Form No: HCJD/C-121
ORDER SHEET
IN THE ISLAMABAD HIGH COURT, ISLAMABAD (JUDICIAL DEPARTMENT)
W.P. No.1133/2020
Muhammad Masood Chishti
Versus
Chairman, National Accountability Bureau & 4 others
Petitioner / : Mr Muhammad Amjad Pervaiz, Advocate. Respondents in Mr Tariq Mehmood Jehangiri, Advocate. appeals by Mr Muhammad Ramzan Chaudhry, Advocate. Chaudhry Haseeb Ahmed, Advocate. Mr Muhammad Ahsan Bhoon, Advocate. Mr Azam Nazir Tarar, Advocate.
National : Mr Jehanzeb Khan Bharwana, Addl. Prosecutor General. Accountability Mr Imran ul Haq Khan, Deputy Prosecutor General. Bureau by Barrister Rizwan Ahmed, Special Prosecutor. Syed Jalal Hussain , Special Prosecutor. Mr Yasir Saleem Rana, Special Prosecutor. Ms Asma Chaudhry, Deputy Director/Investigating Officer.
Date of Hearing : 05-10-2020
ATHAR MINALLAH, C.J.- Through this consolidated judgment we will decide the titled constitutional petition along with
Criminal Appeal No.249/2019, titled ‘The National Accountability
Bureau, through the Chairman v. Justice (R) Riaz Kiyani’ and Criminal
Appeal No.248/2019 titled ‘The National Accountability Bureau, through the Chairman v. Zaheer ud Din Babar Awan’.
2. The facts and circumstances are peculiar. The initiation of the case appears to have been influenced by proceedings which had been taken up by the august Supreme Court. The record does not Page : 2 W.P. No. 1133/2020
show that the apex Court had directed the initiation of an inquiry or investigation. It is a case which probably highlights the concerns of the august Supreme Court observed in the case titled ‘Khan Asfandyar
Wali and others v. Federation of Pakistan through Cabinet Division,
Islamabad and others’ [PLD 2001 SC 607] and the relevant portion is reproduced as follows.-
"If decision making level officials responsible for issuing orders, SROs etc. are not protected for performing their official acts in good faith, the public servants and all such officers at the level of decision making would be reluctant to take decisions and/or avoid or prolong the same on one pretext or another which would ultimately lead to paralysis of State-machinery. Such a course cannot be countenanced by this Court."
3. The criminal appeals have been preferred by the National
Accountability Bureau (hereinafter referred to as the ‘Bureau’) under section 32 of the National Accountability Ordinance, 1999 (hereinafter referred to as the ‘Ordinance of 1999’) assailing separate orders, dated 25-06-2019, whereby two of the accused arrayed in Reference
No.18/2018, namely Justice (rtd) Riaz Kiyani and Zaheer-ud-Din
Babar Awan, have been acquitted from the charges framed against them. Their petitions under section 265-K of the Code of Criminal
Procedure, 1898 (hereinafter referred to as the ‘Cr.P.C.’) were accepted. Another accused arrayed in the same reference, namely
Muhammad Masood Chishti, had also sought acquittal but his prayer was declined by the learned Accountability Court-II, Islamabad vide order dated 18-03-2020. The said order has been assailed by invoking Page : 3 W.P. No. 1133/2020
the constitutional jurisdiction of this Court under Article 199 of the
Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the ‘Constitution’).
RELEVANT FACTS.-
4. The facts, in chronological order, leading to the filing of
Reference No.18/2018, are as follows.-
27-12-2007.
The Economic Coordination Council (hereinafter referred to as
the ‘ECC’) approved the Nandipur Power Project (hereinafter
referred to as the ‘Project’). The ECC also gave approval for
the execution of a contract between GENCO-III/PEPCO and
Dong Fang Electric Corporation (hereinafter referred to as the
‘Corporation’). The approval was subject to the issuance of
guarantees by the Government of Pakistan regarding finance
facility of US $ 329 million. The contract was executed between
M/s Northern Power Generation Company Ltd. (hereinafter
referred to as the ‘Company’) and the Corporation on 28-01-
2008. Two consortiums were established for financing the
Project i.e. COFACE (Euro 68.967 million) and SINOSURE (US$
150.151 million), respectively. The draft agreements relating to
the financing consortiums were duly vetted by the Ministry of
Law, Justice and Parliamentary Affairs (hereinafter referred to as
the ‘Ministry of Law’). Page : 4 W.P. No. 1133/2020
03-10-2008.
The agreement with COFACE consortium was executed. In the
case of the other consortium, one of the lending Banks withdrew
its consent and, therefore, an agreement could not be signed.
04-03-2009.
The Ministry of Law, in response to a letter, dated 03-03-2009,
of the Ministry of Water and Power, advised the latter to proceed
by taking appropriate decisions in consultation with the Finance
Division. It was observed that the two Ministries were the most
appropriate arbiters to get out of the imbroglio/quandary
because of the peculiar situation described in the letter.
19-03-2009.
After considerable delay, another lending institution consented
to join the consortium, namely, SINOSURE and consequently an
agreement was executed in Beijing, Republic of China. The
executed agreement included some changes to the clauses
contained in the draft which had been vetted by the Ministry of
Law.
Page : 5 W.P. No. 1133/2020
30-03-2009.
The executed agreement with SINOSURE was forwarded by the
Ministry of Water and Power to the Ministry of Finance and the
latter was requested to give its ex-post facto approval.
07-04-2009.
The Finance Division vide letter, dated 07-04-2009, sought
comments / clearance of the Ministry of Law and the contents
thereof are reproduced as follows.-
“The undersigned is directed to refer to Law & Justice Division O.M. No.1(297)/08 Law-II dated 4th March, 2009 on the above subject. 2. The observations of Law & Justice Division were taken up by the Ministry of Water & Power / PEPCO with the lenders wh has clarified the position in the table placed at annexed-I. 3. The team of PEPCO visited Beijing on 17 – 19th March, 2009. The Exim Bank of China Sinosure presented final draft agreement which contained the changes to the earlier draft examined by Law & Justice Division. These changes are tabulated in annex-II. The PEPCO’s team has signed the Facility Agreement on 19-3-2009 containing the last momentum changes made by Exim Bank and Sinosure. A copy of Facility Agreement signed by PEPCO is placed at annex-III. 4. The Ministry of Water & Power and PEPCO has requested for ex-post facto approval and issuance of GOP guarantee as per format given in schedule 6 of Buyers Credit Facility Agreement signed by PEPCO on 19-3-2009. 5. It is requested that comments/clearance of Law and Justice Division may please be conveyed to enable Finance Division to proceed further. Page : 6 W.P. No. 1133/2020
17-04-2009.
