IN THE SUPREME COURT OF PAKISTAN 
(Appellate Jurisdiction) 
 
 
 
PRESENT: 
Mr. Justice Asif Saeed Khan Khosa 
Mr. Justice Iqbal Hameedur Rahman 
Mr. Justice Umar Ata Bandial 
 
 
 
 
  
Criminal Appeal No. 264 of 2006 
(Against the judgment dated 13.06.2002 passed by the Lahore 
High Court, Lahore in Criminal Appeal No. 1912 of 2000) 
 
 
The State                                                                 …Appellant 
 
 
 
 
 
 
versus 
 
Anwar Saif Ullah Khan 
 
 
 
       …Respondent 
                   
             
 
For the appellant/State: 
Mr. 
M. 
Bashir 
Kiyani, 
Deputy 
Prosecutor-General Accountability 
 
For the respondent: 
Khawaja Harris Ahmed, ASC 
Mr. M. S. Khattak, AOR 
 
In person.  
 
Dates of hearing: 
08.01.2015, 13.01.2015, 
14.01.2015, 20.01.2015 & 
21.01.2015 
 
 
 
 
JUDGMENT 
  
 
Asif Saeed Khan Khosa, J.: In his capacity as a Federal 
Minister Anwar Saif Ullah Khan respondent forced his will upon a 
reluctant Chairman of a public sector Corporation and after 
relaxing the relevant rules he got 145 persons appointed to various 
jobs against the requirements of the Corporation only to please his 
political friends in the Parliament. The Lahore High Court, Lahore 
held that what the respondent did was in accord with the prevalent 
practice. Such implied acceptance of a culture of political 
patronage cannot be approved by us. The High Court had 
concluded that the respondent had no criminal intent in the 
matter. With respect to the High Court, we do not agree.   
 2 
Criminal Appeal No. 264 of 2006 
 
2. 
The facts of the case are that the respondent served as a 
Minister for Petroleum and Natural Resources in the Federal 
Cabinet from 28.11.1994 to 05.11.1996. On 10.05.1997 a 
Reference was filed against the respondent by the Chief Ehtesab 
Commissioner before the Lahore High Court, Lahore under section 
14(1) of the Ehtesab Ordinance, 1996 with an allegation of 
indulging in corruption and corrupt practices while holding a 
public office and upon promulgation of Ordinance No. XVIII of 
1999 the said Reference stood transferred to the Accountability 
Court, Lahore, was numbered as Reference No. 4-B of 1999 and 
was treated as a Reference filed by the National Accountability 
Bureau under the National Accountability Ordinance, 1999. The 
precise allegation leveled against the respondent was that in his 
capacity as the Federal Minister for Petroleum and Natural 
Resources he had misused his authority by prevailing upon the 
Chairman, Oil & Gas Development Corporation and getting 145 
persons recommended by some parliamentarians appointed to 
various jobs in the Oil & Gas Development Corporation and for this 
purpose he had relaxed the relevant rules. On 15.05.2000 the 
Accountability Court, Lahore framed a charge against the 
respondent for an offence under section 9(a)(vi) of the National 
Accountability Ordinance, 1999 to which the respondent pleaded 
not guilty and claimed a trial. The prosecution produced eight 
witnesses in support of its case against the respondent whereafter 
the respondent’s statement under section 342, Cr.P.C. was 
recorded wherein he denied and controverted the allegations 
leveled against him and professed his innocence. The respondent 
made his statement on oath under section 340(2), Cr.P.C. before 
the trial court when he appeared as DW1. Upon conclusion of the 
trial the learned Judge, Accountability Court, Lahore convicted the 
respondent for an offence under section 3(1)(d) of the Ehtesab 
Ordinance, 
1996 
read 
with 
section 
35 
of 
the 
National 
Accountability Ordinance, 1999 vide judgment dated 30.11.2000 
and sentenced the respondent to simple imprisonment for one year 
and a fine of Rs. 50,00,000/- or in default of payment thereof to 
 3 
Criminal Appeal No. 264 of 2006 
undergo simple imprisonment for one year.  The benefit under 
section 382-B, Cr.P.C. was extended to the respondent. The 
Accountability Court also passed a consequential order under 
section 15 of the National Accountability Ordinance, 1999 
disqualifying the respondent from contesting an election or holding 
a public office for a specified period. The respondent challenged his 
conviction and sentence before the Lahore High Court, Lahore 
through Criminal Appeal No. 1912 of 2000 which was heard and 
allowed by a learned Division Bench of the said Court vide 
judgment dated 13.06.2002 and the respondent was acquitted of 
the charge. The State has assailed the respondent’s acquittal by 
the Lahore High Court, Lahore through the present appeal by leave 
of this Court granted on 10.05.2006.  
 
3. 
In support of this appeal the learned Deputy Prosecutor-
General Accountability appearing for the appellant/State has 
argued that the actus reus of relaxing the relevant rules and 
approving appointment of 145 persons to different posts in the Oil 
& Gas Development Corporation had never been denied or 
disputed by the respondent and the mens rea for the exercise was 
nothing but obliging some parliamentarians which intention was 
unconstitutional and illegal besides being criminally culpable and, 
thus, the Lahore High Court, Lahore was not justified in acquitting 
the respondent of the charge by holding that the prosecution had 
failed to prove any criminal intent on the part of the respondent. In 
support of his submissions the learned Deputy Prosecutor-General 
Accountability has placed reliance upon the cases of Mushtaq 
Ahmed Mohal and others v. The Honourable Lahore High Court, 
Lahore and others (1997 SCMR 1043) and Syed Mubashir Raza 
Jaffri and others v Employees Old-Age Benefits Institutions (EOBI) 
through President of Board, Board of Trustees and others (2014 
SCMR 949). As against that the learned counsel for the respondent 
has argued that the view formed by the Lahore High Court, Lahore 
in the matter was a view which was reasonable and a disagreement 
with such view does not provide a valid basis for interfering with a 
judgment of acquittal. In support of this argument the learned 
 4 
Criminal Appeal No. 264 of 2006 
counsel for the respondent has relied upon the judgment passed 
by this Court in the case of Ghulam Sikandar and another v. 
Mamaraz Khan and others (PLD 1985 SC 11) wherein different 
principles for interference in a judgment of acquittal had been laid 
down in detail. He has also argued that the case in hand was a 
case of an alleged commission of a criminal offence and, thus, the 
evidence led by the prosecution had to be assessed on the basis of 
the actus reus and the mens rea which did not coincide in this case 
so as to make the offending action of the respondent a criminal 
offence. In this regard he has submitted that after receiving 
requests from some parliamentarians the respondent had referred 
the matter of appointments to the Chairman, Oil & Gas 
Development Corporation, the respondent had relaxed the relevant 
rules and had approved the making of appointments when he was 
advised that he had the requisite jurisdiction to relax the rules and 
the actual appointments were made by the Chairman, Oil & Gas 
Development Corporation and not by the respondent. He has also 
argued that before relaxing the rules and granting approval for 
making of the appointments the respondent had been informed 
that there was already in existence a prevailing practice whereby 
the Federal Minister for Petroleum and Natural Resources could 
grant the requisite approval for appointments after relaxation of 
the rules as a special case. It has been maintained by the learned 
counsel for the respondent that following a prevalent practice 
negated the element of mens rea on the part of the respondent 
which was crucially important for transforming the respondent’s 
actus reus into a criminal offence. The learned counsel for the 
respondent has gone on to argue that Ijaz Ahmed Khan (PW1) had 
stated before the trial court that the required appointments were to 
be made after fulfillment of certain conditions, Mobeen Ehsan 
(PW3) had deposed about his own authority to recruit and had 
never stated that the respondent had pressurized him in that 
regard, Akhtar Hussain (PW4) had stated before the trial court that 
the recruitments in question were made in accordance with the 
Rules of the Oil & Gas Development Corporation, Abdul Mateen 
Ahmed (PW5) had also stated the same thing as was stated by 
 5 
Criminal Appeal No. 264 of 2006 
Akhtar Hussain (PW4) and R. A. Hashmi (PW6) had clearly deposed 
before the trial court that the respondent had not applied any 
pressure upon anybody in the matter of appointment of the 
relevant persons nor any dictation was given in that regard by the 
respondent to the Oil & Gas Development Corporation. It has, 
thus, been maintained by the learned counsel for the respondent 
that there was no criminal intent in the matter on the part of the 
respondent and, therefore, the Lahore High Court, Lahore was 
quite justified in acquitting him. The learned counsel for the 
respondent has read out the relevant portions of the impugned 
judgment passed by the Lahore High Court, Lahore and has 
submitted that the grounds weighing with the High Court for 
acquitting the respondent were sound and, therefore, the 
respondent’s acquittal does not warrant any interference by this 
Court. The learned counsel for the respondent has also drawn our 
attention 
towards 
Exhibit-DW1/2 
which 
contained 
the 
government’s policy in respect of Oil & Gas Development 
Corporation and laid down the requirement of appointments and 
recruitment through a Selection Board but according to the same 
policy the Federal Minister concerned could approve a departure 
from the requirement of advertisement. It has been maintained by 
the learned counsel for the respondent that the respondent had 
granted such approval qualifying that such departure would be 
made in cases of urgency and for ensuring merit. He has also 
referred to the document brought on the record as Exhibit-
DW1/17 showing that the Chairman, Oil & Gas Development 
Corporation did not usually accept dictation of the Federal 
Minister. With these submissions the learned counsel for the 
respondent has maintained that the High Court could have 
reasonably come to the conclusion it had reached and that the 
High Court was amply justified in concluding that the requisite 
mens rea for turning the respondent’s action into a criminal 
offence was lacking in this case. In support of his submissions the 
learned counsel for the respondent has placed reliance upon the 
cases of Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 
Lahore 233), The State and others v. M. Idrees Ghauri and others 
 6 
Criminal Appeal No. 264 of 2006 
(2008 SCMR 1118), M. Siddique-ul-Farooque v. The State (PLD 2002 
Karachi 24), Wahid Bakhsh Baloch v. The State (2014 SCMR 985), 
Mansur-ul-Haque v. Government of Pakistan (PLD 2008 SC 166) 
and Pir Mazharul Haq and others v. The State through Chief 
Ehtesab Commissioner, Islamabad (PLD 2005 SC 63). While 
exercising his right of rebuttal the learned Deputy Prosecutor-
General Accountability has submitted that the Oil & Gas 
Development Corporation Rules define a “temporary” employment 
and the appointment of 145 persons in this case was not 
temporary appointment because the letters of appointment had 
mentioned probation which is meant for regular posts only.  
 
4. 
After hearing the learned counsel for the parties and going 
through the record of the case and the precedent cases with their 
assistance we have found that the use of authority by the 
respondent in the matter of appointment of 145 persons on 
different posts in the Oil & Gas Development Corporation is not 
disputed and that the main issue is as to whether such use of 
authority by the respondent amounted to misuse of authority or 
not within the purview of section 9(a)(vi) of the National 
Accountability Ordinance, 1999 which provides as follows: 
 
9. 
Corruption and Corrupt Practices: 
(a) 
A holder of a public office, or any other person, is said to 
commit or to have committed the offence of corruption and 
corrupt practices:- 
--------------------- 
(vi) 
if he misuses his authority so as to gain any benefit or 
favour for himself or any other person, or renders or attempts to 
render or willfully fails to exercise his authority to prevent the 
grant or rendition of any undue benefit or favour which he could 
have prevented by exercising his authority.  
 
Section 14(d) of the National Accountability Ordinance, 1999 is 
relevant to a charge under section 9(a)(vi) of the said Ordinance 
and the same reads as under: 
 
14. 
Presumption 
against 
accused 
accepting 
illegal 
gratification: 
 
--------------------- 
 
 7 
Criminal Appeal No. 264 of 2006 
(d) 
In any trial of an offence under clauses (vi) and (vii) of 
section 9, the burden of proof that he used his authority, or 
issued any directive, or authorised the issuance of any policy or 
statutory rule or order (SRO), or made any grant or allowed any 
concession, in the public interest, fairly, justly and for the 
advancement of the purpose of the enactment under which the 
authority was used, directive or policy or rule or order was issued 
or grant was made or concession was allowed shall lie on the 
accused, and in the absence of such proof the accused shall be 
guilty of the offence, and his conviction shall not be invalid by the 
reason that it is based solely on such presumption; 
 
 
Provided that the prosecution shall first make out a 
reasonable case against the accused charged under clause (vi) or 
clause (vii) of sub-section (a) of section 9.   
 
Another issue germane to the above mentioned main issue is as to 
whether any misuse of authority by the respondent in the matter 
could be said to have been committed with criminal intent so as to 
make his action culpable or not. 
 
5. 
The provisions of sections 9(a)(vi) and 14(d) of the National 
Accountability Ordinance, 1999 have been discussed and analyzed 
by this Court in some previous cases in the context of allegations 
regarding misuse of authority and it may be useful to refer to those 
cases first before discussing the merits of the present case. In the 
case of Pir Mazharul Haq and others v. The State through Chief 
Ehtesab Commissioner, Islamabad (PLD 2005 SC 63) a Provincial 
Minister according approval regarding regularization of a plot was 
acquitted by this Court and it was observed as follows: 
 
“28.  
In criminal cases the general rule is that the accused 
must always be presumed to be innocent and the onus of proving 
everything essential to the establishment of the offence is on the 
prosecution. All that may be necessary for the accused is to offer 
some explanations of the prosecution evidence and if this appears 
to be reasonable even though not beyond doubt and to be 
consistent with the innocence of accused, he should be given the 
benefit of it. The proof of the case against accused must depend 
for its support not upon the absence or want of any explanation 
on the part of the accused but upon the positive and affirmative 
evidence of the guilt that is led by the prosecution to substantiate 
accusation. There is no cavil with the proposition and judicial 
consensus seems to be that "if on the facts proved no hypothesis 
consistent with the innocence of the accused can be suggested, 
the conviction must be upheld. If however, such facts can be 
reconciled with any reasonable hypothesis compatible with the 
innocence of the accused the case will have to be treated as one of 
no evidence and the conviction and the sentence will in that case 
have to be quashed." -------  
  
 8 
Criminal Appeal No. 264 of 2006 
29.  
We are not persuaded to agree with learned Deputy 
Prosecutor General NAB that conviction could have been awarded 
in view of the provision as contained in section 14 of NAB 
Ordinance, 1999 for the simple reason that "the section cannot be 
used to undermine the well established rule of law that save in 
very exceptional class of cases, the burden to prove the guilt of 
the accused is on the prosecution and never shifts. The section 
does not affect the onus of providing the guilt of an accused 
which always rests on the prosecution and it does not cast any 
burden on an accused person to prove that no crime was 
committed, by proving facts specially within his knowledge, nor 
does it warrant the conclusion that if anything is unexplained, 
which the Court thinks the accused could explain, he ought 
therefore to be found guilty." ------- 
  
30.  
It hardly needs any elaboration that "the ordinary rule 
that applies to criminal trials, viz., that the onus lies on the 
prosecution to prove the guilt of the accused, is not in any way 
modified by the rule of evidence contained in this section which 
cannot be used to make up for the inability of the prosecution to 
produce evidence of circumstances necessary to prove the guilt of 
the accused. It is only in cases where the facts proved by the 
evidence give rise to a reasonable inference of guilt unless the 
same is rebutted, that such inference can be negative by proof of 
some fact which, in its nature, can only be within the special 
knowledge of the accused. If the prosecution fails to prove the 
essential ingredients of the offence, no duty is cast on the 
accused to prove his innocence." ------- 
  
31.  
It would be a misconception of law that every accused who 
faced trial in the Accountability Court or against whom a 
reference has been sent the "presumption as envisaged in section 
14 of the NAB Ordinance, 1999" would start running against him. 
Where the prosecution has failed to discharge the onus of "proof" 
by adducing cogent, concrete and forthright evidence the 
presumption of guilt would not arise against him and thus the 
question of conviction would have not arisen. The said 
proposition has been clarified by this Court in case titled Khan 
Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607), 
operative portion whereof is reproduced herein above for ready 
reference:-- 
  
"Be that as it may, the prosecution has to establish 
the preliminary facts whereafter the onus shifts 
and the defence is called upon to disprove the 
presumption. This is also the consistent stand 
taken by Mr. Abid Hassan Minto as well as the 
learned 
Attorney-General 
who 
adopted 
his 
arguments. This interpretation appears to be 
reasonable in the context of the background of the 
NAB Ordinance and the rationale of promulgating 
the same notwithstanding the phraseology used 
therein. We are also of the view that the above 
provisions do not constitute a bill of attainer, 
which actually means that by legislative action an 
accused is held guilty and punishable. For safer 
dispensation of justice and in the interest of good 
governance, efficiency in the administrative and 
organizational set-up, we deem it necessary to 
issue the following directions for effective operation 
of section 14 (d). 
  
 9 
Criminal Appeal No. 264 of 2006 
(1)  
The prosecution shall first make out a 
reasonable case against the accused charged 
under section 9(a)(vi) and (vii) of the NAB. 
  
(2)  
In case the prosecution succeeds in making 
out a reasonable case to the satisfaction of the 
Accountability Court, the prosecution would be 
deemed to have discharged the prima facie burden 
of proof and then the burden of proof shall shift to 
the accused to rebut the presumption of guilt." ---- 
  
32.  
In no circumstances the defence should be expected to 
prove the accusation. In a similar wake of event while discussing 
the question of presumption it was held in Rehmat v. State PLD 
1977 SC 515 as follows: -- 
  
"Needless to emphasise that in spite of section 106 
of the Evidence Act in a criminal case the onus 
rests on the prosecution to prove the guilt of the 
accused beyond reasonable doubt and this section 
cannot be construed to mean that the onus at any 
stage shifts on to the accused to prove his 
innocence or make up for the liability and failure of 
the prosecution to produce evidence to establish 
the guilt of the accused. Nor does it relieve the 
prosecution of the burden to bring the guilt home 
to the accused. It is only after the prosecution has 
on the evidence adduced by it, succeeded in raising 
reasonable inference of the guilt of the accused, 
unless the same is rebutted, that this section 
wherever applicable, comes into play and the 
accused may negative the inference by proof of 
some facts within his special knowledge. If, 
however, the prosecution fails to prove the 
essential ingredients of the offence, no duty is cast 
on the accused to prove his innocence." 
  
33.  
In the light of what has been discussed herein above we 
are of the view that prosecution has failed to establish the guilt 
beyond shadow of doubt. The appeals preferred on behalf of 
appellants are hereby accepted and the judgment passed by 
learned High Court of Sindh Karachi in Ehtesab Reference No. 8 
of 1997 is set aside.” 
 
