loan within Rs,11.724 million."
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3. It seems that pursuant to the above resolution of the Committee, the Chairman of A.D.B.P. Sanctioned a loan of Rupees 10.350 million for the scheme on 6-12-1989, which was conveyed to the appellant through the Deputy Director (PFD) of A.D.B.P.'s letter dated 10-12-1989 (Exh.13) containing the terms and conditions for the grant of the above loan. It will suffice to reproduce the conditions contained in paras.2(iii) and 8(a), which have direct bearing on the controversy in issue and which read as follows:- "2. The disbursement of this loan is subject to the fulfillment of the following conditions: (i) . (ii) (iii) that you will build flood protection bund all along the western side before disbursement. 8. Disbursement Schedule----After execution of legal documents and provision of the required securities, the loan of Rs,10.350 million shall be disbursed as tinder: (a) Loan amounting to Rs,6.000 million for excavation in cash in 12 equal instalments after ensuring proper utilization of earlier disbursed instalments;" 4. It further seems that on 16-12-1989, the appellant saw Mr. Chaudhry Ahmed Saeed, who was appointed as the Chairman of A.D.B.P. On 25-7-1989 by the then Government (Exh.24) from outside the service cadre and presented his application (Exh.9), which reads as follows:-- "Chairman, ' Agricultural Development Bank of Pakistan, Islamabad. ' Dear Sir, ' Thank you for granting loan for our Fish Farming Project in Jacobabad. I will try to complete this project early. So it would be much easy if first instalment of loan is realized at least Rs,55 lacs so that I can advance payment to private parties for construction of ponds. It is biggest fish farm of 350 acres. How I can start work with Rs,10 lacs. Yours faithfully, (Sd.) (Sardar Muqaim Khan), M.NA., Jacobabad." 5. It appears that on the same day, the Chairman of A.D.B.P. Passed the following order on the above application:- "For favorable consideration. (Sd.) Chairman, 16-12-1989" ' The above application was handed over by the Chairman to P.W.6 (Qamar Amir Khan), Secretary to A.D.B.P. With the direction that he should hand over the same to P.W.3 (Muhammad Ishaq) who was, at the relevant time, Director, Project Finance Department and asked him to talk to the Chairman before initiating action on the above application. According to P.W.6 (Qamar Amir Khan), he was unable to contact P.W.3 (Muhammad Ishaq) and, therefore, he conveyed the above message of the Chairman through the chit (Exh.8), which reads as follows:-- "Chairman has kindly desired for speaking about the enclosed case. Please see him before initiating action." 6. It also appears that on the above application (Exh.9), the official concerned i,e, Deputy Director (PFD) and Director (PFD) put up a note before the Chairman on 18-12-1989 recommending that the loan of Rupees six million may be disbursed in two equal instalments and that the subsequent instalment be paid on proper utilization of the first loan instalment to the entire satisfaction of the Regional Manager, Shikarpur. On the above note, the Chairman on the same day i,e, on 18-12-1989, granted the facility of the payment of above amount of Rupees six million in two instalments in place of 12 instalments as was provided under the terms of the loan. It further seems that the
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Deputy Director (PFD) through his letter dated 19-12-1989 addressed to the Regional Manager, A.D.B.P., Shikarpur (copy of which was endorsed inter alia to the appellant), conveyed the above order of the Chairman, but also stated that the other terms and conditions as contained in the above sanction letter dated 10-12-1989 (Exh.13) would remain unchanged. 7. It may be stated that the appellant was released first instalment of Rupees three million on 12-2- 1990 and second instalment on 25-7-1990. It further seems that the then Government was dismissed by the President on 6-8-1990. Mr. Chaudhry Ahmed Saeed's services were terminated on 9-8-1990 (Exh.26). After that, the appellant was served with a notice dated 15-9-1990 by the Regional Manager, A.D.B.P., Shikarpur (Exh.19), recalling the loan amount for the following reasons:- "Mr. Sardar Muhammad Muqeem Khan Khoso, M/s. Al-Rahim Fish Pond, Deh, Khaloolabad District, Jacobabad. ' Subject: MISUTILIZATION OF LOAN Dear Sir, ' You were advanced a loan of Rs,10.4 million for establishment of Fish Pond on your land at Deh Khaloolabad, District Jacobabad you were advanced first instalment of Rs,3 million on 12-2-1990. You have not utilized this amount and obtained another instalment of Rs,3 million on 25-7-1990 under the influence of political pressure fraudulently. ' The entire loan advanced has not yet been utilized for specific purpose for which it was sanctioned. You are, therefore, requested to kindly repay the entire loan with Mark-up thereof immediately failing which we shall be constrained to take action against you to recover the above loan as arrears of Land Revenue under Land Revenue Act. ' Yours faithfully, (Sd.) (Ghulam Farooq Jakhro) Regional Manager." 