The contents of the aforementioned letter were examined
by the Ministry of Law and vide memorandum, dated 17-
04-2009, the following opinion was given.-
“The undersigned is directed to refer to the Finance Division’s (External Finance Wing) O.M. No.1(1)EF ©/07-456, dated 7th April, 2009, on the above mentioned subject and to state that as to the issuance of the ex-post facto approval of this Division is concerned, it is stated that under the Rules of Business, 1973, Law & Justice Division only vets the final draft Agreement form the legal point of view. Therefore, no ex-post facto approval can be given specially when the finality of the Agreement has taken place. 2. However, the draft GOP Guarantee, which was a part of the main transaction document as agreed and entered into between the parties, has been examined. It is observed that it is not as per the standard approved GOP guarantees by this Division. Although, this Division has its reservations on some of the provisions and also that the GOP Guarantee should not be more than three to four pages and the irrelevant material should be deleted, yet as the draft has been agreed between the Parties, accordingly, the referring Ministry may take necessary action. 3. Further, for future course of action, these documents should not be referred as precedence. Standard draft provision should be decided principally, in order to narrow down the scope of disagreements with Lenders and other Parties. It is also suggested that extensive meetings be arranged by referring Ministry in order to develop standard drafts with consultation of Law & Justice Division and other concerned Ministries.”
It is noted that when the above opinion was given, neither the respondents in the appeals nor the petitioner were holding any Page : 7 W.P. No. 1133/2020
public office in the Ministry of Law. They were also not
associated with its affairs in any other manner. Justice (rtd)
Agha Rafique Ahmed Khan Durrani was then holding the charge
of Secretary, Ministry of Law. The latter was not arrayed as an
accused.
25-04-2009.
The Ministry of Law, vide Office Memorandum dated 25-09-
2009, gave its concurrence in relation to the proposals
mentioned in the draft summary which was intended to be
placed before the ECC.
04-06-2009.
Justice (rtd) Riaz Kiyani was posted as Secretary, Ministry of
Law and he served in that capacity till 24-12-2009. During his
tenure a letter, dated 07-07-2009, written by PEPCO, was
forwarded to the Ministry of Law by the Ministry of Water and
Power. The letter was examined and Ms Shumaila Mehmood,
Consultant (Research) sent her professional opinion to the
Secretary, Ministry of Law and it was approved by the latter.
The Ministry of Water and Power was informed/advised vide
letter, dated 04-09-2009. The Ministry of Law offered its opinion
in paragraph 2 of the letter.
Page : 8 W.P. No. 1133/2020
25-06-2009.
The Finance Division sought the opinion of the Attorney General
for Pakistan regarding the dispute resolution mechanism. The
opinion was tendered by the latter on 25-06-2011.
14-06-2010.
Muhammad Masood Chishti was appointed as Secretary, Ministry
of Law and he served till 21-03-2011.
09-07-2009.
Summary for the ECC.
17-12-2009.
Zaheer Ud Din Babar Awan was sworn in as the Minister for Law,
Justice and Parliamentary Affairs and he retained the portfolio
till 11-04-2011.
2011 petition entertained under Article 184 (3) of the Constitution.
Khawaja Mohammad Asif filed a petition before the august
Supreme Court alleging that delay in fulfilling obligations by the
then Government relating to execution of the Project had caused
loss to the exchequer. The petitioner was at that time sitting on Page : 9 W.P. No. 1133/2020
the opposition benches in the Majlis-e-Shoora (Parliament). The
petition was entertained by the august Supreme Court of
Pakistan in exercise of powers conferred under Article 184(3) of
the Constitution i.e. Constitutional Petition No.67/2011 titled
‘Khawaja Muhammad Asif v. Federation of Pakistan, and others’.
14-08-2011.
The contrasting opinions of the Ministries, relating to completion
of the Project, were placed before the Federal Cabinet. Approval
was granted regarding sovereign guarantees and the concerned
Ministries were advised to resolve their disputes. Pursuant to the
said decision, a meeting between officials was held and the
longstanding unresolved issues were put to rest.
19-10-2011.
The Ministry of Law issued a legal opinion relating to the Project.
26-10-2011.
The august Supreme Court appointed Justice (rtd) Rehmat
Hussain Jaffari, a former judge, as a single member Commission
to inquire into the allegations regarding delay and
commissioning of the Project.
Page : 10 W.P. No. 1133/2020
09-04-2012.
The Commission submitted its report and the questions framed
were answered as follows.-
“Keeping in view the above discussion and findings, the terms of Commission are replied as under.
No.1.(a) There is negligence on the part of the executive authorities of the Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan which has caused the delay in completion of the projects.
(a) Approximate loss of more than 113 billion has been caused to the National Exchequer.
No.2. The Ministry of Law, Justice and Parliamentary Affairs, Government of Pakistan is responsible for causing delay in completion of the documents.”
07-11-2012.
The august Supreme Court, vide order, dated 07-11-2012,
passed in Constitutional Petition No.67/2011 titled ‘Khawaja
Muhammad Asif v. Federation of Pakistan, and others’ directed
the counsel who had appeared on behalf of the Ministry of Water Page : 11 W.P. No. 1133/2020
and Power to hand over a copy of the Commission’s report to
the Secretary and directed the latter to brief the Court regarding
any actions, civil as well as criminal, contemplated to be taken.
The Bureau has not placed on record any order whereby the
Bureau may have been directed by the apex Court to initiate
proceedings
07-06-2013.
Khawaja Mohammad Asif, the petitioner before the august
Supreme Court, was sworn in as Minister for Water and Power.
07-11-2013.
The Ministry of Water and Power forwarded a copy of the
Commission’s report to the Bureau.
04-01-2014.
An inquiry was authorized by the Director General of the
Bureau.
27-12-2017.
The competent authority gave approval for upgrading the
inquiry to the stage of investigation.
Page : 12 W.P. No. 1133/2020
31-08-2018.
The Investigating Officer completed the investigation and
submitted the final report. It appears from a plain reading of the
report that the Investigating Officer was influenced by
proceedings before the august Supreme Court, so much so that
portions of the Commission's report were reproduced verbatim.
The final report was based on a narration of facts, analysis of
the official correspondence and reproduction of portions of the
report of the Commission. There was no allegation, even
remotely, that the accused had either gained any benefit or had
extended undue favour to any person. The calculation of loss
was also based on mere presumptions and mostly related to
escalation of price. There was no indication of the existence of
mens rea.
30-09-2018.
The Chairman of the Bureau filed Reference No.18/2018
(hereinafter referred to as the "Reference") wherein it was
alleged that offences under the Ordinance of 1999 were
committed. Seven accused were nominated in the Reference
including Justice (rtd) Riaz Kiyani, Muhammad Masood Chishti
and Zaheer ud Din Babar Awan. However, Justice (rtd) Agha
Rafiq Durrani was not arrayed as an accused. There is no
mention whatsoever in the reference regarding the grant or Page : 13 W.P. No. 1133/2020
rendition of any undue benefit or favour to another person or
accused. It is also not alleged that there was misuse of authority
by the accused so as to gain benefit or favour for themselves or
any other person.
