STATE Versus ALI JAN SHAH

The accused Pir Ali Jan Shah, herein was sent in this Court to face trial under the provisions of Holders of Representative Office (Trial of Offences) Ordinance, 1978 (Ordinance No. XLVIII of 1978), (hereinafter to be referred as 1978 Ordinance). The complaint, unfortunately, does not provide a happy reading. It contains some charges of collective nature claimed to have been committed by the Pakistan People's Party while the others are alleged to have been committed by the accused himself. However, I am in agreement with the learned counsel for the defence that charges may be summed up as follows:-

1. (a) That Pir All Jan Shah, the former Adviser for Kashmir Council had put himself as a candidate for a seat of Azad Jammu & Kashmir Assembly in 1975 General Elections ; he committed all sorts of irregularities and illegalities in the election. He threatened the Voters of rival candidates and with the collusion of the officials deputed on election duty forged Votes behind closed doors;

(b) That prior to the election in Azad Kashmir which took place in May, 1975 the accused attended a meeting of candidates presided over by Mr. Muhammad Hayat Khan Tuman, in which a decision had been taken that elections irregularities and illegalities be committed at a large scale in which Government vehicles be used freely. So rupees ten lac were actually spent out of Government funds, in election campaign;

(c) That the accused like other candidates received an amount of Rs. 10,000 from Peoples Party of Azad Kashmir. Rs. 5,000 were received on 14-4-1975, and an amount of Rs. 5,000 was received by the accused through a Bank draft No. 712912 dated 24-7-1975. This amount drawn from Government Treasury, was spent freely by the accused in his election campaign. A letter of 19 th October, 1976 written by the accused is worth consideration ;

(d) That in May, 1975 elections in Azad Kashmir, 30 vehicles of the Punjab Government were sent to secure success for Azad Kashmir People's Party candidates by illegal means. Out of these vehicles a vehicle No. X/67/ 2209 driven by Muhammad Nawaz son of Ali Muhammad a Government employee was used by the accused in his election campaign. The driver also obtained T. A/D. A. from the Government;

(e) That 1975, election in Azad Kashmir was a selection in which the selected candidates were declared successful by using all types of unlawful means.

Thus the accused is alleged to have committed offences under sections 5, 45, 46, 74, 75, 76, 78 of the Azad Kashmir Election Ordinance of 1970 as well as under sections 403/406 and 419/420 of Azad Kashmir Penal Code, section 5(6) of the Public Office (Misconduct) Ordinance, 1965 and section 3(4) of the Misdemeanour Act, 1948.

II. (a) That the accused illegally used Government Transport and Government Money in his tours of Pakistan during March; 1977 General Elections of Pakistan. These Government vehicles and' Government money were used by him for campaigning in favour of Pakistan People's Party candidates. The vehicles were driven by Government employees who obtained T. A. and D. A. from Azad Kashmir Government;

(b) That the accused obtained, an amount of Rs. 17,000 as advance T. A/D. A. through a bank draft No. 31-481935 dated 23-1-1977, which he used in an illegal manner for unofficial purposes;

(c) That the accused used illegally two Government jeeps No. A. J. K. 3067 and No. A. J. K. 3131 between M'abad and Rawalpindi the P. O. L. expenditure of which was drawn from Government treasury;

(d) That besides the above-mentioned vehicles the accused illegally used a vehicle No. A. J. K. 3166 belonging to the Azad Kashmir Assembly without any entitlement. The receipts of Pol and repairs expenditures were not furnished by the accused. This vehicle too was used for unofficial purposes.

2. The accused under this charge is alleged to have committed offences under sections 403/406, and 419/420 A. K. Penal Code, section 3/4 official misdemeanour Act, 1948 and section 5/6 of the Public (Office) Misconduct Ordinance (No. LXXXIII) 1978.

3. The accused under section 242, Cr. P. C. was called upon to answer the charges in writing. He in his detailed writt8n objections admits to have received an amount of Rs. 5,000 (charge 1 (c)) from Khan Abdul Hamid Khan, the then Chairman of Azad Kashmir People's Party on 14-7-1975, out of Party fund for publicity and also another sum of Rs. 5,000 on 24-7-1975, through a Bank draft No. 712912 for party purposes The accused also admits the receipt of Rs. 17,000 (charge II (B)) through bank draft No. 31 481935 dated 23-1-1977, through Azad Kashmir Assembly Secretary. This amount as claimed by the accused was sanctioned as advance T. A/D. A. by the Government itself for 4fraying the Travelling acid other expenditure on P. O. L. in connection with the tour of Azad Kashmir and Pakistan under Government Order No.109-114 Assembly 77 dated 22-1-1977. The Government itself, it is claimed by the accused, had formed, a deputation consisting of the accused and the then Speaker of the Assembly to undertake tour of Pakistan and Azad Kashmir for the purpose of looking into the problems of Jammu & Kashmir Refugees settled in Pakistan and for removing doubts about `Shimla Accord'. The Government detailed two vehicles No. A. J. K. 3131 and A. J. K. 3076 (charge No. II(c)) for use of the members of the deputation and persons associated with the accused, who happened to be the leader of the deputation, It is claimed by the accused that after the tour, he rendered complete account of the amount advanced to him through the Assembly Secretary to the Accountant-General as directed by the Government in its order referred to above. Barring this admission remaining charges were controverted in the written reply.

4. The learned counsel for the accused has raised a preliminary objection that the prosecution of the accused is invalid for want of a proper unction. The validity of the sanction is assailed on the following grounds:-

(1) That the sanction is mechanical in so far as evidence lacks proof that facts were placed before the sanctioning authority prior to the sanction.

(2) that the sanction has not been proved in accordance with law;

(3) That Ordinance (LXXIIII of September, 1979, by which sanction is deemed to have been validated by addition of section 13-A and by another amendment under Ordinance No. XLXIX of 1979 by which sanction was only required for the prosecution under that Ordinance and not for others do not make the sanction valid as it is mala fide piece of legislation enacted to deprive the accused of his right which had accrued to him by law.

(4) The sanction has not been given for an offence.

5. Previous sanction under section 5 clause 2 of Ordinance (No. LXXXIII 1978) (hereinafter to be called the Ordinance) is, a condition precedent take cognizance of offences under the Ordinance and if such sanction is wanting, the prosecution is a nullity, for the Court's being not clothed with the competence to proceed with the case. To understand the issue it is necessary to know as to what sanction is. The sanction order reads :-

"In pursuance of subsection (2) of section 5 of the Holders of Represen tative Offices (Trial of Offences) Ordinance, 1978 the Azad Government of the State of Jammu & Kashmir is pleased to accord sanction for the trial of the following holders of representative offices under the provision of the aforesaid Ordinance:-

(1) Khan Abdul Hamid Khan, former Prime Minister.

(2) Raja Mumtaz Hussain Rathore, former Senior Minister.

(3) Mian Ghulam Rasul former Minister.

(4) Ch. Sohbat Ali former Minister.

(5) Ch. Noor Hussain former M. L. A. and Adviser, Azad Jammu & Kashmir Government.

(6) Ch. Khadim Hussain former M. L. A.

(7) Ch. Abdullah former Member, Azad Jammu & Kashmir Council.

(8) Ch. Barkat Ali former Adviser.

(9) Pit Ali Jan Shah former M. L. A. and Adviser Azad Jammu & Kashmir Council.

(10) Sheikh Manzar Masood former M. L. A. and Speaker.

(11) Haji Muhammad Osman former M. L. A.

(12) Muhammad Ishaq Zafar former M.L.A.

(Sd.)

Secretary Home,

Azad Government of the State of

Jammu & Kashmir, Muzaffarabad."

