Mian MANZOOR AHMAD WATTOO Versus THE STATE

SAQIB NISAR, J.‑‑‑ Vide judgment dated 4‑4‑2000, the, Accountability Court, Lahore, has convicted and sentenced the appellant under the provision of section 4 of the Ehtesab Ordinance, 1997 read with section 35 of the NAB Ordinance No.XVIII of 1999, to under go four years R.I. and also to pay four millions as fine. In case of default in the payment of fine, the appellant has to further under go eighteen months R.I. The appellant has also been disqualified to stand for and being elected or chosen as member of the Parliament or Provincial Assembly for the period specified in Article 63 (1) (i) and Article 113 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The above judgment, has been passed in a Reference No.15 of 1997, dated 6‑2‑1997, filed by the learned Chief Ehtesab Commissioner against the appellant under the provisions of section 14(1) of the Ehtesab Ordinance XX, 1997 and continued as AC/R No.3 of 1999, on the promulgation of National Accountability Bureau Ordinance, 1999. It is alleged in the reference that on an inquiry, conducted by the Anti‑Corruption Establishment, it has transpired that the appellant (he):---

1. He issued allotment orders of State land in favour of 110 persons in different schemes of L.D.A on the last date of his tenure as Chief Minister of Punjab, i.e 18‑7‑1993.

2. Out of aforesaid plots, 63, plots were allotted without obtaining any formal applications from the allottees, 37 applications were unsigned and only 10 applications were signed by the

3. 40 allottees of the said plots belonged to the constituency of Mian Manzoor Ahmad Wattoo.

4. The allotments were made on political considerations against the policy and directive envisaged by the L.D.A Act.

Originally the reference was filed before the Ehtesab Bench (the Bench) of this Court, and the following charge was framed against the appellant on 20‑5‑1997:‑

"The Ehtesab Bench of this Court, do hereby charge you (Mian Manzoor Ahmed Watoo) Ex‑Chief Minister, Punjab as under:‑

1. That on the last date of your tenure i.e 18‑7‑1993, as Chief Minister, Punjab, you issued allotment orders in favour of 110 persons in different L.D.A Schemes. Out of the above, 63 plots were allotted without obtaining application forms and in respect of 37 allotments, the applications were unsigned. Ten applications for allotment were entertained without any proper document. That out of total number of allottees, 40 belong to your constituency.

2. That by making allotments as above you provided/attempted to provide illegal pecuniary gain to the allottees worth crores of rupees and in consequence thereof, caused/ attempted to cause loss of the same amount to the L.D.A particularly, as Chairman of the said Authority.

3. That in exercise of your official function, you domonstrated illegal favour and attempted to benefit the allottees in an illegal manner. You dishonestly and fraudulently attempted to give L.D.A considerable financial loss in collusion with the allottees, particularly with those of your constituency.

4. That by doing the aforementioned acts, you by corrupt, dishonest, improper or illegal means attempted to obtain for yourself and for the allottees pecuniary advantage and undue favour. The aforementioned acts on your part constitute corruption and corrupt practices within the meaning of section 3 of Ehtesab Ordinance, 1997.

5. That you allotted three plots of one Kanal each in favour of Major Muhammad Akram, ex -D.I.G./Lahore Range, Lahore, Habib ur Rehman ex‑S.S.P/Lahore and Mrs. Fiza Akhtar widow of Nadir Ejaz ex‑ADC(G), Lahore, one plot of two Kanals in favour of Mr. Ghulam Asghar Malik Ex‑Inspector General of Police, Punjab and two plots of 10 Marlas each in favour of Begum Anwar Tariq widow of Tariq Ismail Editor Daily "Pakistan" and Tanveer Tariq son of Tariq Ismail Assistant Editor Daily Pakistan without any payment from them and illegally ordered the amount of the plots to be paid from the discretionary fund of the Chief. Minister. This action on your part was calculated to show illegal and undue favour to the allottees and this is further designated to cause pecuniary loss to the L.D.A./ Government.

6. That you also allotted plots measuring two Kanals in favour of Mr. Javed Ahmad Qureshi, Ex‑Chief Secretary, Punjab, Mr. Suleman Siddique Ex‑Commissioner, Lahore Division (One Kanal) and Capt: (Rtd.) Khalid Sultan ex‑Dy. Commissioner Lahore (one Kanal) free of cost and thereby caused or attempted to cause substantial loss to the L. D. A. These acts on your part are manifestly calculated to show illegal favour to the allottees.

That by your aforementioned acts, you have, thus committed offence of corruption and corrupt practices falling under section 3 of the Ehtesab Ordinance, 1997 punishable under section 4 thereof and within the cognizance of this Ehtesab Bench, we hereby direct that you be tried by this Ehtesab Bench of the aforesaid charge."

After the statement of the accused/appellant under section 265‑E, Cr.P.C., the trial commenced, and the statement‑in‑chief of Mr. G.M. Sikandar P.W.1 was recorded on 1‑7‑1997, but further progress in the case was not made either because of miscellaneous applications of the parties or due to the challenge to the Ordinance XX of 1997, inter alia, by the appellant in a Constitution petition, the decision whereof was awaited. In the meantime, NAB Ordinance, 1999 was promulgated on 16‑11‑1999, and the reference stood transferred to the Accountability Court, where the trial was completed and the appellant was convicted as mentioned above.

3. The prosecution in order to prove its case. examined favour P.Ws. namely Mr. G.M. Sikandar P.W.1, Mr. Muhammad Latif Qureshi, P.W.2, Mr. Irfan Malik, P.W.3 and Rana Mehmood Ahmed P.W.4. the Investigating Officer. Besides brought on record the following documentary evidence:‑

1. Exh.P‑A Directive dated 15‑7‑1993, issued by Chief Minister in favour of six officers, namely (1) Mr. Javed Ahmed Qureshi, Chief Secretary; (2) Mr. Ghulam Asghar Malik, I.G. Police (3) Mr. Salman Siddique. Commissioner, Lahore Division (4) Maj. (Retd) Muhammad Akram, D.I.G. Lahore (5) Capt. (Recd.) Khalid Sultan Deputy Commissioner, Lahore and (6) Mr. Habib ur Rehman S.S.P Lahore.