11-03-2019.
A charge was framed by the learned Accountability Court-II,
Islamabad on 11-03-2019. The charge, as framed, did not
appear to fulfill the ingredients of one of the offences described
under section 9 of the Ordinance of 1999.
25-06-2019.
Petitions filed by Justice (rtd) Riaz Kiyani and Zaheer Ud Din
Babar Awan under section 265-K of the Cr.P.C. were accepted
and consequently they were acquitted of the charges framed by
the learned court.
18-03-2020.
The learned Judge, Accountability Court-II, Islamabad dismissed
the petition filed under section 265-K of Cr.P.C by the petitioner
i.e. Mohammad Masood Chishti .
Page : 14 W.P. No. 1133/2020
ARGUMENTS.
5. The learned counsels who have appeared on behalf of
Muhammad Masood Chishti and the respondents in the appeals have contended that; the impugned order, dated 18-03-2020, is against the facts and law; the impugned order suffers from misreading and non- reading; the petitioner has an unblemished professional record as a practicing lawyer; a plain reading of the Reference as well as the investigation report unambiguously shows that no offence was made out to proceed against the petitioner; two other co accused were acquitted and the role of Muhammad Masood Chishti was not distinguishable; Muhammad Masood Chishti and Justice (rtd) Riaz
Kiyani had merely reiterated the stance taken by the Ministry of Law vide letter, dated 17-04-2009; the professional opinion was contained in the letter dated 17-04-2009 and neither were the then Secretary,
Ministry of Law nor the Minister holding the portfolio questioned or arrayed as accused; the Commission appointed by the august
Supreme Court did not, even remotely, suggest an offence having been committed under the Ordinance of 1999; the proceedings before the august Supreme Court were initiated on the basis of the petition filed by a political leader who was then sitting on the opposition benches; the Bureau did not inquire or investigate the matter and it is obvious from the investigation report that the investigating officer was solely influenced by the report of the Commission; the necessary ingredients of the offence under section 9(a)(vi) nor item 5 of the
Schedule of the Ordinance of 1999 exist and, therefore, the accused Page : 15 W.P. No. 1133/2020
would be unnecessarily subjected to the travails of a trial; the acquittals in the case of the two accused vide separate orders, dated
25-06-2009, are neither perverse nor does any ground exist requiring interference by this Court; there is nothing on record to even remotely indicate mens rea; actus reus is also nonexistent; it is an admitted position that no personal gain was obtained by the petitioner and the respondents in the criminal appeals; reliance has been placed on the cases of ‘Mansur ul Haque v. Government of Pakistan’ [PLD 2008 SC
166], ‘The State v. M. Idrees Ghauri and others’ [2008 SCMR 1118],
‘Anwarul Haq Qureshi v. National Accountability Bureau and another’
[2008 SCMR 1135], ‘Wahid Bakhsh Baloch v. The State’ [2014 SCMR
985], ‘Messrs Fauji Cement Company Limited v. Government of
Pakistan through Secretary Customs, Board of Revenue, Islamabad and others’ [2014 SCMR 994], ‘Muhammad Saeed Mehdi v. The State and 2 others’ [2002 SCMR 282], ‘Muzammil Niazi and others v. The
State’ [PLD 2003 Karachi 526], ‘Muhammad Iqbal v. The State and others’ [2017 PCr.LJ 674], ‘Mukhteyar Alam v. The State through
Additional Advocate-General and 4 others’ [2017 PCr.LJ 684], ‘Dr
Mujahid Kamran v. Chairman National Accountability Bureau (NAB) and others’ [2019 PCr.LJ 34], ‘Aamir Shamas v. The State and another’ [2019 PCr.LJ 41].
6. The learned Deputy Prosecutor General Accountability has argued that; while acquitting the two accused the learned
Accountability Court excluded from consideration the gravity of the offence; the petitions filed under section 265-K of the Cr.P.C. could not have been allowed without the recording of evidence; the Page : 16 W.P. No. 1133/2020
evidence recorded was also misread; the impugned acquittals are shocking and perverse and, therefore, liable to be set aside; the learned court had rightly dismissed the petition filed by Muhammad
Masood Chishti; sufficient material was brought on record and, therefore, without conclusion of trial some of the accused could not have been acquitted; it is not essential for attracting the offence under section 9(a)(vi) that an accused may have benefitted himself; extending undue benefit to another person is sufficient; the powers were misused by the accused; reliance is placed on the cases of ‘Suo
Motu Case No.18 of 2010: Suo motu action regarding violation of
Public Procurement Rules, 2004 in procurement of billions of rupees of exchequer case by National Insurance Co. Ltd.’ [2014 SCMR 585],
‘Sikandar A. Kareem v. The State through Chairman, National
Accountability Bureau and another’ [2011 MLD 313], ‘The State through Advocate-General, Sindh High Court of Karachi v. Raja Abdul
Rehman’ [2005 SCMR 1544], ‘Malik Din v. Chairman National
Accountability Bureau and another’ [2019 SCMR 372].
7. The learned counsels for the respondents in the appeals, the petitioner in the constitutional petition and the Additional
Prosecutor General of the Bureau have been heard and the record perused with their able assistance.
Our Opinion.
8. The case in hand is exceptional in nature. It's extraordinary nature stems from the fact that the accused were not Page : 17 W.P. No. 1133/2020
alleged of being involved in corruption because it was not the case of the Bureau that either they had gained any favor or benefit for themselves or may have extended the same to others. The Bureau had not initiated the proceedings but rather a reference under section
18 of the Ordinance of 1999 was received from the Ministry of Water and Power. The reference appears to have been based on documents which were submitted before the august Supreme Court during the proceedings relating to Constitutional Petition No.67/2011 titled
‘Khawaja Muhammad Asif v. Federation of Pakistan. The apex Court had not referred the matter to the Bureau. The latter, however, has heavily relied on the order dated 07-11-2012 in support of its stance that the apex Court was satisfied that criminality was involved in the delay on the part of the Ministry of Law and Justice. The petitioner before the august Supreme Court was a political rival of the then elected government. After the general elections, the latter was sworn in as a member of the Federal Cabinet and he was given the portfolio of Minister of Water and Power. It was then that a reference was sent to the Bureau. It is obvious from the record that the case is entirely based on how the case relating to execution of the Project was delayed. The Commission appointed by the august Supreme Court did not give any finding that the officials involved in the processing of the case relating to the Project had committed corruption or that the acts or omissions amounted to corrupt practices. In the opinion of the
Commission the officials of the Ministry of Law and Justice were
'negligent'. It was alleged that loss caused to the exchequer was due to refusal on the part of the officials of the Ministry of Law and Justice to fulfill their obligations. In the case of the two accused, the learned Page : 18 W.P. No. 1133/2020
Accountability Court, after examining the record, concluded that there was no likelihood of their conviction, while a different opinion was formed in relation to the third accused. The questions that have emerged for our consideration are indeed of paramount importance; whether the respondents in the appeals preferred by the Bureau have been rightly acquitted; if the answer is in the affirmative then whether the learned trial court was justified in refusing to extend the same relief in the case of another accused i.e the petitioner in the constitutional petition; whether the ingredients of the offence were fulfilled and whether, on the basis of the material placed on the record, there was a likelihood of handing down a verdict of conviction; whether, in the facts and circumstances, the learned Accountability
Bureau had exercised jurisdiction in accordance with law by sending the reference to the Court. In order to answer these questions it would be beneficial to survey the relevant provisions of the Ordinance of 1999 and the precedent law.
