RAMESH M. UDESHI Versus THE STATE

M. JAVED BUTTAR, J. --- The appellant Ramesh M. Udeshi (former Secretary to Government of Sindh Land Utilization Department) along with co-accused Syed Abdullah Shah, former Chief Minister of Sindh, (the absconder), Ahmad Khan, Allah Bux, Muhammad Essa, Waheed Hussain, Dost Muhammad and Abdul Rasheed (beneficiaries), were proceeded against in Ehtasab Reference No.7 of 1997 under sections 3 and 4 of Ehtesab Ordinance No.CXI of 1996. The above said Syed Abdullah Shah was declared absconder. The rest of the accused were tried by the Ehtesab Bench of Sindh High Court, which, vide its judgment, dated 30-11-1998 convicted them under section 3 and sentenced them under section 4 of Ehtesab Act No. IX of 1997 to two years R.I. each and to pay Rs.10,00,000 each as fine and in default of payment of fine to further undergo one year s R.I. each. The allotments of leases in favour of beneficiaries were cancelled, the lay out plan approved by the Deputy Commissioner submitted by their attorney in favour of Developers, which was approved by K.D.A., was also directed to be cancelled and the land in question was directed to be disposed of in accordance with law. The appellant, through this appeal under section 26 of the Act IX of 1997 read with Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973, has assailed his conviction and sentence.

2. The relevant facts are, that the beneficiaries moved a joint application (Exh.11/1) directly to the above said absconding co-accused, for the allotment of land measuring 200 acres for residential-cum-commercial purpose from N.A. Class No.105 in Deh Thoming, Scheme No.33, District Malir, Karachi which was marked by him on 3-3-1994 to the appellant for putting up a summary. The appellant in consequence called for a report from the Deputy Commissioner, Malir, Karachi. The Deputy Commissioner vide his letter, dated 13-4-1994 reported that no compact tenement measuring 200 acres was available for disposal in Deh Thoming. It was, however, suggested that from N.A. Class land bearing No.105 in Deh Thoming, which was unsurveyed and unplanned, land could be made available. It was further suggested that the market value of such land was reported approximately to be Rs.25 per square yard. The appellant on the basis of the above report, submitted a summary dated 17-4-1994 to the then Chief Minister (the absconding co-accused), paras.4 and 6 of which, for convenience are reproduced below:--

(4) According to condition No.14 of the Statement of Conditions notified on 12-5-1975, the commercial/residential plots are to be put in open auction. Presently the Government has imposed complete ban on disposal of State land. However, the Government under section 10(1) of the Colonization of Government Lands (Sindh) Act, 1912 is empowered to grant the land to any person on such conditions as it thinks fit.

(6) Under the circumstances orders are solicited as to whether the request of applicants may be entertained under section 10(1) of the Colonization of Government Land (Sindh) Act, 1912, in relaxation of existing policy/Rules of Business/ existing ban at the rate of Rs.25 per sq. yard as recommended by the D.C. Karachi, Malir subject to proper survey/ demarcation with the consultation of the Survey Superintendent, Karachi Division.

The Chief Minister through his endorsement dated 17-4-1994 ordered as follows:--

Request allowed under section 10 of the Act of 1912 in relaxation of ban as proposed in para. 6.

(Sd.) 17-4-1994.

After the grant of approval by the Chief Minister, which was received back by the appellant on 21-4-1994, the appellant issued consequential orders of allotment for 200 acres of land in Naclass No.105 LAC in Deh Thoming, Scheme No.33, District Malir, Karachi at the rate of Rs.25 per sq. yard for residential/commercial purposes in favour of the beneficiaries, who submitted another application directly to the Chief Minister for the reduction of the rate from Rs.25 per sq. yard to Rs.10 per sq. yard on the ground that the rate of Rs.25 per sq. yard was on the higher side due to the fact, firstly, that the area was underdeveloped and required heavy expenditure on improvement and development, secondly, the Government recently had granted State land to Naval Authorities and the High Court Bar Association in the Hawks Bay area, adjoining Deh Thoming, at the rate of Rs.30,000 per acre which come to even less than Rs.10 per square yard, which was forwarded to the appellant, in pursuance of which, the appellant submitted at page 3 dated 21-7-1994 in continuation to the summary submitted earlier, wherein he solicited orders from the Chief Minister as to whether the request for reduction of the rate from Rs.25 per sq. yard to Rs.10 per sq. yard could be allowed. The Chief Minister approved the reduction of the rate from Rs.25 to Rs.10 per sq. yard through his endorsement dated 27-7-1994 on the said page 3. Resultantly, through his letter dated 1-8-1994 (signed on 31-7-1994) the appellant confirmed the reduction of the rate from Rs.25 per sq. yard to Rs.10 per sq. yard in partial modification of the earlier allotment order, dated 21-4-1994. These are the admitted facts.

3. In this background the present reference was forwarded by the Chief Ehtesab Commissioner to the Court on 20-1-1997. The charge was framed on 7-5-1997, which was pleaded not guilty and trial was claimed. The proceedings, continued under the Ehtesab Ordinance No.XX of 1997, which were subsequently, saved and continued under section 31(2)(c) of the Act IX of 1997.