(underlining has been supplied for emphasis) 
 
6. 
The case of Mansur-ul-Haque v. Government of Pakistan (PLD 
2008 SC 166) was a case of a Chief of the Naval Staff allegedly 
misusing his authority in the matter of purchase of some naval 
ships. While acquitting the accused person this Court held as 
under: 
 
 
“9.  
It is clear from the above referred portion of the 
judgment of the High Court that the prosecution has not been 
able to bring on record any cogent evidence to establish the 
charge and learned DPGA frankly conceded the factual position 
in the light of which the trial Court held that the allegation 
regarding exorbitant price and financial loss to the PNSC or 
financial gain by the accused, was not proved. Learned counsel 
 
10 
Criminal Appeal No. 264 of 2006 
for the petitioner has not been able to convince us from the 
evidence on the record that essential elements of mens rea and 
intention to commit an offence under section 9(a)(vi) of NAB 
Ordinance were traceable in the transaction or the accused 
acted for their personal gain at the cost of causing financial 
loss to the organization (PNSC) or the ships in question were 
not of viable technology and were not that of international 
standard and specification. 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. We may 
point out that notwithstanding the special provision contained 
in the NAB Ordinance regarding shifting of the burden of proof, 
the fundamental principle of the law of criminal administration 
of justice that basic onus is always on the prosecution to 
establish the commission of an offence is not changed and in 
the present case, we find that the respondents having 
negotiated with the seller company abroad in the official 
capacity entered into the contract of purchase of ships and in 
the process certain procedural irregularities constituting an act 
of misconduct in the contemplation of law applicable to their 
service were probably committed but the same may not 
constitute a criminal offence under section 9(a)(vi) of NAB 
Ordinance punishable under section 10 of the said Ordinance 
or under any other law without proof of the existence of 
element 
of 
dishonest 
intention 
of 
personal 
gain. 
The 
prosecution in the present case has not been able to bring on 
record any evidence to substantiate the allegation of dishonest 
intention to cause financial loss to the organization for 
personal gain to bring the case within the purview of National 
Accountability Bureau Ordinance, 1999. This is settled law 
that unless prosecution discharges the initial burden of 
proving the charge no presumption of guilt can be raised and 
in the present case, the prosecution except pointing out certain 
irregularities committed by the respondents in the transaction 
of purchase of ships for the use of PNSC, has not been able to 
bring on record any evidence oral or documentary to show that 
either the price for which the ships were purchased, was 
exorbitant or the respondents while acting for their personal 
gain have caused financial loss or any other damage to the 
organization. In the light of the facts of prosecution case and 
the circumstances leading to the completion of transaction it is 
evident on record that the view of the evidence taken by the High 
Court was unexceptional. 
  
The National Accountability Bureau Ordinance, 1999, no 
doubt is a special law and prosecution having the advantage of 
the provision of section 14(a) of the Ordinance may not under 
heavy burden to discharge the onus of proving the charge as the 
Court may on discharge of initial burden of proving prima facie 
case by the prosecution raise a presumption of guilt but in the 
light of concept of criminal administration of justice, the 
prosecution is not absolved of its duty to prove the charge beyond 
reasonable doubt under NAB Ordinance as the burden of proof is 
only shifted on the person facing charge if the prosecution 
succeeds in making out a reasonable case by discharging the 
 
11 
Criminal Appeal No. 264 of 2006 
initial burden of proving the charge. The provision of section 14(d) 
of the said Ordinance envisages that burden of proof is only 
shifted to the accused to rebut the allegations if the prosecution 
succeeds in establishing the preliminary facts to raise the 
presumption of guilt.” 
 
(underlining has been supplied for emphasis) 
 
7. 
In the case of The State and others v. M. Idrees Ghauri and 
others (2008 SCMR 1118) a public servant accused of misusing his 
authority in the matter of allotment of plots had been acquitted by 
this Court. It had been observed by this Court as follows: 
 
“11.  
The leading facts of the case are that appellant while 
discharging the functions of Managing Director of Cholistan 
Development Authority (C.D.A.) also exercised the powers of 
Collector under the Colonization of Government Lands (Punjab) 
Act, 1912 without formal conferment of such powers in 
consequence to which he was put to face the criminal prosecution 
for the charge of corruption and corrupt practices. The defence 
plea of the appellant was that in view of the past practice, he 
being under the bona fide impression that M.D. C.D.A., was 
competent to exercise the power of Collector exercised such 
powers, which were also subsequently conferred on him, 
therefore, he committed no offence. In the light thereof, the real 
question for determination would be whether the appellant 
assumed the powers of Collector with mala fide intention and for 
some ulterior motive or he did exercise the power of Collector in 
good faith without any consideration of illegal gain or undue 
benefit. There is no cavil to the proposition that an illegal order in 
a particular set of fact, may have the penal consequence but the 
question required to be adhered in the present case, was as to 
whether the act of grant of propriety rights of the land without the 
power of Collector, by itself would constitute an offence of 
corruption and corrupt practices within the meanings of section 
9(a)(vi) of the Ordinance without proof of essential ingredient of 
illegal gain and undue favour to constitute such an offence and 
the answer would certainly be in the negative. The concept of 
criminal administration of justice is based on the assumption 
that criminal act is injurious not just to an individual but society 
as a whole and violation of the criminal law which is built upon 
constitutional principles of the substantial as well as procedural 
law, has the consequence of punishment, therefore, the 
prosecution in the light of constitutional principle is under heavy 
duty to establish the violation of criminal law to award the 
punishment. The striding of law to bring an action within its 
compass is in conflict to the concept of fair treatment, therefore it 
is primary duty of the Court to ascertain whether the alleged 
offence was outcome of an act in violation of some law which can 
be termed as actus reus of the crime (guilty act) and if this 
essential element of crime is missing, the breach may not subject 
to the sanction of criminal law, therefore, a person who is blamed 
to have committed an offence if is not accountable in criminal law 
for his action, he cannot be subject to the prosecution. The mens 
rea (guilty mind) is another essential component of crime without 
proof of which a person cannot be held guilty of an offence and 
similarly without the proof of concurrence to commit the crime, 
the offence is not complete. In addition to the above basic 
components of a crime, the harm caused in consequence to an 
act is also considered an essential element of a crime because the 
 
12 
Criminal Appeal No. 264 of 2006 
act if is harmless it may not constitute a crime. The above 
components of an offence of corruption and corrupt practices are 
not traceable in the series of transaction in the present case. 
  
12.  
The charge against the appellant was that he by misuse of 
his authority, committed an offence of corruption and corrupt 
practices within the meanings of section 9(a)(vi) punishable under 
section 10(a) of the Ordinance. 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 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 inconsistent 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. In 
the present case, the NAB authorities on the basis of order passed 
by the appellant by virtue of which land was allotted to the 
affectees of Lal Sohanra Park, launched prosecution against the 
appellant for the charge of committing an offence under section 
9(a)(vi) of the Ordinance whereas the appellant in his defence plea 
asserted that he having found that the rights of allottees were 
acknowledgeable in law, exercised the powers of Collector in a 
good faith with bona fide intention and perusal of record would 
show that no direct or circumstantial evidence was brought on 
record to suggest that appellant exercised the power of Collector 
for the consideration of an illegal gain or an undue benefit for 
himself or for any other person and consequently, the case would 
not fulfil the test of section 9(a)(vi) of NAB Ordinance to justify the 
criminal prosecution. 
  
13.  
The allegation without specific evidence that appellant in 
connivance with his co-accused acted for a dishonest or unlawful 
purpose or the land in question was allotted to the persons who 
were not entitled for such allotment under the law, would 
seriously reflect upon the truthfulness of the allegation and 
learned DPG has not been able to satisfy us that in such a case, 
mere use of authority contrary to law, is a wrong of the nature, 
which would necessarily entail the penal consequence under NAB 
 
13 
Criminal Appeal No. 264 of 2006 
Ordinance. The prosecution also has not been able to bring on 
record any evidence direct or circumstantial in proof of the fact 
that the appellant in collusion with his co-accused or in 
connivance with the allottees of the land by indulging in 
corruption and corrupt practices, extended undue favour to them 
for some personal gain or pecuniary advantage, therefore, the 
mere jurisdictional defect in the allotment without any motive, 
illegal gain or undue benefit, would not constitute an offence of 
corruption and corrupt practices within the meanings of section 
9(a)(vi) read with section 10(a) of the NAB Ordinance, 1999. ------ 
 
---------------------  
  
15.  
The presumption of guilt under section 14(d) of the NAB 
Ordinance, in respect of an offence can only be raised after 
prosecution has established preliminary facts and succeeded in 
making out prima facie a reasonable case to charge an accused 
for an offence under section 9(a)(vi) of the Ordinance. Therefore, 
notwithstanding the provision of section 14(d) of NAB Ordinance, 
this is settled law that unless the prosecution to the satisfaction 
of Court succeeds in discharging the initial burden of proving the 
allegation, no presumption of guilt can be raised to shift burden 
of disproving the allegation to the accused.” 
 
(underlining has been supplied for emphasis) 
 
8. 
In the case of Wahid Bakhsh Baloch v. The State (2014 SCMR 
985) it was alleged that the accused person, in his capacity as 
Deputy Commissioner, had asked a Sub-Engineer in the Municipal 
Committee to make an incorrect (reduced) assessment of the value 
of some State land and had then got the same allotted in favour of 
the co-accused. The Accountability Court had convicted the 
accused person for misuse of authority and his appeal had been 
dismissed by the High Court but he was acquitted by this Court. It 
was held by this Court as follows: 
 
“12.       In M. Anwar Saifullah Khan v. State (PLD 2002 Lahore 
458), 
the  Court  while  adverting  to  the 
initial 
burden 
on 
prosecution to prove the charge of misuse of authority or 
powers  held  at  page 477 as under:--   
 
  
"20.  
Misuse of authority means the use of 
authority or power in a manner contrary to law or 
reflects an unreasonable departure from known 
precedents or custom. Every misuse of authority is 
not culpable. To establish the charge of misuse of 
authority, the prosecution has to establish the two 
essential ingredients of the alleged crime i.e. "mens 
rea" and "actus reus". If either of these is missing 
no offence is made out. Mens rea or guilty mind, in 
context of misuse of authority, would require that 
the accused had the knowledge that he had no 
authority to act in the manner he acted or that it 
was against law or practice in vogue but despite 
 
14 
Criminal Appeal No. 264 of 2006 
that he issued the instruction or passed the order. 
In the instant case the documentary evidence led 
by the prosecution and its own witnesses admit 
that the appellant was told that he had the 
authority to relax the rules and the competent 
authority P.W.3 could make the appointments 
thereafter. The guilty intent or mens rea is missing. 
Even the actus reus is doubtful because he had 
not made the appointments. He merely approved 
the proposal and sent the matter to the competent 
authority. At worst he could be accused of mistake 
of civil law. i.e. ignorance of rules. But a mistake of 
civil law negates mens rea." 
  
13. 
Admittedly the only evidence to prove mens rea is the 
statement 
of 
Khair 
Muhammad 
P.W.4 
who  was  at  that  
time  serving   as  Sub-Engineer in the Municipal Committee and 
alleged that when he received the letter to assess the property in 
question, he initially valued it as Rs. 150 per sqft. but it was at 
the asking of the appellant that he reduced it to Rs. 30 per sqft. 
However, in his cross-examination he admitted that he never gave 
it in writing that the property valued Rs. 150 per sqft. When 
questioned regarding the formula followed by him to determine 
the value, he explained that the property in question was 
assessed after assessing the value of the adjacent properties but 
admitted that the adjoining properties were never assessed as 
none was sold. The appellant while appearing as his own witness 
in terms of section 340, Cr.P.C. had candidly denied the charge 
and maintained that he merely forwarded the letter received from 
the Senior Member Board of Revenue to Sub-Engineer concerned 
and the latter's report received regarding assessment was sent to 
the former and that he had nothing to do with either the 
allotment or giving possession of the property to Iqbal son of 
Momin. Surprisingly no question was asked by the prosecution to 
him that the property in question was assessed at the rate of Rs. 
150 at his asking; that he derived any pecuniary benefit from the 
said transaction or that the property was owned by the revenue 
department and not the Municipal Committee. There is no 
corroboration of the statement of P.W.4 regarding the value of the 
property nor is there any other documentary evidence either. 
  
14.       In the afore-referred circumstances, we are of the view 
that the prosecution had failed to discharge the initial burden to 
prove 
beyond 
reasonable 
doubt 
to 
sustain 
conviction. 
Consequently, the impugned judgments cannot be sustained. The 
appeal is allowed and the impugned judgment of the High Court 
and that of the trial Court to his extent are set aside. The 
appellant is acquitted of the charge.” 
 
(underlining has been supplied for emphasis) 
 
9. 
Similar interpretations of sections 9(a)(vi) and 14(d) of the 
National Accountability Ordinance, 1999 had been advanced by 
different High Courts in the cases of Aftab Ahmed Khan Sherpao, 
Ex-Chief Minister of N.-W.F.P. v. The State (PLD 2001 Peshawar 80), 
Maj. (Retd.) Tariq Javed Afridi v. The State (PLD 2002 Lahore 233) 
and Muhammad Hayat and 2 others v. The State (PLD 2002 
Peshawar 118).  
 
15 
Criminal Appeal No. 264 of 2006 
 
10. 
With reference to the precedent cases mentioned above the 
law appears to be settled by now that in a case involving a charge 
under section 9(a)(vi) of the National Accountability Ordinance, 
1999 the prosecution has to make out a reasonable case against 
the accused person first and then the burden of proof shifts to the 
accused person to rebut the presumption of guilt in terms of 
section 14(d) of the said Ordinance. 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 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.  
 
11. 
Reverting to the merits of the present case we find that some 
very clear and unmistakable clues to a resolution of both the 
issues mentioned in paragraph No. 4 above lie in just three pages 
of the otherwise voluminous record of this case and those three 
pages are pages No. 396, 397 and 398 of Part-1 of Criminal 
Miscellaneous Application No. 415 of 2006 filed in the present 
appeal. The said pages comprise of the Summary regarding making 
of the offending 145 appointments and contain the evidence and 
 
16 
Criminal Appeal No. 264 of 2006 
material brought on the record of the trial court as Exhibit-PW6/1, 
Exhibit-PW6/8, Mark-B, Mark-C, Exhibit-PW6/9, Exhibit-PA, 
Exhibit-PD, Exhibit-PA/1, Exhibit-PB, Exhibit-PB/1, Exhibit-
PB/2, Exhibit-PB/3 and Exhibit-PA/2. The said three pages of the 
record are reproduced below for facility of reference: 
 
“OFFICE OF THE MINISTER FOR PETROLEUM AND NATURAL 
RESOURCES 
_________________ 
 
Islamabad, Sept. 15, 1996. 
 
1. 
As Minister is kindly aware that we have been under 
tremendous pressure from the Parliamentarians to cater for their 
essential requirements of recruitment in the OGDC. Since Budget 
Session we have been withstanding this pressure and telling them 
that their requests for recruitment will be acceded to as soon as 
the position is eased. We have since prepared a list of applicants 
based on the recommendations of the Parliamentarians. Minister 
has already been pleased to go through the list and has since 
approved it. 
 
2. 
Before the Chairman OGDC is requested to issue 
appointment letters, Minister may like to see. 
 
(signatures) 
16/9/96 
(R. A. Hashmi) 
Principal Staff Officer 
 
The Minister 
 
PSO 
 
(signatures) 
23/9/96 
 
Chairman OGDC  
 
3. 
Principal Staff Officer to the Federal Minister for 
Petroleum & Natural Resources has conveyed the approval of the 
Minister for appointment of 145 applicants in OGDC against 
various posts. 
 
4. 
In this respect, it is submitted that appointments in 
OGDC are made against the advertised post after necessary test 
and interview. However, in the recent past, a number of 
appointments have been made on the directives of the Prime 
Minister’s Secretariat without advertising the post, as a special 
case. In the instant case if the directives of the Honourable 
Minister are carried out, approval will be required for relaxation of 
existing policy and the rules. In such case, the applicants will be 
appointed on the basis of qualifications and experience and will 
be given the same designation as offered to the Prime Minister’s 
Secretariat under Phase-I, Phase-II, Phase-III of appointment and 
the special cases. 
 
 
17 
Criminal Appeal No. 264 of 2006 
5. 
Approval may kindly be solicited from the Minister for 
Petroleum & Natural Resources for appointment of 145 in 
relaxation to the rules, as a special case. 
 
6. 
Submitted please. 
 
(signatures) 
30/9 
(AIJAZ MUHAMMAD KHAN) 
Chief Personnel Officer 
 
MANAGER (PERSONNEL) 
 
7. 
In view of para 4/N, Para 5/N may kindly be considered.  
 
(signatures) 
30 Spt 1996 
AM (P) 
 
CHAIRMAN 
 
8. 
With reference to para-1 of the note of Principal Staff 
Officer, the factual position has been briefly explained in para-4. 
It may be added that existing work force in the OGDC is 
considerably in excess of its requirements and a severe burden on 
its budget. However the proposal at Para-5 is submitted for 
consideration and approval. 
 
(signatures) 
16.10.96 
(M. MUBEEN AHSAN) 
Chairman OGDC 
 
Minister for Petroleum & Natural Resources 
 
Approved 
 
(signatures) 
16/10/96 
 
Chairman OGDC  
 
(signatures) 
16/10 
 
AM (Personnel) 
 
(signatures) 
16 Oct 1996 
AM (P) 
 
CPO (R)” 
  
12. 
The note put up by his Principal Staff Officer before the 
respondent on 15.09.1996 clearly showed that:  
 
(i) 
the 
initiative 
for 
making 
the 
relevant 
appointments had been taken by the office of the 
 
18 
Criminal Appeal No. 264 of 2006 
respondent and not the office of the Chairman, Oil & 
Gas Development Corporation; 
(ii) 
there was a tremendous pressure of the 
parliamentarians upon the respondent for making the 
appointments; 
(iii) 
the pressure from the parliamentarians was to 
cater for “their” essential requirements of recruitment 
in the Oil & Gas Development Corporation; 
(iv) 
the respondent had been resisting the pressure 
for some time in the past; 
(v) 
a list of applicants had been prepared by the 
respondent’s office which list was based upon 
recommendations of the parliamentarians; 
(vi) 
the respondent had gone through the prepared 
list and had already approved it;  
(vii) 
the 
Chairman, 
Oil 
& 
Gas 
Development 
Corporation was to be “requested” to issue the letters 
of appointment; and 
(viii) no 
selection 
process 
or 
consideration 
of 
qualifications or merit was involved before approval of 
the list by the respondent and issuance of the letters 
of appointment. 
 