7. These very points alongwith some other connected issues, received due consideration in a case entitled `State v. Sh. Manzar Masood and after discussing various aspects of the issue it was held that points raised are without substance and sanction is valid. It maybe stated that in both the cases sanction was given by a single order. The relevant portion of the judgment in that case which provides complete answer to the objections may with advantage be reproduced. It was stated therein:-

"For the sanction being, mechanical, reliance is placed by the defence on the following cases :---

(1) P L D 1948 P C 11 (2) P L D 1954 Lah. 37

(3) P L D 1960 Kar. 251 (4) P L D 1977 Lah. 1195

8. As against this the Special Public Prosecutor has referred to P L D 1955 Lah. 661, A I R 1945 Mad. 284 and A I R 1962 All. 251 to support him that sanction carries with it the presumption of its regularity.

In case of Gokulchand Dwarkadas Morarka v. The King (P L D 1948 P C 11) referred for the defence, it is held :-

"In their Lordships' view, in order to comply with the provisions of clause 23, it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desire-able that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charge are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.' The sanction to prosecute is an important matter; it constitutes a condition 'precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction. They are not, as the High Court seem to have thought, concerned merely to see that the evidence discloses a prima facie case against the person sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. Nor, in their Lordships' view, is a sanction given without reference to the facts constituting the offence a compliance with the actual terms of clause 23."

9. With due respect to the learned Judge, this judgment contains contradictions, hardly to be reconciled. At first it is observed `It is plainly desireable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing.' But again in the same breath immediately after this observation it is said `but if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.' I do not feel safe to take into consideration one part of the judgment and ignore the other. Of course, if form of sanction required the facts to be stated therein the sanction for want of such facts may be said ;o be invalid.

In the next case of Tufail Muhammad v. The Crown (P L D 1954 Lah. 37) it is observed:-

"What was obviously intended was that the sanctioning authority should apply its mind to the facts and circumstances of the case and although, prima facie, some offence may be revealed by the evidence collected, the authority in question would not be bound to accord sanction for the prosecution unless it came to the conclusion that it would be expedient in the interest of justice to do so. Such a conclusion could only be arrived at, after all the material facts had been considered. It is clear that this has not been done in the present case and in my view, therefore, the purported sanction to prosecute was not in accordance with law."

10. I am in total agreement with the law enunciated in this case that sanctioning authority must apply its mind to the facts and circumstances of the case, and the prosecution of the accused shall be struck down to be invalid if it can be held that mind was not applied by the sanctioning authority. However it will be adjudged at the proper stage whether facts were placed before the authority and the sanctioning authority had applied its mind to the facts and circumstances of the case before according sanction.

In the third case of Abdul Rashid v. The State (P L D 1960 Kar. 251), the relevant observation is:-

"The order does not show anywhere what papers were put up to Mr. Nizamuddin and what issues were involved. It seems to me that he has mentioned a sum of Rs. 905-12-0 while the Robkari issued to the accused mentions a sum of Rs. 725-12-0 only. Mr. Nizamuddin was not examined in evidence and he is not the person who started the investigation. Mr. Ishaque was the person to start the investigation and he has given evidence. He has merely said that there was a complaint against the accused and he wrote a report to the Anti -Corruption Department (Exh. 3). From his statement also we cannot say that the Chief Officer Nizamuddin had used his judgment in arriving at a decision. No extraneous evidence has been given in this case to prove that Mr. Nizamuddin was made aware of the details and of the explanation given by the accused."

11. In this case the very sanction order, it appears, revealed that facts were not placed before the sanctioning authority and for that reason it was held that the sanction is mechanical. Obviously this citation bears no relevancy with the facts of the present case. In the case before me, sanc tion order does not show that the sanctioning authority was not acquainted with the facts of the case. No doubt the order does not show that the ,auctioning authority was made known of the facts before sanction was given; but will this fact make the sanction defective, is a point which I gall be taken up at the appropriate stage. But one thing is clear that the facts of this case have also no relevancy with the facts of the case before me.

In the fourth case Mahmood Khan v. The State (P L D 1977 Lah. 1195), it is observed:-

It is essential that all the relevant facts relating to the case be placed before the sanctioning authority. Where facts are not referred to on the face of the sanction nor it is otherwise proved that they were placed before the sanctioning authority, the sanction is invalid and the trial Court is debarred to try that case. Omission on the part of the sanctioning authority to mention the correct amount misappropriated and the name of Irshad Hussain co-accused in the sanction order is clearly indicative of the fact, that all the relevant papers were not before the sanctioning authority and sanction was granted in a mechanical fashion."

In this case the sanction was said to be mechancial for two fold reasons; one being that the correct amount misappropriated was not mentioned in the sanction and secondly the name of Irshad Hussain, the co-accused, was also omitted in the sanction which fact led the Court, and in my view very rightly, to say that the sanction is mechanical. Obviously case has no application to the facts of the present case.

12. Let the now take up the cases cited by the learned Special Public Prosecutor. In Muhammad Bashir v. The Crown (P L D 1955 Lah. 661), it was contended that there was no proper sanction for prosecution, as was required under section 5(5) of the Pakistan Criminal Law Amendment Act. There was on the record a sanction for prosecution by the Governor relating to the very incident which was the subject-matter of the trial. It was maintained that there was nothing to show that the sanction was granted after His Excellency the Governor of the Punjab had applied his mind to the facts of the case and in this view of the matter reliance was placed on 'Ti fall Muhammad v. Crown (P L D 1954 Lah. 37), wherein it was held that a sanction granted without applying mind to all the relevant facts of the case is not valid. The contention was however repelled with the observation:-

"Learned counsel urges that it was the duty of the prosecution to lead evidence showing that the officer granting the sanction had in fact applied his mind. I do not agree. If the sanction is there we should presume it to be valid in the absence of some evidence to the contrary. I would apply the presumption of the regularity of all official acts unless there were circumstances sufficient to justify a different course. Them are no such circumstances."

It may be stated here that in Tufail Muhammad v. Crown, it had been proved by evidence that there were material facts which had not been brought to the notice of the officer who granted sanction. But in the present case, there is nothing to show such a defect in the sanction and the enunciation of law in Muhammad Bashir v. The Crown, that all official acts are presumed to be regularly performed unless circumstances justify a different course, holds good for the case in band.

In the next case In re T. S. Swaminathan and another (A I R 1945 Mad. 284), the sanction for the prosecution had been seriously challenged. It was argued that the sanction, Exh. HHH which stated; `Now therefore, His Excellency the Governor of Madras hereby accords his sanction under subsection (1) of section 197, Cr. P. C., 1898, for the prosecution of the said T. S. Swamina than, for the said offences or abetment thereof' was invalid as the sanction was signed by Mr. C. G. V. Williams, Secretary to Government, by order of the Governor and the proof of this sanction order by the proof of the signature of Mr. Williams is not sufficient evidence that sanction had been accorded by the Governor exercising individual judgment', as laid down in section 197, Cr. P. C. as amended in the light of the provisions of sections 52 and 271 (2), Government of India Act. The argument precisely was that although the genuiness of the sanction order may have been proves' by the prosecution, something more was necessary to establish that the Governor exercised his individual judgment in according sanction. Repelling the contention, it was observed:--

"It seems to us that this contention is ill-founded. When once the Secretary to the Government under the orders of His Excellency certifies that His Excellency has accorded sanction under section 197; Cr. P. C., that is in our opinion a sufficient proof that His Excellency has sanctioned the prosecution in the exercise of his individual judgment as prescribed in that section in the absence of any evidence to the contrary."

The laid down law in this case is that when sanction is proved it may be presumed that sanctioning authority has exercised its individual judgment as prescribed and mere omission to show, in the sanction order that the authority had applied its mind would not make the sanction defective.