2, Exh.P.B Summary dated 18‑7‑1993, containing approval of Chief Minister regarding allotment of plots free of cost in favour of the persons mentioned below:‑

1. Mr. Ghulam Asghar Malik, I.G. Police Punjab.

2. Maj. (Retd.) Muhammad Akram, D.I.G.H Lahore.

3. Mr. Habib‑Ur‑Rehman, S.S.P Lahore.

4, Mrs. Fizza Akhtar, widow of late Nadir Ijaz, A.D.C.(G) City Lahore.

5. Begum Anwar Tariq widow of late Tariq Ismail, Assistant Editor, Daily, Pakistan.

6. Mr. Tanvir Tariq son of late Tariq Ismail.

3. Exh.P.C Summary dated 18‑7‑1993. put ,by L.D.A, proposing allotment of plots in favour of aforesaid persons and seeking order of the Chief Minister for the payment of Rs.66 lacs as price of said plots from discretionary grant of Chief Minister.

4. Exh.P.D Chief Minister's order dated 18‑7‑1993 recorded by Mr. G.M Sikandar, Secretary to Chief Minister on the summary dated Exh.P.C. whereby Chief Minister declined allotment of commercial plots and payment of Rs.66 lacs from his discretionary grant, and ordered for compliance of his order Exh.PB.

5. Exh.P.E Summary for Chief Minister submitted by L.D.A seeking approval of Chief Ministe for allotment of plots in favour of 73 persons in Mohalanwal and Mustaf Town Scheme of L.D.A.

6. Exh.P.F Approval of Chief Minister dated 18‑7‑1993 regarding allotment of 78 plots.

7. Exh.PG Directive by Chief Minister dated 18‑7‑1993 regarding allotment of plots to 11 journalists, namely (1) Syed Mumtaz Ahmed C/o Daily Jang (2) Mr. Anjum Rashid C/o Dail Jang (3) Mr. Sohail Warriach C/o Daily News (4) Mr. Tahir Majee C/o Daily Pakistan (5) Mr. Naeem Mustafa C/o Daily Nawa‑e‑Waqt (6) Mr. Tahir Chaudhry C/o Daily Jan (7) Mr. Amir Mir C/o Daily News (8) Mr. Akbar Alam News Editor Daily Jang (9) Mr. Muir Ahmed C/o Daily Frontier Post: (10) Mr. Saeed Aasi Daily Nawa‑e‑Waqt and 11 Mr. Sarfraz Syed C/o Daily Khabrain.

8. Exh. P. H Summary for Chief Minister dated 18‑7‑1993 L.D.A regarding allotment of 12 plots in favour of journalists (11 to Journalists as Exh.PG and one to Mr. Amin Hafeez) and the same approved by Chief Minister on the same date.

9. Exh.P.J Summary for Chief Minister dated30‑8‑1993, submitted by L.D.A. proposing that the L.D.A. should wait final decision of Lahore High Court Lahore depositing cheque of Rs.30 lacs in the Govt. Treasury.

10. Exh.P.K Chief Minister agreed to proposal as in Exh.P.J.

11. Exh.P.L Summary for Chief Minister submitted by L. D. A. regarding allotment of 17 plots of different categories to various persons in Mohalanwal, M.A Jauhar Town Phase‑l and II and Mustafa Town Schemes:

12. Exh. P. M. Summary for Chief Minister submitted by L.D.A. for allotment of plot to one Azim Bakhsh in Jauhar Town Phasra‑II Chief Minister approved the proposal on 27‑6‑1993.

13. Exh.P.N Summary for Chief Minister proposing allotment of plot to widow of late Habib Jalib in Mustafa Town Scheme, Chief Minister approved the summary on the same date i.e. on 3‑7‑1993.

14. Exh.P.O Summary for Chief Minister submitted by L.D.A proposing allotment of plot to the widow of late Habib Jalib on old reserve price and containing order of Chief Minister approving the same.

15. Exh. P. P List of 110 plots (with names of allottees) allotted by Chief Minister from his discretionary quota, prepared by Investigating Officer.

16. Exh.P.Q Fard Maqboozgi dated 31‑12‑1996, showing recovery of documents regarding allotment of 110 plots by Chief Minister prepared by Investigating Officer.

17. Exh.P.R List of 39 allottees belonging to the constituency of Mian Manzoor Ahmad Watto, accused.

18. Exh.P.S Notification dated 19‑7‑1997 appointing Sheikh Manzoor Elahi, as C.M. Punjab (sic).

19. Exh.PT Notification dated 29‑6‑1993 regarding dissolution of Provincial Assembly.

20. Exh.P.U Inquiry report by Investigating Officer.

After completion of the prosecution evidence, the statement of, the accused under section 342, Cr.P.C., was recorded on 18‑2‑2000. As the accused/appellant desired to produce evidence in defence and to examine himself, on oath, as permitted by section 340 (2), Cr.P.C. and section 21 of Ehtesab Ordinance read with section 29 of NAB Ordinance. 1999, the opportunity was, therefore, granted to him. Consequent thereupon, the appellant examined three D. Ws. namely Mr. Farooq Haroon Principal Secretary to Governor of Punjab D.W.‑1, Mr. Ijaz Ahmed Malik D.W.‑2 and Syed Muhammad Hameed, former Director General L.D.A. D.W.‑3 he examined himself on oath as D.W.‑4. Besides the appellant brought on record the following documents and closed his evidence:‑

1. Exh.D.A Statement of Mian Muhammad Latif Qureshi, Assistant Director L.D.A under section 161.

2. Exh.D.B Summary for the Chief Minister dated 22‑5‑1993, envisaging availability portion of plots against Chief Minister quota in L.D.A schemes.