It is, thus, obvious that the requirement vis-à-vis appointments 
was that of the parliamentarians and not of the Oil & Gas 
Development Corporation, the respondent had been resisting the 
pressure in that regard for some time in the past because the Oil & 
Gas Development Corporation did not need any such appointment 
and a list of candidates had already been approved by the 
respondent before it was to be sent to the Chairman, Oil & Gas 
Development Corporation for issuing the letters of appointment. It 
is, therefore, quite evident that in the matter of such appointments 
the respondent was motivated to please the parliamentarians 
rather than looking after the interests of the Oil & Gas 
Development Corporation, the initiative for the appointments had 
come from the respondent and not from the Chairman, Oil & Gas 
 
19 
Criminal Appeal No. 264 of 2006 
Development Corporation and also that in order to release the 
pressure upon him from the parliamentarians the respondent had 
decided to force his will upon the Competent Authority, i.e. 
Chairman, Oil & Gas Development Corporation in the matter of 
such appointments. 
 
13. 
The note forwarded by the Chief Personnel Officer, Oil & Gas 
Development Corporation to the Chairman, Oil & Gas Development 
Corporation on 30.09.1996 had highlighted that the appointments 
in the Oil & Gas Development Corporation had to be made against 
advertised posts after necessary tests and interviews and that the 
“directives” of the respondent in the matter of appointments could 
only be given effect to after relaxation of the rules as a special case. 
This clearly showed that merit and open competition had to be 
sacrificed and bulldozed if the wishes of the respondent were to be 
accommodated. 
 
14. 
The note of the Chairman, Oil & Gas Development 
Corporation submitted before the respondent on 16.10.1996 said it 
all when it was pointed out by the Chairman to the respondent in 
black and white that “It may be added that existing work force in 
the OGDC is considerably in excess of its requirements and a 
severe burden on its budget.” This had again established beyond 
any doubt that the requirement of making the appointments in 
issue was not that of the Oil & Gas Development Corporation but 
the requirement was that of the respondent and that too not for 
advancing the interests of the Oil & Gas Development Corporation 
but to please some parliamentarians who had been pestering the 
respondent in that regard for some time in the past.  
 
15. 
As if this were not enough, the record shows that the 
Chairman, Oil & Gas Development Corporation had put up his 
above mentioned note before the respondent on 16.10.1996 clearly 
and unmincingly informing the respondent that the Oil & Gas 
Development Corporation did not need any new employee but on 
the same date, i.e. 16.10.1996 the respondent relaxed the rules, 
 
20 
Criminal Appeal No. 264 of 2006 
the relevant file traveled back to the Chairman and on that very 
date letters of appointment were issued in favour of all the 145 
candidates who had already been approved by the respondent. 
That still was not enough because the record confirms that the 
letters of appointment were sent on the same date, i.e. 16.10.1996 
not on the addresses of the appointed candidates but were sent to 
the Principal Staff Officer of the respondent himself who was to 
deliver 
those 
letters 
of 
appointment 
to 
the 
respective 
parliamentarians who had recommended the relevant candidates! 
Another startling factor evident from the record is that for 
facilitating the appointment of the pre-approved candidates the 
respondent had approved relaxation of some rules without 
anybody ever identifying the relevant rules being relaxed and such 
relaxation of rules had been approved by the respondent as a 
special case without ever recording what was the basis or need for 
treating the matter as a special case.   
 
16. 
The shocking state of affairs detailed above has left us in no 
doubt whatsoever that the case in hand was not a case of a mere 
irregularity in appointments but was a case of the respondent 
willfully bulldozing the regular procedure, forcing his will upon 
another vested with jurisdiction, approving/making appointments 
against the interests and requirements of the relevant institution 
and appeasing his political friends at the cost of overburdening the  
workforce and the budget of the institution he was meant to serve 
and protect. We have, thus, been surprised to find that the Lahore 
High Court, Lahore had concluded that there was no criminal 
intent on the part of the respondent and that the travesty of 
fairness and trashing of due process on the part of the respondent 
was merely an irregularity which did not constitute any criminal 
offence. We have examined all the considerations weighing with the 
High Court for reaching that conclusion and have found those 
considerations to be hardly commending themselves for approval. 
The High Court had observed that the respondent had not issued 
any direction for the relevant appointments; the respondent had 
the power to relax the relevant rules and precedents were available 
 
21 
Criminal Appeal No. 264 of 2006 
in that regard; the proposal regarding the relevant appointments 
had been endorsed by the Chairman, Oil & Gas Development 
Corporation who was the Competent Authority in the matter of the 
relevant appointments; the appointments approved by the 
respondent 
were 
merely 
temporary 
appointments 
and 
the 
Regulations of the Oil & Gas Development Corporation did not 
apply to such temporary appointments; the said Regulations even 
otherwise failed to receive final approval and, thus, any violation of 
such Regulations could not be considered against the respondent; 
no prosecution witness had alleged any violation of any Regulation 
or Rule by the respondent; out of the 145 appointments approved 
by the respondent only three of the appointees had joined the 
service till the respondent was a Minister; all the appointees were 
still in service and they had not been thrown out of the jobs and, 
therefore, the respondent could not be penalized for approving 
their appointments; the respondent had issued guidelines qua 
merits on all Pakistan basis and, thus, he could not be said to 
have acted in any manner which was discriminatory; the 
respondent had been given to understand that he could relax the 
relevant rules before approving the relevant appointments; prior to 
the present appointments hundreds of other appointments had 
already been made by the Chairman, Oil & Gas Development 
Corporation upon the directives of the Prime Minister’s Secretariat 
but no Reference had been filed against the Chairman vis-à-vis 
such appointments; and no loss had been suffered by the Oil & 
Gas Development Corporation on the basis of the appointments 
approved by the respondent. We note that in the above mentioned 
context the High Court had failed to appreciate that if the 
respondent had the power to relax the rules then he had relaxed 
them in his personal interest to please his political friends and not 
in the interest of the relevant institution. If the respondent had not 
issued any direction of his own qua the appointments in question 
then there is nothing available on the record to explain why he had 
forced his will upon the manifestly reluctant Chairman, Oil & Gas 
Development Corporation in the matter of such appointments. If 
the respondent had required the selection on merits and on all 
 
22 
Criminal Appeal No. 264 of 2006 
Pakistan basis then there was no explanation available for handing 
over a pre-approved list of candidates to the Chairman, Oil & Gas 
Development Corporation for making the appointments which was 
nothing but discriminatory. If the appointments made were to be 
temporary in nature then the letters of appointment would not 
have mentioned a period of probation which is relevant to a 
permanent appointment. If the relevant appointments were made 
on a temporary basis then the argument that the appointed 
persons were still in service and had not been thrown out of service 
despite passage of a decade had lost its relevance. There might 
have been some instances in the past where rules had been 
relaxed for making some appointments in the Oil & Gas 
Development Corporation but nothing had been brought on the 
record of the case to show that in those cases as well the 
Chairman, Oil & Gas Development Corporation had resisted the 
move on the ground that no new appointment was required and 
also that those appointments too were made only to meet the 
“essential requirements” of the parliamentarians and not the 
requirements of the Oil & Gas Development Corporation. No 
parallels had been established in that regard and, thus, the 
reference to some past instances was clearly inapt. 
 
17. 
Applying the principles deducible from the above mentioned 
precedent cases to the case in hand we find that the prosecution 
had indeed succeeded in establishing a reasonable case of misuse 
of authority against the respondent under section 9(a)(vi) of the 
National Accountability Ordinance, 1999 and the respondent had 
surely failed to rebut the presumption contemplated by section 
14(d) of that Ordinance. The evidence produced by the prosecution 
had proved beyond doubt on the basis of un-rebutted documentary 
evidence that, as already noticed by us above, the initiative for 
making the relevant appointments had been taken by the office of 
the respondent and not by the office of the Chairman, Oil & Gas 
Development Corporation; there was a tremendous pressure upon 
the respondent from the parliamentarians for making the 
appointments; the pressure from the parliamentarians was to cater 
 
23 
Criminal Appeal No. 264 of 2006 
for “their” essential requirements of recruitment in the Oil & Gas 
Development Corporation; the respondent had been resisting that 
pressure for some time in the past; a list of applicants had been 
prepared by the respondent’s office which list was based upon 
recommendations of the parliamentarians; the respondent had 
gone through the prepared list and had already approved it; the 
Chairman, Oil & Gas Development Corporation was to be 
“requested” to issue the letters of appointment; no selection 
process or consideration of qualifications or merit was involved 
before issuance of the letters of appointment; the respondent was 
motivated only to please the parliamentarians rather than looking 
after the interests of the Oil & Gas Development Corporation; merit 
and open competition had been sacrificed and bulldozed for 
accommodating the wishes of the respondent; the requirement of 
making the appointments in issue was not that of the Oil & Gas 
Development Corporation but the requirement was that of the 
respondent and that too not for advancing the interests of the Oil 
& 
Gas 
Development 
Corporation 
but 
for 
pleasing 
some 
parliamentarians who had been pestering the respondent in that 
regard for some time in the past; after submission of the note of 
resistance by the Chairman, Oil & Gas Development Corporation 
on 16.10.1996 the respondent relaxed the rules, the relevant file 
traveled back to the Chairman and letters of appointment were 
issued in favour of all the 145 candidates on that very day, i.e. 
16.10.1996; the letters of appointment were sent on the same date, 
i.e. 16.10.1996 not on the addresses of the appointed candidates 
but were sent to the Principal Staff Officer of the respondent 
himself who was to deliver those letters of appointment to the 
respective parliamentarians who had recommended the relevant 
candidates; for facilitating the appointment of the pre-approved 
candidates the respondent had approved relaxation of some rules 
without anybody ever identifying the relevant rules being relaxed; 
and such relaxation of rules had been approved by the respondent 
as a special case without ever recording what was the basis or 
need for treating the matter as a special case. All this was proved 
by the prosecution through official record and the respondent had 
 
24 
Criminal Appeal No. 264 of 2006 
remained contented with a bald assertion of his bona fide. In our 
considered opinion the case in hand was not a case of a mere 
procedural irregularity on the part of the respondent but was a 
clear case of misuse of authority by the respondent, a case of a 
wrong and improper exercise of authority for a purpose not 
intended by the law, a case of a person in authority acting in 
disregard of the law with the conscious knowledge that his act was 
without the authority of law, a case where there was a conscious 
misuse of authority for an illegal gain or an undue benefit and a 
case where the authority was exercised with intent to obtain or give 
some advantage inconsistent with the law. In keeping with the 
principles laid down by this Court in the above mentioned 
precedent cases we have entertained no manner of doubt that the 
case in hand was an open and shut case of misuse of authority 
where the respondent had used his authority in a manner contrary 
to the law knowing that he had no authority to act in the manner 
he acted. If the initiative for making the appointments in issue had 
come from the Chairman, Oil & Gas Development Corporation as a 
requirement for proper functioning of that Corporation then there 
might have been some substance in the respondent’s assertion of 
his bona fide but in the present case it is written large on the 
record that it was the respondent who maneuvered the relevant 
appointments and that too against the resistance of the Chairman, 
Oil & Gas Development Corporation and against the interests of 
that Corporation and with the sole object of pleasing his political 
friends in the Parliament. To us such exercise of authority by the 
respondent 
was 
nothing 
short 
of 
willful 
and 
deliberate 
circumvention of the legal intent and process amounting to abuse 
and misuse of authority establishing his mens rea, guilty mind and 
criminal intent for the purposes of the provisions of section 9(a)(vi) 
read with section 14(d) of the National Accountability Ordinance, 
1999. 
 
18. 
It may be pertinent and relevant to mention here that the 
respondent is a highly educated person having earned his Master’s 
degrees from the University of Peshawar, the University of Oxford 
 
25 
Criminal Appeal No. 264 of 2006 
and the University of Southern California, he has held the highest 
bureaucratic positions in the civil service of the country, he and 
his family have been in politics for a long time, even prior to his 
relevant stint as a Federal Minister he had remained a member of 
the National Assembly and of the Senate besides serving as a 
Federal Minister and before approving/making the appointments 
in issue he had seen many of his comrades in politics facing 
criminal charges pertaining to misuse of authority brought against 
them by the National Accountability Bureau or its predecessor 
institutions. It was, therefore, quite naïve on the part of the 
respondent to maintain that what he did in this case was not 
criminally culpable or that he had no criminal intent in the matter. 
A deliberate and willful act which fairly and squarely attracts the 
definition and fulfils all the constituting ingredients of a criminal 
offence and which is accompanied by the knowledge that others 
acting in a similar manner have faced criminal charges in the past 
surely makes the act criminally liable and it cannot be argued with 
any degree of seriousness that such act had been committed with 
an intent which was licit or bona fide. Apart from that it is 
proverbial that ignorance of law is no excuse. In the circumstances 
of the case discussed above we have entertained no doubt at all 
that criminal intent on the part of the respondent stood amply 
established and his actus reus was duly accompanied by the 
requisite mens rea so as to constitute the relevant offence. 
 
19. 
It may be true that this Court is generally slow in interfering 
with a judgment of acquittal passed by a court below but at the 
same time it is equally true that where acquittal of an accused 
person by a court below had come about on the basis of 
considerations which do not commend themselves for approval on 
the legal plane there such judgment of acquittal cannot be 
sustained and this is more so where the record of the case had not 
even been read by the court below correctly or properly. In the 
present case the crucial record of the case mentioned in paragraph 
No. 11 above had not been adverted to by the High Court with the 
care and attention it deserved and, thus, the vision of the High 
 
26 
Criminal Appeal No. 264 of 2006 
Court remained blurred in respect of criminal intent of the 
respondent. 
     
20. 
Doling out jobs in the public sector on the basis of 
corruption, nepotism, favouritism, lack of due process and misuse 
of authority has remained a bane of our society for some time and 
on many previous occasions this Court has been emphasizing the 
importance of transparency, merit and open competition in that 
respect. In the case of In re: Abdul Jabbar Memon and others (1996 
SCMR 1349) the issue was of recruitment to public posts and 
offices without proper publicity or advertisement and on 
06.03.1993 this Court had passed the following order: 
   
“The matter has come up for consideration in the presence of the 
Deputy Attorneys-General, Provincial Law Officers arid Mr. Anwar 
Kamal, Advocate/counsel for PIA. The interim order proposed to 
be made is hereby confirmed and the case adjourned to enable 
the Provincial Governments, the Federal Government and the 
counsel for PIA to seek appropriate instructions from their 
respective Governments/Departments and to ensure compliance 
with the order. The interim order is reproduced hereunder in 
extenso:-- 
  
"While 
inquiring 
into 
various 
complaints 
of 
violation of Fundamental/Human Rights, it has 
been 
found 
that 
the 
Federal 
Government, 
Provincial Governments, Statutory Bodies and the 
Public Authorities have been making initial 
recruitments, both ad hoc and regular, to posts 
and 
offices 
without 
publicly 
and 
properly 
advertising 
the 
vacancies 
and 
at 
times by 
converting ad hoc appointments into regular 
appointments. This practice is prima facie violative 
of 
Fundamental 
Right 
(Article 
18 
of 
the 
Constitution) guaranteeing to every citizen freedom 
of profession. 
  
Subject to notice to all concerned, and subject to 
final orders after full hearing in the matter, it is 
ordered as an interim measure that the violation of 
this 
Fundamental/Human 
Right 
shall 
be 
discontinued forthwith. 
  
Steps shall immediately be taken to rectify, so as to 
bring the practice in accord with the Constitutional 
requirement.” 
  
21. 
In the case of Mushtaq Ahmad Mohal v. The Honourable 
Lahore High Court, Lahore and others (1997 SCMR 1043) this Court 
had the following to observe on the subject: 
 
 
27 
Criminal Appeal No. 264 of 2006 
“16. 
------- It may be observed that even otherwise, the 
Constitutional requirement, inter alia, enshrined in Article 18 of 
the 
Constitution 
which 
enjoins 
that 
"Subject 
to 
such 
qualifications, if any, as may be prescribed by law, every citizen 
shall have the right to enter upon any lawful profession or 
occupation, and to conduct any lawful trade or business" 
includes the right of a citizen to compete and participate for 
appointment to a post in any Federal or a Provincial Government 
department 
or 
an 
attached 
department 
or 
autonomous 
bodies/corporations etc. on the basis of open competition, which 
right he cannot exercise unless the process of appointment is 
transparent, fair, just and free from any complaint as to its 
transparency and fairness. The above objective enshrined in our 
Constitution cannot be achieved unless due publicity is made 
through public notice for inviting applications with the aid of the 
leading newspapers having wide circulation. 
  
It may be pointed out that the above question came up for 
consideration before this Court In re: Abdul Jabbar Memon and 
others 1996 SCMR 1349), wherein it concluded as under:-- 
  
--------------------- 
  
17.  
We reiterate that the appointments to various posts by the 
Federal Government, Provincial Governments, Statutory Bodies 
and other Public Authorities, either initial or ad hoc or regular, 
without inviting applications from the public through the press, is 
violative of Article 18 read with Article 2A of the Constitution, 
which has incorporated the Preamble to the Constitution as part 
of the same and which inter alia enjoins equality of opportunity 
and guarantees for creation of an egalitarian society through a 
new order, which objective cannot be achieved unless every 
citizen equally placed or situated is treated alike and is provided 
equal opportunity to compete inter alia for the posts in aforesaid 
Government set-ups/institutions.” 
 
22. 
Selection of a candidate for appointment to a public post on 
the basis of “political dictation” came under discussion in the case 
of Government of N.-W.F.P. through Secretary, Forest Department, 
Peshawar and others v. Muhammad Tufail Khan (PLD 2004 SC 313) 
and this Court observed in that case as under: 
 
“5.  
------- It is also reflected from the documents and the 
same is not denied that the selection of the respondent was made 
simply on political dictation. Neither any advertisement was made 
to fill these vacancies nor any interview was held. The codal 
formalities for the appointments of these posts were flagrantly 
violated. Such-like entries in the civil service cannot be 
countenanced as it generate frustration and despondency among 
all persons who were having excellent merit but every time they 
are bypassed through suchlike back door entries on political 
interference. Everybody who matters in the functioning of the 
society has always propagated for the adoption of transparency 
and merit in appointments, which are cardinal principles of good 
governance. The Constitution of Islamic Republic of Pakistan has 
also mandated the same as is reflected from the Article 18 which 
is in the following terms:-- 
  
 
28 
Criminal Appeal No. 264 of 2006 
"18.  
Subject to such qualifications, if any, as 
may be prescribed by law, every citizen shall have 
the right to enter upon any lawful profession or 
occupation, and to conduct any lawful trade or 
business." 
  
