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Petitioner: THE STATE VS Respondent: Syed MUZAFFAR HUSSAIN SHAH
Court Name: Sindh High Court Judge(s): Syed Deedar Hussain Shah Title: THE STATE vs Syed MUZAFFAR HUSSAIN SHAH Case No.: Ehtesab Reference No,9 of 1997 Date of Judgment:1997-08-09 Reported As: 1998 MLD 118 Result: Accused acquitted
JUDGMENT
JUDGMENT The present Ehtesab Reference against Syed Muzaffar Hussain Shah was received in this Court from the office of the learned Chief Ehtesab Commissioner, Islamabad, dated 26-1-1997 under section 14(1) of the Ehtesab Ordinance, 1996. The brief facts are that Syed Muzaffar Hussain Shah, Ex. Member Provincial Assembly of Sindh, while holding the office of the Chief Minister Sindh, accused, in his capacity as Chief Minister Sindh, prevailed upon Chairman and Members of District Council Mirpur Khas, Provincial Highways Department and Deputy Commissioner Mirpur Khas to arrange and execute schemes of face lifting of Hyder Farm Taluka Umerkot, District Mirpur Khas. Accused Syed Muzaffar Hussain Shah and his family members own and possess agriculture land, in and around village Hyder Farm situated in Deh Diat Bah, Taluka Umerkot, Mirpurkhas. The District Council Mirpurkhas had no funds for electrification included within aforesaid scheme, nor particular function formed part of Schedule-III of the Sindh Local Government Ordinance, 1979 yet accused got executed electrification work of Hyder Farm at the cost of Rs,24,27,378 by diverting Rs,2 millions allocated by the Government of Sindh for repairs of buildings and roads and Rs,4,47,378 from the District Council Mirpurkhas and the entire funds were utilised for Hyder Farm illegally and further that no work for repairs of buildings or roads were carried out for which this amount was allocated. It is further case of the prosecution that accused ordered diversion of public money by abusing his official position and power and misapplied Rs,2 millions by ordering reappropriation by allocating the funds from buildings and roads to Hyder Farm electrification. Since the accused was holder of public office within the meaning of section 2(t) of the Ehtesab Ordinance, 1996, under the
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circumstances, the above acts of omission and commission amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance. After the receipt of the reference accused Syed Muzaffar Hussain Shah appeared and was granted bail on 13-2-1997, thereafter on 28-5-1997 charge Exh.2 was framed, which reads as under:--- (1) Wajihuddin Ahmed, (2)Saiyed Saeed Ashhad and (3)Mushtaq A. Memon, JJ do hereby charge you accused:- 1. Syed Muzaffar Hussain Shah as under:-- That you accused Syed Muzaffar Hussain Shah, being a holder of Public Office in your capacity as Ex-Chief Minister of Sindh, at the relevant time in abuse of your official position and with mala fide, illegal and dishonest intention with a view to obtain illegal, fraudulent and dishonest gain, profits and favour for yourself and your family members directed and prevailed upon the then Chairman and Members of District Council Mirpurkhas, Provincial Highways Department's Officers and the then Deputy Commissioner, Mirpurkhas for face lifting of the area around your family farm known as Hyder Farm-as well as of Hyder Farm as a result of which electrification work of Hyder Farm at the cost of Rs,24,27,378 was undertaken and this amount was procured by taking out Rs,2 million from the budget allocation provided for repairs of buildings and roads and Rs,4,47,378 was taken out from the funds of District Council Mirpurkhas and by your above act you got diverted public money for electrification and face lifting of your personal property; And that your above acts of omission and commissions amounted to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance and punishable under section 4 of the Ehtesab Ordinance within the cognizance of this Court, and we hereby direct that you be tried by us for the aforesaid offence. Given under our hands and seal of this Court, this 28th day of May, 1997." Plea of the accused was recorded Exh.3 to which he pleaded not guilty to the charge and claimed to be tried. Prosecution adduced evidence in support of the prosecution case. On 8-7-1997 P.W. Muhammad Yousuf Gill son of late Muhammad Ibrahim, Chief Officer of Zila Council Mirpur Khas was examined as Exh.4, on 9-7-1997 Ghulam Muhammad son of Haji Muhammad Suleman, Sub-Engineer District Council Mirpur Khas was examined as Exh.5 and on 11-7-1997 Iqbal Ahmad son of Abdul Aziz, Assistant Director, Anti-Corruption Establishment, Hyderabad, Investigating Officer was examined as Exh.6. Subsequently, learned Special Prosecutor submitted Application bearing No,115 of 1997 which was granted and Investigating Officer was re-called who submitted the report dated 10-2- 1994 as Exh.6/4. In the meanwhile on 11-6-1997 the accused/applicant submitted application bearing No,85 of 1997 and Miscellaneous Application No,109 of 1997 on 9-7-1997. Notices