3. Exh.D.C Statement of Mr. Irfan -Ul‑Haq Malik Deputy Director L.D.A. under section 161.

4. Exh.D.D The allotment policy dated 23‑12‑1986.

5. Exh.D.E Governor's letter dated 3‑7‑1993.

6. Exh.D.F L.D.A's letter dated 22‑9‑1986.

7. Exh.D.F/1 Note dated 19‑5‑1993.

4. Mr. S.M. Zafar learned counsel for the appellant, has argued that allotments of 110 plots were made by the appellant from his discretionary quota under the policy in vogue, Exh.D.D dated 23‑12‑1986; there are no guidelines provided in Exh.D.D for the exercise of discretion, therefore, the Chief Minister had the absolute authority to make allotments to any person according to this own choice and to whom he considered deserving, resultantly, the exercise of such discretionary power does not constitute an offence within the mischief of section 3 (1)(c) or (d) of Ordinance XX of 1997 or Act IX of 1997, the allotments included 30 plots of 10 Marlas and above, however, before the allotments could culminate into legal transfer to the allotees the appellant on 19‑7‑1993 had cancelled these allotments, therefore, in view of the rule of "locus penitentiae", the allotments of the plots falling in this category would be deemed to have never been made by the appellant. It is further contended that all the allotments of 110 plots could not mature into legal transfer to the allottees, because after the appellant's seized to hold the office as a Chief Minister on 19‑3‑1997, the L.D.A. never issued the formal allotment letters conferring the rights of ownership upon the allottees besides, the allottees did not deposit the requisite price of the plots, thus simply an attempt to allot the plots, is no offence under section 3(1) (c) of the Ordinance XX, of 1997; he also submitted that in order to attract the above provisions and to constitute an offence within the meaning thereof, there are two to four essential ingredients Le "dis‑honesty" or "fraudulently" "misappropriation" or "conversion" which must co‑exist and proved by the prosecution, but these elements and the proof are/is conspicuously lacking in the present case. He also argued that without prejudice to the appellant's case, that he had the absolute discretion to make the allotments, all the allotments were made on merits, in good faith, with honesty of purpose and satisfying the settled norms for the exercise of the discretion by an executive authority, the learned counsel has elaborated his submission by stating that the plots allotted to the six officials were in recognition of their exemplary sense of duty, which, they performed, during the unconstitutional attempt by the Federal Government to take over the Provincial set up in between the night 29/30 June, 1993, the Governor of Punjab vide letter Exh.D.E dated 3‑7‑1993, recommended to the President for rewarding the officials and it is clearly mentioned in the letter that the Provincial Government is also considering to appropriately reward them; the allotments in favour of the widow of Habib Jalib, the late poet, son and widow of Tariq Ismail. the late journalist, Mrs. Fizza Akhtar, widow of late ADC(G), the 12 journalists, Mr. Azeem Bakhsh, Mr. Saleem Khan were described as genuine, bona fide and made to the deserving persons. For the other allotments of 7,5 and 3, marlas, it is stated that the allotees were poor, homeless and destitute, therefore, it cannot be said that the action of the appellant was "dishonest" or "fraudulent". For the charge against the appellant, that 63 plats were allotted without obtaining formal applications and 37 applications were unsigned; some applications were not properly documented and 39 allottees, belong to the constituency of the appellant; Mr. S.M. Zafar has argued that firstly, there was no requirement of law to procure applications from the allottees and secondly it was the duty of the L.D.A. to have procured proper particulars and documentation from them; he stated that if 39 persons belongs to the appellant's constituency but are otherwise, deserving people, the allotments made to them would not be an act of dis‑honesty or fraud on part of the appellant. Anyhow, due to such insignificant lapse. Mr. Zafar argued that the appellant cannot be held guilty of the commission of any offence for which mens rea is a condition precedent which is not proved. It is further contended that according to the clear language of section 3(1)(c) of Ordinance XX of 1997, an attempt to commit an offence as defined in the section is no offence. It is settled law that the penal provisions of a statute defining an offence should be strictly construed and applied; in support of his contentions, he has relied upon Md. Akram, etc. v. The State (AIR 1951 Assam 17), Province of Bihar v. Bhagwat Prasad (AIR 1949 Patna 326) and Sitaram Agarwaka etc. v. State (AIR 1962 Cal. 370). Summing upon his arguments qua section 3(1) (c) of the Ordinance XX of 1997, it is submitted that the offence defined therein on the admitted fact of the case is not attracted.

5. As regards the application of section 3(1)(d) of the Ordinance XX of 1997, it is submitted by Mr. S.M. Zafar that after the enforcement of the Ehtesab Act, 1997, which came into force on 3.1‑5‑1997, the question arose about the fate of References pending under the Ordinance XX of 1997. The issue has been finally settled by the Honoulable Supreme Court in the judgment reported as (Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26) where it has been held as under:‑

"We are, therefore, of the view that only those proceedings which were pending under Ordinance XX, on the date of promulgation of the Act, were saved and continued which related to offences as defined under the Act by the holders of public offices since 6th day of November. 1990."

Therefore, in view of the aforesaid dictum, a reference tiled under the Ordinance XX of 1997, can only be continued, if it is an offence under the Act IX of 1997. However in section 3(1)(d) of the Act, the words "any other person" have been omitted and the offence is only restricted, if an accused by corrupt, dishonest or illegal means, etc. obtains or seeks for himself or for his spouses or dependent any property, valuable thing or pecuniary advantage. It is not even the case of the prosecution that the offence falls within the purview of section 3 (1) (d) of the Act. Moreover, while disposing of the application filed by the appellant under section 265‑K of the Cr.P.C., the trial Court has observed that "As for as section 3 (1)(d) of the Act is concerned, it is frankly conceded on behalf of the State that it is not attracted to the fact of this reference." Therefore, to convict the appellant under 3(1)(d) of the Ordinance or the Act, is absolutely illegal and unlawful.