6.  
However, when it comes to actual practice, these 
principles are blatantly ignored. The Courts are duty bound to 
uphold the Constitutional mandate and to keep up the salutary 
principle of rule of law. In order to uphold these principles it has 
been stated time and again by the superior Courts that all the 
appointments are to be made after due publicity in a transparent 
manner after inviting applications, through Press from all those 
who are eligible, deserving and desirous. Reference in this regard 
is made to Abdul Jabbar Memon (1996 SCMR 1349) where the 
learned Judges in a Human Rights case, directed the Federal 
Government, Provincial Governments, Statutory Bodies and the 
Public Authorities to avoid violation of fundamental rights (Article 
18 of the Constitution) guaranteeing to every citizen's freedom of 
profession. This view was reiterated by a Bench of five learned 
Judges in a case reported in Munawar Khan v. Niaz Muhammad 
(1993 SCMR 1287) where it was observed as under:-- 
  
"6. 
What we have noticed in all these cases 
which are under consideration before us is that 
appointments of both the parties contesting the 
appointments 
were 
made 
without 
such 
advertisements, publicity or information in the 
locality from which the recruitments were to be 
made. In view of the Constitutional requirement 
and the interim order already passed in Human 
Right Case 104 of 1992 it is expected that in future 
all appointments shall be made after due publicity 
in the area from which the recruitment had to take 
place. This will, however, not apply to short-term 
leave vacancies or to contingent employment." 
  
Again in another case, reported in Mushtaq Ahmed Mohal v. 
Honourbale Lahore High Court (1997 SCMR 1043), a Bench of 
five learned Judges reiterated this view after quoting in extenso 
the order passed in the aforementioned case titled as Abdul 
Jabbar Memon (1996 SCMR 1349) stated as under:-- 
  
--------------------- 
  
Reference in this regard is also made to the case of Obaidullah v. 
Habibullah (PLD 1997 SC 835) where the learned Judges again 
reiterated the afore-quoted paragraph. Reference is also made to 
the case of Abdur Rashid v. Riazuddin (1995 SCMR 999). 
  
7.  
However, in spite of all these directions, this salutary 
principle is being frustrated with impunity. This malady which 
has plagued the whole society shall be arrested with iron hands 
and the principle of merits shall be safeguarded, otherwise, it 
would be too late to be corrected. In the case in hand admittedly 
the appointment was made clearly in violation of the codal 
formalities simply on the dictation of a political figure.”  
 
23. 
The case of Tariq Aziz-ud-Din and others: in re (2010 SCMR 
1301) was a case of discrimination in promotion of senior civil 
servants and this Court had observed in that case as follows: 
 
29 
Criminal Appeal No. 264 of 2006 
 
“34.  
Before parting with the judgment, we may observe that 
good governance is largely dependent upon the upright, 
honest and strong bureaucracy particularly in written 
Constitution wherein important role of implementation has 
been assigned to the bureaucracy, Civil service is the back 
bone of our administration. The purity of administration to a 
large extent depends upon the purity of the services. Such 
purity can be obtained only if the promotions are made on 
merit in accordance with law and Constitution, without 
favouritism or nepotism. It is a time tested, recognized fact that 
institution is destroyed if promotions/appointments are made 
in violation of law. It will, in the ultimate result, paralyze 
automatically. The manner in which the instant promotions in 
the Civil Services have been made, may tend to adversely 
affect the existence of this organ. Honesty, efficiency and 
incorruptibility are the sterling qualities in all fields of life 
including the Administration and Services. These criteria 
ought to have been followed in the instant case. Fifty-four 
persons were promoted in complete disregard of the law 
causing 
anger, 
anguish, 
acrimony, 
dissatisfaction 
and 
diffidence in ranks of services which is likely to destroy the 
service structure. ------- According to Article 4 of the 
Constitution the word "law" is of wider import and in itself 
mandatorily cast the duty upon every public functionary to 
act in the matter justly, fairly and without arbitrariness.” 
 
 
24. 
Appointment of a Chairman of the Oil and Gas Regulatory 
Authority (OGRA) came under scrutiny of this Court in the case 
of Muhammad Yasin v. Federation of Pakistan through Secretary, 
Establishment Division, Islamabad and others (PLD 2012 SC 132) 
and the Court observed in that case as under: 
 
“28.   The Executive's ability to make appointments to key 
positions of authority, and to dispense with the incumbents 
therein, needs to be examined in historical context as this will 
facilitate our understanding of the constitutional principle of 
separation of powers and the importance of judicial review in 
ensuring adherence to such separation. On account of our 
colonial legacy and its attendant pattern of governance, this 
examination 
takes 
us 
back 
to 
the 
pre-independence 
dispensation and to the British constitutional scheme. That 
was a time when almost all important State functionaries 
including not just the Prime Minister and the Cabinet but also 
judges and civil servants, were appointed and removed by the 
British monarch in his absolute unfettered discretion. It is for 
this reason they were said to "hold office during the King's 
pleasure". While this vestige of an absolute monarchy receded 
in Britain on account of emerging democratic conventions, in 
the 
colonies 
it 
survived. 
Even 
after 
several 
years 
of 
independence, this practice continued, as was manifested by 
the imperious dissolution of the Constituent Assembly in 1954, 
by the representative of the British Crown. 
 
29.  
Much has changed since then. Pakistan now has a 
democratic Constitution which provides for the government of 
laws and not of men. It is for this reason that in our 
 
30 
Criminal Appeal No. 264 of 2006 
Constitution there remain few positions where the incumbents 
"hold office during the pleasure" of someone else based on 
broad discretion. In its undiluted form this convention exists 
only in Article 100(2), Article 101(3) and Article 140(3) which 
relate to the appointments of a Governor, the Attorney General 
and the Advocates General respectively. Similarly, such 
discretionary powers do not exist in those statutes which relate 
to autonomous regulatory bodies like OGRA. 
 
30.   
It is to be noted that even where appointments are to be 
made in the exercise of discretionary powers, it has become 
well settled that such powers are to be employed in a 
reasonable manner and the exercise of such powers can be 
judicially reviewed. In the Corruption of Hajj Arrangements' 
case (Suo Moto Case No. 24 of 2010) and in the case 
of Tariq  Aziz-ud-Din (2010 SCMR 1301), it has been held that 
appointing authorities "cannot be allowed to exercise discretion 
at their whims, sweet will or in an arbitrary manner; rather, 
they are bound to act fairly, evenly and justly". There is an 
obligation 
thus 
imposed 
on 
the 
Executive 
to 
make 
appointments based on a process which is manifestly and 
demonstrably fair even if the law may not expressly impose 
such duty. In the Hajj corruption case supra, the Court has 
again clarified this point saying that "[b]y now, the parameters 
of the Court's power of judicial review of administrative or 
executive action or decision and the grounds on which the Court 
can interfere with the same are well settled. Indisputably, if the 
action or decision . . . has been arrived at by the 
authority misdirecting itself by adopting a wrong approach or 
has been influenced by irrelevant or extraneous matters, the 
Court would be justified in interfering with the same".  
 
31.   
Much before these declarations by legislatures and 
courts, we find exhortations to this effect in the common sense 
insights to be found in diverse systems and eras in history. We 
thus have in the classical texts of the Greek ancients, and the 
writings of those such as Sheikh Saadi, wherein the deleterious 
consequences of nepotism and cronyism in administrative 
appointments have been highlighted. Amongst other sources, 
one finds reference to this in the "Qaboos Namah", a book that 
Ameer Unsur Ma’ ali Kaikaus wrote in the 11th century A.D. 
for the instruction of princes, including his son Gilan Shah, in 
the art of good governance. The Ameer cautioned that 
when "appointing officers to responsible positions, act carefully 
and grant positions only to those who are qualified for the 
duties entailed in that job; and also, beware that when an 
ignoramus who is not up to the assigned task gets appointed, 
he will never frankly concede his lack of ability to you; instead, 
to hide his lack of worth, he will boldly embark upon task after 
task, and  make  a  mess  of  it  all". [Kaikaus, The Book of 
Qaboos, page 206-7; Tehran (1963)]. And in a similar vein, 
warning against the hazards of turning public offices into 
sinecures, he advises that "if at all you wish to bestow favours 
upon someone, give him valuable gifts; do not, however, confer 
on him a high office for which he does not possess the requisite 
competence". [Kaikaus, The Book of Qaboos, page 207; Tehran 
(1963)]. We also find mention of some very pertinent principles 
in this regard in Nizamul Mulk Toosi's "Siyasat Namah", also 
written in the 11th century, which displays an uncanny 
cognizance of the evils of nepotism which seem eternally to 
haunt the corridors of high power even in this day and age. He 
emphasizes that "the ruler should make sure that he does not 
award public office to his cronies (merely on the basis of their 
friendship with him) . . . for such arrangements can give rise to 
 
31 
Criminal Appeal No. 264 of 2006 
many an evil". [Toosi, The Book of Government, p. 120; Tehran 
(1994)] The modern day discourse on good governance, whether 
in the law or in Courts, is only an expression of these universal 
principles. 
 
32.   
In 
the 
present 
case 
involving 
the 
respondent's 
appointment as Chairman OGRA, the law has travelled a great 
distance from the times of an absolute monarch or the time 
when the people of Pakistan were subject to colonial rule. 
Instead, it has come closer to the ethos of responsible 
governance, which was envisioned in the sage and ever-lasting 
wisdom adverted to above. Thus, we now have the express 
stipulation in the Ordinance which requires, firstly, that 
OGRA "shall be independent in the performance of its 
functions" and that "the Chairman shall be an eminent 
professional of known integrity and competence . . . ". These 
provisions in the Ordinance expressly limit the authority of the 
political executive or the government of the day, thereby 
ensuring that the crucial position of Chairman, OGRA, does 
not end up becoming a cushy sinecure and an anti-people 
drain on public resources, for want of competence, integrity or 
efficient regulation. 
 
--------------------- 
 
36.   
To test the validity of the appointment process in this 
case, it would be useful to adopt a test based on the following 
considerations: 
(a) 
whether 
an objective 
selection 
procedure was 
prescribed; 
(b) 
if such a selection procedure was made, did it have 
a reasonable nexus with the object of the whole exercise, i.e. 
selection of the sort of candidate envisaged in section 3 of the 
Ordinance; 
(c) 
if such a reasonable selection procedure was indeed 
prescribed, was it adopted and followed with rigour, objectivity, 
transparency and due diligence to ensure obedience to the law. 
 
--------------------- 
 
55.   
The detailed discussion above has highlighted the 
seriously flawed nature of the selection process and the 
manner in which it was undertaken. Also, we have touched 
upon the allegations of wrong doing in the preceding 
paragraph, for the purpose of the Orders in paragraph 57 
below. 
 
CONCLUSIONS 
 
56.   
Based on the foregoing discussion, it is clear that in 
order to enforce the fundamental rights of the People of 
Pakistan, it is essential that good governance in OGRA 
is ensured. To achieve this objective it is crucial that 'highly 
qualified' persons of 'known competence and integrity' are 
appointed as Chairman and Members of OGRA. This can only 
happen if the highest and most exacting standards of diligence, 
transparency and probity are employed in the selection of these 
persons. This quite obviously has not been done. We are clear, 
therefore, that the selection process seriously and irretrievably 
undermined merit. It is such actions which potentially result in 
direct harm to the people of Pakistan and also contribute 
towards heart-burn and disillusionment amongst genuine and 
competent aspirants for public office. The direct impact of 
ignoring merit and the eligibility criteria prescribed by the 
 
32 
Criminal Appeal No. 264 of 2006 
Ordinance also has the potential of causing harshly adverse 
consequences including unjustified inflation in retail prices for 
consumers, thus depriving the people of Pakistan of their 
incomes, assets, quality of life and dignity. Among many other 
harmful consequences thrown up by cases such as the present 
one, is the unnecessary clogging of Court dockets thus 
reducing the Court resources available for resolution of other 
cases. It is clear this case would not have arisen if the selection 
process had been designed and implemented to ensure 
fulfillment of the requirements of the Ordinance. Civil servants 
and other holders of public office have to remain conscious 
that in terms of the Constitution "it is the will of the People of 
Pakistan" which has established the Constitutional Order 
under which they hold office. As such they are, first and 
foremost fiduciaries and trustees for the People of Pakistan. 
And, when performing the functions of their Office, they can 
have no interest other than the interests of the honourable 
People of Pakistan in whose name they hold office and from 
whose pockets they draw their salaries and perquisites.” 
  
 
25. 
In the case of Muhammad Ashraf Tiwana and others v. 
Pakistan and others (2013 SCMR 1159) the matter in issue was 
selection and appointment of a person as the Commissioner and 
Chairman of the Securities and Exchange Commission of Pakistan 
in terms of the requirements of the Securities and Exchange 
Commission of Pakistan Act 1997. This Court had the following to 
observe in that case: 
 
“20.  
The second challenge made by the petitioner to the 
appointments of Commissioners and Chairman SECP is far more 
weighty. It has by now become well settled that Courts will look 
into the process of appointments to public office. It is the process 
which can be judicially reviewed to ensure that the requirements 
of law have been met. In the case of Muhammad Yasin supra, the 
process of appointment to public office has been made the subject 
of judicial review to ensure adherence to the command of the law. 
This is also a requirement of good governance and has been a 
subject of comment from ancient times. Abu al-Hassan al-
Mawardi (d. 1058 A.D), the famous scholar from Baghdad devoted 
a 
substantial 
portion 
of 
his 
11th 
century 
treatise 
on 
constitutional law, the al-Ahkam al Sultaniyyah, to the 
qualifications for holding public office. These are universal 
principles of good governance and are reflected in sections 5 and 
6 of the Act which lay down stringent criteria for the kind of 
person 
the 
Federal 
Government 
may 
appoint 
as 
Commissioner/Chairman SECP. Section 5(1) of the Act specifies 
that a Commissioner "shall be a person who is known for his 
integrity, expertise, experience and eminence in any relevant field, 
including the securities market, law, accountancy, economics, 
finance, insurance and industry." Under the law, the federal 
Government has the authority to appoint the Chairman and 
Commissioners of SECP. The Federal Government, however, has 
no absolute and unbridled powers in this behalf. It is constrained 
by the aforesaid requirements of the Act. We have come a long 
way from the days of the whimsicality of Kings and Caesers, such 
as Caligula who could conceive of appointing his horse Incitatus 
 
33 
Criminal Appeal No. 264 of 2006 
as Consul of Rome. The element of subjectivity and discretion of 
the Government has been severely limited by the legal 
requirement that an  appointee  must be a person having integrity 
expertise, eminence etc. This requirement imposes a duty on the 
Federal Government to put in place a process which ensures that 
the requirements of the law are met.  
  
21.  
------- It is obvious that if the requirements of section 5(1) 
are to be adhered to, there has to be a process which ensures 
that the widest possible pool of qualified candidates is available to 
the Federal Government. From this pool, through a transparent 
selection process, appointments can be made. In our judgment in 
the case of Muhammad Yasin supra, we had set out a three 
pronged test for appointments to public office: "(a) whether an 
objective selection procedure was prescribed; (b) if such a 
selection procedure was made, did it have a reasonable nexus 
with the object of the whole exercise, i.e. selection of the sort of 
candidate envisaged in [the law]; (c) if such a reasonable selection 
procedure was indeed prescribed, was it adopted and followed 
with rigour, objectivity, transparency and due diligence to ensure 
obedience to the law." -------  
 
22.   
We asked learned counsel for the Federation to show us 
the process through which the name of respondent No. 4 came up 
for consideration before the Federal Government. We had sought 
relevant information vide our order dated 13-9-2011 but this was 
not complied with. In our order dated 13-6-2012 our direction 
was expressly repeated. In response, the petitioner filed C.M.A. 
2955 of 2012 on 5-7-2012, which provided only a fraction of the 
requisite departmental record. Therefore, on 13-9-2012, we 
reiterated our order, but to no effect. Ultimately, on 8-11-2012, 
the petitioner filed a contempt petition to enforce our orders 
seeking the relevant record. It was only after this extreme step 
that the Federation finally submitted some official record and 
documents in Court through C.M.A. 1342 of 2013 on 13-3-2013 
and C.M.A. 1562 of 2013 on 26-3-2013 filed during the course of 
the hearing. In C.M.A. 1342 of 2013, it was also repeated that the 
appointment of the respondent was in line with previous practice. 
However, it was, for the first time added that the then Finance 
Secretary and Finance Minister had a meeting with respondent 
No. 4 and "after due consideration his name was recommended 
for appointment to the Prime Minister of Pakistan". We find this 
assertion in para 4 of C.M.A. 1562 of 2013 to be wholly 
unsubstantiated by any material on record. It appears to be false 
and misleading. The concise statement filed on behalf of the 
Federation on 25-10-2011 does not make any such averment. 
C.M.A. 2955 of 2012 filed on 5-7-2012, also did not make any 
mention of the Finance Minister and Finance Secretary's meeting 
with respondent No. 4 nor is there any official noting to this 
effect. We, therefore, find it strange that C.M.A. No.1562 of 2013 
which was filed on 26-3-2013 for the first time mentioned any 
process at all. The averment aforesaid is also belied by the noting 
on official files which preceded the appointment of respondent No. 
4 as Chairman, SECP, and which has been brought on the record 
through C.M.A. 2955 of 2012, C.M.A. 1342 of 2013 and C.M.A. 
1562 of 2013. We may reiterate, based on the record which was 
provided by the Federal Government after much foot-dragging 
spanning more than one year, that no process, let alone a 
credible, fair and transparent one was adopted by the 
Government. We may add that, rather than recognizing the 
potential 
conflict 
between 
SECP 
and 
respondent  No. 
4, 
a  common Concise  Statement was  filed by them. It was only at 
a subsequent stage that respondent No. 4 instructed separate 
counsel. Importantly, neither in the Concise Statement nor     
 
34 
Criminal Appeal No. 264 of 2006 
during the prolonged hearing   of   the   case   was   any  mention 
made,  of any meetings or interview of respondent No. 4 with the 
Minister or Finance Secretary. 
 