of both these applications were issued to the Special Prosecutor. On 15-7-1997, Iqbal Ahmad, Investigating Officer submitted his report mentioned hereinabove and after his examination and cross- examination Mr. Syed Mamnoon Hassan Special Prosecutor closed his side on behalf of the prosecution. Thereafter, by consent for hearing of Miscellaneous Application No,85 of 1997 and Miscellaneous Application No,109 of 1997 filed on behalf of accused/applicant, were adjourned for hearing on 17-7-1997. I have heard Mr. Ch. Iftikhar Ahmed, learned counsel for the accused and Mr. Syed Mammon Hassan, Special Prosecutor for the State. The learned counsel for the accused/applicant contends that the scheme for installation of street lights was on a public road in front of Hyder Farm, and was initiated through a resolution moved by the then Chairman District Council Mirpurkhas, the late Haji Ghulam Rasool Junejo. The resolution was adopted unanimously, the work was let out as per rules to the company which offered lowest tender. That after the dissolution of local bodies, the Administrator District Council Mirpurkhas had
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requested the Provincial Government for change of head, and for re-appropriation of the amount in question which subsequently was allowed by the Chief Minister (accused Syed Muzaffar Hussain Shah) as per rules of business of the Government of Sindh. That the road on which the street lights were installed was a public road which leads to Taluka Chachro and about 10/15 villages, besides leading to the Basic Helath Unit, the Rural Health Centre, the school and office of the Union Council Khejrari. That the statement of Ghulam Muhammad was recorded by Anti-Corruption Establishment as an accused in F.I.R. No,18 of 1993 under sections 406/34 read with section 5(2) of the Prevention of Corruption Act, 1947 and that no other statement under section 161, Cr.P.C. was recorded, nor he was associated with any inquiry pertaining to the Ehtesab Reference. That statement of Muhammad Yousaf Gull does not make out any case against the accused in terms of section 3 of the Ehtesab Act, 1997. Mr. Ch. Iftikhar Ahmed, learned counsel for the accused Syed Muzaffar Hussian Shah contends that P.W.2 Ghulam Muhammad has only supervised the work of street installation and is a formal witness and his testimony will not in any way improve the case of the prosecution. So far accused cannot be convicted on the evidence of Muhammad Iqbal Ahmed, P.W.3, who is also a formal witness, being the Investigating Officer of Crime No,18 of 1993. That according to statement of P.W. Yousaf Gull, his statement was not recorded as a witness but as an accused in Crime No,18 of 1993 of the Anti-Corruption Establishment and that actually in fact no statements of any witness had ever been recorded in relation to any inquiry in so far as the present reference is concerned, inasmuch as Yousuf Gull and Ghulam Muhammad were examined as an accused persons on 8-4- 1994, whereas the Ehtesab Ordinance was promulgated on 18-11-1996 after a period of more than two years and nine months. That it has come in the evidence that according to the Sindh Local Bodies Ordinance, District Council Mirpurkhas was/is competent to sanction/recommend development schemes and the installation of street lights on the public road in front of Haider Farm was carried out in pursuance of the resolution of the District Council Mirpurkhas. The order for re-appropriation was also issued on the request of the Chief Officer Muhammad Yousaf Gull P.W.1 who in his letter had stated that because of paucity of funds, and because of the heavy rains, funds could not be utilised for maintenance/construction of roads, the amount for installation of street lights may be granted by Government, by re-appropriating the amount lying with the District Council Mirpurkhas for repairs of Roads, since the District Council is a semi-Government and independent body was established under the Provincial Act, had so desired and expressed through its unanimous resolution that the scheme was executed. In view of the evidence so recorded under the circumstances there is no iota of evidence whatsoever to support the charge of the corruption under section 3 of the Ehtesab Ordinance, even otherwise there is no evidence to substantiate the charge and in any case there is no possibility/probability of the accused, being convicted on the evidence so adduced/recorded and referred hereinabove. Mr. Ch. Iftikhar Ahmed, learned counsel for the accused has referred in support of his contentions the following case law. (1)The State v. Accused Syed Muzaffar Hussain Shah Ehtesab Reference No,23 of 1997 forwarded by the learned Chief Ehtesab Commissioner and the learned Ehtesab Bench consisting of my Lord Justice Wajihuddin Ahmed the senior puisne Judge, Justice Saiyed Saeed Ashhad and Justice Mushtaq Ahmed, Memon, on 28-5-1997 was pleased to acquit the accused with the following observations:-- 'From the above discussions we are unable to understand and comprehend as to how the name of accused Syed Muzaffar Hussain Shah could have been included in the Reference as one of the accused being responsible for illegal order of sale of fertilizers on credit to accused Nos.2 to 8 and we are satisfied beyond any shadow of doubt that there is not an iota of evidence in the material and documents available with the prosecution to warrant the slightest possibility of involvement or