The final submission of Mr. S. M. Zafar, is that the Court below has erroneously considered, treated and adjudicated the case against the appellant, as if, the Court was exercising the power of judicial review, which jurisdiction, the Court did not possess the Ehtesab Ordinance, the Act or the NAB Ordinance, 1999.

6. Conversely, Mr. Ahmer Bilal Sufi, the learned Deputy Prosecutor General NAB has argued that the L.D.A Act, 1975 the rules and regulations framed thereunder do not envisage any discretionary quota of the Chief Minister; the policy Exh.D.D is neither a valid policy nor it applies to the schemes of the L.D.A. It is also submitted that the so called discretion vesting in the appellant as the Chief Minister, has been "fraudulently" and "dishonestly" exercised, in as‑much‑as, on the last date i.e. 18‑7‑1993 on his tenure, without any legal authority, with mala fide intentions, he doled out the property of the L.D.A. and has not only caused loss to the L.D.A, but also the State exchequer by misappropriating the fund from his discretionary grant towards the payment of certain plots as proved on the record. It is also argued that the accused had no discretion to allot the plots to the officials, for the consideration mentioned in the summary, Exh.P.A, as this has no nexus to the purpose of the L.D.A. Act, the relevant rules and regulation or the so‑called discretion of the appellant. Severe criticism was made with regard to the other allotments as well, particularly to 39 persons who belongs to the Constituency of the appellant, stating that this was a political favouritism and a bribe; there is no proof on the record that such persons were poor, homeless and destitute and thus were deserving for the allotments. It is further argued that .the fraud and dishonesty on the part of the appellant is apparent on the face of the record, because knowing fully well that it is his last day as a Chief Minister, yet he in a hasty, oblique and mala fide manner made the allotments. He has also referred to the admitted facts of the case that for 63 allotments, there were no applications by the allottees, and 37 applications are unsigned. This all, according to Mr. Ahmer Bilal Sufi, leads to a conclusive conclusion of mens rea on part of the appellant. While meeting the submission of the appellant's side, that neither any "misappropriation" nor any "conversion" has taken place, on account of simple allotments, because the legal title never passed to the allottees, it is submitted that the allotments could not mature, finalize because of the stay order granted by this Court taking cognizance of the matter in suo mutou exercise of Constitutional jurisdiction and not due to any action of the appellant. The offence of "fraud", "dishonesty". "misappropriation" and "conversion" was complete the moment, the orders of allotment were made by the appellant, notwithstanding the happening of subsequent event mentioned above. Reply to the legal question raised by Mr. S.M. Zafar that after the enforcement of the Ehtesab Act, 1997, in the light of the judgment reported as PLD 2000 S.C 26, the provisions of section 3(1)(d) of the Ordinance are not attracted, it is submitted that this was not an issue before the Honourable Supreme Court, and the passage of the judgment reproduced above is only in the nature of an observation, which in view of the provisions of section 6 of the General Clauses Act, 1897; the various judgments of the superior Court from our jurisdiction and abroad, cannot be termed as a decision deciding a question of law or an enunciation on the principle thereof, having the binding effect. Section 6 (ibid) clearly answers the proposition, that the matter pending under the repealed Law, except where the repealing enactment intended otherwise, shall to be, decided on the basis of the law so repealed; it shall thus be erroneous to interpret the observation of the Honourable Supreme Court in the manner, which violates the express provisions of section 6, particularly when there is no discussion on the point in the judgment. In support. of his contention he has relied upon judgments reported A.M. Khan Leghari, v. Government of Pakistan through Secretary to Government of Pakistan, etc. (PLD 1965 (W.P.), Lahore 214), Maj. Gen. (Retd.) Mian Ghulam Jilani v. The Federal Government through the Secretary Government of Pakistan, Interior Division, Islamabad (PLD 1975 Lah. 65), Amboca Quarry Works. Etc v. State of Gujarat (AIR 1987 SC 1073), L.Deep Chandra v. Lal Raghuraj Swarup, etc. (AIR No.1977 All. 370), Wasudeo Madhaorao Assarkar, etc. v. The State of Maharashtra (AIR 1976 Bombay 94), Nag Raj Patodia. v. R.K. Birla and others (AIR 1969 Raj 245), and Kuli Singh, etc others v. The State of Bilhar etc. (AIR 1978 Patna 298).

7. We have heard the learned counsel for the parties. There is not much dispute, between the parties regarding the significant facts established on the record, such as, that 18‑7‑1993, was the last date of appellant as the Chief Minister of the Punjab, as he was to relinquish the office some time on 19‑3‑1993. It is also not disputed that as the Chief Minister, the appellant made all the Allotments on 18‑7‑1993, except a few which were prior to that date, but still on or after 15‑7‑1993. The case of the prosecution is, that the appellant has made these allotments "fraudulently" and "dishonestly" against the policy and directive envisaged by the L.D.A Act, whereby, the property of the L.D.A, has been "misappropriated" and "converted" for the use of the allottees, thus attracting the provisions of section 3(1) (c) of the Ordinance XX of 1997, besides through the aforesaid action, the appellants by "corrupt", "dishonest", and illegal means, etc. has obtained and sought the property i.e. the plots in question for the allottees, which has resulted into .pecuniary advantage and undue favour to them and loss to the L.D.A. and the State exchequer. This squarely attracts section 3(1)(d) of the Ordinance, whereby, an attempt has also been made an offence.