The Ordinance of 1999.
9. The Ordinance of 1999 was enacted and duly notified in the official gazette on 16-11-1999. The object of promulgation stated in the preamble was to provide for setting up the Bureau so as to eradicate corruption and corrupt practices and hold accountable all those persons who are accused of such practices and matters ancillary thereto. Section 5 defines various expressions but “corruption” and
“corrupt practices” have not been defined therein. Section 9 describes various offences relating to corruption and corrupt practices. For the Page : 19 W.P. No. 1133/2020
purposes of adjudication of the matter before us, the relevant offences are clauses (vi) and (xii) of section 9(a) besides item 5 of the
Schedule of the Ordinance of 1999. The ingredients of the offences will be discussed later. The offence under section 9(a)(xii) is attracted when a person is alleged to have aided, abetted, attempted or has acted in conspiracy with a holder of public office in the commission of offences described under clauses (i) to (vi) of section 9(a). The offence described under item 5 of the Schedule is attracted when the loss is attributed to 'deceit', 'fraud' or 'dishonesty' and such loss has been suffered by one of the entities mentioned therein. Clauses (c) and (d) of section 18 explicitly provides that an inquiry or investigation, as the case may be, is relatable to an offence alleged to have been committed under the Ordinance of 1999. Clause (a) of section 18 provides that the Accountability Court shall not take cognizance of any offence except on a reference made by the
Chairman of the Bureau or any other officer duly authorized in this regard. Clause (vi) of section 18 provides that if a complaint is inquired into by the Bureau and it is subsequently found that it was, prima facie, frivolous or had been filed with the intent to malign or defame any person, then it may refer the matter to an Accountability
Court. A person filing a frivolous complaint, if found guilty, is exposed to being sentenced to undergo imprisonment for a term which may extend to one year or with a fine or with both. It is evident from the language used in clause (b) of section 24 of the Ordinance of 1999 that the Chairman cannot refer a case to the court in a perfunctory manner and without proper application of mind after examining the material collected during the course of inquiry or investigation. It is Page : 20 W.P. No. 1133/2020
the statutory duty of the Chairman to satisfy himself before the filing of a reference before the court that, prima facie, the ingredients of the offence under the Ordinance of 1999 alleged to have been committed are complete. This is implicit in the expression 'such reference shall contain the substance of the offence or offences, as the case may be, alleged to have been committed by the accused-----". The language used in the statute is crucial and on a plain reading of the reference it must show compliance with this statutory duty. It is thus a mandatory requirement that the reference filed before a court must contain sufficient material to, prima facie, show the existence of the ingredients. A reference is, therefore, a crucial document because it serves the purpose of a report required to be submitted by a police official under section 173 of the Cr.P.C. It enables the court to form an opinion whether or not to take cognizance and commence with the trial by framing the charge.
10. It is relevant to note that offences described in various clauses of section 9 of the Ordinance of 1999 are inextricably connected with the expression 'corruption and corrupt practices' because of the language used by the legislature in the controlling part i.e. clause (a) ibid. The said expressions have not been expressly defined in the Ordinance of 1999. However, in order to interpret the offences described under various clauses of section 9, it would be apt to seek guidance from the dictionary meaning of the expressions
'corruption and corrupt practices'. The Advanced Law Lexicon, 3rd
Edition (Vol.1, Reprint 2009) defines 'Corrupt' as unlawful; dishonest, without integrity; guilty of dishonesty, involving bribery and Page : 21 W.P. No. 1133/2020
'Corruption' as "Depravity, perversion, or taint; an impairment of integrity, virtue, or moral principle; especially, the impairment of a public official's duties by bribery. 2. The act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others; a fiduciary's or official's use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others.” The Black’s Law Dictionary (11th
Edition) defines the expressions as;
corrupt, vb. (13c) 1. To change (someone's behavior, morals, or principles) from good to bad; to pervert the integrity of. 2. To change the traditional and established form of (culture, language, etc.) so that it becomes worse than it was before. 3. To destroy or diminish the quality and usefulness of an electronic or mechanical device or its components). 4. Archaic. To impose corruption of blood on (a person). corruption. (14c) 1. Depravity, perversion, or taint; an impairment of integrity, virtue, or moral principle; esp., the impairment of a public official's duties by bribery. "The word 'corruption' indicates impurity or debasement and when found in the criminal law it means depravity or gross impropriety." “Rollin M. Perkins & Ronald N. Boyce, Criminal Law 855 (3d ed. 1982). 2. A fiduciary's or official's use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others; an act carried out with the intent of giving some advantage inconsistent with official duty or the rights of others. - Also termed (of an official) abuse of the public trust.
Page : 22 W.P. No. 1133/2020
The Chambers Dictionary (10th edition) defines the expressions as;
corrupt /kər-upt'/ vt to taint, destroy the purity of; to pervert; to debase; to spoil; to bribe; to introduce errors into (a computer program or data) • vi to rot, go bad; to lose purity, spoil. Adj defiled; depraved; dishonest, venal; of the nature of, or involving, bribery; bribed; not genuine or pure; rotten, putrid; debased or made very faulty in transcription; (of a computer program or data in store) containing errors arising eg from a fault in the hardware or from software. [L cor-, intens, and rumpere, ruptum to break] corrupt'er or corrupt'or n. corruptibility n. corrupt'ible adj/liable to be corrupted. corrupt'ibleness n. corrupt'ibly adv. corruption n the quality of being corrupt; a corrupt action; bribery; dishonesty, rottenness; impurity. corruptionist n a person who defends or who practises corruption. corrupt'ive adj having the quality of corrupting.