In another case reported as Lal Behari v. State (A I R 1962 All. 251), dealing with the omission in the order regarding the expediency of proceedings in the interest of justice, it has been observed by the learned Judges in para 20 of the judgment:-

"After considering the contentions of the learned counsel I am of opinion that the formation of an opinion that the prosecution is expedient in the interest of justice is a condition precedent to the preference of the complaint. The law also requires that such a finding should be recorded but the jurisdiction of the Court to prefer a complaint does not in my opinion depend upon the recording of the opinion though it is consequent on the formation of such an opinion. In the circumstances I am of the view that omission to record such an opinion is only an irregularity and does not affect the legality of the complaint. In that case the Courts record will not be available to prove that such an opinion was in fact framed but that would mean that it would be incumbent on the prosecution, to prove by other evidence such as examining the Presiding Officer of the Court concerned, that such an opinion was in fact formed. Normally the fact that a complaint is preferred is itself evidence of the fact that such an opinion had been formed and in proper cases a presumption may even be raised under section 114 of the Indian Evidence Act. In the particular case I find that the complaining Court has itself made a reference to the formation of such an opinion in paragraph 5 of the complaint preferred by it. In the circumstances, I am unable to attach any weight to this contention of the learned counsel."

Besides the above citations, I have also been able to lay hands on some other citations. In Thakur Raghubar Singh and others v. Emperor (A I R 1944 F C 25), it is held at pages 29 and 30:----

"Whilst obviously it is desirable that the sanction should be given in writing and should on the face of it indicate reasonably, clearly by statement or references to other documents the necessary matters above set out, ,it is not possible in our judgment to hold that the section requires any particular form of sanction or even that it should be always in writing. What is necessary is that if challenged by a defendant or accused person the plaintiff or prosecutor should be able to establish to the satisfaction of the Court that the requisites of the sanctions as set out above have been complied with in respect of the sanction on which he relies, so that the Court can be satisfied that it bas jurisdiction to entertain the particular proceedings before it."

In Emperor v. J. C. D Souza (A I R 1947 Born. 151), it is held:-

"The clause in my view is not very happily worded as it does not specify the precise sanction which has to be given, but used in that context the words 'the previous sanction' must relate to a prosecu tion for a contravention, and in my opinion it is incumbent on Government in each case to show that such a sanction had been given."

13. After studying the case-law on the point, I am of the view that the sanction is not mechancial for the following reasons:-

(i) The law does not provide that sanction shall be in any specific form or it shall show that facts were placed before the sanctioning authority who applied its mind before giving sanction;

(ii) Presumption under section 114, Evidence Act is attached to the validity of sanction i.e. it shall be presumed that sanction has been regularly given unless on the face of the sanction order there is some visible defect (such defect is not traceable in this case;

(iii) There is nothing on record to show that material facts were not posted before the sanctioning authority prior to the sanction;

(iv) I have also, for my own satisfaction, requisitioned the relevant file containing the sanction order by the Chief Executive. The file shows that the facts were brought to the notice of the authority prior to the grant of santion. Photostat copies of the relevant record are placed on the file.

14. Let us adjudge the issue from still another angle. If the sanction in this case could be held otherwise invalid when it was given, it stands validated under Ordinance No. CLXIX of 1979 made on 15th of December, 1979. Under section 2(a) of this Ordinance, it is provided that:------

"Any prosecution sanction accorded under the provisions of Holders of Representative Offices (Trial of Offences) Ordinance, 1978 (VIII of 1978) or its succeeding Ordinances issued from time to time shall be deemed to have been validly accorded under this Ordinance."

In my view the provisions of section 2(a) provides that sanction, even otherwise deemed to be invalid under 1978 Ordinance is validated under this Ordin ance. This law contemplates that the state of affairs should be deemed to have existed at a prior time (at the time of institution of the complaint), which actually did not exist, by fiction of law. In this view of the matter even if it is presumed that the sanction was not proper yet it would be, deemed, under this Ordinance to have been given in a regular manner. It seems that this Ordinance is made to validate the sanction if otherwise it may be held to be defective and it will operate retrospectively. On the point Crawford in his book 'Construction of Statutes' 1940 Edition at page 577 says:--------

"Acts of this character are obviously retroactive, and hence entitled, as a general rule, to retrospective operation. Being retroactive in their very nature, they will not usually be given any prospective effect. Being subject to a liberal construction, any doubt should be resolved in favour of retrospective operation.

For the view I have taken in the matter, I do not feel safe to agree with the learned counsel that the sanction under this Ordinance shall not date back to the time of the institution of the complaint.

15. The next criticism levelled about the sanction is that it has not been proved in accordance with law. I cannot persuade myself to agree with the learned counsel for the following reasons:-

(1) The Government Gazette No. 194 dated 27th August 1978, placed on record, shows that sanction has been accorded for the prosecution of the accused. This Gazette, under section 81 of the Evidence Act, B is sufficient proof of the sanction.

(2) Ameer Ali on Law of Evidence 2nd Edition dealing with the issue under section 81 at page 1431 says:-

Under this section the genuineness of the Gazette must be presumed, though it is not formally tendered at the trial. It is enough if the Court has the Gazette before it. Notifications and orders published in the Gazette need no proof as the Court will take judicial notice of them under section 57 and presume their genuineness under this section.

(3) Similarly Monir in his Law of Evidence, Pakistan Edition under section 114 dealing with the issue says at page 1165:-

"Where a sanction for prosecution by the Chief Secretary to the Govern ment referred to the 'under-mentioned persons,' and the names of the persons were shown on the back of the paper, it was held that there was a presumption that all official acts were regularly performed and that it could not be assumed that the Chief Secretary signed the sanction before the names of the accused persons were written on the paper. Signature of the officer sanctioning is presumed to be genuine and it is not necessary to call for its proof. Since it must be presumed that all official acts have been duly performed, section 114 of the Evidence Act which recognizes this presumption supplies any omissions in the method of communication of the sanction to the Prosecuting Officer and the Magistrate."

In view of the above I hold that the sanction is duly proved.

16. I have held that the sanction, as required under 1978 Ordinance was valid sanction but if we take the matter from another angle we come to the same conclusion. The provision of sanction as originally framed in 1978 Ordinance was substituted by Ordinance No. CLXIX of 1979 dated 15th December 1979. Subsection (2) of section 6 (originally it was section 5(2) was amended to say that:----

"No person shall be prosecuted under the provisions of this Ordinance; except with the previous sanction of the Government."

This provision is pointedly in departure with the original provision incorported in 1978 Ordinance, In 1978 Ordinance the sanction was necessarily required to be given in respect of the offences charged with. But under the amended ordinance, sanction was required for the prosecution under the provisions of the Ordinance and not for the offences charged with. This means that sanction was required only for the prosecution under the ordinance and not for the offences for which accused was being tried. The Ordinance provides that this amendment shall date back and be deemed always to have been so substituted. So by legal fiction it will date back to the date of the institution of the complaint. This amendment, in my view, also provides a satisfactory answer to the criticism levelled about the sanction.

After deciding the question of sanction now I proceed to decide the "charges."

17. Before dealing with the charges, I would like to say a few words' as to what proof a criminal case demands. It is a settled law that in cases of criminal nature, it is the bounden duty of the prosecution to prove each and every ingredient of the offence and if the prosecution fails to prove any one of the ingredients the case must fail. Sakir Hussain v. The State (P L D 1956 S C (Pak.) 417), on the point may be quoted with approval. It is observed in that case:---

"Subject to certain exceptions, the most important of which is to be found in section 105, Evidence Act, the admitted and otherwise firmly established principle being that, before the prosecution can ask for a conviction of a criminal offence, it is its duty to prove each ingredient of the offence beyond a reasonable doubt."

I, now proceed to decide the charges:-

Charge No. I (a) and (b)

18. The charges contained under para. (a) and (b) of part one remained unsupported by any evidence. The evidence is insufficient to connect the accused with any irregularity or illegality during the progress of election held in Azad Kashmir during the year 1975. Ch. Shah Wall Advocate P. W. 12, the solitary witness examined by the prosecution in support of this charge fails to implicate or associate the accused in any malpractices during the polling. The accused has no criminal posture in his statement rather if we read him between the lines he paints the accused as an innocent person.