8. It appears that on 19-9-1990, the above Reference under the Order was made to the Tribunal against the appellant. Upon receipt of the above Reference, the Tribunal examined P.W.1 (Bashir Ahmed), who took over as the Chairman, A.D.B.P. On 19-8-1990 after the removal of Chaudhry Ahmed Saeed; P.W.2 (Syed Munir Hussain), who acted as the Chairman of A.D.B.P. During the period from 15-9-1988 to 8-7-1989; and P.W.3 (Muhammad Ishaq), who was Director, Project Finance Department in May, 1989, when the appellant presented his above application for the loan. After examining the above witnesses, the Tribunal issued a show-cause notice dated 29-11-1990, para.2 of which reads as follows:-- "2. The allegation constituting the 'misconduct' are:-- (a) That you as Managing Director Al Rahim Fisheries Limited submitted a feasibility report to the Agriculture Development Bank of Pakistan (A.D.B.P.) for construction of a Fish Farm under the name and style of Al-Rahim Fisheries Limited (as a Private Limited Company) on your land measuring 350 acres at a cost of Rs,19.54 million. The Bank evaluated the project at Rs,14.793 million and granted a loan of Rs,10.350 million on 10-12-1989. (b) That out of the amount sanctioned Rs, 6 million were to be disbursed in twelve equal instalments after satisfying certain conditions, inter alia "that you will build flood protection bund all along the western side before disbursement" (para.2(iii) Annex "B") and, that each of the 12 instalments was to be disbursed after proper utilization of the earlier disbursed instalment (para.8 (a) Anned "B"). That you abused your position as M.NA. By prevailing upon the Bank Authorities and secured release of Rs,6 million in two equal instalments instead of twelve instalments without satisfying any preconditions. The two instalments were disbursed on 12-2-1990 and 27-7-1990 without formal waiver of conditions aforementioned. (c) Site inspection carried out by Ghulam Farooq Jakhro, Regional Manager, A.D.B.P., Shikarpur on 23-8-1990 revealed that you have not utilized a single paisa out of the amounts of the two
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instalments of Rs,30 lacs each disbursed to you on 12-2-1990 and 25-7-1990. In this way the entire loan was misutilized." ' The abovementioned acts on your part amount to wilful misapplication of public money and abuse of power and position as a MNA's attracting the provisions of P.O. 17 of 1977. ' Please take notice that this does not preclude the Referring Authority from submitting at any stage such further material as may be subsequently become available in support of the above charges." 9. In response to the above show-cause notice, the appellant filed a reply dated 17-12-1990, in which preliminary objection as to the legality of the Order was raised. It was also pleaded that making of the Reference under the Order was violative of the equality and equal protection of law guaranteed by Article 25 of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution. On merits, it was pleaded that the allegation that the appellant had abused his position as MNA was general and too vague. It was also denied that the appellant had not utilized or misutilized the loan amount. It was further pleaded that Rupees six million were advanced as loan to M/s Al-Rahim Fisheries and that the same were not entrusted as public fund to the appellant. It was also pleaded that even the allegations of non-utilization or misutilization were proved, they had no nexus with "misconduct" as defined in clause (a) of Article 2 of the Order. It was further pleaded that the Reference was the result of mala fides and that it had been manipulated at the instance of Mr. Ilahi Bakhsh Soomro, who was a Minister in the Care-taker Cabinet of Mr. Ghulam Mustafa Jatoi and who was going to contest elections against the appellant. 