Burton’s Legal Thesaurus (5th Edition)
CORRUPT, verb adulterate, befoul, bribe, cause to be dishonest, contaminate, corrode, corrumpere, debase, debauch, decay, defraud, degenerate, depravare, deprave, devalue, distort, lead astray, misdirect, mislead, pervert, pollute, prostitute, seduce, spoil, suborn, subvert, taint, undermine, vitiare, vitiate, vulgarize, warp. CORRUPTION, noun abuse of public trust, act of bribing, act of profiteering, baseness, breach of faith, breach of trust, bribery, complicity, conduct involving graft, corrupt inducement, corruptela, corruptibility, corruptio. crime. criminality, debasement, deception, depravatio, deviation from rectitude, deviousness, disgrace, dishonesty, dishonor, disloyalty, disrepute, feloniousness, fraudulence. Page : 23 W.P. No. 1133/2020
fraudulency, graft, illegality, improbity, indirection, injustice, jobbery, knavery, lack of conscience, lack of principle, lack of probity, malignancy, obliquity, perfidiousness. perfidy, perversion of integrity, scoundrelism, turpitude, unscrupulousness, venality, villainousness, villainy, want of principle, wickedness
It is obvious from the above dictionary meaning that the expressions 'corruption' and 'corrupt practices' are distinct from 'negligence' or even 'recklessness'. Mere illegality, negligence or recklessness would not constitute corruption sans a guilty mind. Before proceeding further it would be appropriate to survey the precedent law.
Before we proceed to discuss the ingredients of the offences invoked in the matter in hand it is inevitable to survey the precedent law.
Precedent law.
11. The Ordinance of 1999 is definitely penal in nature and proceedings thereunder have a profound impact and consequence for persons who are proceeded thereunder. The expansive powers vested in the Bureau and the profound consequences in the context of constitutionally guaranteed rights places a heavy burden on the competent authority to exercise these powers with utmost care and strictly within the scope prescribed under the Ordinance of 1999. The august Supreme Court, in the case titled ‘Pakistan, through the
Secretary Ministry of Finance, etc v. Hardcastle Waud (Pakistan) Ltd,
Karachi’ [PLD 1967 SC 1], has observed that in the case of a statutory offence there is a presumption that mens rea must be an essential Page : 24 W.P. No. 1133/2020
ingredient unless the statute creating the offence, by express terms or by necessary implication, rules it out. The mere omission of the word
“knowingly” or “intentionally” is not sufficient to rebut this presumption. In the case titled ‘Mir Munawar Ali Talpur v. State through Chief Ehtesab Commissioner, Islamabad and 2 others’ [PLD
2003 SC 46], the august Supreme Court, while interpreting the provisions of the Ehtisab Act 1997 has observed and held that for raising the presumption of guilt at the first instance, two essential elements must exist i.e. mens rea and intention to commit the crime so as to justify further proceedings relating to proving the criminal liability through positive evidence. In the facts of the case before the apex Court the prosecution had failed to discharge the initial burden of showing the existence of personal interest, benefit or financial gain relatable to abuse or misuse of authority. The prosecution had failed in raising a legitimate presumption of guilt. It was observed that a mere violation of procedural rules was not sufficient for constituting an offence of corruption and corrupt practices in the absence of criminal intent. In the case titled ‘The State and others v. M. Idrees Ghauri and others’ [2008 SCMR 1118] the august Supreme Court has elaborately dealt with the expressions 'actus reus' and 'mens rea' in the context of the offences under the Ordinance of 1999. The apex Court has observed and held as follows.-
“The misuse of authority in general, means wrong and improper exercise of authority for the purpose not intended by law, therefore, in order to prove the charge of misuse of authority, at least two basic ingredients i.e. mens rea and actus reus of the crime have to be Page : 25 W.P. No. 1133/2020
necessarily established and in case anyone of these two elements is found missing, the offence is not made out. Mens rea in context to the misuse of authority means to act in disregard of the law with the conscious knowledge that act was being done without authority of law and except in the case of strict liability, the element of mens rea is necessary constituent of crime. The offence of corruption and corrupt practices within the meanings of section 9(a)(vi) of the Ordinance, is not an offence of strict liability, therefore, the use of authority without the object of illegal gain or pecuniary benefit or undue favour to any other person with some ulterior motive, may not be a deliberate act to constitute an offence. The mens rea for an offence under section 9(a)(vi) of the Ordinance, is found in two elements i.e. conscious misuse of authority and illegal gain or undue benefit and in absence of anyone of these basic components of crime, the misuse of authority is not culpable, therefore, the prosecution must establish mens rea and actus reus of the crime to establish the charge, as without proof of these elements of crime, mere misuse of authority, has no penal consequence. The offence of corruption and corrupt practices has not been as such defined in the Ordinance but in general terms, the corruption is an act which is done with intent to give some advantage in consistent with law and wrongful or unlawful use of official position to procure some benefit or personal gain, whereas the expression corrupt practices is series of depraved/ debased/morally degenerate acts, therefore, as contemplated in section 14(d) of the Ordinance, unless the prosecution successfully discharges the initial burden of proving the allegation in a reasonable manner, the accused cannot be called to disprove the charge by raising a presumption of guilt.”
Page : 26 W.P. No. 1133/2020
The august Supreme Court has stressed the need for the courts to be vigilant in order to safeguard the rights of an accused against unjustified prosecution at the cost of honour and reputation. It has emphasized that the oppressive use of law in disregard to the honour and reputation of a person is not justified and that unjust and unfair treatment ought to be prevented in the larger interest of justice which is the most fundamental of all the rights in Islam and cannot be abridged. The Ordinance of 1999 is in the nature of a special law and, therefore, it is crucial that the expansive powers are not exercised in an oppressive manner, having the effect of abridging the fundamental rights guaranteed under the Constitution. In the case titled ‘Mansur- ul-Haque v. Government of Pakistan’ [PLD 2008 SC 166] the august
Supreme Court has observed and held as follows.-
“The mere procedural irregularities in the transaction, would not be sufficient to constitute an offence under section 9 (a) (vi) of the ibid Ordinance. This is essential to draw distinction between procedural irregularities and violation of substantial provisions of law to determine the question of criminal liability in the transaction. The procedural irregularities may bring an act done in the official capacity within the ambit of misconduct which is distinguishable from criminal misconduct or an act which may constitute an offence and thus unless it is established through the evidence that an act or series of acts done in the transaction constituted an offence, the criminal charge would be groundless.”
Page : 27 W.P. No. 1133/2020
In the case titled ‘Waqar Ali and others v. The State through
Prosecutor/Advocate-General Peshawar and others’ [PLD 2011 SC
181] the august Supreme Court, though interpreting the provisions of the Illegal Dispossession Act 2005, has eluded to the general principles relating to a criminal trial.-
“As in any criminal case, the complainant is to state the facts which, without extraneous considerations or evidence, satisfy the Court of the existence of every ingredient of an alleged offence. Without this a complainant is not entitled to invoke the aid of the Court and to foist the travails of a criminal trial on the person(s) accused by him. In a very important sense a Court empowered to take cognizance of an offence under the Act, is required to act as a sieve and to filter out those complaints which do not disclose the requisite criminal intent.”