19. In these circumstances, the prosecutor, during the course of arguments at the bar, quite understandably, did not press' this charge. But strangely in his written arguments, to run counter to his own stand taken in his address at the bar, he proceeded to say that the charge stands proved. But the prosecutor provides no ground in support of his say. He cared not to examine the evidence critically in support of the charge. The evidence contains nothing against the accused. Mere say of the prosecutor, I am afraid, can hardly be deemed sufficient to prove the charge which has to be established beyond reasonable doubt through evidence. The charge, therefore, remained unproved.

Charge No. 1(c)

The charge runs as:-

"(c) that the accused like other candidates received an amount of Rs. 10,000, from Peoples Party of Azad Kashmir. Rs. 5000, were received on 14-4-1975, and an amount of Rs. 5000, was received by the accused through a bank draft No. 712912 dated 24-7-1975. This amount drawn, from Government Treasury, was spent freely by the accused in his election campaigns. A letter of 19th October, 1976, written by the accused is worth consideration."

20. The accused, as stated earlier, admits to have received an amount of Rs. 5,000, from Khan Abdul Hamid Khan, the then Chairman of the Azad Kashmir People's Party on 14-4-1975, and also admits the receipt of another amount of Rs. 5,000, in July, 1975, through a bank draft from the said Chairman. The amount as the accused claims, had been paid to him out of Party funds and for party purposes. He denies to have received this amount out of the Government exchequer or through any Government agency for use in the election as alleged by the prosecution.

21. The question which falls for determination is whether this admission in any way implicates the accused and if the answer is in negative whether the prosecution, otherwise, has been able to establish the charge against the accused, beyond reasonable doubt.

22. The admission no the accused does not saddle him with any criminal liability. Getting money from the party funds is neither criminal misappropria tion as stipulated under section 403, Penal Code nor misconduct under the Public Office (Misconduct) Ordinance, 1965. To sustain conviction on this charge, firstly, it needs proof that the money admitted to have been received by the accused was Government money. If the prosecution falls to prove even this important ingredient of the offence of criminal misappropriation or misconduct, the accused cannot be said to have committed an offence of misappropriation under the Penal Code or misconduct under 1965, Ordinance.

23. It is strange that no evidence whatsoever has been produced by the prosecution to substantiate the charge that the amount paid to the accused came out of Government Funds or it was paid for any nefarious purpose. The prosecution also failed to prove that the amount was used in the election in contravention of Election Rules. An effort, of course, though, in vain, had been made by the prosecution to prove that Khan Abdul Hamid Khan, had received the amount from the Prime Minister of the time (Mr. Z. A. Bhutto) out of Government funds. In this connection reliance is being placed in the statement of Mr. Afzal Saeed P. W. 1 (Political Secretary to Mr. Z. A. Bhutto) examined by the prosecution. His evidence hardly contains, even to suggest that the amount was given to Khan Abdul Hamid out of Government funds. On the other hand this witness, counter to the prosecution case, states that so far he recollects, the money was paid by Z. A Bhutto to khan Abdul Hamid Khan, from his private sources. It is significant that despite this detrimental statement for the prosecution, no attempt was made by the Prosecutor to declare the witness hostile and then cross-examine him on the point. It is, therefore, legitimate to say that the prosecution owns the version of this witness In toto. The prosecution, in my view, being in the tight grip of this witness, can hardly get rid of the mischief created by his evidence. The evidence of this witness in fact runs, not only counter to the charge but, in fact proves the defence. Somebody, have very aptly remarked for such a situation.

The prosecution is bound by the statement of his own witness (Afzal Saeed) whose evidence remains unshaken. It will be sheer act bravado if the prosecution still insists for the conviction of the accused on the basis of such evidence, which goes to prove the defence case.

23. Apart from Mr. Afza1 Saeed, P. W. 1, I may make a mention of Muhammad Aslam Inspector F. I. A. P. W. 2 who in his evidence, drops a hint about the receipt of an amount of Rs. 5,000. The amount of Rs. 5,000, according to him, on the basis of receipt Exh. P. H. was paid to the accused by Secretary Finance, People's Party. We find nowhere in his evidence that any Government funds were placed at the disposal of Secretary Finance People's Party; and that the accused knowing this fact received the amount. He further states that during the inquiry, the statement of Abdur Rashid, Assistant Accounts Officer revealed that he received an amount of Rs. 3,000, from the Prime Minister of Pakistan. This Abdur Rashid has not been examined. The evidence of this witness, therefore, being heresay loses all importance. For the above-stated reasons the charge remains unproved.

Charge No. I (d)

24. This charge contains the allegation that the accused had used a vehicle of the Government of Punjab (Health Department) No. X/67/2209 during the election campaign held in Azad Kashmir in the year 1975. The vehicle, it is claimed, was driven by Muhammad Nawaz son of Ali Muhammad who also received T. A. and D. A. from his Department.

25. To substantiate the charge, the prosecution has examined the following witnesses:--

(1) Muhammad Aslam, Inspector F.

1. A. P. W. 2,

(2) Muhammad Nawaz Driver P. W. 3.

(3) Dr. Muhammad Yaqoob Javed, Director of Fisheries Government of Punjab P. W. 8.

(4) Mr. Aftab Anwar, Motor Vehicle Inspector Government of Punjab P. W. 10.

(5) Mr. Muhammad Munir Transport Clerk, Health Department Punjab Government P. W. 6.

(6) Maj. Muhammad Zaman, Deputy Director, Population Planning P. W. 7.

(7) Mr. Bashir Ahmed O. S. D. C. M. L. A. Secretariat P. W. 15.

26. Mr. Muhammad Aslam Inspector F.

1. A. (P. W. 2) in his statement tells us that he submitted a report about misuse of funds and Government transport in 1975, election in Azad Kashmir to his Director, which is Exh. P. A. According to him, he based his report on the statements of Brig. (Late) Habib-ur-Rehman and Abdur Rashid Assistant Accounts Officer and some other witnesses. None of these witnesses have been examined and as such the statement of this witness has no evidence against the accused for the simple reason that his report is based on the statement of some persons who have not been examined. His report, therefore, being hearsay, is inadmissible. In relation to the charge his evidence further, is that the receipt Exh. P. E. which shows that the vehicle was given to the accused carries the signature of some Advocate and he knows not who that Advocate was. It is interesting that the prosecution proves a report which does not mention that any vehicle was placed at the disposal of the accused. It only incorporates that a register of Government vehicles detailed for election duty in 1975, which was produced by (late) Brig. Habib-ur-Rehman (copy of which appears on the file marked as Exh. P. F.), was seized. This register, it is claimed, shows that the vehicle No. X-67/2209 driven by Muhammad Nawaz' had been allotted to Pir Ali Jan Shah but to the utter destruction of the prosecution case, the recipient in the relevant column of the register is shown to be some Advocate. This means that the prosecution accepts that the vehicle was entrusted to some Advocate, who that Advocate was and why he was not examined, I know not. However, the prosecution failed to give any explanation and satisfy me as to why this Important witness was withheld. He was the only competent witness to remove the shroud or mystery encircling this charge. Withholding this witness, therefore, raises a strong presumption against the prosecution and it may he said that the witness, it examined, would have deposed against the prosecution. In these circumstances, the register seized and inquiry report made by this witness proves nothing' against the accused. Mere entry m the register that the accused was the allottee of the vehicle, which fact otherwise remains unproved, can hardly be sufficient to say that the accused had taken the delivery of the vehicle.

27. No authenticity can be attached to this entry for another reason; the reason is that, the author of the entry has also not been examined by the prosecution. He was the best evidence to say the basis on which the entries were made and whether in fact some vehicle was at all given to some Advocate and if so whether it was given to him to be delivered to the accused.