4. We have heard the learned counsel for the parties and have also seen the record.

5. Charge framed by the Court against the accused on 7-5-1997, reads as follows:--

That you accused Ramesh M. Udeshi, being a holder of Public Office in your capacity as Secretary to Government of Sindh, Land Utilization Department, at the relevant time by abuse of your official position with mala fide and dishonest intention to secure illegal and fraudulent gain/profits suggested allotment of 200 acres of land from N.A. Class No.105, Lea Thoming Scheme No.33, Karachi, in favour of accused Nos.2 to 7 hereinabove mentioned, at the throw away price of Rs.25 per square yard which was subsequently reduced to Rs.10 per square yard as against the notified rate/price of commercial land in the area of Rs.1,000 per square yard and in violation of the ban on disposal of land imposed by the Government of Sindh and put up a summary to absconding accused Syed Abdullah Shah for approval of allotment of the above land without consulting the Finance Department, Government of Sindh and, whereby caused a loss of Rs.958.32 million or there about to the Government of Sindh.

AND that you accused (1) Ahmed Khan, (2) Allah Bux; (3) Muhammad Essa; (4) Waheed Hussain; (5) Dost Muhammad; and (6) Abdul Rasheed, acting in league and collusion with each other and the remaining accused requested for allotment of the above land on a meagre price by offering illegal and wrongful gratification, benefits and favours to absconding accused Syed Abdullah Shah and accused Ramesh M. Udeshi and for earning illegal and fraudulent pecuniary benefit/profits for yourselves fell in league with absconding accused Syed Abdullah Shah and instigated and persuaded him to order the allotment of the above land against the Government policy relating to sale/disposal of State land and at a throw away price, thereby causing a loss of Rs.958.32 million or there about to the Government of Sindh.

AND that all of you accused 1 to 7 along with absconding accused Syed Abdullah Shah acting in collusion and connivance with each other with mala fide and dishonest intentions to secure illegal wrongful and fraudulent pecuniary gains and profits conjointly committed the offence/offences punishable under sections 3 and 4 of the Ehtesab Ordinance, within the cognizance of this Court, and we are, hereby direct that you be tried by us for the aforesaid offences.

6. The prosecution tendered testimonies of Abdul Jabbar son of Abdul Samad, Senior Clerk Board of Revenue, Land Utilization Department as P.W.1; Mushtaq Ahmed son of Bilal Khan, Sub-Registrar District (South) as P.W.2 and Ansar Ahmed son of Fayyaz Khan, Assistant Director, Anti-Corruption as P.W.3. Janib Ali son of Ghulam Muhammad, Surveyor, Revenue Department was examined as Court-witnesses, while Syed Muhammad Shah son of Syed Hussain Shah Assistant Director, K.D.A. Atiq Baig son of Mehdi Hassan, Director, Master Plan, K.D.A. and Shah Muhammad Misbah son of Shah Muhammad Shibli, the then Director-General, K.D.A. were examined as defence witnesses.

7. The crux of the matter is that whether the appellant exceeded any of his powers or acted illegally in forwarding and formulating the summary dated 17-4-1992 to the said Chief Minister. The learned Judge of the Ehtesab Bench of Sindh High Court referred to Zahid Akhtar v. Government of Punjab PLD 1995 SC 530, in which it was laid that compliance of an illegal or incompetent direction/order by a subordinate officer could neither be justified on the plea of the same having been issued by a superior authority nor the same could be defended on the ground that non-compliance thereof would expose the subordinate officer to disciplinary action for defying the orders of the superior authority. There is no cavil with the principle enunciated in the said judgment. However, the question remains that whether the appellant exceeded any of his powers or acted illegally in forwarding the summary to the then Chief Minister. As far as communication of the approval of the Chief Minister to the Deputy Commissioner, by the appellant, is concerned, it did not require any conscious application of mind as he only acted as a post office and for this act, no action was taken against the appellant.

8. The perusal of the summary shows that all the necessary facts were disclosed by the appellant including the gist of report, dated 13-4-1994 sent by the Deputy Commissioner, Karachi Malir. The market value of the land in question as reported by the Deputy Commissioner, was correctly stated. It was also stated that according to the condition No.14 of the Statement of Conditions, notified on 12-5-1975 the commercial/godowns plots were to be disposed of through auction. It was also highlighted that at that time the Government had imposed complete ban on disposal of State land. It seems that the appellant submitted the summary to the then Chief Minister according to law on the basis of report submitted by the Deputy Commissioner of the District. There is no cogent guilt of the appellant. Conviction cannot be based on surmises and conjectures. The prosecution has failed to prove the appellant s involvement in the offence. The learned Ehtesab Bench of the High Court failed to appreciate that no conclusive evidence had been produced to show any material gain or advantage obtained by the appellant. The perusal of the summary does not show any mala fide and dishonest intention on the part of the appellant. There is no evidence of obtaining any illegal gratification and pecuniary benefits by the appellant. Similarly, there is no evidence that the appellant provided any illegal and fraudulent gain to the co-accused because, as mentioned above, all the necessary facts were properly and correctly stated in the said summary. In our view, the charge as a whole and the offence as alleged, were not proved against the appellant.

In view of the above-mentioned, the appeal is allowed, the impugned judgment, dated 30-11-1998 passed by the High Court Sindh, Karachi passed in Ehtesab Reference No.7 of 1997 is set aside and the appellant is acquitted of the charge.

M.B.A./R-30/S Appeal allowed.