In the case titled ‘Muhammad Noor and others v. The State’ [2010
SCMR 927] the august Supreme Court has observed in relation to mens rea as follows.-
“General rule is that there is presumption that mens rea, an evil intention or knowledge of wrongfulness of the act is an essential ingredient in every offence. However, such presumption is liable to be displaced either by the subject-matter with which it deals. Normally it is true that the plain, ordinary, grammatical meaning of words of enactment affords the best guide but in case of this kind, the question is not what the words mean but where there are sufficient grounds for inferring that Parliament Page : 28 W.P. No. 1133/2020
intended to exclude the general rule that mens rea is an essential element in the offence.”
In the case titled ‘Nasir Abbas v. The State and another’ [2011 SCMR
1966] the august Supreme Court has observed and held as follows.-
“The age old Latin phrase epitomizes this concept, "actus non facit reum nisi mens sit rea", which means that the act does not make a person guilty unless the mind be also guilty. Actus reus in simple parlance is the actual act of committing some offence contrary to the law of the land and mens rea is the intent to commit the said offence. If either of the elements is missing, the conduct would not attract a penal provision unless it is a case of strict liability wherein the absence of mens rea may not be fatal to the prosecution.”
In the case titled ‘The State v. Anwar Saif Ullah Khan’ [PLD 2016 SC
276] the august Supreme Court has held in the context of section
9(a)(vi) of the Ordinance of 1999 as follows.-
“It is also apparent from the same precedent cases that a mere procedural irregularity in the exercise of jurisdiction may not amount to misuse of authority so as to constitute an offence under section 9(a)(vi) of the National Accountability Ordinance, 1999 and that a charge of misuse of authority under that law may be attracted where there is a wrong and improper exercise of authority for a purpose not intended by the law, where a person in authority acts in disregard of the law with the conscious knowledge that his act is without the authority of law, where there is a conscious misuse of authority for an illegal gain or an undue benefit and where the act is done Page : 29 W.P. No. 1133/2020
with intent to obtain or give some advantage inconsistent with the law. The said precedent cases also show that misuse of authority means the use of authority or power in a manner contrary to law or reflecting an unreasonable departure from known precedents or custom and also that mens rea or guilty mind, in the context of misuse of authority, would require that the accused person had the knowledge that he had no authority to act in the manner he acted or that it was against the law or practice in vogue but despite that he issued the relevant instruction or passed the offending order.”
In the case titled ‘Province of Punjab through Secretary Punjab Public
Prosecution Department and another v. Muhammad Rafique and others’ [PLD 2018 SC 178] the august Supreme Court has held that whenever a penal statute is required to be interpreted then such interpretation should be preferred which would lean in favour of the accused person and not the prosecution or the State. Moreover, if there could be two interpretations then the one which favours the accused should be adopted. In the case titled ‘Ghulam Hussain and others v. The State and others’ [PLD 2020 SC 61] the august Supreme
Court has conceptually explained the attributes of the expressions actus reus and mens rea in the context of the Anti Terrorism Act
1997. It is obvious from the above discussed precedent law that existence of mens rea and fulfillment of ingredients are mandatory for constituting the offences described under the Ordinance of 1999.
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Conclusion.
12. The Ordinance of 1999 is penal in nature because the legislature has created criminal offences which exposes an accused to the consequences of being convicted followed by sentencing. Even being arrayed as an accused has profound consequences for the latter. It is settled law that an offence can only be created by the legislature through clear and unambiguous language. Moreover, a statute which creates an offence leading to conviction and sentence is required to be strictly construed. When the language of the statute is plain and simple then the court has to give effect to the words used in the statute. In case of ambiguity or when two reasonable interpretations emerge then preference has to be given to such interpretation which leans in favour of protecting the liberty of a person. A statute which creates a crime and offence is presumed to include the requirement of the existence of both mens rea as well as actus reus as has been aptly highlighted in the maxim "Actus non facit reum nisi mens sit rea", i.e 'an act does not make anyone guilty unless there is a criminal intent or a guilty mind". It is, therefore, obvious that the criminality of an act depends on the intention of its doer and would thus become an offence when done with a guilty mind. It is on the basis of these principles relating to the interpretation of penal statutes that we would be examining the matter in hand.
13. The reference filed by the Bureau in this case has alleged the commission of offences under clauses (vi) and (xii) of section 9(a) Page : 31 W.P. No. 1133/2020
and item 5 of the Schedule. The offence under clause (vi) of section
9(a) has two distinct categories. The first is in the context of 'misuse of authority' while the other becomes operative when a public office holder fails to exercise his or her authority. Mere 'misuse of authority', no matter how grave or gross in nature, would not be sufficient to constitute an offence under section 9(a)(vi) because the unambiguous language used by the legislature makes the existence of the other ingredients a precondition. The intent of misuse of authority by a public office holder must be to gain any benefit or favor personally or for another. Rendering or attempting to render such gain or benefit would also fall within the ambit of the offence. Gaining any benefit or favour, either by the public office holder vested with authority or for any other, is a pre-condition for constituting an offence under section
9(a)(vi). Likewise, in the case of the other distinct part of the offence, the existence of the ensuing consequence flowing from failure to exercise authority is a prerequisite for the criminality of the omission.
The intent of failure to exercise authority must be facilitating the grant or rendition of any undue benefit or favour which could have been prevented if authority had been exercised. The controlling part of section 9(a) explicitly makes the offences relatable to corruption and corrupt practices. Thus clauses (i) to (xii) of section 9 (a) cannot be interpreted independently i.e. excluding or ignoring the expression
'corruption and corrupt practices" explicitly used in the controlling part. Clause (xii) of section 9(a) would be attracted only if the ingredients of the offences described in one of the clauses in section
9(a) are fulfilled, such as clause (vi) in the case in hand. The offence described under item 5 of the Schedule is in respect of loss caused to Page : 32 W.P. No. 1133/2020
the entities mentioned therein. However, such loss would only become a criminal offence under the Ordinance of 1999 if it is caused due to deceit, fraud or dishonesty. Merely causing loss, regardless of its quantum, would not constitute a criminal offence.