10. Before the Tribunal the Referring Authority examined P.W.1 Muhammad Tasneem, who was Director, Project Finance Department of A.D.B.P. In May, 1989, when the appellant filed his application for loan; P.W.2 Lal Khan Almas, who was Deputy Director, Projects Appraisement Department, A.D.B.P., at the relevant time; P.W.3 Muhammad Ishaq, who was Director, Project Finance Department at the relevant time; P.W.4 Lal Dino, who was Manager, A.D.B.P., Shikarpur Branch, at the relevant time; P.W.5 Ghulam Farooq Jakhro, who was Regional Manager, A.D.B.P., Shikarpur at the relevant time; P.W.6 Qamar Amir Khan, who was Secretary, A.D.B.P. At the relevant time; P.W.7 Syed Fahim Ahmed Gardezi, Director, Personal Administration Department, A.D.B.P. 11. The appellant did not examine any witness in rebuttal but was examined by the Tribunal under Rule 9 of the Parliament and Provincial Assemblies (Disqualification for Membership) Rules, 1990, hereinafter referred to as the Rules. The appellant also examined himself on oath. After that, he closed his side. 12. The Tribunal, after hearing the learned counsel for the parties, concluded that in the Reference (Exh.1) no exception was taken to sanction the loan in favour of the appellant and, therefore, as such the Tribunal was not required to look into the circumstances leading to sanction of the loan. It further concluded that it had to confine its enquiry to the specific allegations made against the appellant in the Reference, namely, (i) that the appellant in abuse of his position as NINA prevailed upon the bank authorities and secured the release of Rupees six million in two equal instalments instead of twelve installments without satisfying any of the preconditions; and (ii) that the appellant after obtaining the loan amount of Rupees six million has not utilized a single paisa on the project for which the loan was obtained and has misutilized the entire loan amount. 13. The Tribunal, after discussing the entire evidence on record, concluded that the charge of misconduct as regards the release of Rupees six million in two instalments stood proved. However, it also held that the appellant was not guilty of wilful misapplication or diversion of public moneys as the loan amount could not be treated as public money. While recording the above findings, the Tribunal pressed into service the principle that "while considering circumstantial evidence one can adhere to the well-settled principle of criminal law that the circumstantial evidence should be such
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that does not lead to one to any other hypothesis than that of guilt of the accused". In view of the above finding, the above Reference was accepted in the above terms. Thereupon, the appellant filed the above appeal under Article 7 of the order. 14. In support of the above appeal, Mr. Abdul Hafeez Lakho, learned counsel for the appellant, has vehemently contended that the finding recorded by the Tribunal on above allegation No, (i) is based on surmises and conjectures and, therefore, the impugned order cannot be sustained. His further submission was that the Reference was mala fide and in fact was made at the behest of Mr. Ilahi Bakhsh Soomro who had contested the election against the appellant in 1988 but was defeated and then again he contested the election in 1990 in which he raised the very ground which was the subject-matter of the above Reference before the Returning Officer and in appeal before the High Court without any success and that in the original counting, the appellant was declared as successful but in the official counting, Mr. Ilahi Bakhsh Soomro was declared as elected, against which the appellant's election petition is still pending. 15. On the other hand, Mr. Kamal Mustafa Bukhari, learned counsel appearing for the Referring Authority, has contended that the proceeding before the Tribunal is in the nature of an enquiry and it is for the Tribunal to decide, what evidence it requires and it is not for the Referring Authority to produce the same. His further submission was that, in any case, the Referring Authority had in fact produced sufficient evidence to sustain the above finding recorded by the Tribunal. He also submitted that the following finding of the Tribunal is contrary to law and, therefore, he has filed an application under Rules 5 and 6 of Order XXXIII read with Rule 5 of Order XII of the Supreme Court Rules, 1980, for raising the above plea:- "After disbursement of the loan amount (through two instalments) the same ceased to be public money and if that was not spent on the project for which it was obtained, such omission would not amount to "wilful misapplication or diversion of public moneys". 