8. In view of the above, the important questions which arises for our consideration are:

(1) Whether Exh.D.D is a valid allotment policy, under which the appellant had the discretionary quota in the schemes of the L.D.A;

(2) Whether the "discretion" of the appellant to make allotments out of his discretionary quota if held to be available to him was absolute, uncontrolled, unfettered and the appellant was not suppose to adhere to the principles of fairness and reasonableness while exercising his discretion;

(3) Whether the appellant is guilty of acting "fraudulently" and "dishonestly" while exercising his discretion in the manner established on the record and this has resulted in misappropriation and conversion of "L.D.A" property;

(4) Whether an attempt to misappropriate and convert a property, even if dishonestly and fraudulently made is not an offence under section 3(1)(d) of the Ordinance, 1997.

(5) Whether in the light of the facts established on the record, the appellant is guilty of the offence under section 3(1Xd) of the Ordinance XX. But in view of the dictum of the Honourable Supreme Court, cannot be convicted under that provision.

9. The answers to the above questions are as follows:‑

QUESTION NO. 1

10. It is not the case of the prosecution in the reference that, the appellant had no discretionary quota in the schemes of the L.D.A, the precise wording of the reference is "that the allotments were made on political considerations against the policy and directives envisaged by the L.D.A". Likewise there is no charge against the appellant that he made the allotment without there being any discretionary quota of the Chief Minister. None of the prosecution witnesses had stated that the appellant had no discretionary quota, rather in his cross examination P.W.1 Mr. G.M.Sikandar, stated that "It is always within the knowledge of L.D.A as to whether any quota in its schemes was available to the Chief Minster or not". Answering to another question he deposed "However, I am not aware as to whether any discretionary quota was available to the Chief Minister at the relevant time or not". P.W.2, Muhammad Latif Qureshi, Assistant Director Complaint Cell L. D. A. " In his cross examination, deposed "It is correct that the Chief Minister, could recommend any deserving person for the allotment of plot out of his discretionary quota. I cannot say as to whether 110 plots were available in the discretionary quota of the Chief Minister at the relevant time or not." P.W.4, Rana Mahmood Ahmed, the Investigating Officer of the case, in his cross‑examination stated " It is correct that the Chief Minister is ex officio Chairman of L.D.A. It is correct that the Chief Minister was competent to issue directives under the policy, L.D.A. had not prepared any policy for allotment of plots by various authorities. However, the Housing and Physical Planning Department had prepared such policy which was in vogue in those days. I produce copy of the said policy Exh.D.D. The allotment can be made to eligible persons for which certain details have been provided in the said policy."

11. Moreover, in a summary dated 12‑4‑1992, prepared by Mr. Hafeez Ullah Ishaq, the then D.G, L.D.A., countersigned by the Vice Chairman, L.D.A., qua the subject "Availability of the plots against the Chief Minister's Discretionary Quota in L.D.A Schemes" the appellant was apprised as under:‑

"As per allotment policy, 13% plots were reserved against the Chief Minister's Discretionary Quota in L.D.A. Schemes."

Though this summary has not been tendered in evidence by the prosecution, but was filed with the reference and is available on the record at page 15. This document to our mind was deliberately withheld, because no cogent reasons have been given by the prosecution for not producing the document in evidence, therefore, a valid presumption under Article 129 (g) of the Qanun‑e- Shahadat Order, 1984, can be drawn against the prosecution for withholding the same on the natural presumption, that if produced would have been unfavourable to the prosecution. Moreover, a document, if brought on the record, by one party, but not tender in evidence, the Court can always consider such documents for the benefit of other side for the purposes of dispensation of justice.

12. Attending to the point raised by Mr. Ahmer Bilal Sufi, that Exh.D.D is not a valid policy, because it has not been issued under the L.D.A law. According to section 6 (2) (vi) of the L.D.A. Act, 1975, it is one of the functions of the authority, to sell, lease, exchange or otherwise, dispose of any property vested in it. Section 17 of the Act, envisages, that the authority in discharging its functions, etc. shall be guided by such direction as the Government may give to it, from time to time. Therefore, when the Govt. of Punjab, the Housing and Physical Planning Department, of which the L.D.A. is an attached Department, under item No.16 of Schedule 1 of the Rules of Business 1974, has issued the policy, Exh.D.D. for the allotment of residential plots in any housing schemes of Punjab and this policy has been adopted and acted upon by the L.D.A, it cannot be argued by the prosecution that the policy is invalid qua the L.D.A. Moreover, the said policy came under consideration in the case reported as Mian Muhammad Nawaz Sharif, v. Special Court and other 1998 PCr.LJ 162, and the same was held to be a valid and invogue policy for the L. D. A.

Therefore answering the question, it is held that the appellant as a Chief Minister, Punjab, had the discretionary quota under the policy Exh. D. D which was a valid and in force, when the allotments in question were made by the appellant.

QUESTIONS Nos.2, 3 and 4

13. Before dilating upon these questions, we find it expedient to reproduce the provisions of section 3(1)(c) of Ordinance No.XX of 1997, which are, exactly the same in the Act IX of 1997:--

3(1)(C). If he dishonestly or fraudulently misappropriates or otherwise, converts for his use or for the use of any other person any property entrusted to him or under his control, as a holder of public office or wilfully allows any other person to do.

The key words appearing' in aforesaid provisions, essential for constituting an offence are "dishonestly", "fraudulently", "misappropriation", "conversion". These expressions have not been defined, in the section, therefore, to construe these words, the ordinary dictionary meaning should be considered: --

"Dishonest": According to the Blacks Law Dictionary, sixth edition page 468, is defined as under: --

"Disposition to lie; cheat, deceive or defraud; untrustworthiness; lack of integrity. Lack of honesty, probity or integrity in principle: lack of fairness and straight forwardness; disposition to defraud deceive or betray."

"Fraudulent" in the same dictionary has been assigned the following meaning at‑page 662:‑‑

"To act with `intent to defraud' means to act wilfully, and with the specific intent to deceive or cheat; ordinarily for the purpose of either causing some financial loss to another or bringing about some financial gain to oneself."