14. We have already reproduced the dictionary meaning of the expressions 'corruption' and 'corrupt practices'. The expression essentially has a nexus with dishonesty, fraud, conduct involving graft or bribery, deception, depravity etc. It involves intent or conscious knowledge of wrongdoing and goes beyond conduct or action sans a guilty mind. As a corollary, actus reus by itself does not constitute the offence nor loss caused pursuant thereto unless it is accompanied by mens rea. In the context of the offences under the Ordinance of 1999 the existence of both actus reus and mens rea should, prima facie, float on the surface of the reference filed by the Bureau under section
18 of the Ordinance of 1999. The expressions, "shall appraise the material and evidence", "if decides that it would be proper and just to proceed further" and " there is sufficient material to justify filing of reference", used in section 18 (g) are crucial because they impose a high standard of statutory duty which is required to be discharged before referring the matter to a court. It thus becomes an onerous duty of the Chairman or the authorized officer to clearly show, through the substance of offence contained in the reference, that the statutory preconditions had been fulfilled after proper application of mind. Section 25 (b) renders it mandatory that the reference "shall contain the substance of the offence or offences as the case may be, alleged to have been committed ---". It is thus implicit in the language Page : 33 W.P. No. 1133/2020
of the provision that the reference would demonstrably show the existence of the ingredients of the offence alleged to have been committed. Section 18 (a) provides that the court shall not take cognizance under the Ordinance of 1999 except on a reference made by the Chairman or an officer authorized by the latter. The discretion exercised by the court in the context of whether or not to take cognizance is essentially based on and guided by the substance of the reference. The application of mind and, prima facie, the existence of the ingredients of an offence described in one of the clauses of section
9 (a) are crucial preconditions for filing of a reference or exercise of discretion by the court while taking or refusing to take cognizance. If the substance of the offence contained in the reference does not justify its filing nor cognizance is taken by the court on the basis thereof then the proceedings in such an eventuality would be contrary to the unambiguous intent of the legislature. These safeguards have been prescribed so that no one is arbitrarily deprived of enjoying the right of liberty.
15. We will now revert to the facts and circumstances of the case in hand so as to examine them in the light of the discussion above. The initiation of the proceedings was on the basis of a petition brought before the august Supreme Court by a political rival of the government which was then in power. It was alleged that the execution of the Project was delayed and thus loss was caused. It was alleged that the Ministry of Law and Justice was responsible for the delay because it had refused to give its legal opinion and had thus failed to exercise its authority. The case of the Bureau was based on Page : 34 W.P. No. 1133/2020
the proceedings initiated by the august Supreme Court. The apex
Court had appointed a Commission and the latter, after completing the probe, had submitted a detailed report. The Commission's report did not allege corruption or corrupt practices in the terms of the
Ordinance of 1999. The report attributed the delay and loss to
'negligence' on the part of the Ministry of Law and Justice. The calculation of the loss was based on presumptions because reputable chartered accountant firms had shown their inability to undertake such an assignment. The Bureau was not able to place before us any order passed by the august Supreme Court directing the initiation of criminal proceedings under the Ordinance of 1999 except order dated
07-11-2012 wherein an explanation was sought regarding intended action including criminal proceedings. But no direction was passed regarding referring the matter to the Bureau. The matter was ultimately referred to the Bureau when the complainant petitioner before the august Supreme Court was sworn in as a member of the
Federal Cabinet and it seems to have been his own decision. It appears that the reference sent by the Ministry of Water and Power was based primarily on the basis of the report of the Commission submitted before the august Supreme Court. It also appears, from the final investigation report prepared by the Investigating Officer of the
Bureau, that the latter had not investigated the matter independently but, rather, was heavily influenced by the Commission's report. A plain reading of the reference sent to the court unambiguously shows that there was no allegation, even remotely suggesting, that either those arrayed as accused had benefited personally or had extended favours to others. There was no allegation of deceit, fraud or Page : 35 W.P. No. 1133/2020
dishonesty with reference to causing the loss. Admittedly, the Project was approved by the ECC and the contract awarded to the Company was neither disputed nor alleged by the prosecution to have been tainted with any irregularity. The sole allegation was regarding delay on the part of the Ministry of Law and Justice in giving its legal opinion. The controversy had started when the agreement with one of the lending financial consortiums was executed in China and the
Ministry of Water and Power thereafter sought ex post facto approval.
The Ministry of Finance forwarded the matter to the Ministry of Law and Justice. The latter gave its opinion. None of those who were arrayed as accused in the reference were holding any public office in the said Ministry at that time. Justice (rtd) Riaz Kiyani was posted as
Secretary on 04-06-2009 and served till 24-12-2009. During his tenure only once a letter was received and it was duly responded to.
The appointment of Mr. Masood Chishti as Secretary of the Ministry was from 14-06-2010 till 21-03-2011. During this period the correspondence between the Ministry of Law and Justice and the other relevant Ministries shows that though the Ministry had responded promptly but others did not agree with its opinion. The Ministry of Law and Justice had consistently informed the other Ministries of its unequivocal stance. Zaheer-ud-Din Babur Awan was sworn in as member of the cabinet and he was assigned the portfolio of Minister of
Law and Justice on 17-12-2009. There is no allegation of any corruption or corrupt practices against him in connection with the
Project. In terms of the Rules of Business, 1973 his role was limited to policy formulation. The legal opinion was ultimately rendered pursuant to a meeting chaired by the then Prime Minister. The loss was Page : 36 W.P. No. 1133/2020
calculated primarily on the basis of escalation of cost and change in the value of currency. Nonetheless, the crucial ingredient for constituting the offences alleged to have been committed i.e. mens rea was absolutely nonexistent. There was no allegation of gaining any favour or benefit personally or having extended it to others. It also appears from the record that the Bureau was confused as to whether it was a case of misuse of authority or failure to exercise it.
As already noted, the alleged loss was not attributed to deceit or fraud. It was not a case which should have been referred to the court.
The court had also not exercised its discretion in accordance with law while deciding to take cognizance. The delay of more than two years was due to difference of opinions between the Ministry of Law and
Justice and other relevant Ministries. No one appears to have been ready to take the responsibility of a concluded contract. The opinions rendered by the Ministry of Law and Justice were not acceptable to others. Assuming that the opinions may have been contrary to law, yet it could not have amounted to an offence under the Ordinance of
1999. The manner in which the matter was dealt with between different Ministries at the most raises questions regarding governance but, by no stretch of the imagination, can it be treated as the commission of a criminal offence under the Ordinance of 1999. It also cannot be ruled out that fear amongst the bureaucracy of being exposed to proceedings may have been the likely cause of the delay but there is nothing on record to even suggest a guilty mind or existence of mens rea let alone fulfillment of the ingredients of the offences alleged to have been committed. It was definitely not a case Page : 37 W.P. No. 1133/2020
which justified filing of the reference or taking cognizance by the court.
16. We have not been able to persuade ourselves that the acquittals handed down in relation to two of the accused, namely
Justice (rtd) Riaz Kiyani and Zaheer-ud-Din Babar Awan respectively, by the learned Accountability Court suffer from any legal infirmity.
However, the case of the third accused, namely, Muhammad Masood
Chishti could not have been treated differently because his role was similar and was based on the same record.