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incrimination of accused Syed Muzaffar Hussain Shah in the above offence and proceeding with the trial against him will be nothing but causing him uncalled for harassment, hardships and miseries, which is not the object of law." (2) The learned counsel has referred section 7(iii) of Rules of Business framed by the Government of Sindh in which power of Chief Minister has been mentioned which is as under:-- S.7(iii): Any order passed by the Chief Minister or any authority to whom he has delegated his powers to pass such orders, in respect of any subject or matter allocated to that Department in the charge of the Chief Minister shall be deemed to be the order passed by the Government. (3) Learned counsel for accused referred the case of State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCM R 523). This was an appeal through leave of the Court by the State against summary acquittal of the respondent in a corruption case. Leave to appeal was granted for the consideration of the question; as to whether, without recording any prosecution evidence the trial Court was justified in law to hold that charges against the respondent were groundless. The provision of law under which the Special Judge acquitted the accused is section 249-A of the Cr.P.C., but as stated by the learned counsel it appears to be under some inadvertent mistake that section 249-A, Cr.P.C. was mentioned, and that it should have been section 265-K, Cr.P.C. In this background of the matter their Lordships of the Supreme Court considered the provisions of section 249-A, power of Magistrate to acquit accused at any stage and section 265-K power of Court to acquit accused to any stage and their Lordships were pleased to dismiss the appeal filed by the Government. (4)Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge, Jhang and 6 others (PLD 1993 SC 399). ' Their Lordships of the Supreme Court consisting of Nasim Hasan Shah, Ajmal Mian and Sajjad Ali Shah, JJ. have held that under section 249-A Cr.P.C. order of acquittal can be passed by the Court without recording of evidence provided the Court is satisfied that peculiar facts of that case justify such order. (5)The State v. Asif Ali Zardari and another (1994 SCM R 798). Division Bench decision of their Lordships of the Supreme Court consisting of Saad Saood Jan (as his Lordship then was) and Sajjad Ali Shah, the judgment was authored by his Lordship Sajjad Ali Shah. The State filed leave to appeal against the Judgment dated 26-9-1994 of the High Court of Sindh at Karachi whereby Criminal Miscellaneous application filed under section 561-A, Cr.P.C. was allowed and in consequence proceedings against respondent No,1 (Asif Ali Zardari) in a case under section 420/468/471, P.P.C. and section 5(2) of the Prevention of Corruption Act of 1947 pending in the Special Court (Offences in Banks) Karachi, were quashed. Their Lordships, after hearing the learned counsel for the parties and analysing and discussing the evidence so adduced by the prosecution in the case, finally came to the conclusion and observed as follows:-- "Learned Advocate-General Sindh was unable and at pains to point out any flaw or legal infirmity in the conclusions drawn by the High Court, which is done after fair appraisal of evidence and discussion of correct legal position as is enunciated in the case-law cited and relied upon in the impugned judgment for and against the proposition which are elaborately discussed in detail. We find no justifiable reason to disagree with the High Court and, therefore, we consider that it is not a fit case for grant of leave. In the result leave is refused and this petition is dismissed as having no merits." Mr. Syed Mamnoon Hassan, learned prosecutor contended that prosecution has adduced evidence which shows that accused Syed Muzaffar Hussain Shah and his family members own and possess agriculture land in and around village Hyder Farm situated in Deh Diat Bah, Taluka Umerkot and that accused in his capacity as Chief Minister Sindh prevailed upon Chairman and Members of District Council Mirpurkhas, Provincial Highways Department and Deputy