14. Mr. S.M Zafar, has argued that as no guidelines are provided in the policy Exh.D.D for the exercise of discretion by the Chief Minister, therefore, the appellant in that capacity could make the allotment to any person of his sole choice and there cannot be any limitations or conditions on this authority. In view of the above submission, another important point, which requires determination is what is meant by word/legal concept "discretion" and even if the discretion by an executive authority is ex‑facie "fraudulently" and "dishonestly" exercised yet can be said, not falling within the mischief of section 3(1)(c) of the Ordinance /Act, 1997. The word has been defined in Black Law Dictionary 6th Edition at page 466"‑

"Discretion: When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. As applied to public officers connotes action taken in light of reason as applied to all facts and with view to rights of all parties to action while having regard for what is right and equitable under all circumstances and law. State v. Whitman. R.L. 431 A 2d 1229, 1233.

In criminal law and the law of torts, it means the capacity to distinguish between what is right' and wrong, lawful or unlawful, wise or foolish, sufficiently to render one amenable and responsible for his acts.

Wise conduct and management cautious discernment, especially as to matters of propriety and self control, prudence; circumspection wariness. "

(The underlying is mine)

15. The above meaning clearly contemplates that the exercise of discretion is not uncontrolled, unfettered, or absolute, a person vested with a discretion is not permitted to exercise the same imprudently, unfairly, unreasonably, arbitrarily, capriciously and in an impetuous way. The discretion and arbitrariness, etc. are sworn enemies and cannot co-exist. The discretion undoubtedly cannot be exercised in a fanciful manner, when the repository of discretion is disposing of the public property, particularly in a democratic system, governed by written Constitution and the laws. If, therefore, an action of an executive authority is proved to be with dishonesty of purpose, on the rule of so called "absolute discretion", it cannot be protected though it can be interfered in the domain of judicial review and at the same time, it cannot' save the person from the criminal consequences. Thus the submission of Mr. S.M. Zafar that the appellant had an "absolute discretion" cannot be accepted. Besides, it is not well founded to argue that the policy Exh.D.D provides no guidelines for the exercise of discretion, rather clauses (7) and (8), are the eligibility and ineligibility clauses, controlling all the allotments made in pursuance of the policy. In clause (7), it is specifically mentioned "only local people of the concerned District, are eligible vide letter of even No. dated 20‑7‑1987." Clause No.8, is even more significant which provides:‑

Ineligibility

"Following will not be eligible for allotment of plots; who:

(a) Owns a house or a plot in his/her name in any urban area of Punjab.

(b) Has been allotted plot or house in any urban housing scheme Punjab earlier, to either wife, husband or dependent children but sold out.

(c) Owns house in the name of wife/husband or dependent children.

(d) Has been convicted of corruption charges or an inquiry for corruption is pending.

(e) Dismissed Government servants.

(f) Convicted for anti State, anti social activities and heinous crimes.

(g) "Minor except destitute."

This clause was added vide letter of even number dated 16‑11‑1987. The above is the general criteria, which lays down the rule for the allotments of the plot falling in any of the categories of quota mentioned therein, whether it was made by the concerned authority itself or by the Chief Minister, in his discretionary, power. We are unable to subscribe to the argument of Mr. S.M. Zafar, that these clauses have no controlling effect upon the Chief Minister's authority; because by no rule of interpretation of the legal instruments. the clauses can be held to be inapplicable to the Chief Minister's quota but otherwise, to the other categories, especially when such intent is not expressed in the policy itself.

27. Having set down the above criteria for the exercise of discretion by the Chief Minister, and specially when Mr. S.M.Zafar, insisted to seek the verdict about the bona fide of the appellant in making the allotments, we deem it proper to examine them in order to adjudge, if these are bona fide or tainted with fraud and dishonesty; firstly we take up the case of six officials. The allotment to them in an admitted fact, it is also admitted by the appellant that an amount of Rs.3 million was transferred to the L.D.A. from his discretionary funds, towards the price of the plots allotted to three police officers; the action was justified by Mr. S.M. Zafar, while submitting that it was in recognition of their exemplary sense of duty, which they performed, during the unconstitutional attempt by the Federal Government to take over the Provincial set up, in between the night of 29/30th June, 1993; their cases for the reward were also recommended by the Governor of Punjab vide letter Ex.D.E. dated 3‑3‑1993, it is clearly mentioned‑in the letter that the Provincial Government is also considering to appropriately reward the officials. It is in pursuance of the above that the plots were given to them as a reward/award and for the three police officials the price was directed to be paid from the discretionary funds of the Chief Minister.

28. According to the Decoration Act, 1973, Act XLIII of 1973, the President of Pakistan though is empowered to reward the person, qualified in the Act, but the appellant's counsel has failed to show any law under which, the appellant as the Chief Minister of the Province, similarly could reward/award the official in the shape of the property, belonging to L.D.A. and not that of the Provincial Government. Besides, he had not been able to establish any nexus for the allotment of these plots with the L.D.A. laws the policy Exh.DD, appellant's discretionary' power under the policy and the purpose of reward/award to the officials for some good services rendered to the Provincial Government. Therefore, we are constrained to hold that such allotment in discretionary power were not only unauthorized, but dishonestly and fraudulently made, particularly, without determining their eligibility, ineligibility in term of the policy Exh.D.D.

Plots allotted to the three widow, son of Tariq Ismail and 12 journalists

29. In this behalf, much cannot be impugned to the intention of the appellant, except that in these cases again the eligibility, ineligibility criteria of the policy Exh.D.D was not followed. Moreover, according to the appellant the plots to the journalists, were made on the recommendation of Information Department, Government of Punjab, but despite availing the opportunity of leading defence evidence, nothing in the shape of any document, or oral evidence was produced by the appellant to support his version.

