1. Allotment of plots on the last day of in office
2. Charge of corruption and corrupt practices against appellant
3. Comparison of provisions
4. Creation of Ehtesab Cell
5. Definition “Court
6. Ehtesab
7. Ehtesab Reference
8. Equality of citizens
9. Essential ingredients of offence under S. 3(1)(c) of Ehtesab Act 1997–
10. Improper use of discretionary funds
11. Local limits of jurisdiction
12. Mens rea
13. Offence of irregularity in regularization of plot in question
14. Post arrest bail
15. Preamble
16. Proceedings under previous Ehtesab laws
17. Protection and immunity to Chief Minister
18. Quantum of evidence
19. Question of bail
20. Repeal of Ehtesab Ordinance, 1997
21. Status of Conviction after repeal of Ordinance
1. Allotment of plots on the last day of in office:- Appellant, admittedly was acting in utter violation of his discretionary authority, with dishonesty of purpose and in undue haste–Appellant made allotments, to his favourities, because he fully knew that assembly was going to be dissolved, which fact he had admitted in his examination-in-chief–Appellant was, thus, directly responsible for not enabling L.D.A. to follow due procedure–Exercise of discretion in such manner by appellant was against settled principles, for the exercise of discretion–Such set of facts constitute mens rea on the part of appellant which satisfy elements of key words of S. 3(1) of Ehtesab Ordinance 1997, dishonestly “and fraudulently” PLJ 2003 Cr.C. (Lahore) 666
2. Charge of corruption and corrupt practices against appellant–Prosecution failed to prove same against appellant, which even otherwise has been held inapplicable to case against appellant under S. 3(1)(c) and (d) of Ehtesab Act 1997–Impugned judgment of Trial Court whereby appellant was convicted and sentenced was set aside and appellant was acquitted by charges against him.PLJ 2003 Cr.C. (Lahore) 645
3. Comparison of provisions:- S. 3(2)(3)(4) read with Ehtesab Act (IX of 1997), S. 3(3)(4)(5)–Provisions of S. 3(2)(3)(4), Ehtesab ordinance, 1997 (repealed by Ehtesab Act, 1997) and S. 3(3)(4)(5) of Ehtesab Act, 1997–Comparison–A comparison of provisions relating to bail contained in Ehtesab Ordinance, 1997 and Ehtesab Act, 1997 would show that in so far principle for grant of bail both under Ordinance and Act is concerned, it. remained the same, namely, grant of bail is an exception in cases arising both under Ordinance and Act–Therefore, to the extent of rights of an accused to be enlarged on bail under Ordinance, it remained unaffected by provision of Act–However provisions in Act dealing with conditions on which accused is to be released on hail by Court are somewhat different. from Ordinance–Under Ordinance. Court, while admitting accused to bail, was required to fix amount of bail, keeping iii view gravity of charge against him and in case charge specified any amount. in respect of which offence was alleged to have been committed, not less than twice said amount–However, under Act, amount of bail to be fixed by Court. shall not be less than amount mentioned in charge in respect whereof offence is alleged to have been committed–Under Ordinance, there was no specific provision authorising Court to direct accused to deposit amount of bail in Court while under Act Court has a discretion to direct the deposit. of amount. of hail in Court. PLJ 1998 SC 658
4. Creation of Ehtesab Cell:- Creation of Ehtesab Cell and appointment of specified person as its Chairman Validity–Ehtesab Act 1997 allows creation of Ehtesab Cell and leaves it to discretion of Government to make any appointment which was not shown to be either illegal or mala fide or suffering from any error. PLJ 2000 Lahore 1518
5. Definition “Court”– –Court as defined in Section 2(f) of Ehtesab Act, 1997 hearing an Ehtesab Reference, acts as a Bench of High Court and not as a Special Court–“Court” as defined in Section 2(f) of Act while dealing with cases arising under Act, does not act as a Special Court but acts only as a Bench of High Court–A Bench nominated by Chief Justice of High Court to hear cases arising under Act, does not possess attributes of Special Court–A Bench of Judge or Judges of High Court nominated by Chief Justice of High Court to hear a case arising under Act though having exclusive jurisdiction to try and punish offences under Act, performs functions as a High Court and not as a Special Court—Although an offence is