28. The next relevant witness on the issue is Muhammad Nawaz P. W. 3 who claims to be the driver of the vehicle No. X/67/2209 belonging to the Health Department Government of Punjab. He states that during the election in Azad Kashmir in the year 1975, he remained on duty with Pir Ali Jan Shah from 13-4-1975 up to 21-5-1975. To elaborate his statement he proceeds to say that he had been detailed to take the vehicle to Lahore, wherefrom he alongwith some other drivers was directed to report at the office of the Azad Kashmir People's Party Liaqat Road Rawalpindi. After reaching there, he was told by some one to go to Mirpur whereat, he reported to the accused. The vehicle, according to him, was plied between Dadyal and Mirpur.

29. It is significant to state that the entries in the log book of the vehicle which contains details of the duty from 13-4-1975 to 21-5-1975 (during which the witness states that he was on duty with the accused) contradicts the prosecution case, in so far as, the entries do not show that the journey, as alleged, was at all performed in Azad Kashmir. The prosecution in its wisdom cared not to examine any witness to prove as to why wrong entries not showing the journey, as claimed by the prosecution to have been Performed in Azad Kashmir, were made in the log book. Muhammad Nawaz witness says that entries in the log book were made by some Officer of Azad Kashmir. What prompted the Officer to make wrong entries, the witness knows not. The unknown Officer was the only competent witness to say as to why the log book did not show that the journey was performed in Azad Kashmir. It therefore, follows that the prosecution owns the entries in the log book in tote he evidence of Muhammad Nawaz, therefore, does not inspire confidence, as he is belied by the entries in the log book and nobody has come forward on-behalf of the prosecution to satisfy the Court and remove the shroud of distrust in the evidence of Muhammad Nawaz P.W.3 which belies the entries made in the log book. The log book enters the Journey to have been performed in Pakistan in connection with some emergency duty, while the witness states that duty was performed in Kashmir. It is also in the evidence of this witness that before 13-4-1975 and after 21-5-1975 details of the journey of the vehicle in the log book are regularly entered and signed by the Officer who used the vehicle. Why then, the entries covering the period under charge in the logbook, do not contain the signature of any body is a question, which remains unexplained, by the prosecution. His evidence, therefore, shall have to be ruled out of consideration for the following reasons:-

(a) The entries in the log book belie him.

(b) The author of the enteries of the logbook has been withheld and adverse inference shall go against the prosecution to the effect that if the, witness would have been examined, he would not have supported the, prosecution;

(c) The entries in the log book were made prior to the controversy an naturally such entries shall have precedence over statement of the driver (Muhammad Nawaz) whose statement carries, inherent infirmities.

(d) The statement of Muhammad Nawaz does not ring true. He is not consistent in his statement and falters hero and there.

30, Other witnesses Doctor Muhammad Yaqoob Javed, P. W. 8, Mr. Aftab, Anwar P. W. 10, Mr. Mohammad Munir P. W. 6, Major Mohammad Zaman P. W, 7 and Mohammad Hussain P. W. 9 hardly say anything t connect the accused with the utilization of vehicle in question during 19 7 election in Azad Kashmir. Dr. Mohammad Yaqoob Javed P. W. 8 state that no document shows that the vehicle in question or any of the vehicle were sent to be used in Azad Kashmir. Mr. Aftab Anwar P. W. 10 one states that he had sent nine vehicles to Prime Minister Secretariat. Obvious' this witness also does not connect the accused with any of the offence charged. Mr. Mohammad Munir P. W. 6 in his evidence only says that he had sent ten vehicles to Government House Lahore and Vehicle No. X-67/2209 whose driver Mohammad Nawaz was, was also sent to the Government House. He does not know as to what was the purpose of requsitioning these vehicles. Major Mohammad Zaman P. W. 7 and Muhammad Hussain P. W. also fail to connect the accused in relation to the use of this vehicle.

31. It would thus appear that no witness proves that Mohammad Nawaz was sent to Mirpur to perform the duty with the accused. Mohammad Munir witness of course, has produced a list of the Government vehic. (copy Exh. P. J.). This list contains Letter No. 1702-G dated 14-4-1975; addressed by the Progress Officer, Directorate Health Services Punjab wherein it is stated that ten jeeps are being sent. In this list Mohammad Nawaz Driver of the Vehicle No. X/67/2209 is entered at serial No. 1. But this entry does not prove that the jeep was used by the accused, T. A. & D. A. bills of the driver to support him have not been placed on record. The accused, it needs to be mentioned here, did apply on 17-3-1979 for requisitioning these bills but unfortunately the bills were withheld.

32. What is the stand of the accused on this charge? The accused c: is that he was provided with a vehicle by Azad Kashmir Peoples party be used in election campaign and he was not aware that it was a Government, vehicle. This statement does not implicate the accused. It was therefore bounden duty of the prosecution to prove that a Government vehicle provided to the accused. Mohammad Nawaz P. W. 3 the driver of the vehicle it cannot be taken notice of, does trot state that he was in uniform.

He also fails to state that he had informed the accused that he brought a Government vehicle for him.

33. In view of the inherent defects in the prosecution evidence and the other attending circumstances detailed above it cannot be said with certainty that the accused knew that he was provided with a Government vehicle. The statement of the accused, therefore, does not implicate him in any way. It is a beaten principle of law which admits of no exception that the prosecution must prove the case beyond any reasonable doubt and any doubt whatsoever in the prosecution case is to be resolved in favour of the accused.

34. It is also not free from doubt as to whether a vehicle belonging to the Punjab Government could be termed to be a Government vehicle in Azad Kashmir territory which by legal fiction may be said to be a foreign Government as held by Supreme Court in Noor Hussain v. State (P L D 1966 S C 88). In that case it was observed by Mr. Justice Hamoodur Rehman, Judge (as he then was) that any territory which Goes not constitute a part of the Republic of Pakistan, as defined in the Constitution of 1962, is a foreign territory. Obviously the State of Pakistan is also a foreign territory for Azad Jammu & Kashmir State and a vehicle of a foreign Government may not be termed to be a vehicle of Azad Kashmir Government.

35. It is also to be seen whether the accused can be said to have misused his position as to condemn him for misconduct under the public Office (Misconduct) Ordinance, 1965 or for misappropriation or misapplication of the property. The status which the accused was enjoying in my view was not such as to persuade the Government of Punjab to part with the vehicle for its use in election campaign. He was Adviser in Kashmir Council and also Member of the Azad Jammu & Kashmir Legislative Assembly. By virtue of these offices in my estimation, it could not be said with certainty that the accused could persuade the Government of Punjab to depart with the vehicle to be used illegally in his election campaign. Besides evidence also lacks proof that the accused in any way influenced the Government Punjab to give him the vehicle to be used in his election,

In view of the above, I am constrained to hold that the prosecution has failed to prove the charge of misconduct as defined under the provisions of the Ordinance or any other scheduled offence against the accused for the use of the vehicle mentioned above.

Charge No. II (a), (b) and (c)

36. This charge in substance, contains the following allegations:-

(i) That the accused had illegally used Government transport viz. number Azad. J & K 3067 and Azad J & K 3131 between Muzaffarabad and Rawalpindi and other places in Pakistan;

(ii) That the accused bad obtained illegally Rs. 17,000 through Bank Draft No. 13-4-1935 dated 23-1-1977 as advance T. A. and D. A. ; and

(iii) That the accused used a Government Vehicle No. A J K 3166 belonging to Azad Kashmir Assembly without any entitlement.

37. The use of all the three vehicles and the receipt of the amount of T. A. and D. A. in advance it is claimed by the prosecution, is an offence because:-

(a) The vehicles were used by the accused in electioneering in favour of Pakistan Peoples party candidates during 1977 general election held in Pakistan; and

(b) The T. A. and D. A. received for journey performed for illegal purpose also amount to an offence.