Allotment to Azeem Bakhsh and Salim Khan

30. (i) The allotment to Azeem Baksh was made in pursuance of the summary Exh.P.M. of the L.D.A. dated 26‑6‑1993 , wherein, he was recommended for the Plot No.5 Block H/3 M.A Johar Town Phase‑II. But without applying his mind as a prudent man, whether the recommended was a deserving case, the appellant approved the summary, without even considering his eligibility or otherwise for such an allotment. This is absolutely a case of undue favouritism. Moreover, in his statement under section 342, Cr.P.C. answering the relevant question, the appellant stated "The directive appears to have been issued by Mr.G.M. Sikandar, without my instructions.

As far as I remember, I had not recommended the name of Azim Bakhsh. However, when Mr. G.M.Sikandar, appeared as P.W.1 on such suggestion was put to him. But in his statement on Oath, as D. W.4, the appellant in his examination in‑chief, did not propound the same stand, rather deposed as below.

"One plot was allotted to one Mr. Azim Bakhsh, vide summary Ex.P.M. Director General had proposed that said person, Mr. Azim Bakhsh, may be allotted plot in the vicinity abutting Lahore Canal. I did not agree with this proposal and directed that said plot should be put to auction and instead said person should be allotted one plot in M.A. Johar Town Scheme. This decision was conveyed to L.D.A. by Mr. G.M. Sikandar, under his signature on 27‑6‑1993."

The above shows, the nature and the manner of the exercise of discretion by the appellant and caution he took while disposing of the public property. This kind of attitude can hardly be termed as bona fide exercise of descretion.

(ii) On 18‑7‑1993, the summary Exh.PL was sent to the appellant for the allotment of 17 plots mentioned therein containing the detail of the directives of the appellant, which all are of the same dated i.e. 18‑7‑1993, including his verbal orders not only he approved this summary, but also issued a direction to the L.D.A. under the signature of Mr.G.M. Sikandar:

"The Chief Minister has seen land approved the recommendation of D.G.,L.D.A. He has further desired that one Kanal plot may be allotted in favour of Mr. Saleem Khan son of Mubarik Khan resident of white house lane, off Sunddardas Road Lahore as directed earlier."

This was the high and honest standard of discretionary exercise of power of the Chief Minister that without reflecting and specifying the reasons justifying the allotment and or the eligibility of the person. The allotment was ordered, as if it was a bounty and his personal property. We are unable to share the view of Mr. S.M.Zafar, that in this case, the discretion was properly exercised in good faith and for the benefit of deserving person.

31. For the other allottees of 7,5 and 3 Marlas , it is the case of the prosecution that 63 allottees never applied for the allotments, 37 applications were unsigned, out of these 39 persons belongs to the constituency of the appellant. These facts have been collectively proved through the statements of P.W.2 to P.W.4, and Exh.P.U. and Exh.P.R. there is neither any effective cross‑examination to these statements, nor the appellant in defence has controverted the above fact. His case in defence is that all these persons were poor, homeless, orphan, widow and destitute. In his statement made under section 342, Cr.P.C. in reply to question, the appellant stated. "The recommendees were low‑paid employees of the Punjab Assembly Secretariat, Chief Minister Secretariat and other poor destitute from District Okara". But in defence, no evidence was led by the appellant, to prove his version and disprove the above facts. Through Exh.P.R. it has been proved by the prosecution that 39 allottees belonged to the Constituency of the appellant, non of these allotments show, if even a single plot was allotted in any widow; the allottees mentioned in the list have not been examined by the appellant to prove either being the low‑paid employees of the Assembly or Chief Minister Secretariat. This list at serial No.9 includes the name of one Dr. Zulifqar Ali son of Muhammad Din: it is indiscernible if the Doctor was a low paid employee, poor, homeless and a destitute. Further the prosecution in evidence has proved that there are no applications in 63 cases, and 37 applications are unsigned in many cases the requisite documentation is lacking. The appellant in defence has taken the position, that it was the duty of the L.D.A. to fulfill these formalities, and to check the particular etc. This plea set out by the appellant is devoid of any logical for the reason that all the directives were issued by the appellant on 18‑7‑1993, directing the allotments, summaries were got prepared and approved the same day. No time or opportunity was given to the L.D.A. to complete the formalities. Thus, it is a clear case of dictation and undue influence exercised by the Chief Minister on the L. D. A. officials, preventing them to perform their lawful duty.

32. From the above discussion, it is proved that the appellant was acting in utter violation of his discretionary authority, with dishonesty of purpose and in undue haste. He made the allotments to his favourites, because he fully knew that the Assembly was going to be dissolved, which fact he has admitted in his Examination in‑Chief as D.W.4. Moreover, the allotments were not made to the deserving person, because in his cross examination he deposed "Since I knew some of the proposed allottees personally while other were recommended to me as being deserving person, therefore, I issued the directive for the allotment of the plots only on the basis of said criteria." It is not proved in defence as to who made such recommendation, but the fact remains that the appellants in a reckless, imprudent and unbecoming manner, unexpected of the Chief Executive of the Province, who is the custodian of the public interest and property, without verifying the worth and veracity of such recommendation, doled out the property of the L.D.A. in a single day, which Mr. S. M. Zafar was also constrained to remark that it may be "an immoral act but not an offence" The appellant was directly responsible for not enabling the L.D.A. to follow the due procedure. The exercise of his discretion in the above manner was against the settled principles for the exercise of discretion. These set of facts undoubtedly constitute mens rea on part of the appellant, which satisfy the elements of the key words of section 3(1) (c) of Ordinance XX of 1997!Act "dishonestly; and "fraudulently".