16. Before touching the merits of the case, it may be pertinent first to dilate upon the question, as to the nature of the proceedings before the Tribunal. In this regard, it may be pertinent to point out that on 25-11-1977, two President Orders were issued, namely, President Order 16 of 1977 under the caption "Holders of Representative Offices (Punishment for Misconduct) Order, 1977", which makes misconduct on the part of holder of a representative office a criminal offence punishable with imprisonment for a term which may extend to seven years or with fine or with both under clause (1) of Article 3 and it also disqualifies a convicted holder of a representative office for a period of seven years from being elected or chosen as a member of Parliament or a Provincial Assembly under clause (4) of above Article 3 of the Order. The above President Order 16 of 1977 also contemplates setting up of Special Courts. Article 6 of it provides that a Special Court shall have all the powers conferred by the Code of Criminal Procedure, 1898, on a Court of Session exercising original jurisdiction. Whereas, Article 7 lays down that any person charged with an offence punishable under Article 3 shall be a competent witness for the defence and may give evidence on oath in disproof of the charges made against him or any person charged with may at the same trial, but sub-clause (a) of the proviso provides that the accused shall not be called as a witness except on his own request. The President also issued the order i,e, President Order No,17 of 1977, which was invoked in the present case. It provides only disqualification for a period of seven years but does not contemplate imposition of any sentence of the nature provided for in P.0. No,16 of 1977. Article 6 of the Order provides that a special Court shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908, in respect of the matters mentioned in sub-clauses (a) to (e), namely, summoning and enforcing attendance of any person and examining him on oath, requiring the discovery and production of any document, receiving evidence on affidavit, issuing commission for the examination of witnesses or documents and requisitioning any public record or copy thereof from any Court or office.
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17. It may also be pertinent to mention that at the time of issuance of the above President Orders 16 and 17 of 1977, we had in the field Holders of Representative Offices (Prevention of Misconduct) Act, 1976 (Act IV of 1977) and Parliament and Provincial Assemblies (Disqualification for Membership) Act, 1976 (Act V of 1977), both gazetted on 9-1-1977, which corresponded with President Orders Nos.16 of 1977 and 17 of 1977, respectively. In other words, section 3 of Act IV of 1977 made misconduct on the part of any holder of representative office punishable with imprisonment for a term which may extend to seven years or with fine or with both. It also under subsection (4) of section 3 provided that upon conviction, the convict shall be disqualified until holding of the next general elections to the National Assembly from being elected or chosen and from being a member of the Parliament or a Provincial . Assembly. Whereas, section 5 of Act V of 1977 provided that upon conviction the person shall stand disqualified until the holding of the 'next general elections to the National Assembly from being elected or chosen as, and from being a member of Parliament or of a Provincial Assembly. However, section 6 of above Act V of 1977 lays down that an enquiry under the above Act shall be held as nearly as may be in accordance with the procedure provided in the Code of Criminal Procedure, 1898, for trial before a High Court, as if reference in the Court to the accused were a reference to the respondent and reference to conviction were omitted. This provision is in contradiction to Article 6 of the Order which provides that a Special Court shall have the power of a Civil Court trying a suit under the Code of Civil Procedure, 1908, in respect of the matters mentioned in sub-clauses (a) to (e) already referred to hereinabove. 