38. The accused is, according to the prosecution, guilty of offences under sections 403, 406, 419 and 420 of the Penal Code, section 5(6) of Public Office (Misconduct) Ordinance, 1965 and under the provisions of Official Misdemeanour Act, 1948.

39. On this charge, the accused's stand is that the Government, of J s own accord and, without his request or asking vide Government order No. 109-114/Assembly/77. dated 22-1-1977 (Exh. P. M.) had sanctioned an advance amount of Rs. 17,000 in favour of the accused for defraying T. A: and D. A. charges and other expenditure. This amount as the Government Order shows, was to be met out of Assembly Secretariat budget under head `T. A. of Speaker and Assembly Members' and the amount was sent to him by the Assembly Secretariat through a Bank Draft No. 13-481935 dated 13-1-1977 vide Letter No. 126/Assembly/77 dated 23-1-1977.

40. On the basis of a subsequent Government Order Admin/10353-61/77 dated 11-6-1977 (Exh. D. A.) proved by Ghulam Ahmed Abbassi P. W. 5 two deputations headed by him and Mr. K. H. Khurshid were formed and given legal covering. The deputations were formed to undertake tours in Pakistan and remove all doubts created in the minds of Pakistanis about `Shimla Accord' and also to look into the problems of the Jammu & Kashmir refugees settled in Pakistan.

Both the Government orders cited above have vital bearing on the controversial issue, therefore, it will be appropriate to set them out here in extenso. The first Government order (Exh. P. M.) reads:-

41. The question, which, naturally, arises for determination, is whether on the basis of these Government orders the accused can be saddled with any criminal liability under this charge. The accused admits that he toured various cities of Pakistan and Azad Kashmir on the basis of Government Order (Exh. D. A.) and also admits to have received the advance T. A. and D. A. on the basis of Government order (Exh. P. M.). He also admits the utilization of Government vehicles viz. No. A J K 3131 and A J K 3067 provided to him by the Government for the purpose of undertaking his tours alongwith other members in Pakistan. The accused, however, says that at no time, did he request orally or in writing for the facility of the Government transport or for advancing an amount of T. A. and D. A. It is also his cast that he never insisted to head any of the deputations to contact Pakistanis to remove their doubts in respect of 'Shimla Accord' or to look into the affairs of Jammu & Kashmir refugees settled in Pakistan. For these reasons, it is claimed by him, he cannot be held to have committed any criminal offence.

42. It will be observed that the prosecution and the defence are in agreement that the accused had undertaken the tours in Pakistan and also received advance T. A. and D. A. by virtue of Government orders mentioned above. The parties also agree that vehicles, provided to the accused by the Government, were used by him for undertaking the tours in Pakistan. However, according to the prosecution, the receipt of the advance amount of T. A. and D. A. prior to the tours as well as utilization of the vehicles is an offence under section 5 sub-clause (6) of the Ordinance as well as under section 403 of the Penal Code as the accused was not entitled to undertake the tours, utilize the Government vehicles and receive in advance Rs. 17,000 for defraying T. A. and D. A. charges as the tours were not undertaken for the purpose reflected in Government order (Exh. D. A.) but for the purpose of electioneering for candidates of Pakistan People's Party:

On the other hand the case of the defence is that the accused is not guilty of any offence as he acted in accordance with the Government orders.

43. I have given my deep thought to the arguments advanced at the bar and feel inclined to agree with the learned counsel for the defence. My reasons are that the Government order (Exh. D. A.) enters the purpose of journey as to remove the doubts from the minds of Pakistanis about 'Shimla Accord' and also to look into the affairs of the refugees settled in Pakistan. The Government order (Exh. P. M.) allows advance of Rs. 17,000 to the accused to meet T. A., D. A. and other charges. The joint study of both the Govern ment orders reveals that the tours were undertaken by the accused, on the direction of the Government, to remove the doubts arising in the minds of the Pakistanis about 'Shimla Accord' which undoubtedly has a vital bearing on the Kashmir issue and also to look into the affairs of refugees of Jammu & Kashmir settled in Pakistan. In these circumstances, it would be observed that the prosecution case not only runs parallel to the defence but in fact the prosecution owns the defence. There is no reliable evidence to show that the accused undertook the tours for any other purpose except the purpose entered in the order (Exh. D.A.).

44. When confronted with this situation the learned Prosecutor tried to wriggle out of the mischief created by these documents, especially Govern ment order (Exh. D. A.), and maintained that these documents do not enter the correct purpose of journey which, in fact, was undertaken to support the People's Party Candidates in Pakistan during the election held in the years 1977 and the entries in the C3overnment order are fake. In alternate it has been maintained that even if the tour is presumed to have been undertaken in respect of the affairs of the Jammu & Kashmir refugees settled in Pakistan and also for removing the doubts about the 'Shimla Accord', the offence of misconduct, misappropriation and misapplication of public money, still stands proved against the accused because as M. L. A. or Adviser it was beyond his function to undertake such tours in Pakistan. He has no function to look to the affairs of the refugees settled in Pakistan or to remove the doubts about the 'Shimla Accord'.

45. I regret, I cannot agree with the learned prosecutor. It is the basic principle of criminal law which requires no deep thinking that mere allegations per se do not prove the charge. Allegations are after all allegati ons ; they have to be supported by evidence, which, as it will be seen, is lacking in the present case. May, it be so, as alleged, that the accused had undertaken the tour to support the Pakistan People's Party Candidates in Pakistan but unfortunately there is no evidence to substantiate the plea that the tour was undertaken for any other purpose except the purpose entered in Government order (Exh. D. A.). I do not know how the accused can be blamed for undertaking, the tour in Pakistan or Azad Kashmir which was undertaken on the basis of a Government Order if the fault lies it lies somewhere with the Government and not with the accused.

46. Let us now see whether the accused by virtue of his office, as maintained, was not entitled to undertake the tour in Pakistan relating to the affairs of Jammu & Kashmir refugees settled in Pakistan or for removing the doubts created in respect of 'Simla Accord.

47, Salary, allowances and privileges of the members of the Assembly are provided in an Act known as the Azad Jammu & Kashmir (Salary, Allowances and Privileges of Members), Act 1975. (Act No. XX of 1975) (hereinafter to be called the Act). Under this Act travelling allowance admissible to a member of the Assembly is covered under sections 5 and 9. Section 5 deals with travelling allowance for the purposes of attending a session of a meeting of public etc. It reads:-

"Travelling Allowance.--(1) For every journey performed for the purpose of attending a session or a meeting of a Committee or for attending to any other business connected with his usual place or residence to the place where the session or meeting is held or other business is transacted and for the return journey from such place to his usual place of residence, a Member shall be entitled to receive travelling allowance at the following rates:--

(a) where the journey is performed by rail, an amount equal to the fare of the class travelled, plus half fare of the Air-conditioned class;

(b) Where the journey is performed by air, the fare of the economy class; and

(c) where the journey or any part thereof is performed by road-

(i) if the journey is performed by personal car or by engaging a full taxi, rupee one per mile;

(ii) if the journey is performed by a borrowed car at, the rate of rupee one per mile; and

(iii) if the journey is performed by any public transport plying for hire, at the rate of twenty-paisa per mile

Provided that-

(i) no travelling allowance shall be admissible for journeys made during a session between the place where the session is held and any other place ; and

(ii) a Member who ordinarily resides or carries on business at any place within five miles of the place at which his attendance is required in connection with his duties as a Member, shall not be entitled to travelling allowance.

(2) Travelling allowance at the rates mentioned in subsection (1) shall be admissible to a member for journey performed during the period of adjournment of a session, if the session is adjourned for a period of more than ten days."