17. It is settled law that the presumption of “double innocence” is attached where an order of acquittal of an accused is challenged. The presumption of “double innocence” can be rebutted if it could be shown that the order was passed as a result of misreading or non-reading of evidence or the same was patently illegal. It is also settled law that the appellate Court would not interfere with an acquittal merely because on reappraisal of evidence a different conclusion or opinion could be formed. The finding of acquittal can only be reversed, upset or disturbed in exceptional circumstances such as when the same are perverse, shocking, alarming, suffering from error of jurisdiction or misreading or non-reading of evidence.
Reliance is placed on the case of ‘Muhammad Zaman Versus The State and others’ [2014 SCMR 749], ‘Muhammad Rafique Versus Muhabbat
Khan and others’ [2008 SCMR 715], ‘Jehangir Versus Amin Ullah and others’ [2010 SCMR 491], ‘Mst. Askar Jan and others Versus Page : 38 W.P. No. 1133/2020
Muhammad Daud and others’ [2010 SCMR 1604], ‘Mst. Sughra Begum and another Versus Qaiser Pervez and others’ [2015 SCMR 1142].
18. On the touchstone of the above principles and law and in the light of the aforementioned discussion, we are not persuaded to interfere with the judgments of the learned Accountability Court whereby Justice (rtd) Riaz Kiyani and Zaheer-ud-Din Babur Awan have been acquitted. Nonetheless, Muhammad Masood Chishti's case and the role attributed to him by the prosecution, besides being similar, was based on the same record. In case of all the accused arrayed in the reference, the essential ingredients of the offences to their extent were not in existence nor had been alleged by the Bureau. In the facts and circumstances discussed above, the trial would definitely have been a futile exercise because the reference was liable to be quashed.
Consequently, we allow the constitutional petition filed by Muhammad
Masood Chishti while dismiss the appeals preferred by the Bureau against the respective verdicts of acquittals in favour of Justice (rtd)
Riaz Kiyani and Zaheer ud Din Babur Awan respectively. The case of
Muhammad Masood Chishti could have been remanded to the learned
Accountability Court but it would be an unnecessary exercise in the light of the above discussion and, therefore, by treating his case at par with the other two accused arrayed in the reference we set aside the judgment dated 18-03-2020 and consequently declare his acquittal.
19. Before parting we consider it necessary to record our observations regarding the need for striking a balance between Page : 39 W.P. No. 1133/2020
safeguarding the legitimate interests and rights of the bureaucracy on the one hand and, on the other, achieving the objectives for which the
Ordinance of 1999 has been promulgated and pursuant thereto the
Bureau was established. It is in the public interest to protect the governance system from arbitrary exercise or abuse of powers vested in the Bureau. We have repeatedly stressed the importance of having an effective and efficient accountability process and mechanism because that is an integral part of a democratic system and a precondition for upholding the rule of law. No doubt corruption is one of the biggest evils which destroys the governance system of a country. It consequently affects the economic development and the most vulnerable and downtrodden are the worst victims. Even the perception of corruption is intolerable in a society governed under the
Constitution. Nonetheless, in case the process of accountability is not administered with caution and strictly within the parameters prescribed by the legislature, it can cause irretrievable harm to the governance system and affirm the concerns regarding paralysis of the state machinery observed by the august Supreme Court in the case titled ‘Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others’ [PLD 2001 SC 607].
If those who administer the process fail to distinguish corruption and corrupt practices from wrong, improper or irregular misuse of authority then the consequences could be fatal for the governance system. As already noted, misuse of authority, no matter how grave and gross, does not constitute an offence under the Ordinance of 1999 unless it involves mens rea and conscious knowledge or a guilty mind.
The bureaucracy constitutes the permanent and professional part of Page : 40 W.P. No. 1133/2020
the executive branch of the state. It has a pivotal role in the governance of the country and in assisting the chosen representatives in the process of policy formulation. Governance refers to the process of decision making and the mechanism through which the decisions are implemented. Every bureaucrat is expected to take numerous decisions and actions every day. Many decisions bonafidely taken may be contrary to law or reflect departure from known precedents and thus technically amount to misuse of authority. The bureaucrats are humans and thus they can also err in taking decisions or actions but it would not necessarily attract criminal liability. Creativity, flexible thinking, ability to take initiatives and decisions are essential attributes of a bureaucrat in order to perform functions and duties.
However, if the accountability process fails to make a distinction between mere misuse of authority or failure of its exercise on the one hand and corruption and corrupt practices on the other than it would inevitability lead to creating a culture of fear. Such fear is definitely debilitating and has a negative effect on the governance system. It obviously discourages the bureaucracy from being creative and prevents individual bureaucrats from effectively performing their duties and functions which obviously is not in public interest and consequently affects the constitutionally guaranteed fundamental rights. In such an eventuality they are unable to contribute towards ensuring good governance. It is an onerous duty of the Bureau to exercise its powers vested under the Ordinance of 1999 in such a manner that the corrupt fears being held accountable while the honest are not only treated with respect but they are assured that their dignity, honour and self esteem will not be prejudiced or harmed in Page : 41 W.P. No. 1133/2020
any manner. In the case in hand, it cannot be ruled out that the
Bureau may have been influenced by the report submitted by the
Commission before the august Supreme Court and observations recorded in the order, dated 07-11-2012. But the apex Court had not passed any direction regarding sending a reference to the Bureau under the Ordinance of 1999 nor that a prima facie case of the commission of an offence there under was made out. The entire case related to the bureaucratic decision making process and there was no involvement of corruption and corrupt practices in the context of the offences described under section 9(a) of the Ordinance of 1999. The proceedings must have exposed the accused arrayed in the reference to unimaginable agony and humiliation besides causing reputational damage. Having regard to the principles of fair trial, though the
Bureau should not have been influenced by the proceedings before or any observations made by the august Supreme Court but it is easier said than done. Even the obiter observations of the apex Court cannot be ignored. We expect that the Bureau will ensure the exercise of extreme caution and care while dealing with the cases which do not involve an obvious element of corruption and corrupt practices. We further expect that the Bureau will devise a mechanism to ensure that the atmosphere of fear of accountability is only for the corrupt while no one alleged to have misused authority sans corruption and corrupt practices is exposed to the rigors, hardship and humiliation of being summoned or dealt with as an accused. It is an obligation of the
Bureau to demonstrably show through its conduct and proceedings that it appreciates and acknowledges the distinction between misuse of authority and corruption and corrupt practices. The onus is on the Page : 42 W.P. No. 1133/2020
Bureau to dispel any perception of fear amongst the bureaucracy and
to assure that bonafide decision making process would not expose any
bureaucrat to the stigma or humiliation of proceedings under the
Ordinance of 1999.
(CHIEF JUSTICE) (AAMER FAROOQ) JUDGE
Announced in the open Court on 12.01.2021.
(CHIEF JUSTICE) JUDGE
Approved for reporting.
Luqman Khan/*