33. The other two expressions of the section namely "misappropriation" and "conversion" required comments. If the ownership rights in immovable property of L.D.A were being dishonestly, fraudulently, unauthorizedly, improperly and in unlawful manner, as highlighted above, were directed by the appellant to be transferred to the allottees this would have embraced such an action as "misappropriation" and "conversion". But factually this did not happen, firstly in view of the stay order granted by this Court. secondly, no allotments letters were issued by the L.D.A. and thirdly, the allottees did not deposit the price of the plots. Therefore, these allotments could not mature into legal transfer, conferring the definite right of ownership to the allottees. Mr.S.M. Zafar, has rightly argued that an offence within the purview of section 3(1)(c) of Ordinance XX of 1997. It is settled law that the provision constituting an offence with the consequences of conviction/punishment must be strictly construed and applied. Moreover, in the case of 30 plots, of 10 Marlas and above, before the legal transfer could taken place, the appellant had cancelled the allotments on 19‑7‑1993.This fact is admitted by P.W.1 and P.W.4 and also find mention in Exh. P. U the prosecution document. The appellant under the rule of "locus poenitentiae" had the power and authority to recall his orders, therefore, such allotments would be deemed to have never been made, by him, to attract "misappropriation" or "conversion". We endorse the submission of Mr. S.M. Zafar and the judgments relied upon in support or iris contention, that unless an attempt is made an offence, no person can be convicted for such action and that an attempt is not, an offence under section 3(1)(c) of the Ehtesab Ordinance/Act. 1997. We answer the questions accordingly.

QUESTION NO.5

For answering this question, it is appropriate to reproduce the provisions of section 3 (1) (d) of Ordinance XX of 1997 and Act IX of 1997.

3(1)(d) of the 3(1)/d of the Act.

Ordinance:

"If he by corrupt,

"If he, by corrupt dishonest or illegal dishonest, improper means in abuse of or illegal means position as a holder obtains or seeks for of public office himself or for any obtains or seeks for other person any himself or spouses property, valuable or dependent any thing, pecuniary property valuable advantage or undue thing pecuniary favour. advantage.

Under section 3(1) (d) of the Ordinance, in view of the express wording and as also not controverted by Mr. S.M: Zafar, that an attempt is also an offence if the other ingredients of the provisions are proved on the record. While discussing and answering questions Nos.2 and 3. we have already held that the action of the appellant in making the allotments was dishonest and fraudulent. From the proven facts on the record, a definite and positive attempt was made by the appellant, in a corrupt, dishonest, improper and illegal manner, to transfer valuable property of the L.D.A. to the allottees i.e. "any other person" within the purview of this section, which would have resulted in pecuniary advantage to them, and in any case, was an undue favour to the allottees. Thus, if the provisions of the Ordinance, were 'attracted, we would not have hesitated to uphold the judgment of the trial Court, convicting the appellant under this section, may be subject to some modification in the sentence, and the fine imposed upon him. But to the good fortunate of the appellant in the judgment reported as Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26), the Honourable Supreme Court, while examining the effect of the repeal of Ordinance, in 1997, by Act 1997, and the saving clause of the latter statute, on the pending reference has allowed the continuation of the proceedings, only which relate to offences as defined under the Ehtesab Act.

34. The express "any other person" in section 3(1)(c) of Ordinance, XX of 1997, has been omitted in the corresponding section of the Act, therefore, the attempt to commit an offence within the ambit of section 3(1)(d) of the Act for "any other person" is no more an offence under the Act, which restricts the attempt to the holder of the public office, I himself, his spouses and dependent. The allottees of the plots do not fall within the above category, therefore, in the light of the aforesaid judgment, the appellant cannot be convicted on account of section 3(1)(d) of the Ordinance.

35. Confronted with the above, Mr. Ahmer Bilal Sufi has reiterated his stance, highlighted in Para. No.16 (supra). We are afraid, according to the settled law even an obiter dicta of the Honourable Supreme Court is binding upon all the Courts of the country We do not agree with the counsel for the prosecution that the point was neither in issue, before the Supreme Court, nor any discussion has been made, therefore, it should not be considered as a decision on a question of law, or enunciation of the principle of law having the binding effect. As per the judgment, the Honourable Supreme Court, was considering the effect of the repeal of the Ordinance XX of 1997 and intent of the saving clause of the repealing Act IX of 1997. The proposition agitate by the parties to the case are clearly formulated in the judgment, which includes the effect of section 6 of the General Clauses Act., Moreover, at page 44 of the judgment, it is stated "However, the contention of the learned counsel for the private appellant, is, that the provisions of the Act, being inconsistent with that of Ordinance XX, the proceedings pending under Ordinance XX could not be continued under the Act. The above contention of the learned counsel for private appellants does not appear to be without force" It is in context of the propositions formulated in the judgment and also the above statement that the Court resolved the controversy by holding that only such pending reference can be continued which relates to the offence defined under the Act. To our mind, the dictum of the Honourable Supreme Court in unambiguous and unequivocal terms has settled the question of law, therefore, even if no elaborate discussion has been made on the point, we are bound by the aforesaid judgment in view of Article 189 of the Constitution. It may be pertinent to state that this legal question throughout has been the primary plea of the appellant. He sought the quashment of the reference by moving an application under section 265‑K, Cr.P.C. before the trial Court inter alia on this account. The issue has been made a key ground in the memo. of appeal Mr. S. M. Zafar, while opening the case made this as a foundational formulation. But still being cognizant of the effect of the Supreme Court judgment and the consequences flowing therefrom, the Federation of Pakistan or the NAB Authority made no effort to seek the review of the judgment from the Court. No satisfactory explanation was put up by the prosecution, on the repeated query of the Court, as to why the same was not done. We thus have no option, but to infer that this interpretation of law rendered by the August Supreme Court, was accepted by both the Federal Government and the prosecution.

This question is accordingly answered in the light of the decision made above.

In the light of above, by allowing this appeal, the impugned judgment of the Accountability Court, is set aside and the appellant is acquitted of the charge against him. He shall be released forthwith unless detained in any other case.

N.H.Q./M‑1411/L Appeal accepted