18. Both the parties have referred case of Hamidul Huq Chowdhury v. His Excellency the Governor- General of Pakistan (PLD 1953 Federal Court 279) and the case of Muhammad Saeed and 4 others v. Election Petitions Tribunal, West Pakistan and others (PLD 1957 SC (Pak.) 91). The contention of Mr. Abdul Hafeez Lakho was that in the proceeding before the Tribunal, the burden of proof squarely was on the Referring Authority and the Tribunal was bound to apply the principle which it in fact pressed into service i,e, by considering the circumstantial evidence, one should adhere to the well- settled principle of criminal law that the substantial evidence should be such that does not lead one to any other hypothesis than that of guilt of the accused. ' He has heavily relied upon the case of Muhammad Saeed and 4 others (Supra), whereas the submission of Mr. Kamal Mustafa Bukhari was that under Article S of the Order, it is for the Special Court to hold enquiry and to examine any witness it may deem necessary and that the nature of enquiry before the Tribunal is akin to a departmental proceedings against a civil servant or proceeding for misconduct against a Judge of a Superior Court and not to that of a criminal proceedings. According to him, the ratio decidendi of the judgment of the Federal Court in the case of Hamidul Huq Chowdhury (supra) is applicable to the case in hand. 19. In the case of Hamidul Huq Chowdhury (supra), the question before the Federal Court was, whether the findings of misconduct which included bribery, corruption, jobbery, favouritism, nepotism, wilful maladministration, wilful misapplication or diversion of public moneys or money collected, whether by public subscription or otherwise and any other abuse of official power, recorded by the Tribunals comprising of Chief Justice and a Judge of the Dacca and Sindh High Courts in the proceedings initiated against Hamidul Huq Chowdhury and M/s. MA. Khuro and Kazi Fazlullah under section 3 of the Public and Representative Offices (Disqualification) Act, 1949, were appealable before the Federal Court, Abdul Rashid, C.J. And Cornelius, J., after referring to the relevant provisions of the above Act and the case-law, recorded the following findings:- ' Abdul Rashid. C.J: "The disqualification is incurred by the person found guilty upon the public notification of an order of the Governor-General in this behalf. It does not make it obligatory on the Governor-General to issue a public notification in respect of the charges which have formed the subject-matter of the enquiry. To take an instance, it might be that 10 very serious charges are preferred against a
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Minister. He is found not guilty" on practically all the charges but is found guilty of a technical abuse of official power in a very insignificant matter. In such a case, in my opinion, it would be open to the Governor-General not to disqualify the person concerned. If the Governor-General is not bound to disqualify a person as a result of a finding of guilty in respect of some of the charges, it is clear that the whole enquiry must be regarded as an exercise of administrative or executive function by the Governor-General, and the findings of the Judges must be taken to be the advice of an expert body requisitioned by the Governor-General in accordance with the provisions of the Act." ' Cornelius. J: "These are the reasons by which I am impelled to reach the conclusions that findings recorded under section 3 of the Act are not judicial 'determination' within the meaning of section 3 of the Judicial Committee Act, 1833, and further that in any case, the subject-matter of the legislation is such as places it entirely outside the sovereign's prerogative of justice, and I would therefore dismiss all these petitions, but having regard to the complexity of the questions which have required elucidation before this Court. I would have the parties to bear their own costs." 20. The ratio of the above case seems to be that as the findings of the Tribunal were subject to the acceptance by the Governor-General and that they themselves did not entail any penal consequence, the same could not be treated as a judgment, decree or an order. Abdul Rashid, C.J. Dealt with the above aspect as: ' The formal expression of the findings given by the Tribunal or the High Court has not been described by the Act as a decree or order. In fact, the High Court or the Tribunal cannot pass a decree or an order under the Act and can merely record findings of guilty or not guilty." 21. The contention of Mr. Abdul Hafcez Lakho that the ratio decidendi of the above case is not applicable to the instant case seems to be correct inasmuch as under the above Act the finding of the Tribunal was not binding on the Governor-General and he was not bound to disqualify the person charged with misconduct, whereas Article 5 of the Order is a self-executory provision as it provides that upon recording of a finding against the holder of a representative office by the Tribunal, he shall stand…
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