---------------------  
 
28.   
Furthermore, in view of the requirements of section 5, 
there is a need to devise a proper mechanism for targeting and 
attracting a pool of qualified potential appointees. Randomly 
entertaining CVs, with or without the backing of political patrons, 
or seeking nominations from arbitrarily selected consultees do not 
meet this requirement. The requirement can be achieved through 
a number of different means, be it by open advertisement, or 
through the auspices of talent scouts who have the needed 
expertise and who ensure confidentiality to applicants or through 
any other sufficiently transparent and inclusive process. The 
details of the mechanism are not our concern at present; these 
may be worked out by the Federal Government and recorded in 
the report which we have sought from the Government. What is 
clear, however, is that the process that went into the impugned 
appointment clearly does not meet the requirement of the law and 
the appointment has, therefore, been set aside and struck down. 
  
29.  
------- What is missing is due diligence or a fair and 
demonstrably transparent selection process. In the notings on 
official files, as observed above, a wholly haphazard and un-
structured culture of contacts, recommendations or sifarish 
appears to have pervaded the corridors of Government in the 
matter of appointment of Commissioners. In this respect some 
names as noted above, were floated by random individuals such 
as the Secretary Finance and the Governor Punjab based on no 
apparent process and based on no apparent reason. When this 
glaring omission   was   pointed   out   to   learned   counsel 
representing the Federation  and   it   was   mentioned   that 
individuals,  political or otherwise, even when well intentioned, 
could not be treated as arbiters of integrity, expertise, experience 
and eminence of recommendees, learned counsel was unable to 
give 
any 
satisfactory 
response. 
He 
merely 
repeated 
his  submission  that  the  respondent's appointment  was  made 
 as  per past practice. 
  
30.  
It is obvious to us that such lack of process has 
irretrievably undermined the selection and appointment of the 
respondent as Chairman. This itself is a serious flaw in the 
selection and appointment process. The only documents attached 
to the summaries were self generated CVs of these persons. Once 
again there is nothing at all on the record and there was no 
submission made by learned counsel for the respondents which 
would show that any inquiry let alone due diligence was 
undertaken to ascertain the correctness or otherwise of the 
contents of the CVs. So much so, even the most cursory exercise 
to verify such contents from any source mentioned in the CVs, 
was not attempted by the Government. In the absence of such 
due diligence, we are clear that it would be impossible to 
ascertain objectively the qualifications of recommendees in the 
Summary as to integrity, expertise, experience and eminence etc. 
as required by section 5(1) of the Act. 
 
--------------------- 
  
65. 
------- We wish to add that issues of appointments to 
senior positions in public bodies, which have been highlighted in 
this petition and in other cases which have come up before us, 
have under-scored the need for a transparent, inclusive and 
 
35 
Criminal Appeal No. 264 of 2006 
demonstrably fair process for the selection of persons to be 
appointed to such senior positions. The Federal Government may 
consider 
the 
necessity 
of 
putting 
in 
place 
independent 
mechanisms and of framing open, fair and transparent processes 
so that the objectives for which public bodies are established can 
be efficiently achieved and at the same time the pernicious 
culture of arbitrariness, favouritism and nepotism is eliminated. 
A copy of this reasoning may be sent to the office of the 
competent appointing authority and the Law Ministry.” 
 
 
26. 
The case of Contempt proceedings against Chief Secretary, 
Sindh and others: In the matter of (2013 SCMR 1752) pertained to 
illegal or irregular postings, transfers and promotions, etc. in the 
Sindh Police and this Court had observed in that case as follows: 
 
“121.  By  the  impugned  legislations 'absorption' of an employee 
in ex-cadre group would deprive the seniority and progression of 
career of meritorious civil servants. A substantial number of unfit 
and unmeritorious officers and beneficiaries have been absorbed 
in the important groups, services, positions with the help of 
authorities and such legislations allow this to continue. The 
absorption, by way of impugned instruments, would practically 
cause removal of constitutional and legal differentiations that 
exist between various cadres, posts and services. Moreover, the 
culture of patronage will intensify the activity of bringing more 
politicization, inefficiency and corruption in the provincial 
services. The Civil Servants Act and Rules framed provide 
transparency in appointments, which would disappear and the 
employees who could not get in service through competitive 
process may also be obliged to look for a political mentor instead 
of relying on merits in order to protect their careers. We may also 
observe here that the absorption under the aforesaid impugned 
instruments is not only confined to non-civil servants to civil 
servants but through these impugned instruments non-civil 
servants, who were serving on non-cadre posts, have been 
transferred and absorbed to cadre posts, the pre-requisite of 
which is competitive process through Public Service Commission 
or by other mode provided in the relevant recruitment rules. Law 
of such nature which is violative of  the  recruitment rules 
will  encourage  corruption  and  bad governance and the public 
at large will loose confidence in the officials who are being 
absorbed under the garb of the aforesaid impugned instruments. 
 
---------------------  
 
123. 
Though the Court interpreted the provisions of Federal 
Civil Servants Act of 1973 in the aforesaid judgment but the law 
and the rules prescribed therein are identical to the language of 
the Act of 1973 with minor exceptions. We therefore, can safely 
hold that the impugned instruments empowering validation to the 
absorbees and appointment by transfer (absorption) of non-civil 
servant to a cadre post in Sindh Government are contrary to the 
parameters guaranteed by the Constitution under Articles 240 
and 242 and absorptions in such manner to extend favours to 
unmeritorious employees by the Sindh Government. Such 
absorption has led to the burnt of increasing lawlessness and 
violence on one hand and on the other hand meritorious officers 
despite discharging their duties with utmost dedication and 
 
36 
Criminal Appeal No. 264 of 2006 
professional excellence are affected with a griping sense of 
insecurity in respect of their future prospects in careers. 
  
124.   We have also noticed the absorption of employees from 
different departments/organizations in the Sindh Police through 
the impugned legislation and the material placed before us 
reflects that almost all of them have been absorbed for political 
considerations. The senior police officers in the rank of D.I.G, 
SSP, SP, DSP etc., without undergoing the mandatory police 
training, are posted in field particularly in Karachi, which has 
resulted in deteriorating law and order situation in Sindh 
specially in Karachi owing to their lack of competence. This Court 
in the case of Watan Party and another v. Federation of Pakistan 
and others (PLD 2011 SC 997) popularly known as "Karachi Law 
and Order case", has noticed this situation and observed as 
under:-- 
  
"31. 
It seems that the police primarily being 
responsible to enforce law and order has no 
intention to deliver. Either they are scared or they 
are dishonest or absolutely lack the requisite 
skills. -------. Another reason appears to be that 
police 
force 
has 
been 
highly 
politicized, 
recruitments 
have 
been 
made 
in 
political 
consideration. It came to light during hearing of 
the case that in police force many police officers 
have been recruited on political considerations who 
have managed to occupy such posts for extraneous 
considerations and senior officers in the rank of 
SSP, SP and DSP etc. have been inducted into the 
force 
from 
other 
organizations 
without 
following  any  rules  and  even  they  have  not  un
dergone training for the purpose of policing. 
 
---------------------  
 
137. 
The concept of power under our Constitution is distinct 
from other constitutions of common law countries. Under the 
Constitution of Pakistan, the sovereignty vests in Allah and it is to 
be exercised by "the people within the limits prescribed by Him", 
as a sacred trust. The Authorities in Pakistan while exercising 
powers must keep in mind that it is not their prerogative but a 
trust reposed in them by the Almighty Allah and the Constitution. 
The impugned legislation is promulgated to benefit patent class of 
persons specific and violative of Article 25 of the Constitution as 
it is not based on intelligible differentia not relatable to the lawful 
object. The impugned legislation on deputation is violative of the 
service structure guaranteed under Articles 240 and 242 of the 
Constitution which provides mechanism for appointments of Civil 
Servants and their terms and conditions as envisaged under Act 
of 1973 and the Rules of 1974 framed thereunder. The object of 
the Act of 1973 is to maintain transparency in appointments, 
postings and transfers of Civil Servants, whereas deputationists 
who otherwise are transferred and appointed by the Sindh 
Government under the impugned instruments have destroyed the 
service structure in Sindh and has blocked the promotions of the 
meritorious civil servants in violation of the fundamental rights 
guaranteed to them under Articles 4, 8, 9, 25, 240 and 242 of the 
Constitution, as discussed hereinabove and are liable to be struck 
down. 
 
---------------------  
 
 
37 
Criminal Appeal No. 264 of 2006 
154.  Indeed out of turn promotion has become a vehicle of 
accelerated progression for a large number of favourite officers 
using various measures and means. A large number of favourite 
police officers were conferred out of turn promotions under 
section 9A of the Act of 1973. This Court repeatedly disapproved 
the culture of patronage creeping in the Sindh police by abuse of 
authority which has gravely eroded efficiency, morale and image 
of the police officers. In the recent order of this Court in the case 
of Suo Motu No.16 of 2011, this Court has observed as under:-- 
  
"It is also a hard fact that the police has been 
politicized by out of turn promotions and inductions 
from other departments time and again, through 
lateral entries which has brought unrest amongst 
the deserving police officers waiting their promotions 
on merits. The posting and transfers of the police 
officers also lack merits. The complete service record 
of a police personnel which could reflect posting and 
transfer is not maintained by the relevant wing. 
Even many police officers posted within the Karachi 
on 
senior 
positions 
lack 
qualifications 
and 
competence both......If this is the state of affairs, 
how can there be peace in Karachi. It seems instead 
of depoliticizing police force further damage has 
been caused by the government by introducing their 
blue eyed persons in police force through lateral 
entries and 
then granting them retrospective 
seniority and out of turn promotions." 
  
27. 
Illegal 
appointments 
and 
massive 
corruption 
in 
the 
Employees Old-Age Benefits Institution were at issue in the case of 
Syed Mubashir Raza Jaffri and others v. Employees Old-Age Benefit 
Institutions (EOBI) through President of Board, Board of Trustees 
and others (2014 SCMR 949) and this Court had observed in that 
case as under:  
 
“22.  
In the 1st case of Muhammad Yasin (supra) the 
appointment of Chairman Oil and Gas Regulatory Authority 
(OGRA) was declared illegal. In the 2nd case of Muhammad 
Ashraf Tiwana (supra) the appointment of the Chairman 
Securities and Exchange Commission of Pakistan (SECP) was 
held to be in contravention to statutory requirements. Both these 
cases reiterated the principle that appointments made in a 
statutory body or Corporation under the control of Provincial or 
Federal Government in an arbitrary and capricious manner 
cannot be allowed to hold the field. In the 3rd case of Tariq Aziz-
ud-Din (supra) this Court underscored the integral link between 
good governance and a strong and honest bureaucracy. It was 
stated that this could only come about if appointments made 
were based on a clear merit criterion, in accordance with the 
relevant laws and rules as opposed to favouritism and nepotism. 
In the 4th case of Syed Mahmood Akthar Naqvi (supra) the 
Supreme Court, examining the issue of political pressure placed 
on the civil service by the executive, held that the matter was one 
of public importance as such undue influence by political powers 
infringed the fundamental rights under Articles 9, 14, 18 and 25 
of the Constitution. In the 5th case, which is a more recent 
judgment of this Court, relating to contempt proceedings against 
 
38 
Criminal Appeal No. 264 of 2006 
the Chief Secretary Sindh and others (2013 SCMR 1752), 
wherein, inter alia, vires of certain legislative instruments 
introduced by the Sindh Government regarding regularization 
and absorption of civil servants (particularly, in the police 
department) was under scrutiny/challenge, the Court examined 
all the relevant aspects of the case in detail and expressed its 
views 
about 
the 
maintainability of 
petitions, 
absorption, 
deputation, out of turn promotions and re-employment in 
Government service qua their subsequent validation through 
some legislative instruments; principle of locus poenitentiae and 
effect of such legislation attempting to nullify the effect of the 
judgments of the Superior Courts. In this regard, while striking 
down these pieces of legislation, being contrary to the spirit of 
Articles 240 and 242 of the Constitution and various provisions of 
Sindh Civil Servants Act 1973, it laid down several guiding 
principles. The principle of law propounded in this judgment, 
with reference to many other earlier judgments of the apex Court, 
lend full support to the case of the present petitioners, as regards 
illegal appointments, contract appointments, absorptions and 
their regularization etc., particularly, when these acts are 
motivated to frustrate and nullify some earlier judgments/orders 
of the Superior Court in a dishonest, colourful and mala fide 
manner, as discussed in the earlier part of this judgment and 
hereinafter. All the cases discussed above reveal that the 
jurisdiction of this Court has been clear and consistent with 
regard to the manner in which appointments to public offices are 
to be made strictly in accordance with applicable rules and 
regulations, without any discrimination and in a transparent 
manner. Thus, it is essential that all appointments to public 
institutions must be based on a process that is palpably and 
tangibly fair and within the parameters of its applicable rules, 
regulations and bye-laws. But conversely, it is a sad fact of our 
bureaucracy that it can be so susceptible to the whims and 
wishes of the ruling elite class etc, which results in an obvious 
weakening of state institutions such as the EOBI, whereby the 
general public, whose interest such establishments have been 
charged with protecting, are adversely and heavily affected in 
different ways. 
  
24.   
Having discussed as above, another important aspect of 
the case, which needs serious consideration is about the fate of 
the illegal appointees, which is subject matter of consideration in 
the present proceedings. If we look at this aspect of the case from 
the angle of those who have succeeded to get appointments in the 
manner, as discussed above, some of them may claim that since 
they met the requisite qualifications for the posts and were thus 
appointed, they cannot be made to suffer due to illegalities 
committed by the management of EOBI. However, when we place 
their cases for appointment in juxtaposition to the other 
applicants, who had applied for these vacancies and are 23648 in 
number, we find that these candidates having equal right of 
opportunity as citizens of this country, in terms of Article 25 of 
the Constitution were thrown out of the competition despite the 
fact that they also met the requisite qualifications and might have 
been more meritorious, but could not exert either political 
pressure or avail the fruits of nepotism and corruption, forming 
basis for the selection and appointment of other candidates, 
many of whom had not even applied for the job in terms of the 
advertisement for these vacancies made in the month of April, 
2009, and in this manner they succeeded in getting entry from 
the backdoor at the cost of many other bona fide candidates, 
whose applications were literally thrown in the dust bin in an un-
ceremonial manner just for the sake of accommodating the blue 
eyed ones. All these factors, are over and above the violation of 
 
39 
Criminal Appeal No. 264 of 2006 
rules, regulation and other codal formalities meant for these 
appointments, inter alia, highlighted by the fact finding 
committee on recruitment/appointment in its report, which is a 
serious subject for the reason that it is based on examination of 
the entire original record of such proceedings of appointments, 
right from the date of publication of advertisement regarding 
these vacancies, and till date none has come forward to question 
the impartiality of the committee or the authenticity and 
correctness of such report. In these circumstances, in our 
opinion, if the appointment of any single appointee during this 
process is protected on one or the other pretext or for any other 
consideration it will amount to protecting their ill-gotten gains, 
acquired through unlawful means, and to perpetuate corruption 
and 
discrimination 
under 
the 
disguise 
of 
sympathetic 
consideration for such appointees for the sake of their economic 
well being.” 
     
28. 
Under the Federal and Provincial Rules of Business a 
Federal Minister, a Provincial Minister or a member of the 
Parliament or of a Provincial Assembly has no direct role 
whatsoever in the matters of appointment, posting, transfer or 
promotion, etc. of a person in the concerned ministry, division or 
department. Under the said Rules of Business a Federal Minister, a 
Provincial Minister or a member of the Parliament or of a Provincial 
Assembly has no role even in the exercise of executive authority of 
the relevant ministry, division or department vesting in some 
officer of such ministry, division or department. Interference of a 
Minister or a member of the legislature in such matters has 
repeatedly been declared by different courts of the country, 
including this Court, to be without lawful authority and of no legal 
effect. In the case of Administrator, Punjab Dairy and Poultry 
Development Board and 3 others v. A. G. Afzal (1988 SCMR 1249) 
this Court had observed that the legality of an order passed by a 
Provincial Minister reinstating an employee during the pendency of 
his departmental appeal before the competent authority against 
termination of his service was questionable. Later on in the case of 
Ahmad Khan v. Member (Consolidation), Board of Revenue, Punjab, 
Lahore and others (PLD 1990 SC 1070) a Provincial Minister for 
Consolidation had passed an order for a fresh consolidation of land 
which order had been set aside by the Lahore High Court, Lahore 
and later on in the said matter this Court had held as follows: 
 
 
40 
Criminal Appeal No. 264 of 2006 
“The learned Judge in the High Court made the following 
observations with regard to the validity of the orders/directions 
issued by the Minister:-- 
 
“Under the law Minister for Consolidation has no 
jurisdiction or authority to pass any order in 
respect of consolidation scheme already confirmed 
under the law against which all objections and 
judicial proceedings in the nature of appeals and 
revisions 
had 
already 
been 
exhausted 
and 
disposed of. The impugned order of Minister for 
Consolidation 
was, 
therefore, 
wholly 
without 
jurisdiction and void ab initio. Law is firmly settled 
that if the basic order is without lawful authority, 
whole 
series 
of 
such 
orders 
together 
with 
superstructure of rights and obligations built upon 
them fall to the ground. ------- ” 
 
 
In addition to the aforesaid reasons in the impugned 
judgment of the High Court we are also of the view that another 
argument advanced before the High Court from the respondents’ 
side, was also valid; namely, that “Minister for Consolidation had 
no authority to interfere with the confirmed consolidation scheme 
as under the West Pakistan Consolidation of Holdings Ordinance, 
1960, the authorities who could act were the Collector, 
Commissioner 
and 
Board 
of 
Revenue.” 
The 
statutory 
functionaries alone could have interfered with the orders 
challenged before them. The Minister not being such a 
functionary had no jurisdiction to deal with the matter in any 
manner whatsoever. His action thus for this additional ground 
was also void ab initio and could not at all be acted upon. 
 
 
Learned counsel for the petitioner faced with the 
aforestated formidable position, argued that in addition to the 
order passed by the Minister in this case the Boar of Revenue had 
also passed independent order; therefore, the said order would 
cure the defects pointed out above. We do not agree with him. The 
order of the Minister as already been explained, was coram non 
judice. It could not at all be cured by any functionary even if he 
was acting under the law in purported exercise of his own 
jurisdiction. Because obviously this exercise also got tainted by 
the original orders passed by the Minister. 
 
