CHIEF EHTESAB COMMISSIONER,CHIEF EHTESAB COMMISISONER'S

' ABDUL HAMEED DOGAR, J.---By this common judgment, we propose to dispose of Criminal Appeal Nos. 51, 52 of 1998 and Criminal Petition No,140 of 1998 as they arise out of judgment dated 26-6- 1997 passed by a learned Division Bench of the Peshawar High Court, Peshawar, in Ehtesab Reference Nos. 2,3 and 4, of 1997 whereby respondents were discharged under section 265-D Cr.P.C.

2. Above mentioned Ehtesab References were filed against respondents, namely, Aftab Ahmad Khan Sherpao, Ex-Chief Minister N.-W.F.P., Malik Muhammad Afzal, Iftikhar Khan Mehmand and Abdul Sattar Khan, Ex-MNAs before the Ehtesab Bench of Peshawar High Court under section 141) of Ehtesab Ordinance No,XX of 1997 (hereinafter referred to 'the Ordinance, 1997'). It was alleged in the references that respondent Aftab Ahmad Khan Sherpao allotted one .Kanal plot each viz. 283/E-6, 208/E-6 and 228/E-6 in Phase VII, Hayatabad, Township, Peshawar to respondents, namely, Malik Muhammad Afzal, Iftikhar Khan Mehmand, and Abdul Sattar Khan, respectively in violation of approved Housing Scheme for construction of Government residences which caused loss to Housing Project. All the allottees failed to comply with the prerequisite condition of deposit of 1/4th advance money, hence no further formalities could be completed. Even possession was not handed over to them. It was on the report of Director, Anti-Corruption Establishment, N.-W.F.P.

Province, Peshawar, aforesaid references were initiated against them on the allegation that the above act falls within the purview of corruption and corrupt practices in terms of section 3 of the Ordinance.

3. As a result whereof, respondents appeared before the Court to whom requisite documents, as required under section 265-C, Cr.P.C., were supplied. The matters were adjourned to 28-4-1997 for framing of charge on which date, all respondents moved applications under section 265-K, Cr.P.0 for their acquittal. After hearing the arguments of the respective counsel, the learned Ehtesab Bench came to the conclusion that even framing of charge against respondents would be a futile exercise, hence discharged them under section 265-D, Cr.P.0 vide impugned judgment.

4. We have heard Ms. Nahida Mehboob Elahi, learned Deputy Attorney General on behalf of appellant and petitioner, Barrister Zahoorul Haq, learned Sr. Advocate Supreme Court and Syed Zafar Abbas Zaidi, learned Advocate Supreme Court for respondents and have gone through the record and the proceedings of the case in minute particulars.

5. Learned Deputy Attorney General contended that the offence of corruption and corrupt practices becomes complete the moment it commences. According to her, since allotments were made in violation of approved plan and rules, hence the case of respondents would be attracted within the meaning of corruption and corrupt practices. She contended that it is immaterial whether any loss has occurred to the Government exchequer or not. Even application under section 265-K, Cr.P.0 was filed prematurely. She lastly urged that in view of section 31(2), clause C of the Ehtesab Act, 1997 (Act IX of 1997), the proceedings pending before the Court under the Ordinance, 1997 have been saved thus were competently triable by Ehtesab Court.

6. On the other hand, Barrister Zahoorul Haq, learned Sr. Advocate Supreme Court for respondents contended that after the repeal of the Ordinance of 1997 by the Act, 1997, the proceedings of the matter were to be regulated and conducted under the Act. According to them, the scope of the offence under section 3(1)(d) of the Ordinance has been narrowed down by the corresponding section 3(1)(d) of the Act and the latter provision makes the holder of public office guilty of corrupt practices only if by abuse of his official position he obtains or seeks to obtain pecuniary advantage for himself or his spouse or any dependant. They further contended that the prosecution has not been able to show that respondent No,1 Aftab Ahmed Khan Sherpao allotted said plots for himself, his wife or any of his dependents. They also contended that there is also no evidence or proof on record that the above action of respondent No,1 caused any loss to Government exchequer or obtained an illegal gain or undue favour or benefit for himself. They further contended that the offence of corruption and corrupt practices as envisages in section 3(1)(d) of the Ordinance has also not taken place as neither the applications of respondents, namely, Malik Muhammad Afzal, Iftikhar Khan Mehmand and Abdul Sattar Khan have been placed on record showing endorsement of allotment made by respondent No,1 Aftab Ahrnad Khan Sherpao Over the same nor the requisite conditions such as payment, of bid money or the other necessary formalities were complied with by other respondents. In such circumstances, even framing of charge was a futile exercise.

7. Since in these matters, respondents have been discharged under section 265-D, Cr.P.C., though applications were moved by them for their acquittal under section 265-K, Cr.P.C. Undoubtedly, it is within the domain of trial Court to examine the entire material placed on record by prosecution before exercising the powers under section 265-D, Cr.P.C. It was in exercise of the powers conferred under this provision of law, learned Ehtesab Bench has arrived to the conclusion that even prima facie case for framing of charge against respondents was not made out. The contention of learned Deputy Attorney General that in fact the offence of corruption or corrupt practices took place in these matters is devoid of force, mainly for the reason, that prosecution has miserably failed to show the complicity of the respondents with the commission of offence of corruption and corrupt practices as envisaged under section 3(1)(c)(d) of the Act. The essential requirement for bringing the offence within the ambit of above provision of law is that a holder of public office or any other person covered hereby in abuse of his position as a holder of public office seeks for himself or for his spouse or dependents any property, valuable thing or pecuniary advantage by corrupt, dishonest or illegal means. In the instant cases, not even a, single iota of evidence has been produced to show the same. On the contrary, the applications said to have been moved by respondents No,2 namely, Malik Muhammad Afzal, Iftikhar 'Khan Mehmand, and Abdul Sattar Khan to respondent No,1 Aftab Ahmad Khan Sherpao for allotment of the plots have not been produced with the References. So much so even allotment orders in respect of The said plots have not been placed on record of the cases. Under such circumstances, it cannot be said that even offence has commenced. The grounds which' weighed with the learned Ehtesab Bench to discharge respondents were convincing and based on sound reasoning, thus not open to interference.

Accordingly, the impugned judgment is maintained.

8. On 7-3-2065 by a' short order, we had dismissed Criminal Appeals Nos.51 and 52 of 1997 and also dismissed Criminal Petition No,140 of 1998 and refused leave to appeal.

9. Above are the detailed reasons of our order of even date.