exclusively triable by Bench to be nominated by Chief Justice of High Court concerned to act as “the Court” under Act but a reference, under Act, by Ehtesab Commissioner cannot be filed by him before a Bench so constituted–Reference by Ehtesab Commissioner has to be filed before Chief Justice of High Court concerned and it is for Chief Justice of High Court to assign reference to any of Benches so nominated by him, for trial–It is also significant that Chief Justice in his discretion may change constitution of an Ehtesab Bench constituted by him at any time–Constitution of a Bench by Chief Justice to hear case/cases arising under Act, therefore, does not amount to creation of a new Court different from High Court for trial of cases under Act–Fact that Bench nominated by Chief Justice to try case under Act, is vested with exclusive jurisdiction, is similar to situation where a Judge is nominated by Chief Justice to act as Company Judge. PLJ 1999 SC 1571
6. Ehtesab- Legislative history of Ehtesab laws in Pakistan PLJ 2000 SC 741
7. Ehtesab Reference–Order of court requiring Chief Minister to appear in’ court for making statement on oath–Protection and immunity to Chief Minister–Whether available–Question of–Applicability of Art. 248 of Constitution is being incorrectly mooted–Court has summoned Chief Minister to make statement on oath and not to answer any charge or allegation–Term `answer’ pre-supposes some allegation or assumption of liability, Chief Minister has been called only to make statement to limited extent as to how many plots he allotted during his tenure–Under Section 12(3) of Ehtesab Act, 1997, court has option and is thus empowered to adopt and follow any procedure which it may find fit and proper in circumstances–Proceedings are criminal, quasi criminal in nature for which Chief Minister would not in any event be entitled to immunity in view of sub-Art (2) of Art. 248 which provide only for immunity against criminal proceedings in relation to President and Governor during tenure of their respective offices–Even if it is assumed for arguments sake that Chief Minister is being charged for criminal offence or is being dragged in Ehtesab proceedings which are criminal/quasi criminal in nature under Ehtesab Act, 1997, he shall not have any immunity–Held : Chief Minister is not entitled to any immunity–Petition dismissed. PLJ 1998 Karachi 635
8. Equality of citizens–Reasonable classification–Classification of holders of public offices since 6th day of November, 1990 into one class was neither unreasonable nor could be said that same had no nexus with the object of Ehtesab Act, 1997–Provisions of Ehtesab Act, 1997, therefore, were not discriminatory. PLJ 2000 SC 741
9. Essential ingredients of offence under S. 3(1)(c) of Ehtesab Act 1997–No difference in language of two enactments i.e. Act IX of 1997 and Ordinance XX of 1997–Relevant essential constitutes of offence under those provisions are, if holder of a public office or any other person “dishonestly or” fraudulently” “misappropriates ‘any property entrusted to him and under his control as a holder of public office or willfully allowed any other person to do so–Appellant decision to furnish his secretariat was alleged to be “dishonest” “fraudulent” and with intent to “misappropriate” amount in question, was not proved on record–Appellant’s statement in examination-in-chief as his own witness that “secretariat was in bad shape and required refurnishing” was not controverted in cross-examination, therefore, decision of appellant cannot be deemed to be dishonest etc. with the object of misappropriation of funds. PLJ 2003 Cr.C. (Lahore) 645
10. Improper use of discretionary funds:- Improper use of discretionary funds by appellant for furnishing Chief Ministers Secretariat–Non-supply of goods by beneficiary of requisite amount alleged by prosecution not proved by evidence–Conviction of appellant by Trial Court on the reasoning that goods, have not been supplied was, thus, not sustainable under the law. PLJ 2003 Cr.C. (Lahore) 645