In this case there is an additional feature; namely, that 
the learned Member, Board of Revenue did not act according to 
his own independent judgment and this is further shown in the 
order of the Member of the Board of Revenue relied upon by the 
learned counsel. It is clearly stated therein that “under the orders 
of 
the 
Minister 
of 
Consolidation 
Punjab, 
the 
Member 
(Consolidation) Board of Revenue Punjab has been pleased to 
allow re-consolidation in village Kotli Bhagu, Tehsil Daska, 
District Sialkot”. The aforegoing supposition is strengthened by 
further direction issued by the Board of Revenue namely, that the 
District Authorities were required “to comply with the above 
orders and submit a report for information of the Minister for 
Consolidation, Punjab”. This order was passed in 1987. As shown 
above, not only this but subsequent orders passed in this case for 
implementation of the Orders of the Board of Revenue, whether 
by saying so or otherwise, would all be treated as void and 
nullity.”  
 
 
41 
Criminal Appeal No. 264 of 2006 
29. 
Those cases were followed by the case of Mrs. Aqeela Asghar 
Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 
SC 1118) wherein some adverse remarks recorded against a civil 
servant had been expunged by the competent authority after a 
successful approach had been made by the concerned civil servant 
in that regard to the Chief Minister of the Province. This Court had 
deprecated the said approach through the following observations: 
 
“In the first place what is to be noted is that application on which 
the remarks were expunged was addressed by the appellant/civil 
servant to the Chief Minister. The Chief Minister does not appear 
to be a departmental authority for the purposes of entertaining an 
appeal or representation against the refusal to expunge a remark 
or to deal with the delays in disposal of such representation. It 
was a political appeal made by the civil servant. We find that all 
the contesting civil servants in this case had been recklessly 
approaching the Chief Minister for the redress of their grievances. 
This is to be deprecated. It erodes the discipline in service. It 
makes the examination of the merits of the case influenced, 
partial 
and 
tainted. 
With 
such 
a 
political 
appeal 
the 
appellant/civil servant in the background, it was incumbent upon 
the Government of the Punjab to show that the decision of the 
competent authority was not abridged, tainted or influenced by 
such outside command.”  
 
30. 
Then came the case of Munawar Khan v. Niaz Muhammad 
and 7 others (1993 SCMR 1287) wherein this Court had declared 
the legal position in the above mentioned regard in the following 
terms:  
  
“Leave to appeal was granted under Article 212(3) of the 
Constitution in these appeals to examine, inter alia, the following 
questions of law of public importance arising therein:-- 
  
"(a) Whether, Hon'ble Members of the Legislative Assemblies or 
Ministers act within the powers and jurisdiction to get 
appointments made to Government offices and posts? 
  
(b) Whether, they cannot ‘interfere’ with the rights of civil 
servants? 
  
(c) Whether, they are bound by the procedure prescribed for the 
appointment of Government servants?          
  
(d) Whether, in the context of the present case the public 
representatives can be deemed to have violated the ‘Law of the 
land’, through the act/omission of a Government functionary? 
  
(e) Was the Tribunal correct in expressing the view that the public 
representatives are required to perform functions other than what 
they have done in this case? 
  
 
42 
Criminal Appeal No. 264 of 2006 
(f) Whether, their conduct in the present case is an example of 
unnecessary interference in the affairs of the Government 
functionaries? 
  
---------------------  
  
8.  
As regards the allocation of quota of posts to the local 
M.P.As. or M.N.As. for recruitment to the posts, we find it 
offensive to the Constitution and the law on the subject. The 
Ministers, the Members of National and Provincial Assemblies, all 
are under an oath to discharge their duties in accordance with 
the Constitution and the law. The service laws designate, in the 
case of all appointments, a departmental authority competent to 
make such appointments. His judgment and discretion is to be 
exercised honestly and objectively in the public interest and 
cannot be influenced or subordinated to the judgment of anyone 
else including his superior. In the circumstances, allocation of 
such quotas to the Ministers/MNAs/MPAs and appointments 
made thereunder are all illegal ab initio and have to be held so by 
all Courts, Tribunals and authorities.” 
  
  
31. 
The later case of Pir Mazharul Haq and others v. The State 
through Chief Ehtesab Commissioner, Islamabad (PLD 2005 SC 63) 
was a case of according of approval by a Provincial Minister to 
regularization of a plot. This Court had declared in clear terms 
that  
 
“27. 
It must be noted that a Minister has no legal right 
whatsoever to make allotment of any plot at his own whims and 
wishes and the question of any deviation from the prescribed 
policy does not arise. No Minister has any right to oblige the 
persons of his own choice at the cost of public exchequer to earn 
popularity and to increase his vote bank.” 
 
32. 
Illegal interference of Ministers and legislators, etc. in the 
exercise of executive authority of the competent authorities in the 
civil service has also been commented upon and set aside by 
different High Courts and Tribunals, etc. in many cases and some 
of such cases are detailed below with a summery of what was held 
therein: 
 
 
Mahmood Bakhsh, etc. v. Secretary Irrigation, Government of 
Punjab, Lahore, etc. (1985 Law Notes (Lahore) 1143): 
  
A Provincial Minister has no jurisdiction to direct the competent 
authorities under the Canal and Drainage Act to include a 
particular area in the Canal Commanded Area. 
 
 
43 
Criminal Appeal No. 264 of 2006 
Muhammad Rashid v. Azad Jammu & Kashmir Government through 
Chief Secretary and 20 others (PLJ 1987 SC (AJK) 57): 
  
A Minister’s order regarding grant of lease was void ab initio. 
 
Ch. Muhammad Zaman, etc. v. Azad Government of the State of J & 
K, etc. (NLR 1987 Service 111): 
  
Imposition of a penalty by an Advisor to the President was 
without jurisdiction. 
 
Masti Khan v. The State (KLR 1987 Criminal Cases 131): 
  
An order passed by a Chief Minister of a Province transferring 
investigation of a criminal case was without lawful authority. 
 
Muhammad Zaman and 8 others v. The Minister for Consolidation 
and 3 others (PLD 1988 Lahore 416): 
 
A Provincial Minister for Consolidation has no jurisdiction to 
interfere in a consolidation scheme or to order reconsolidation. 
 
Abdul Rauf v. Director, Local Government and Rural Development, 
Sargodha and another (PLJ 1989 Lahore 288): 
  
Transfer of an employee at the instance of a Provincial Minister 
was without jurisdiction. 
 
Ashnaghar v. Secretary Education, Government of NWFP, Peshawar, 
etc. (NLR 1990 TD 245): 
  
Dismissal order passed at the direction of an MPA was set aside 
as without jurisdiction. 
 
Muhammad Ayub and 6 others v. Minister for Education, Punjab 
Province, Lahore and 2 others (1990 PLC (C.S.) 278): 
 
Termination of service upon a verbal direction of a Provincial 
Minister was set aside as without lawful authority. 
 
 
44 
Criminal Appeal No. 264 of 2006 
Shagufta Bibi v. Deputy Education Officer (Women). Tehsil and 
District Sahiwal (1990 PLC (C.S.) 345): 
  
An order of transfer of an employee passed in compliance of an 
order of a Provincial Minister was set aside as without lawful 
authority. 
 
Muhammad Afzal v. District Education Officer (Female), Rahimyar 
Khan and 2 others (PLJ 1990 Lahore 206): 
 
An order of termination from service passed in compliance of a 
direction of a Provincial Minister was set aside as without lawful 
authority. 
 
Muhammad Asif v. Secretary Government of Punjab, etc. (KLR 1990 
Labour and Service Cases 319): 
 
In the matter of transfer of an employee a Provincial Minister does 
not figure anywhere in the rules and administrative instructions.  
 
33. 
In the case of Abdul Malik and others v. Government of 
Balochistan through Secretary, Home and Tribal Affairs Department 
and others (2013 PLC (C.S.) 736) a learned Division Bench of the 
High Court of Balochistan, Quetta had reiterated the legal position 
in this respect in very clear terms besides declaring that exerting 
political influence in such matters is unconstitutional and illegal 
and warning the pliant, yielding and compliant civil servants 
against surrendering their jurisdiction and executive authority 
before the whims and wishes of the political rulers. The matter 
before the High Court pertained to some appointments made in the 
Balochistan Levies Force upon a Minister’s directive in relaxation 
of rules and on ad hoc basis. The relevant portions of the judgment 
handed down by the Court in that case are reproduced below:  
  
“5.  
We have heard the learned counsel and gone through the 
documents on record. The second Summary dated June 8, 2012 
states that all four gentlemen mentioned therein were appointed 
on ad hoc basis and in relaxation of rules, "on the directives of 
Hon'ble Chief Minister Balochistan and Hon'ble Minister for Home". 
There is no power vesting in either the Home Minister or the Chief 
Minister to issue a directive for the appointment of Risaldar 
Majors and the Home Secretary was correct in stating (in the 
second Summary) that the said ad hoc appointments 'cannot be 
justified'. Unfortunately, the very same Home Secretary, namely 
 
45 
Criminal Appeal No. 264 of 2006 
Mr. Naseebullah Khan Bazai, had earlier, himself, moved a 
summary recommending the appointments to be made on ad hoc 
basis and in relaxation of rules, probably to please his Minister. 
He only came to remember the law and the rules when we 
directed for the production of the record and sought the reason/s 
for the 'relaxation of rules'. His earlier subservient attitude can be 
gauged from the fact that the Home Minister wanted Mir Maqbool 
Ahmed to be appointed as Risaldar Major vide his letter dated 
January 12, 2012 and on the very same day the Home Secretary 
moved the Summary recommending his appointment. The 
indecent haste with which the Home Secretary acted is a sad 
reflection on his conduct. Sadly, the then Chief Secretary also did 
not record his objection on the Summary, nor that it was in 
contravention of the Rules. 
  
6.    
It is the duty of the bureaucracy to point out if any law, 
rule or regulation is being violated and not to move a summary 
which is in clear contravention thereof. The method of 
appointment of civil servants is attended to by the Act and the 
Rules. Section 5 of the Act provides: 
  
"5.        Appointments.--- 
Appointments 
to 
the 
Balochistan Service or to a  civil  service  of  the 
Province  of  Balochistan  or  to  a  civil 
post 
in 
connection with the affairs of the Province of 
Balochistan shall be made in the prescribed manner 
by the Government of Balochistan or by a person 
authorized by it in that behalf. " 
  
The word ‘prescribed’ is defined in section 2(f), as under:--- 
  
            "prescribed" means prescribed by rules. 
  
The Legislature of Balochistan has enabled the Government of 
Balochistan to enact rules pursuant to subsection (1) of section 
25, which is reproduced hereunder:--- 
  
"25.  
Rules.--- (1) The Government or any person 
authorized by it in this behalf may make such rules 
as appear to him to be necessary or expedient for 
carrying out the purposes of the Act." 
  
In exercise of the powers vesting in the Government under the 
above cited provision the Government has made the Rules. The 
Balochistan Legislature has not granted the Government any 
power to ‘relax’ any rule. There is also no provision in the Rules 
enabling the Government to do anything in purported ‘relaxation 
of rules’. In view of this clear legal position it is not 
understandable how two senior bureaucrats, one heading a 
department and the other heading the bureaucracy in the 
province, acted in purported ‘relaxation of rules’ and wrongly 
advised the Chief Minister to do so too. 
  
7.    
In the case of Abdur Rasheed (supra) a chowkidar was 
appointed on the recommendation of a Member of a Provincial 
Assembly and the Hon'ble Supreme Court held that, "The 
appointment made on the recommendation of M.P.A. was held to be 
void, ab initio and illegal." In the case of Abdul Jabbar Memon 
(supra) a different bench, presided over by the Chief Justice of 
Pakistan held as under:--- 
  
"While inquiring into various complaints of violation 
of Fundamental/Human Rights, it has been found 
that 
the 
Federal 
Government, 
Provincial 
 
46 
Criminal Appeal No. 264 of 2006 
Governments, Statutory Bodies and the Public 
Authorities have been making initial recruitments, 
both ad hoc and regular, to posts and offices 
without publicly and properly advertising the 
vacancies and at times by converting ad hoc 
appointments 
into 
regular 
appointments. 
This 
practice is prima facie violative of Fundamental 
Right (Article 18 of the Constitution) guaranteeing to 
every citizen freedom of profession." 
  
The following year a bench of five learned judges of the Supreme 
Court, in the case of Mushtaq Ahmed Mohal v. Hon'ble Lahore 
High Court, 1997 SCMR 1043, held, as under:--- 
  
"17.      We reiterate that the appointments to 
various posts by the Federal Government, Provincial 
Governments, Statutory Bodies and other Public 
Authorities, either initial or ad hoc or regular, 
without inviting applications from the public through 
the press, is violative of Article 18 read with Article 
2A of the Constitution, which has incorporated the 
Preamble to the Constitution as part of the same 
and which inter alia enjoins equality of opportunity 
and guarantees for creation of an egalitarian society 
through a new order, which objective cannot be 
achieved unless every citizen equally placed or 
situated is treated alike and is provided equal 
opportunity to compete inter alia for the posts in 
aforesaid government set-ups/institutions." 
  
In Muhammad Tufail Khan's case (supra) the Hon'ble Supreme 
Court reiterated and reproduced the above paragraph, and 
concluded in the following terms:--- 
  
"7.    
However, in spite of all these directions, this 
salutary principle is being frustrated with impunity. 
This malady which has plagued the whole society 
shall be arrested with iron hands and the principle 
of merits shall be safeguarded, otherwise, it would 
be too late to be corrected. In the case in hand 
admittedly the appointment was made clearly in 
violation of the codal formalities simply on the 
dictation of a political figure." 
  
8.   
The appointment to the post of Risaldar Major in the 
Balochistan Levies Force is a sensitive appointment. The Levies 
Force has been established, 'for maintenance of law and order' 
and designated as an 'essential service'. The Levies officers in 
their area of jurisdiction have been given the same powers as 
police officers under the Code of Criminal Procedure. If persons 
are appointed as levies officers on the personal whims of a 
Minister or on the basis of sifarish the fundamental rights of 
those aspiring to such posts are transgressed, including their 
right to aspire to such posts (Article 18), to be considered equal 
before the law (sub-article (1) of Article 25) and the guarantee that 
they will not be discriminated against (sub-article (2) of Article 
25). 
  
9.    
The facts that have come on record in these two petitions 
disclose that a number of violations were committed in making 
the said appointments. Firstly, the Rules were relaxed, secondly, 
the appointments were made on ad hoc basis, thirdly, they were 
made without placing advertisements by inviting all interested 
persons and, fourthly, no test was conducted. The appointments 
 
47 
Criminal Appeal No. 264 of 2006 
contravened the provisions of the Constitution of this country, the 
Balochistan Civil Servants Act, 1974, the Balochistan Civil 
Servants (Appointment, Promotion and Transfer) Rules, 2009 and 
a number of judgments of the Hon'ble Supreme Court (inter alia 
as mentioned above). 
  
10.   
We have noted that far too often rules are purportedly 
relaxed, which to state the obvious defeats the very purpose of 
enacting rules in the first place. Rules can only be relaxed if the 
rules permit their relaxation, and the conditions stipulated for 
relaxation are strictly met. However, the applicable Rules did not 
permit that the Rules could be relaxed. 
  
11.   
The Minister concerned also ought to have abided by the 
oath that he took at the time he became a Minister, when he 
solemnly swore that he would not allow his personal interest to 
influence his official conduct or official decisions, that he would 
preserve, protect and defend the Constitution of Pakistan and 
that he would do right to all manner of people according to the 
law, without fear or favour, affection or ill-will. The protection 
accorded under Article 248 of the Constitution, amongst others to 
ministers, only extends to acts done or purported to be done in 
the exercise of powers and performance of their office. Therefore, 
if a minister seeks the appointment of a particular individual he 
would not be able to take shelter behind Article 248. In addition if 
a minister seeks the appointment of a particular individual he 
would also be contravening his oath of office. However, as we had 
not issued notice to the Minister concerned we are not proceeding 
further in this regard. 
  
12.  
There, 
however, 
is 
no 
excuse 
for 
the 
conduct 
demonstrated by senior bureaucrats in recommending that illegal 
appointments be made. They ought not to have moved summaries 
in blatant disregard of the Constitution, the Act, the Rules and 
the precedents of this court and Hon'ble Supreme Court. If at all 
the Summary was moved, on the insistence of the Minister, it 
should have been clearly mentioned that it was done so on the 
Minister's behest, but that was in contravention of the 
Constitutional of Pakistan, the Act, the Rules, and the precedents 
of the Hon'ble Supreme Court. Unfortunately, senior bureaucrats 
permitted themselves either to be coerced or bullied by the 
Minister or else did so to ingratiate themselves with him. 
Bureaucrats need to be reminded that they are servants of the 
State and not of ministers. They, like everyone else, are bound to 
abide by the Constitution of Pakistan, the law, rules and 
judgments of the Hon'ble Supreme Court, and in failing to do so 
they betray the civil service, and thus the people. The 
bureaucracy's abject subservience to ministers is destroying the 
confidence of the people in it. In accommodating the illegitimate 
and illegal demands of ministers and acting as their handmaidens 
the bureaucracy reduces its own prestige and betrays the interest 
of the people, and at times with disastrous consequences. 
  
13.  
In the districts of Kohlu, Sherani and Khuzdar the law and 
order situation is far from satisfactory, therefore, extra caution 
should have been exercised in making the appointments to the 
posts of senior Levies officers.  If  persons  come  to  occupy 
these   posts   on   the   basis  of sifarish  of   a   minister  their 
loyalty would  not  be  to  the  State,  but to their benefactors, 
who may call upon them not to proceed against certain 
criminals  and/or   involve   their   opponents  in   false  criminal 
cases.  The consequences then of one illegal appointment are 
manifold. And if the person recommended is also not qualified or 
competent, or both, as often the case has been when resort has 
 
48 
Criminal Appeal No. 264 of 2006 
been made to favoritism, then, even in cases wherein his political 
benefactor has no interest he may not be able to conduct himself 
properly, including apprehending criminals and/or properly 
prosecuting them. Resultantly, the people pay the price. 
  