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Commissioner Mirpurkhas to arrange and execute schemes of face lifting of Hyder Farm Taluka Umerkot, which is his family land and private property. That District Council had no funds for electrification included within the aforesaid scheme, yet accused got executed electrification work of Hyder Farm at the cost of Rs,24,27,378 by diverting Rs,2 millions allocated by the Government of Sindh for repairs of buildings and roads and Rs,4,47,378 from the District Council Mirpurkhas and the entire funds were utilised for Hyder Farm illegally and no work for repairs of buildings or road were carried out for which the amount was allocated. That accused ordered for diversion of public money by abusing his official position and power and misapplied Rs,2 millions by ordering reappropriation by allocating the funds from buildings and roads to Hyder Farm electrification. Under the circumstances the accused was holder of public office within the meaning of section 2(f) of the Ehtesab Ordinance, 1996, committed the above acts of omission and commission amounting to corruption and corrupt practices within the meaning of section 3 of the Ehtesab Ordinance 1996 and that in view of the evidence of P.W. Muhammad Yousuf Gull, the Chief Officer Exh.4, Ghulam Muhammad, Sub-Engineer Exh.5 and Iqbal Ahmed, Assistant Director, Anti- Corruption Establishment Hyderabad and Investigating Officer who also produced report of Mukhtiarkar dated 10-2-1994 Exh.6/4, the case against accused/applicant has been made out and accused Syed Muzaffar Hussain Shah can be convicted as required under section 4 of the Ehtesab Ordinance. Learned Special Prosecutor in support of his contentions cited decision of learned Ehtesab Bench of Lahore High Court in Ehtesab Reference No,3 of 1997, in which Shafi Sehwani, former member Planning and then Chairman, C.D.A., accused, alongwith co-accused Abdul Qadir Shaukat was convicted by the learned Ehtesab Bench of the Lahore High Court. Learned counsel has also referred Ehtesab Reference No,3 of 1997, decision of learned Ehtesab Bench of this Court headed by my Lord Wajihuddin Ahmed, the Senior pusine Judge, consisting of my learned brothers Saiyed Saeed Ashhad, J., and Mushtaq Ahmed Memon, J. In Reference No,3 of 1997 Shafi Sehwani, former member Planning and then Chairman, C.D.A. The brief history of the Reference is that C.D.A. decided to have a swimming pool in Markaz F-6, Islamabad and a plot of 2200 sq. yards was allocated for this purpose. It was initially allotted to M/s. Abdul Majeed Farooqi and Ch. Muhammad Najeeb at the rate of Rs,50 per sq. yard on 8-8- 1974 as a lease for 33 years extensible for two more similar terms. The allottee failed to show proper interest in the completion of the project as per condition of the allotment and in pursuance of the request of Abdul Qadir Shaukat, accused, the plot was transferred to Abdul Qadir Shaukat on 18-5- 1980. According to the conditions of allotment the plot was meant for the construction of swimming pool with heating arrangements so as to control the temperature of water at a reasonable degree and also to provide allied facilities such as massage, physiotherapy, cabin for change of clothes, public shower baths etc. The construction of a few cabins for refreshment was also permissible inside the premises of pool. The accused No,2 in violation of the plan envisaged by C.D.A., constructed as many as 18 shops and committed many other visible violations and that building was to be completed by 1-2-1981 as per approved plan. However, in view of the violations and deviations made in the approved plan and failure of the allottee to complete the swimming pool according to the terms and conditions that the allotment was withdrawn on 23-1-1985 and the agreement terminated. Abdul Qadir Shaukat, accused No,2, however, submitted request for restoration of plot and during this process Deputy Director, Buildings and Buildings Control submitted that either the authority should stand firm on cancellation of allotment and resume the possession of the plot or restore the plot on the condition of removal of construction on the first floor and the swimming pool alongwith attached facilities must be completed and put into operation within a period of three months. Deputy Director, Buildings and Building Control further suggested that the price difference, if any, between the price of the commercial plot and
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swimming pool in Markaz F-6 should be charged from Abdul Qadir Shaukat, the allottee. Shafi M. Sehwani accused No,1, where authority appeared to be next to that of the Chairman, asked for that difference of price from the Deputy Director and consequently Director Estate Management reported that the prevalent rate for restoration in Markaz was Rs,1,000 per sq. yard and that further correspondence continued and Shafi M. Sehwani observed "yes, it should not be less than Rs,1,000 and this is to best advantage of the allottee," and added, "please discuss.". According to the prosecution case, Shaft M. Sehwani visited the site and Abdul Qadir Shaukat also met him there. Thereafter, Shaft M. Sehwani completely suppressed the mention of Rs,1,000 per sq. yard as restoration charges and put the case entirely on different track and continued to write notes showing deviations and irregularities and proposing regularisation of these irregularities on payment of certain