11. Local limits of jurisdiction:- Local limits of jurisdiction of an Ehtesab Bench nominated by Chief Justice under Act, is same as that of High Court where Ehtesab Bench is constituted/nominated–Only Ehtesab Bench of that High Court, within whose local limits offence of corruption or corrupt practices have been committed has jurisdiction to try cases under Act–Section 3 of Act defines “corruption and corrupt practices”–Clauses (a) to (f) of subsection (1) of Section 3 define various offences of corruption and corrupt practice–Clauses (a) to subsection (1), refers to acceptance and obtaining of any gratification by holder of public office, other than legal remuneration, as a motive or reward, for doing or forbearing to do any official act, or for showing or forbearing to . show, in exercise of his official functions, favour disfavour to any person–Clause (b) relates to acceptance by holder of public office, any valuable thing without consideration or for a consideration which is inadequate, from any person whom he knows to have been or to be likely to be concerned in any proceedings to be transacted by him–Clause (c) refers to dishonest or fraudulent misappropriaion by holder of public office for himself or for any other person any property entrusted to him or under his control- Clause (d) refers to adoption of corrupt or is honest and legal means to acquire or obtain any property, valuable thing or pecuniary advantage for himself or for any other person–Clause (e) refers to acquisition of any movable or immovable property or pecuniary resources, disproportionate to known sources of income either by holder of public office or by his/her dependent or benamidar or for which he/she is unable to explain or reasonably account for–Clause (f) refers to commission of an act of rigging of an election–Offence of corruption or corrupt practices is said to have been committed under clauses (a) to (d) (f) of Section 3 of Act, when any of acts mentioned in these clauses is committed by holder of public office, while under clause (e) existence of ownership, possession, right, title or interest of holder of a public office, his dependent or benamidar in any movable or immovable property, or pecuniary resources, disproportionate to his known income or which he cannot reasonably account for, constitute offence of corruption or corrupt practices–In so far clauses (a) to – (d) and (f) are concerned, jurisdiction of Court is to be determined or fixed with reference to place where act, or acts mentioned in these clauses, are committed by holder of public office, while jurisdiction of Court in relation to offences falling under clause (e) is to be fixed with reference to place where property/properties mentioned in this clause, are acquired by holder of public office, his dependent or benamidar–References mention properties, allegedly acquired by accused persons disproportionate to their known income or resources, not only in province of Sindh but also outside territorial jurisdiction of Pakistan, including one immovable property situated within territorial jurisdiction of “the Court” where these references are pending–Jurisdiction of Court is to be determined with reference to allegations contained in complaint or F.I.R. in a criminal case and with reference to averments in plaint in a case of civil nature–If more than one Court are found to have territorial jurisdiction in respect of alleged offence/offences, prosecution of accused can be initiated in any of such Courts–Since in two references before Division Bench of Lahore High Court, allegations are not only in respect of acquisition of properties at Sindh but also in province of Punjab, apart from various other alleged properties situated outside Pakistan, it cannot be said that Bench at Lahore did not possess territorial jurisdiction to try cases–On basis of – allegations made in References, Ehtesab Bench at principal seat of Lahore High Court did possess jurisdiction to try these References. PLJ 1999 SC 1571
12. Mens rea:- Utilization of discretionary funds for furnishing of Secretariat, whether an offence–Mens rea or criminal intent is an essential element for the purpose of convicting a person for a criminal offence–While interpreting Chief Ministers Discretionary Grant Rules 1988, even if appellant had no power to utilize funds for furnishing of Secretariat, yet appellant from evidence on record cannot be imputed of acting with a guilty mind. PLJ 2003 Cr.C. (Lahore) 645
13. Offence of irregularity in regularization of plot in question–Quantum of evidence–Prosecution has failed to prove charges against appellants–Not a single witness had implicated owner of plot in question in any manner with commission of offence in question–Appellant (owner) having stood exonerated from charges, conviction and sentence could not be sustained on same charges against co-accused official–Question of mens rea was missing–Mere irregularity in regularization of plot and allegation of misleading chairman of C.D.A. would not constitute offence in question. PLJ 2004 SC 859