While section 9, which deals with travelling allowance and daily allowance for business other than Assembly business reads:-

"9. Travelling Allowance and Daily Allowance for business other than Assembly Business.---Where a member is called by a Government Department in connection with any official business in his capacity as a Member, he shall be paid by that Department travelling allowance and daily allowance for days of journey from and to his ordinary place of residence and for the day or days he is required to attend any such official business, at the rates admissible to him under this Act."

The close study of these sections will make any body to believe that these two sections are independent in character. Section 5 is exclusively for travelling allowance admissible to an M. L. A. for Assembly business while section 9 deals with allowances of a member of the Assembly for business other than the Assembly business. The plain reading of section 9 shows that a Government Department is competent to ask any M. L. A. to do any function relating to his official business in his capacity as Member and, if he so functions, he is entitled to have travelling and daily allowances for attending any such official business at the rate admissible under this Act.

48. It was also maintained by the learned Prosecutor that only a Government Department and that too in connection with an official business of a member and not the Government itself who can ask a member to do a particular work. As he puts up his case, it was beyond the ambit of official business of the accused to undertake such tours in Pakistan as the affairs of the refugees settled in Pakistan and removal of doubts about the `Shimla Accord' from the minds of Pakistanis are only to be taken care of by the Government or the refugee members elected from Pakistan and such business can only be allocated by a department and not the Government.

49. In the matter of Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (P L D 1957 S C (Pak.) 219), it is held:-

"(1) In the interpretation of written instruments, whether they are constitutional charters or ordinary statutes or other documents, the first object of the Court is to discover the intention of the author and that such intention is to be gathered from the words used in the statute or document.

(2) The intention of the Legislature in enacting a statute ought to be derived from-a consideration of the whole enactment in order to arrive at a consistent plan.

(3) A statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made.

(4) Whenever there is a particular enactment and a general enactment in the same statute, and the letter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply.

(5) These rules are equally applicable to the interpretation of constitu tions, although because of their permanence and the need to apply them to the changing conditions of the society for which they were meant; constitutions are subject, in their interpretation, to certain modifications of these doctrines. The fundamental principle of constitutional construction has always been to give effect' to the intent of the framers of the organic law and of the people adopting it.

(6) Effect should be given to every part and every word of the constitu tion. Hence, as a general rule, the Courts should avoid a construction which renders any provision meaningless or inoperative and must lean in favour of a construction which will render every word operative rather than one which may make some words idle and nugatory.

(7) It is the duty of the Courts to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision.

(8) If there be any apparent repugnancy between different provisions, the Court should harmonize them if possible."

In The Working Muslim Mission and Literary Trust, Lahore and the Civil and Military Gazette Ltd., Lahore v. The Crown (P L D 1956 F C 209), it is observed:-

"It is a well-recognised rule of construction that where a literal construc tion would lead to repugnancy, to good sense the Court may add words to the provisions to be construed. Though a Court of law has nothing to do with the reasonableness or unreasonableness of a statutory provision, the reasonableness or otherwise of the interpreta tion is relevant to interpret what the Legislature has said, and in determining either the general object of the Legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be most in accord with the convenience, reason, justice and legal principles, should, in all cases of doubtful significance, be presumed to be true one."

It would thus appear that the intention of the Legislature; or author of a document is to be gathered from its provision as a whole and when there is no ambiguity then the Court is not entitled to ascertain the intention of the author or Legislature. However, in doing so a cardinal principle is to followed. The principle is that a construction which is beneficial to the subject is to be given. Dealing with the point, it has been observed in Muhammad Haroon v. The Crown and Muhammad Naeem v. The Crown (P L D 1951 F C 118):-

"The rule of `beneficial construction' relied upon by my learned brothers comes into play only when the language of the statute is so ambiguous that two constructions are equally or almost equally possible. Where the language of a statute is, however, plain and unambiguous, the rule of beneficial construction has no applicability.

50. Let me now proceed whether the interpretation which the learned Prosecutor wants me to give to section 9 is possible. A Member of the Azad Jammu & Kashmir Legislative Assembly, as already held by me in Ishaq Zafar's case (decided on 3-2-1980) has never been considered to represent his constituency only. No fetters whatsoever has been placed in his way to restrain him from looking into the affairs of the refugees settled in Pakistan and to remove the doubts about the `Shimla Accord which, as said elsewhere, has much relevancy on the Kashmir Issue. In fact all the Members of the Assembly, individually and collectively, no matter where from they maybe elected, represent the people of Azad Jammu & Kashmir as a whole. It is nowhere laid down that the refugee Members shall only', represent the refugees settled in Pakistan. It is also no law that a Member elected from the territory of Azad Jammu & Kashmir shall only represent the People residing in Azad Kashmir. The Assembly as a whole, as said earlier, represents all the people of Azad Jammu & Kashmir State wherever they may be. Therefore, it would be legitimately said that the accused in his capacity as Member of the Assembly was entitled to look into the affairs of the refugees settled in Pakistan and to remove the doubts from the Pakistanis about the `Shimla Accord'. The contention of the learned counsel that it was no function of the accused to undertake tour in Pakistan to look into the Pakistanis about `Shimla Accord' being without substance stands repelled.

51. Now I come to decide the validity of the next limb of the argument as to whether the Government lacked authority to ask the accused in his capacity as M. L. A. to undertake tour in Pakistan. Section 9 of the Act is, of course, couched in a way as to show, prima facie, that the Government Department may direct an M. L. A. to do an act in his official capacity but will this debar the Government to pass any order under section 9 of the, Ordinance? All the Departments undoubtedly function under the Govern ment and if a department can ask an M. L. A. to perform certain function; how can it be said that the Government under whom the Department functions is shorn of the competency to allocate such a work. The rule of beneficial construction of a statute comes into play with its full force. In such circumstances and on the basis of that rule I am of the considered view that the Government was competent to allocate any business to an M. L. A. and any other interpretation except this will lead to absurdity and would be against the spirit of the Ordinance. It may be stated that the accused was entrusted the job in the capacity as Member of the Assembly too I say so because Government order (Exh. P. M.) enters so.

52. The oral evidence on this charge when critically examined, also leaves a clear impression that the accused has undertaken the tour in Pakistan and received Rs. 17,000 as advance T. A. and D. A. in strict confirmity a the Government orders mentioned above. Mr. Ghulam Ahmed Abbassi P. W. 5 proves Government Order No. 109-114/Assembly/77 dated 22-1 19 (Exh. P. M.) which sanctions in advance an amount of Rs. 17,000 to the accused to meet T. A. and D. A. charges and petrol expenditure for the tour in and outside Azad Kashmir. He further proves Government order No. Admin. 1053-61-77 dated 11-6-1977 (Exh. D. A.) which provides for the formation of deputations consisting of the Members of the Azad Jammu & Kashmir Assembly under the leadership of the accused and Mr. K.H. Khurshid. These deputations were required to undertake tour to remove the doubts created about the Shimla Accord and to look into the affairs of the Jammu & Kashmir refuges settled in Pakistan. Government order (Exh. D.A.) stipulates so and the Government order (Exh. P.M.) provides for advance payment of T.A. and D.A. and petrol expenditure for undertaking tours in Azad Kashmir and Pakistan. What was the purpose of the order (Exh.D.A.) passed subsequently on 11-6-1977 provides legality to the tours already undertaken and makes abundantly clear that the tours were undertaken for removing doubts in the minds of the Pakistanis about 'Shimla Accord' and for looking into the affairs of the Jammu & Kashmir refugees settled in Pakistan. The order, in my view, validates the tours already undertaken by the accused.