charges and quoted wrong precedents. According to the prosecution case and the observations of the learned Ehtesab Bench, ultimately, Mazhar Rafi, who was Additional Secretary in the Interior Division and was holding additional charge of Chairman, C.D.A. agreed to the wrong suggestion of Shafi M. Sehwani that sum of Rs,100 per sq. yard may be charged from the allottee for violations committed by him in construction on the plot. This was done intentionally by Shafi Sehwani accused to provide undue benefit to his co-accused, Abdul Qadir Shaukat. The Chairman was thus clearly misled by the wrong suggestion of Shafi M. Sehwani accused and eventually a loss of Rs,18,70,000 was caused to the state exchequer. In so for the proof of the above allegation, prosecution examined 7 witnesses in order to substantiate its case and consequently learned Ehtesab Bench found that both the accused guilty of offence under section 4 of the Ehtesab Ordinance, 1997 and they were convicted and sentenced to suffer R.I. for 5 years each and a fine of Rs,10,00,000 each and in case of default to further undergo 1 year R.I. In Ehtesab Reference No,3 of 1993, the case of the prosecution is that Muhammad Shabbir, the accused applying for raising construction of a building on Plot No,8/2, RY-4, Railway Quarters, Karachi, and obtaining approval for a basement plus ground plus four floors by the Karachi Building Control Authority. Accused having raised construction beyond the approval, the KBCA issued a show-cause notice and allegedly, sealed the building. According to the prosecution case, Muhammad Shabbir thereafter is claimed to have approached Syed Abdullah Shah, accused No,1, the then Chief Minister of Sindh, through the accused No,2, Ghulam Mustafa Bozdar, an Ex-member of the Sindh Provincial Assembly. In the resulting application allegedly, the un-authorised construction was admitted. It is further case of the prosecution, that Syed Abdullah Shah, in response not only ordered desealing but also allowed regularisation by stopping further action at the level of the K.B.C.A., thus, exhibiting favouritism to M. Shabbir, on the recommendation of Ghulam Mustafa Bozdar. It is further case of the prosecution, that in cases of similar nature additional floors applied for by other builders were regretted by the then Chief Minister Sindh. Syed Abdullah Shah and Ghulam Mustafa Bozdar were holders of public offices, within the meaning of the Ehtesab Ordinance and Muhammad Shabbir was benefited, as beneficiary, by misuse of powers and through abetment, committed the offence. Prosecution adduced the evidence consisting of Syed Muhammad Hussain, Controller of Buildings K.B.C.A., Ahmed Hussain Siddiqui, former Director General, K.D.A., P.W.2 Badrus Salam, Deputy Controller of Buildings K.B.C.A., P.W.3 Aijaz Ahmed, Controller of Buildings K.B.C.A. P.W.4, and Abdul Rahim Shoro, Inspector Anti-Corruption, the Investigating Officer in the case, through whom P-18 to P-33 were exhibited. The learned Ehtesab Bench was pleased to acquit Ghulam Mustafa Bozdar by giving the benefit of doubt and case against accused Syed Abdullah Shah was consigned to record, to be re-activated in course of time, whereas convicted Muhammad Shabbir for an offence under section 3(1)(d) of the Ehtesab Ordinance, 1996 mere seeking of a 'pecuniary advantage' or 'undue favour' through 'improper means' and was found guilty of offence and was awarded imprisonment for a period of three years and pay fine to the tune of Rs,10 million, default in
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payment of fine to suffer further for one year. Mr. Syed Mamnoon Hassan, learned Special Prosecutor has cited (1) Sugni Chand Dayaram Jatwani v. Pakistan (through the Ministry of Rehabilitation Karachi) and others (PLD 1961 SC 523- 530) (2) Akhtar v. The State (PLD 1961 (W.P.) Lahore 1049) (3) The State v. Maulvi Muhammad Jamil and others (PLD 1965 SC 681) and (4) Sher Muhammad alias Shera v. The State (PLD 1990 Kar. 271) in rebuttal to the contentions of Ch. Iftikhar Ahmed, learned counsel for accused Syed Muzaffar Hussain Shah mentioned in Misc. Application No,85 of 1997 and paragraphs 9, 10 and 11 of the Application No,109 of 1997 in question stating herein that the Ehtesab Ordinance, 1996 has lapsed and a new law i,e, Ehtesab Act of 1997 (Act IX of 1997) which through section 31 of the said Act repealed P.P.O. 16 and P.P.O.17 and the Ehtesab Ordinance 1997, and saved the proceeding under P.P.O. 16 and P.P.O. 17, and that of the Ehtesab Ordinance of 1997, but did not save the proceeding initiated under the Ehtesab Ordinance of 1996. That Ehtesab Ordinance, 1996 was a temporary statute and expired after four months from the date of its promulgation and both the successor laws, i,e, the Ehtesab Ordinance, 1996 and the Ehtesab Act, 1997,. intentionally omitted to save proceedings initiated under the Ehtesab Ordinance, 1996. That section 6 of the General Clauses Act cannot be invoked in regard to…
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