14. Post arrest bail :- Post arrest bail of offences relating to misuse of authority and causing loss to state of huge amount of money–Ehtesab Court refused to grant bail to petitioner on the ground that it lacked jurisdiction to grant the same–Validity–High Court has power to grant/allow post arrest bail to any person accused of any offence under the Ehtesab Act of 1997 or National Accountability. Bureau Ordinance, 1999 inspite of jurisdictional bar contained in its S. 9(b)–High Court, however, was not persuaded to send back case to Trial Court but was inclined to examine plea for grant of post arrest bail itself–Case against petitioner being misuse of political power, accusations against him flow from massive documentary evidence–Petitioner, naturally, would need occasion to see those documents, prepare his defence and face trial–Such fact prima facie would entitle him to concession of post arrest bail–Petitioner has prima facie case calling for exercise of High Court’s jurisdiction to order his pre-trial release–Such concession would enable him to prepare his defence–Petitioner through counsel had voluntarily stated that he was prepared to deposit Rs. One core as cash security with Accountability Court–Petitioner being accused of having caused total loss of Rs. 8.05 crore to National Exchequer he must deposit cash security in the sum of Rs. two crore so as to meet ends of justice—petitioner would be released on bail in specified references subject to deposit of cash security in the sum of Rs. two crore with Accountability Court. PLJ 2000 Lahore 2070 PLD 1998 SC 1; 1995 SCMR 1249; 190 Okla 65; 228 NC 584 SE 2d 296; 142 Cal. Appl. 2d 827; 223 SC 2073; SE 2d 854; 39 Okla 376, 135 P 413; 131 Fla 535 m 179 SO 797; (1971) 404 U.S. 357; 92`S.Ct. 479; NLR 1998 Criminal 732; 1994 SCMR 1283; 1991 SCMR 599; PLD 1977 SC 273; PLD 1968 SC 349.
15. Preamble– Ordinance (XVI of 1996) was still in force when same was repealed by Ordinance (XX of 1997) which was a verbatim reproduction of Ordinance (XVI of 1996) and Ordinance (XX of 1997), was finally converted into a permanent legislation when legislature passed Ehtesab Act., 1997–Effect–If an Ordinance stands repealed under Constitution, consequences of repeal are provided under Article 264 of Constitution–However, if a law is repealed by a subsequent Act, consequences flowing from such repeal are to be determined with reference to provisions of Section 6 of General Clauses Act, 1897–Contention was that Ordinance XX of 1997 while repealing Ordinance CXI of 1996, though contained a saving clause, did not provide for continuation of proceedings pending under Ordinance CXI of 1996, which showed that legislature did not intend to keep pending proceedings alive under Ordinance XX of 1997–Repeal of Ordinance CXI of 1996, by Ordinance XX of 1997 was not a case of simple repeal but it was a case of simultaneous repeal and re-enactment of a legislation, and therefore, Section 6 and Section 24 of General Clauses Act were also attracted–Ordinance XX of 1997 was a verbatim reproduction of Ordinance CXI of 1996–Ordinance CXI of 1996 was still enforced when it was repealed by Ordinance XX of 1997–Ordinance XX of 1997 was finally converted into a permanent legislation when Legislature passed it as Act IX of 1997–It is therefore, quite clear that though Ordinance CXI of 1996 was a temporary legislation but Legislature intended to provide continuity to its provisions by first repealing it by Ordinance XX and then converting later into an Act of Legislature by passing it as Act IX of 1997–There was a clear intention on part of Legislature while promulgating Ordinance XX of 1997 to provide continuity to provisions of Ordinance CXI of 1996–Therefore, in spite of fact that Section 28 of Ordinance XX of 1997 did not specifically save proceedings instituted under Ordinance CXI of 1996 there was clear intention on part of Legislature to keep proceedings instituted under Ordinance CXI of 1996 alive under Ordinance XX of 1997. PLJ 2000 SC 741 Repeal of Ehtesab Ordinance, 1997 by S. 31, Ehtesab Act., 1997–Status–Proceedings pending under the Ehtesab Ordinance, 