(1) P L D 1957 S C (Pak.) 219

53. Mr. Khalil Ahmed Qureshi (Secretary Assembly of the time) P. W. 17, in his evidence makes a mention of advance payment of Rs. 17,000 to the accused, which is even admitted by the accused. But he does not implicate the accused for any criminal liability. Mr. Muhammad Nazir (Transport officer) P. W. 11's evidence is that Vehicle No. A. J. K. 3131 (Mazda make) of the Taxation Department, without any written or oral request by the accused, remained in his use from 22-1-1977 to 16-4-1977. He also tells us that the purpose of journey for which the vehicle was used is recorded as Government duty, in the logbook of the vehicle. But the real purpose of the journey can only be divulged by the driver. His statement, obviously, also fails to implicate the accused for any criminal liability. The vehicles were given to the accused to be used in performance of his duty entrusted to him by the Government. Mr. Ghulam Rasool P. W. 5 was declared hostile by the prosecution. His evidence is that he being a photographer, in the year 1977, was deputed to cover the public meetings and processions attended and addressed by the then President or the other leaders of the Azad Kashmir People's Party including the accused. He proves various photographs (Exhs. P. Q., P. R., P. S.) which show the accused also addressing audience. These gatherings, he states, were arranged by the Azad Kashmir People's Party workers which were attended by the public of Pakistan and Jammu & Kashmir refugees settled in Pakistan. None of these meetings, he further states, were attended by the Pakistan People's Party Leaders. It is also in his evidence that he never heard the Azad Kashmir President or any other Azad Kashmir leader speaking in favour of Pakistan People's Party candidates. The statement of this witness, when he says that these meetings were arranged by the Azad Kashmir People's Party workers which were also attended by the public of Pakistan and Jammu & Kashmir refugees settled in Pakistan, belies the prosecution case and proves the validity of Govern ment order (Exh. D.A.), which is even owned by the prosecution. The statement of this witness, therefore, knocks out the very foundation of the prosecution case. He nowhere states that the accused attended any meeting or ever delivered a speach in favour of any of the candidates of the Pakistan People's Party. No doubt be is declared hostile, but nonetheless he is a prosecution witness and his evidence shall be looked into on the basis of the intrinsic value it carries. Nothing has been brought on record to show to why he favours the defence. Merely declaring him hostile is hardly sufficient to colour him as a person of shady character, if otherwise his co credibility remains unshaken. This witness also says that Mahmood Ahmed Information Officer was also accompanying him during the tour. An adverse for his non-production, also goes against the prosecution.

54. It would, thus, appear that the evidence of Ghulam Ahmed Abbassi P. W. 5, Khalil Ahmed Qureshi P. W. 17, Nazir Ahmed Transport Officer P. W. 11 and Ghulam Rosool Photographer P. W. 4 fails to link the accused with the charge rather they lend full support to the defence on the point that the journey was undertaken, T. A. and D. A. was received on the basis of Government Order (Exhs. D. A. and P. M.) and the vehicles utilized were provided by the Government to facilitate the tour. Before parting with this charge, I would like to say something about Government order (Exh. D. A.). No doubt, this order is subsequent to the journey undertaken by the accused in March and April, 1977 but despite this the said order operates retrospec tively and was not for future, as maintained by the learned prosecutor. No witness comes forward to say so.

For the above stated reasons I cannot persuade myself to agree with the learned prosecutor that the accused has, in any way, committed any scheduled offence under the Ordinance. He was sent on duty by the Government under a Government order for specified purpose and now the Government cannot turn round and say that his acts taken in pursuance of the Government order are objectionable.

CHARGE No. II (d)

55. Under this charge, the prosecution demands conviction of the accused for using, without any entitlement, a Government vehicle No. A. J. K, 3166 from 25-1-1977 to 9-3-1977. This charge is denied by the accused. His case is that the vehicle was sent to him at his residence at Islamabad on 25.1-1977 but he declined to use it.

56. In proof of this charge the prosecution has evidence in the statement of Muhammad Akbar driver P. W.

13. He states that on 25-1-1977 he was required by the Assembly Secretariat to take the vehicle to the residence of Pir Ali Jan Shah at Islamabad, and he reported threat on the said date; and remained, thereafter, with the accused till 9-3-1977. The witness states that for the period he remained with the accused, he also got T. A. and D.A. from the Government.

57. To adjudge the veracity of this witness, his statement is to be appreciated in comparison to the entries made in the log book (Exh. P. A. A.). The log book, contrary to his statement, shows that on 25-1-1977 the vehicle travelled from Lahore to Islamabad under duty of the Secretary Assembly and on that very day was taken to the residence of accused. This entry contradicts this witness when he says that the vehicle was taken from Muzaffarabad to Islamabad and not from Lahore to Islamabad. From 25-1-1977 to 30-1-1977 the vehicle is entered in the logbook as `idle'. On 30-1-1977, however, the duty in the logbook is shown as 'Rawalpindi local' which goes up to 10-2-1977. It is interesting that the entry during this period does not show the name of the Officer, who used the vehicle or the purpose of the journey. The relevant column meant for the signature of the Officer using the vehicle is also blank. From 11-2-1977 to 9-3-1977, the vehicle is entered, in the log book, on duty with some chief guest of the Speaker who travelled on Government duty from Rawalpind to Muzaffarabad and various places of Pakistan. On 9-3-1977, the log book enters, that the vehicle was taken from Wazirabad to Mirpur and then from there to Rawalpindi with same guest. All the entries are signed by Muhammad Akbar driver (witness) in the relevant column. The witness further gates that the prepared the details of the journey on a rough copy which was given to the accountant, Iqbal by name.

58. It would thus appear that the entries of the log book belie the witness even on minutest details. It may be mentioned that the witness also in the cross-examination and that during the period, the vehicle remained with the accused, it met an accident at Wazirabad. But his state ment shows that the vehicle, at that time, was under the use of Col. Munir and others. He is unable to state as to how Col. Munir travelled by that vehicle and under whose orders. The log book has been tendered in evidence by the prosecution and if anything therein goes against the prosecution, naturally the prosecution has to suffer the consequences.

59. The entries in the log book do not reflect that the vehicle was at all used by the accused. The prosecution in its wisdom cared not to produce Muhammad Aslam, the author of the entries in the log book, to know as to why wrong entries (if at all they are wrong) not showing the journey to have been performed by the accused were made in the log book (Exh. P. A. A.). He was the competent person to throw light on this aspect of the case and withholding him raises an inference against the prosecution. In view of the above, I do not feel safe to place any reliance on the statement of driver.

60. The next witness on the charge Mr. Khalil Ahmed Quresh. (P. W. 17) does not connect the accused with the utilization of the vehicle as his statement, being hearsay, is inadmissible. However, he admits that the accused had not made any request for the vehicle. His statement read with noting (Exh. DY/1) and the entries in the log book (Exh. Pak.) makes me to believe that most probably the vehicle had been used by unauthorised persons and when it met an accident, the accused in the record, was shown to be the.recipient of the vehicle. In view of the above this charge also remains unproved against the accused.

61. The prosecution also tried to prove that the accused had received an amount of Rs. 17,000 in two instalments. This allegation does not form basis of any charge and needs no consideration.

62. Before parting with the case I would like to state that the Prose cutor, in his written statement, has asked for the conviction of the accused only for the charges:---

(i) Rigging in general election of Azad Jammu & Kashmir held in 1975;

(ii) Use of the vesicle of the Government of Punjab No. X-67-2209 for one month and 8 days during election by the accused;

(iii) Accused's receipt of an amount of Rs. 1,000 in instalments of Rs. 500 each from Khan Abdul Hamid Khan who had received this amount from the then Prime Minister of Pakistan;

(iv) Accused while he was an M. L. A. and Adviser of Jammu & Kashmir Council received an amount of Rs. 17,000 and Vehicles Nos. A J K 3131, A.J.K. 3166 and A J K 3069 which he had utilized in the People's Party election compaign during the general election of Pakistan in 1977.

It would, thus, appear that the prosecutor had abandoned other charges for lack of sufficient proof. However, in the interest of justice I have elaborately dealt with all the charges.

For the reasons stated above I hold that the prosecution has failed to prove any charge against the accused. The accused, therefore, stands acquitted of all the charges.

Order accordingly.