14.  
The Constitution of Pakistan contains the Fundamental 
Rights and it was enacted unanimously in the year 1973, and 
reflects the will of the entire nation, but is rendered meaningless 
if, for instance, bureaucrats become tools in the hands of 
ministers and permit the violation of the Fundamental Rights. 
Laws, made by the Provincial Legislature, too are mocked if they 
are observed in the breach. And rules, formulated by the 
government, commanding the confidence of the majority in the 
assembly, are derided if bureaucrats or individual ministers flout 
the same. If a bureaucrat pampers a minister and knowingly 
flouts the Constitution laws or rules he does so either because he 
is corrupt or lacks strength of character. He may also apprehend 
that in case he does not abide by the dictates of a minister he 
may be moved to an unwelcome post or made an 'officer on 
special duty' i.e. an officer without a post; however, such an 
apprehension or fear is no defence or justification and on this 
altar of fear or apprehension the Constitution, laws and rules 
must not be sacrificed. Bureaucrats must not, and cannot be 
permitted to, breach the Constitution, the law and/or the 
applicable rules. And, when this is done the State is eroded. 
Another consequence of appeasing a minister's illegal demand 
renders him into supra-Constitutional being, and is destructive of 
good governance. Bureaucrats are under a bounden duty to say 
'no' when the provisions of the Constitution, any law or rule are 
sought to be violated; and, if they do not then they must suffer 
the consequences.” 
 
34. 
For what has been discussed above it is quite clear to us 
that in the matter of getting 145 persons appointed to various jobs 
in the Oil & Gas Development Corporation the respondent had 
ignored the mandate of Articles 18 and 25 of the Constitution, he 
had defied the law declared in the above mentioned judgments 
rendered by this Court and by some other Courts and Tribunals, 
he had utilized his authority under the relevant law for extraneous 
considerations and purposes, he had used his position and power 
against the interests of the relevant Corporation of which he was 
incharge and he had done all that to dish out undue favours to 
others by imposing his will upon a hesitant or unwilling competent 
authority. We have, thus, felt convinced that the charge under 
section 9(a)(vi) of the National Accountability Ordinance, 1999 
stood fully established against the respondent. This appeal is, 
therefore, allowed, the impugned judgment passed by the Lahore 
High Court, Lahore on 13.06.2002 is set aside, the judgment 
passed by the Accountability Court, Lahore on 30.11.2000 and the 
 
49 
Criminal Appeal No. 264 of 2006 
conviction and sentence of the respondent recorded through that 
judgment are restored with the modification that the sentence of 
fine passed against the respondent is remitted as the criminal case 
in hand is about two decades old, the respondent has already 
undergone his entire sentence of imprisonment and the period of 
his 
disqualifications 
under 
section 
15 
of 
the 
National 
Accountability Ordinance, 1999 has also expired by now. We feel 
that insisting upon payment of fine by the respondent or sending 
him behind the bars for non-payment of fine at such a late stage 
would amount to, in the words of Shakespeare, insisting upon a 
pound of flesh. This appeal is disposed of in these terms. 
 
35. 
The office of this Court is directed to send a copy of this 
judgment to the Chairman, National Accountability Bureau who is 
directed to bring this judgment to the notice of all the Federal and 
Provincial Ministers and the Secretaries of all the Federal and 
Provincial ministries, divisions and departments in the country 
who may stand warned that through this judgment and the 
previous judgments of this Court and of the other Courts and 
Tribunals mentioned in this judgment the legal position on the 
subject stands sufficiently explained and clarified and if they or 
their subordinates, in terms of the provisions of section 9(a)(vi) of 
the National Accountability Ordinance, 1999, misuse their 
authority so as to gain any benefit or favour for themselves or any 
other person, or render or attempt to render or willfully fail to 
exercise their authority to prevent the grant or rendition of any 
undue benefit or favour which they could have prevented by 
exercising their authority then, unless the contrary is established 
in clear terms, criminal intent on their part, for the purposes of the 
provisions of section 14(d) of the National Accountability 
Ordinance, 1999, shall from now onwards be more readily inferred 
than was done by the courts in the past. It must be realized and 
appreciated by all concerned that Ministers and legislators exerting 
pressure upon civil servants for political favours in the public 
sector and a bureaucracy ready to oblige them form a deadly 
alliance and their unholy collaboration works as a recipe for 
 
50 
Criminal Appeal No. 264 of 2006 
destruction of merit, weakening of the State structure and 
promotion of injustice in the society. It is but obvious that a society 
which allows merit to be sacrificed at the altar of political 
patronage, which does nothing to prevent weakening of the State 
structure and which closes its eyes to injustice is doomed to self-
destruct. 
It 
is, 
therefore, 
about 
time 
that 
the 
National 
Accountability Bureau and the courts of the country come down 
heavily upon such predators of a strong, just and decent society.  
 
 
 
(Asif Saeed Khan Khosa) 
Judge 
 
I agree with my learned brother Asif Saeed Khan Khosa, J. 
 
 
(Iqbal Hameedur Rahman) 
Judge 
 
Most humbly this appeal merits dismissal for reasons given in the 
appended note. 
 
 
(Umar Ata Bandial) 
Judge 
 
 
Announced in open Court at Islamabad on 20.01.2016 
 
 
 
 
(Asif Saeed Khan Khosa) 
Judge 
Islamabad 
20.01.2016 
 
Approved for reporting. 
 
51 
Criminal Appeal No. 264 of 2006 
 
 
Umar Ata Bandial, J. – I have had the honour of reading the 
majority opinion rendered by my learned brother Asif Saeed Khan Khosa, J. I 
respectfully agree with the directions issued therein in the matter of commission 
of offence of misuse of authority under the National Accountability Bureau 
Ordinance, 1999 (“NAB Ordinance”). However, on appreciation of the evidence 
available on record and the law applicable to the facts of the present case under 
the provisions of Article 12 of the Constitution of Islamic Republic of Pakistan, 
1973 (“the Constitution”), I consider it lawful and fair to dismiss the instant 
appeal.  
2. 
 
The impugned judgment dated 13.06.2002 by the learned Division 
Bench of the Lahore High Court that has acquitted the respondent after reversing 
the judgment dated 30.11.2000 of the learned Accountability Court, Lahore that 
had convicted the respondent for committing the offences under Section 3(1)(d) 
Ehtesab Ordinance, 1996 (“Ehtesab Ordinance”) read with Section 35 of the 
NAB Ordinance. Accordingly, the learned Trial Court sentenced the respondent to 
imprisonment for one year and a fine of Rs.5,000,000/- (Rupees five million) in 
default of payment whereof he was ordered to undergo further imprisonment for a 
period of one year. The respondent was granted the benefit of Section 382-B 
Cr.P.C in serving his sentence and was subjected to disqualification to contest 
election or hold public office under Section 15 of the NAB Ordinance (for a 
period of 10 years) as “warranted under Article 12 of the Constitution.” During 
the pendency of his appeal before the learned High Court the respondent was 
released on bail after having undergone 16 months of incarceration.  
3. 
 
The charge on which the respondent was convicted is available in 
Cr. Misc. Application No.415 of 2006 (“Cr.MA”). It reads as follows: 
“1. 
That you while holding public office as Federal Minister for 
Petroleum and Natural Resources, Incharge Oil and Gas Development 
Corporation, by misusing your authority, directed the Chairman Oil 
and Gas Corporation on 16.09.1996 to appoint 145 persons in Oil and 
 
52 
Criminal Appeal No. 264 of 2006 
Gas Development Corporation in flagrant violation of the Rules and 
Procedure as laid down in Service Rules of OGDC and subsequently 
approved their appointment on 16.10.1996 without lawful authority.  
 
2. 
That 27 persons amongst 145 approved by you joined service while 
the remaining could not join service due to the ban imposed by the 
Govt. in November, 1996. 
 
3. 
That you as a holder of public office misused your authority by way 
of allowing pecuniary advantage to 27 persons and attempting to 
allow pecuniary advantage to the remaining 118 persons and thus you 
committed the offence of corruption and corrupt practices as defined 
under Section 9(a) (vi) read with the schedule of Offences annexed to 
the said Ordinance and punishable under Section 10 of the NAB 
Ordinance No.XVIII of 1999 which is within the cognizance of this 
Court.” 
 
4. 
 
The respondent pleaded not guilty to the said charge and after the 
recording of prosecution evidence comprising, inter alia, seven witnesses was 
concluded, he made a statement on oath under Section 340(2) Cr.P.C. apart from 
recording his statement under Section 342 Cr.P.C. The incriminating evidence in 
the case is primarily documentary in nature comprising of the undisputed official 
record. The office noting relevant to the charged offence is Exb.PW-6/1, Exb.PW-
6/9, Exb.PA, Exb.PB, Exb.PB/1 in the record of the learned Trial Court. It is 
reproduced below in extenso for convenience of reference: 
 
 
“OFFICE OF THE MINISTER FOR PETROLEUM AND NATURAL RESOURCES  
 
 
              ___________ 
 
 
 
 
Islamabad, Sept. 15, 1996. 
 
1. 
As Minister is kindly aware that we have been under tremendous pressure 
from the Parliamentarians to cater for their essential requirements of recruitment in 
the OGDC. Since Budget Session we have been withstanding this pressure and 
telling them that their requests for recruitment will be acceded to as soon as the 
position is eased. We have since prepared a list of applicants based on the 
recommendations of the parliamentarians. Minister has already been pleased to go 
through the list and has since approved it. 
 
2. 
Before the Chairman OGDC is requested to issue appointment letters, 
Minister may like to see.  
 
 
 
 
(signatures) 
 
 
 
16/9/96 
 
 
 
(R.A. Hashmi) 
 
Principal Staff Officer 
The Minister  
 
(signatures) 
16/9/96 
PSO 
 
53 
Criminal Appeal No. 264 of 2006 
 
(signatures) 
23/9/96 
Chairman OGDC 
 
3. 
Principal Staff officer to the Federal Minister for Petroleum & Natural 
Resources has conveyed the approval of the Minister for appointment of 145 
applicants in OGDC against various posts.  
 
4. 
In this respect, it is submitted that appointments in OGDC are made against 
the advertised post after necessary test and interview. However, in the recent past, a 
number of appointments have been made on the directives of the Prime Minister’s 
Secretariat without advertising the post, as a special case. In the instant case if the 
directives of the Honourable Minister are carried out, approval will be required for 
relaxation of existing policy and the rules. In such case, the applicants will be 
appointed on the basis of qualifications and experience and will be given the same 
designation as offered to the Prime Minister’s Secretariat under Phase- I, Phase-II, 
Phase-III of appointment and the special cases.  
 
5. 
Approval may kindly be solicited from the Minister for Petroleum & 
Natural Resources for appointment of 145 in relaxation to the rules, as a special 
case.  
 
6. 
Submitted please. 
 
     (signatures) 
30/9 
 
 
 
(AIJAZ MUHAMMAD KHAN) 
 
 
 
         Chief Personal Officer 
 MANAGER (PERSONEL) 
7. 
In view of para 4/N, Para 5/N may kindly be considered.  
 
(signatures) 
30 Spt 1996 
 
 
          AM(P) 
CHAIRMAN 
 
8. 
With reference to para-1 of the note of Principal Staff Officer, the factual 
position has been briefly explained in para-4. It may be added that existing work 
force in the OGDC is considerably in excess of its requirements and a severe burden 
on its budget. However the proposal at Para-5 is submitted for consideration and 
approval.  
 
          (signatures) 
          16.10.96 
(M. MUBEEN AHSAN) 
 
 
 
 
   
        Chairman OGDC 
Minister for Petroleum & Natural Resources 
 
Approved. 
(signatures)  
 
 
 
 
 
  16/10/96 
Chairman OGDC 
 
 
 
 
 
(signatures) 
 
 
 
 
 
    16/10 
AM(Personnel) 
 
 
 
 
 
(signatures) 
 
 
 
 
 
16 Oct 1996 
 
 
 
 
 
   AM(P) 
CPO (R)” 
 
 (emphasis supplied) 
 
5. 
 
A glance at the above office noting makes it clear that the 
respondent desired the appointment of 145 persons in the Oil and Gas 
 
54 
Criminal Appeal No. 264 of 2006 
Development Corporation (“OGDC”) in order to oblige parliamentarians. These 
handpicked persons were short listed by the Personal Staff Officer (“PSO”) of the 
respondent without advertisement or the conduct any test or interview; in other 
words, without undertaking any selection process. The respondent ignored the 
Chairman, OGDC’s (PW-3) note that the existing work force in the OGDC was in 
excess of its requirement and was a severe burden on its budget. This comment 
indirectly meant that the Chairman OGDC was opposed to further recruitment in 
OGDC. Having said that, the Chairman OGDC (PW-3) in paragraph-8 of the 
office note advised the respondent to approve paragraph-5 of the office note. 
Paragraph-5 of the office note is a request by the Chief Personal Officer (PW-1) 
soliciting the approval of the respondent for appointment of 145 persons “in 
relaxation of the rules as a special case.” The respondent obliged and 
consequently relaxed unspecified rules in order to facilitate the appointment of 
145 persons in the OGDC without any selection process, ascertainment of their 
merit, allegedly against the operational requirement of the ODGC and by 
imposing additional financial burden on OGDC’s financial resources.  
6. 
 
The allegation by the learned Deputy Prosecutor General NAB is 
that relaxation of rules was granted illegally by the respondent for the extraneous 
purpose of doing political favours, which is contrary to the interim order passed 
by this Court as early as 06.03.1993 in Re: Abdul Jabbar Memon & others 
(1996 SCMR 1349) as duly affirmed in Munawar Khan vs. Niaz Muhammad 
(1993 SCMR 1287) decided on 04.04.1993 and reiterated with clarity and force in 
Mushtaq Ahmad Mohal   vs.   Honourable Lahore High Court (1997 SCMR 
1043) decided on 31.03.1997. The interim order passed in Abdul Jabbar 
Memon’s case (1996 SCMR 1349) is reproduced and relied in the two afore-
noted subsequent judgments of this Court. This interim order directs as follows:  
 
 
“While inquiring into various complaints of violation of Fundamental 
Human Rights, it has been found that the Federal Government, Provincial 
 
55 
Criminal Appeal No. 264 of 2006 
Governments, Statutory Bodies and the Public Authorities have been 
making initial recruitments, both ad hoc and regular, to posts and offices 
without publicly and properly advertising the vacancies and at times by 
converting ad hoc appointments into regular appointments. This practice is 
prima facie violative of Fundamental Right (Article 18 of the Constitution) 
guaranteeing to every citizen freedom of profession. 
Subject to notice to all concerned, and subject to final orders after full 
hearing in the matter, it is ordered as an interim measure that the violation 
of this Fundamental/ Human Right shall be discontinued forthwith.  
Steps shall immediately be taken to rectify, so as to bring the practice in 
accord with the Constitutional requirement.”  (emphasis supplied)  
7. 
 
The afore-noted interim order invokes Article 18 of the 
Constitution which guarantees the freedom of profession to every citizen, for 
directing all Governments, statutory bodies and public authorities to make initial 
recruitment, both ad-hoc and regular, to posts and offices not of handpicked 
persons, but of persons selected after ‘publicly and properly’ advertising the 
vacancies for competition; likewise before converting ad-hoc appointments into 
regular appointments. This direction has been reinforced subsequently through 
several elaborate and considered judgments of this Court that are referred in the 
majority opinion. These are, however, not read presently because they post-date 
the incriminating facts constituting the offence charged against the respondent.  
8. 
 
Accordingly, the learned Deputy Prosecutor General NAB has 
prayed for the setting aside of the impugned judgment of the learned High Court 
and for the restoration of the respondent’s conviction and sentence in terms of the 
judgment dated 30.11.2000 delivered by the learned Accountability Court. 
9. 
 
In response to submissions made on behalf of the appellant, the 
learned counsel for the respondent has highlighted that the Prime Minister and 
Cabinet of which the respondent was a member was dismissed by the then 
President of Pakistan on 05.11.1996 under Article 58(2)(b) of the Constitution. 
Notwithstanding the fact that ‘offers of appointment’ were issued on 16.10.1996 
in favour of 145 persons short listed by the respondent’s office, only 3 persons 
were given employment before the dismissal of the Federal Cabinet on 
 
56 
Criminal Appeal No. 264 of 2006 
05.11.1996. These three persons were granted temporary employment as is 
evident from their separate notifications of joining OGDC (included in Exb.PW-
4/1 to Exb.PW-4/19). The temporary employment of all appointees is confirmed 
by Ijaz Mohammad Khan, Chief Personnel Officer, OGDC (PW-1), Saeed Ahmad 
Khokhar, Manager Process & Plans, OGDC (PW-2), Mobeen Ehsan, the 
Chairman OGDC (PW-3) and Akhtar Hussain, Chief Staff Officer, OGDC (PW-
4). The OGDC Employees (Service) Regulations, 1994 (“Service Regulations”) 
expressly provide in the Regulation No.1(4) that these Service Regulations do not 
apply to “a person employed purely on temporary basis or against a Project.” 
The Explanation to Regulation No.1(3) states that “appointment on temporary or 
casual basis is not a regular service of the Corporation.” It is claimed therefore 
that the disputed temporary appointments do not entail the breach of any rules or 
regulations. Hence, the relaxation of rules sought by the Chairman, ODGC (PW-
3) in his note of 16.10.1996 was false and mala fide. That the Chairman, OGDC 
had himself without resort to advertisement or any selection process appointed 68 
persons on the direction of the Prime Minister Secretariat vide order dated 
10.09.1996 (Exb.DW-1/8 available at page 588 of the Cr.MA) and made similar 
appointments of 385 persons vide order dated 13.11.1995 (Exb.DW-1/9 available 
at page 578 of the Cr.MA). That as a matter of departmental practice and 
precedent the respondent supervised the affairs of OGDC. In the present context, 
he had on 28.09.1994 granted “relaxation of rules for fulfillment of Government’s 
desire to provide immediate employment opportunity”(Exb.DW-1/2 available at 
page 408 of the Cr.MA), which was sought by the predecessor of the Chairman, 
OGDC on 27.09.1994.  
10. 
 
After dismissal of the Federal Cabinet on 05.11.1996, the OGDC 
notified the joining report of 24 other appointees vide notifications issued from 
06.11.1996 to 01.02.1997 who were named in the list conveyed by the 
 
57 
Criminal Appeal No. 264 of 2006 
respondent’s office. It is argued that the said appointments were made by the 
OGDC of its own violation as the respondent was no longer in the office. In the 
foregoing background, the respondent has been convicted for the commission of 
the offence under Section 3(1)(d) of the Ehtesab Ordinance which is as follows: 
 
 
“3. 
Corruption and corrupt practices: (1) A holder of public office  
or any other person is said to commit the offence of corruption and corrupt 
practices: 
… 
(d) 
if he, by corrupt, dishonest or illegal means obtains or seeks for 
himself or for any other person any property, valuable thing, pecuniary 
advantage or undue favour. …” 
 
11. 
 