1997 are to continue under Ehtesab Act, 1997. PLJ 1998 SC 658 Ehtesab Ordinance of 1996 promulgated on 18.11.1996 was no doubt enforced on 1.2.1997, when Ehtesab Ordinance (XX of 1997) was promulgated–However, Ordinance (XVI of 1996) was thrice amended between period from 31.12.1996 to 27.1.1997 before it was repealed and replaced by Ordinance XX of 1997–On 1.2.1997, when Ordinance XX of 1997 was promulgated National Assembly stood dissolved and general elections in country were called on 3.2.1997 and therefore, it would have taken some time for National Assembly to come into existence–In circumstances, promulgation of Ordinance XX of 1997 to repeal and replace Ordinance XVI of 1996 as amended by Ordinance CXXIII of 1996, Ordinance VII of 1997 and Ordinance XI of 1997, could not be described as arbitrary or improper exercise of power vested in President under Article 89 of Constitution–Essential conditions mentioned in Article 89 of Constitution for exercise of Ordinance Making Power by President being present at time of promulgation of Ordinance XX of 1997, no exception could be taken to promulgation of Ordinance XX of 1997–Ordinance XX of 1997 was a valid piece of legislation. PLJ 2000 SC 741 Conviction and sentence under S. 4 of Ehtesab Ordinance 1997, after repeal of Ordinance XX of 1997–Legality–Offence committed prior to 6th November 1990, could not be continued under Ehtesab Act, 1997 after repeal of Ordinance, XX of 1997–Appellants conviction and sentence relating to offence purportedly committed before target date of 6th November 1990, was set aside. PLJ 2004 SC 859
16. Proceedings under previous Ehtesab laws, whether can be continued under Ehtesab Act 1997–Proceedings under previous Ehtesab laws can only be continued if those relate to offences defined under Ehtesab Act 1997–In view of omission of the word “any other person” in S. 3(1)(d) of Ehtesab Act 1997, which words were therein previous ordinances, appellant cannot be convicted under S. 3(1)(d) of Ehtesab Ordinance CXI of 1996 or XX of 1997, in as much as, offence in Act of 1997, is only restricted if any pecuniary advantages, undue favour etc. has been obtained or sought by holder of public office for himself, his spouse or dependents–No pecuniary advantage etc. having been proved qua persons mentioned in S. 3(1)(d) of Act of 1997 appellant cannot be convicted of charges levelled against him. PLJ 2003 Cr.C. (Lahore) 645 Keeping pending proceedings with respect to period prior to specified date as set out in Ehtesab Act 1997 alive in terms of 31(2)(c) of the Act–Validity—Keeping such prior proceedings alive would amount to discrimination and would be violative of Article 25 of the Constitution–Ehtesab Ordinance 1996 being of temporary nature, its life could not be extended by Ehtesab Act 1997 so as to provide that proceedings pending thereunder before Court would continue–Ehtesab Act 1997 having itself declared that proceedings could only take place in respect to particular date, on no rational basis could proceedings for earlier period continue merely because those have commenced Section 31(2)(c) of Ehtesab Act, 1997 was, thus, discriminatory and violative of equal protection clause contained in Article 25 of the Constitution therefore, could not be. sustained- Proceeding pending at the time of enforcement of Ehtesab Act 1997 related to period prior to target date (6.11.1990) could not continue under Ehtesab Act 1997. PLJ 2000 Lahore 1518
17. Protection and immunity to Chief Minister– Applicability of Art. 248 of Constitution is being incorrectly mooted–Court has summoned Chief Minister to make statement on oath and not to answer any charge or allegation–Term answer’ pre-supposes some allegation or assumption of liability, Chief Minister has been called only to make statement to limited extent as to how many plots he allotted during his tenure–Under Section 12(3) of Ehtesab Act, 1997, court has option and is thus empowered to adopt and follow any procedure which it may find fit and proper in circumstances–Proceedings are criminal, quasi criminal in nature for which Chief Minister would not in any event be entitled to immunity in view of sub-Art (2) of Art. 248 which provide only for immunity against criminal proceedings in relation to President and Governor during tenure of their respective offices–Even if it is assumed for arguments sake that Chief Minister is being charged for criminal offence or is being dragged in Ehtesab proceedings which are criminal/quasi criminal in nature under Ehtesab Act, 1997, he shall not have any immunity–Held : Chief Minister is not entitled to any immunity. PLJ 1998 Karachi 635
18. Quantum of evidence–Prosecution has failed to prove charges against appellants–Not a single witness had implicated owner of plot in question in any manner with commission of offence in question–Appellant (owner) having stood exonerated from charges, conviction and sentence could not be sustained on same charges against co-accused official–Question of mens rea was missing–Mere irregularity in regularization of plot and allegation of misleading chairman of C.D.A. would not constitute offence in question. PLJ 2004 SC 859
19. Question of bail:- Mention of Ss. 497, 498 & 561-A, Cr.P.C. in S. 3(2) of Ehtesab Act, 1997 and Ehtesab Ordinance, 1997, does not amount to nullifying provisions contained in Ss.. 497, 498 & 561-A, Cr.P.C. and is meant to exclude jurisdiction of .Courts other than Courts defined by S. 2 of two statutes, to determine question of bail. PLJ 1998 SC 658
20. Repeal of Ehtesab Ordinance, 1997:- Provisions of Ehtesab Act. 1997 conferring jurisdiction on Court to directed deposit of bail amount. in Court instead of executing bond or offering surety for amount. related only to a procedural matter which did not affect existing right of accused for grant of bail under Ehtesab Ordinance, 1997–Whether concession of bail allowed by Court is to he enjoyed by accused on execution of a personal bond, furnishing of sureties or deposit of amount of bail in Court is purely regulatory and procedural in nature in which the person enlarged on bail, cannot claim any vested right–provisions in Ehtesab Act., 1997 that. amount of hail should not he fixed by Court. less than amount mentioned in charge, is more beneficial to accused as compared to provisions in Ehtesab Ordinance, 1997–Mere fact that accused is required to deposit amount in Court instead of securing same through sureties or bond cannot be said to have caused prejudice to accused or have taken away any of his vested right–Provision in Ehtesab Act., 1997 conferring jurisdiction on Court. to direct, deposit of bail amount in Court instead of executing bond or offering sureties for the amount related only to a procedural matter which did not affect. existing right of accused for grant of bail under Ehtesab Ordinance, 1997–Whether concession of bail allowed by Court is to be enjoyed by accused on execution of a personal bond, furnishing of sureties or deposit of amount of bail in Court, is purely regulatory and procedural in nature in which person enlarged on bail, cannot claim any vested right–Similarly, provision in Act that amount of bail should not be fixed by Court less than the amount mentioned in the charge, is more beneficial to accused as compared to provision in Ordinance, which provided that. such amount, should not he less than twice amount mentioned in charge–Mere fact that accused is required to deposit amount in Court, instead of securing same through sureties or bond cannot be said to have caused prejudice to accused or have taken away any of his vested rights–Section 31(2)(c) of the Act clearly provides that, proceedings pending under Ordinance, were to continue under Act., and as such all provisions of Act relating to procedural matters fully applied to a case pending under Ordinance–Therefore, without going into argument whether Court. was competent under Ordinance to direct accused to deposit amount of bail in Court, order of Ehtesab Bench was valid under provision to section 314) of Act–Since matter relating to grant of bail to accused was pending in appeal when Act was promulgated, altering procedure applicable to grant of bail, validity of order of Ehtesab Bench is to be decided in the light of provisions of Act which applied in case PLJ 1998 SC 658
21. Status of Conviction after repeal of Ordinance:- Conviction and sentence under S. 4 of Ehtesab Ordinance 1997, after repeal of Ordinance XX of 1997–Legality–Offence committed prior to 6th November 1990, could not be continued under Ehtesab Act, 1997 after repeal of Ordinance, XX of 1997–Appellants conviction and sentence relating to offence purportedly committed before target date of 6th November 1990, was set aside. PLJ 2004 SC 859

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