The Ehtesab Ordinance, 1996 was promulgated as Ordinance 
No.CXI of 1996 on 18.11.1996. This Ordinance repeals, inter alia, the Holders of 
Representative Offices (Punishment for Misconduct) Order, 1997 [President’s 
(Post Proclamation) Order No.16 of 1977] (“PPPO of 1977”) which contained 
the following corresponding offence in its Section 3(2)(e):  
 
 
“3. 
Misconduct: (1) … 
(2) 
A holder of representative office is said to commit the 
offence of misconduct --- 
… 
(e) 
if he, by corrupt, dishonest or illegal means obtains for 
himself or for any other person any valuable thing or pecuniary 
advantage, or” 
 
The afore-referred office noting (Exb.PB/1) shows 16.10.1996 as the date when 
the respondent approved relaxation of rules and thereby allegedly committed the 
offence charged. Although the learned Trial Court has convicted the respondent 
for the offence committed under Section 3(1)(d) of the Ehtesab Ordinance which 
came into force on 18.11.1996 in my humble view, under the provisions of Article 
12 of the Constitution, the applicable law containing the offence constituted by 
the alleged delinquent acts of the respondent is Section 3(2)(e) of the PPPO of 
1977. There is generally a minor difference in the elements of the offences 
envisaged in the two statutes but in the present context the essential ingredients of 
these offences are common. These ingredients are, the resort to corrupt or 
dishonest or illegal means by an accused to obtain for himself or for any other 
person any valuable thing or pecuniary advantage. The respondent was convicted 
 
58 
Criminal Appeal No. 264 of 2006 
by the learned Accountability Court for the afore-mentioned offence under 
Section 3(1)(d) of the Ehtesab Ordinance read with Section 35 of the NAB 
Ordinance. It will be noticed that the conviction is not under Section 9(a)(vi) of 
the NAB Ordinance which proscribes misuse of authority by an accused as an 
offence. The reason lies in the limitations imposed in Article 12 of the 
Constitution. Therefore, before evaluating the facts of the case in the light of the 
said offences, it is useful to peruse Article 12 of the Constitution: 
“12.(1) No law shall authorize the punishment of a person – 
(a) 
for an act or omission that was not punishable by law at the time 
of the act or omission; or  
(b) for an offence by a penalty greater than, or of a kind different 
from, the penalty prescribed by law for that offence at the time 
the offence was committed.” 
 
The meaning and effect of Article 12 of the Constitution was dilated in Bhai 
Khan   vs.  State (PLD 1992 SC 14) in the following terms: 
“These Articles prohibit convictions and sentences being 
recorded in the criminal jurisdiction under ex post facto laws. 
Previously ex post facto laws imposed liability and punished acts 
which earlier were lawful when done. Such laws retrospectively 
created offences for acts or omissions that were not punishable at the 
time they were done or retrospectively punished persons for offences 
by penalties greater than or of different kinds from those prescribed for 
such offences at the time the same were committed. The broad range 
and nature of ex post facto laws is ably set out by Qadiruddin Ahmad, 
J. in para 20 of his judgment in Nabi Ahmad v. Home Secretary, West 
Pakistan (PLD 1969 SC 599 at 610-11). Being against equity and all 
notions of fairplay and justice, these ex post facto laws over a period of 
time came to be abhorred. Slowly but surely such ex post facto laws 
were avoided by resorting to beneficial construction or rendered 
invalid by legislation and the above Articles in both the Pakistan and 
Indian Constitutions clearly render invalid such ex post facto laws and 
cover acts and omissions which may even have their commencement 
in the pre-Constitution period. See Keshawan M. Memon v. State of 
Bombay AIR 1951 SC 128. Where ex post facto laws only mollify or 
lessen the rigours of criminal law, but do not otherwise aggravate 
them, doubt has been expressed as to whether such laws fall within the 
prohibition of such Articles. The Indian Supreme Court in Rattan Lal 
v. The state of Punjab (AIR 1965 SC 444) has treated such a law as not 
falling within the prohibition.”   
 
 
59 
Criminal Appeal No. 264 of 2006 
According to its Section 2, the NAB Ordinance takes effect retrospectively from 
01.01.1985. However, the operative effect of the said statutory intent to enforce 
the law retrospectively was interpreted in the case of Khan Asfandyar Wali   vs.   
Federation of Pakistan (PLD 2001 SC 607) wherein the Court expressed the 
following view: 
 
 
 
“218.  
Article 12 of the Constitution does not deprive the legislature of its 
power to give retrospective effect to an enactment, which the legislature is 
competent to enact. It merely provides that no law shall authorise the 
punishment of a person for an act or omission that was not punishable by law at 
the time of the act or omission; or for an offence by a penalty greater than, or of 
a kind different from, the penalty prescribed by law for that offence at the time 
the offence was committed. Seen in this perspective, the act of ‘wilful default’, 
is not an act or omission which was punishable by law at the time the same was 
committed but an act or omission committed 30-days after the promulgation of 
the Ordinance whereby the offence of ‘wilful default’ under section 5(r) was 
created. …”  
219.  
So far as the punishments and creation of offences by the impugned 
Ordinance are concerned, they are protected by Article 12 of the Constitution, 
in that, under Article 12 of the Constitution ex post facto legislation can neither 
create new offences nor provide for more punishment for an offence than the 
one which was available for it when committed. This is the limited impact of 
Article 12 of the Constitution. …” (emphasis supplied) 
12. 
 
Having established that the offence as constituted on 16.10.1996 is 
relevant for the purpose of prosecuting the respondent, we may now revert to the 
facts of the case. It is not alleged by the prosecution in this case that as a result of 
the disputed appointments, the respondent has procured any advantage for 
himself. Instead, it is alleged that temporary employment for 3 persons and for 24 
persons employed by mechanical act of the Chairman, OGDC is the ‘valuable 
thing’ secured in this case by the respondent. The financial gain representing 
remuneration received by the said temporary employees has not been challenged 
as being excessive through any evidence. Their notifications of joining (Exb.PW-
5/1 to Exb.PW-5/19), however, record their temporary employments in Basic 
Scale-1 and upwards with the highest basic pay drawn being less than Rs.2100/- 
per month.  
 
60 
Criminal Appeal No. 264 of 2006 
13. 
 
The crux of the prosecution case is that according to the office 
noting the respondent allegedly relaxed the rules for the extraneous object of 
(temporarily) appointing persons handpicked by his office to different posts in 
OGDC. In this regard, we have already noticed that the Service Regulations of 
OGDC do not apply to its temporary employees. Under the Service Regulations 
the procedure for appointment of staff in lower scales through a Departmental 
Selection Committee after advertisement applies to recruitment made against 
existing vacancies. In the present case, the Chairman OGDC (PW-3) explained 
that temporary appointments were made because there were no vacancies. 
Financial loss to OGDC on account of the temporary appointments obtained by 
the respondent is not alleged nor that he received illegal gratification or other 
advantage. As such the respondent’s act does not satisfy the threshold of being 
“corrupt” which is common and necessary ingredient of the offences under 
Section 3(1)(d) of the Ehtesab Ordinance and under Section 3(2)(e) of the PPPO 
of 1977. Therefore, he cannot be said to have acted by corrupt means to cause the 
outcome of temporary appointments. The prosecution has also not alleged that the 
respondent committed any fraudulent, devious, surreptitious, false or misleading 
act to obtain the disputed appointments. In fact, he acted brazenly and recklessly 
to disregard the reservations expressed by the Chairman, OGDC (PW-3) 
contained in paragraph-8 of the office noting (Exb.PB) but heeded his advice to 
presumptuously relax the rules without considering the need for or the result of 
doing so. It can be said that the respondent acted most irresponsibly, perhaps 
haughtily, to secure his wishes because he did not even consider the two 
reservations about overstaffing and financial burden expressed by the Chairman, 
OGDC (PW-3) in paragraph-8 of the said noting. Irrespective of the respondent’s 
audacious style and conduct, his approach on the file is forthright and direct; he 
assumes responsibility on record for what he authorized, namely, appointment 
 
61 
Criminal Appeal No. 264 of 2006 
made after relaxation of rules. Consequently, in my humble view, the respondent 
acted in a straightforward manner without being dishonest. The meaning of 
expressions “corrupt”, “dishonest” and “illegal” occurring in the NAB Ordinance 
was considered judiciously in Hakim Ali Zardari  vs.  State (PLD 2002 Lahore 
269) and may be referred as follows: 
“27. 
The expression “illegal” would of course connote anything 
done against the express provision of law. The term “Corrupt, 
dishonest and improper” are overlapping and have not been defined in 
the Ordinance under which the appellant was tried. These are terms of 
a Penal Statute and have to be construed in the light of the explanation 
contained in the section itself and in the manner in which they are used 
in the ordinary parlance. Because as per Crawford: 
“Criminal and Penal Statutes must be strictly construed, that 
is, they cannot be enlarged or extended by intendment, 
implication, or by any equitable considerations. In other 
words, the language cannot be enlarged beyond the ordinary 
meaning of its terms in order to carry into effect the general 
purpose which the statute was enacted”. (Page 460 of 
Crawford’s Interpretation of Laws by Earlt T. Crawford, Saint 
Louis Thomas Law Book Company, 1940).  
 
28. 
It would, therefore, be in accord with this doctrine of 
interpretation of Penal Statutes if we adhere to the Dictionary 
meanings of the terms in question. The Black’s Law Dictionary (6th 
Edition) defines the above expressions as under: 
Corrupt.-- Spoiled; tainted; vitiated; depraved, debased; 
morally degenerate. As used as a verb, to change one’s morals 
and principles from good to bad.  
Dishonesty. – Disposition to lie, cheat, deceive, or defraud; 
untrustworthiness; lack of integrity; lack of honesty; probity 
or 
integrity 
in 
principle, 
lack 
of 
fairness 
and 
straightforwardness; disposition to defraud, deceive or betray. 
Improper. – Not suitable; unfit, not suited to the character, 
time and place.  
29. 
In English Law the expression “dishonesty” which is 
anonymous (synonymous) with “fraud” (as per Black’s Law 
Dictionary) has been a subject or immense debate. For Alridge and 
Parry, the basic elements of dishonesty are as under: 
“It is commonly and conveniently referred to as ‘dishonesty’, and in 
the case of many offences is expressly so described. However, the 
use of this un-technical terms should not be allowed, to obscure the 
fact the concept it represents is a highly complex one. It embraces at 
least three and arguably four, distinct requirements: viz that the 
defendant’s conduct should fail to conform to – 
(1) 
generally accepted standards of honest conduct, both: 
(a) as they actually are, and 
(b) as he believes them to be; and 
(2) 
the limits of what he is legally entitled to do – at any rate: 
(a) as he believes them to be and arguably also 
 
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Criminal Appeal No. 264 of 2006 
(b) as they actually are.” 
(Alridge and Parry on Fraud, Second Edition, page 1002)”    
 
14. 
 
In the absence of the respondent’s conduct being corrupt or 
dishonest, the third element of an act constituting the offence alleged against him, 
namely, its illegality, remains available to the prosecution to prove his guilt under 
Section 3(1)(d) of the Ehtesab Ordinance or more relevantly under Section 3(2)(e) 
of the PPPO of 1977. Illegality of the respondent’s action cannot be presumed 
merely from the impunity or the audacity with which he took it for obtaining the 
desired appointments. The illegality of his actions must stem from a violation of 
express law governing temporary employment in the OGDC. As observed earlier, 
the Service Regulations of OGDC do not apply to the disputed appointments. 
Therefore, by asking the respondent to relax the rules by the Chairman, OGDC 
(PW-3) did not secure a valid sanction but actually accomplished the transfer of 
total responsibility to the respondent for the disputed appointments made by the 
Chairman, OGDC on the asking of the respondent. The important legal fact is that 
neither under the OGDC Ordinance, 1961 nor the Rules of Business of the 
Federal Government, 1973 does a Federal Minister had power to relax rules for 
recruitment  
for 
employees 
of 
OGDC. 
Also 
relaxation 
of 
rules 
for 
temporary  
employment was meaningless as there were no OGDC rules in the field. By the 
mirage of relaxation of unspecified and non-existent rules, the Chairman, OGDC 
(PW-3) managed to protect himself against any fallout from such appointment, 
considering that the Federal Government was in the doldrums and was ousted less 
than three weeks thereafter. However, to advise relaxation he invented objections 
that were not uttered on 13.10.1996 when he ordered appointments without 
competition of 68 persons nominated by the Prime Minster’s Secretariat. If he had 
intended the objections seriously, he should not have advised a means to commit 
the objected action. Insofar as the respondent is concerned, there was precedent 
 
63 
Criminal Appeal No. 264 of 2006 
and departmental practice for relaxation of rules by him. There is no doubt that 
the respondent was callous and cursory in his style, but one cannot blame him for 
trusting the suggestion of the Chairman, OGDC which was actually false. Indeed 
the respondent as DW-2 claimed (wrongly) that he had power to relax the rules, 
had done so in the past and did so presently. His misinformed self esteem, 
however misplaced, reflects a state of mind that is clear and upfront. Therefore, he 
was not conscious of committing any illegality by relaxing the rules because in 
his mind the Chairman, OGDC (PW-3) bona fide invited him to do. On 
16.10.1996 the purpose of seeking handpicked appointments as being illegal 
appears never to have crossed the respondent’s mind. 
15. 
 
This brings the present discussion to the other essential 
prerequisite for the establishment of criminal liability. Apart from a delinquent act 
satisfying the ingredients of the offence allegedly committed, the prosecution 
must also prove the guilty mind of an accused, that is his mens rea to commit 
such an offence. The precedents on the subject of mens rea, in offences falling 
under NAB Ordinance have been extensively examined in the majority opinion. 
In this context, the offence committed when an accused adopts an illegal course of 
action is dealt with directly by the two authorities, State  vs.   M. Idrees Ghauri  
(2008 SCMR 1118) and Wahid Bakhsh Baloch   vs.   The State (2014 SCMR 
985). In the case of M. Idrees Ghauri (2008 SCMR 1118) it is held that wrongful 
exercise of power or action without lawful authority is not actionable unless the 
accused has criminal motivation. For this purpose it is necessary that the accused 
person is aware that his action is illegal and still commits the same to benefit 
himself or another person. In the second case of Wahid Bakhsh Baloch (2014 
SCMR 985), consistently with the above said view, it is held that in order to be 
guilty an accused must have knowingly acted without lawful authority, against 
law or practice. There is no mens rea for an offence where an accused has 
 
64 
Criminal Appeal No. 264 of 2006 
followed advice of a competent authority that is actually against the law. Both 
judgments converge on the present facts to propound the view that conscious 
knowledge of an accused that a particular act is illegal is necessary to make him 
criminally culpable for doing such act. The facts of the instant case do not 
disclose actual or conscious knowledge of the respondent that temporary 
appointments in OGDC or that relaxation of rules was illegal. It is quite another 
matter that his action did not in fact entail illegality because temporary 
appointments in OGDC are not governed by any rules. That the relaxation of rules 
by the respondent was inconsequential.   
16. 
 
As a fallback, the prosecution relies upon the law laid down by this 
Court in Abdul Jabbar Memon’s case (1996 SCMR 1349) and Munawar 
Khan’s case (1993 SCMR 1287) to allege illegality of action taken by the 
respondent. Whereas the first case contains an interim order, however, the 
Munawar Khan’s case (1993 SCMR 1287) is relevant to the present facts. The 
instructive contents therefrom are reproduced herein below: 
“6. 
What we have noticed in all these cases which are under 
consideration before us is that appointments of both the parties 
contesting the appointments were made without such advertisement, 
publicity or information in the locality from which the recruitments 
were to be made. In view of the Constitutional requirement and the 
interim order already passed in Human Right Case 104 of 1992 it is 
expected that in future all appointments had to take place. This will, 
however, not apply to short-term leave vacancies or to contingent 
employment.  
7. 
… 
8. 
As regards the allocation of quota of posts to the local M.P.As 
or M.N.As. for recruitment to the posts, we find it offensive to the 
Constitution and the law on the subject. The Ministers, the Members of 
National and Provincial Assemblies, all are under an oath to discharge 
their duties in accordance with the Constitution and the law. The 
service laws designate, in the case of all appointments, a departmental 
authority competent to make such appointments. His judgment and 
discretion is to be exercised honestly and objectively in the public 
interest and cannot be influenced or subordinated to the judgment of 
anyone else including his superior. In the circumstances, allocation of 
 
65 
Criminal Appeal No. 264 of 2006 
such quotas to the Ministers/ MNAs/MPAs and apointments made 
thereunder are all illegal ab initio and have to be held so by all Courts, 
Tribunals and authorities.” (emphasis supplied)    
The above said ruling condemning political appointments is highly relevant to the 
present case, but it also highlights a travesty of regulatory legislation: that 
temporary employment is a permissible backdoor entry to posts in public sector 
bodies and enterprises because no positive law, rule or regulation governs such 
employment. Whereas rules have been framed to prescribe the selection process 
for appointment to temporary posts in government departments, a lacuna remains 
in existence for autonomous State owned bodies and enterprises. Resultantly, 
temporary employment has been adopted as a means for preferential entry into 
service followed by regularization at a later stage under some devised mechanism 
or policy. The great body of case law on the subject of non-transparent and no-
competitive employment in the public sector referred to in the majority opinion 
pertains to regular appointments governed by rules. This includes the landmark 
statement of law made in Mubashir Raza Jaffri  vs. EOBI (2014 SCMR 949). 
All those cases decide the invalidity of the impugned appointments in the judicial 
review jurisdiction rather than the culpability of their perpetrator under 
accountability laws in the criminal jurisdiction. Indeed for determining criminal 
liability of an accused for the commission of illegality it is necessary for the safe 
administration of justice that the regulatory law requiring compliance is express, 
positive and certain rather than derived from judicial precedents that adjudicate 
the invalidity of consequential appointments. The enforcement of a prescribed 
process for making temporary employment in the service regulations of 
autonomous State owned bodies and enterprises incorporating the principles laid 
down by judicial precedent is therefore required and is hereby directed. Once 
there is positive law to test the legality of executive action granting temporary 
 
66 
Criminal Appeal No. 264 of 2006 
employment, then a reliable threshold for ascertaining criminal liability for 
violation thereof will become available.    
17. 
 
Weighed on the touchstone of good governance and responsible 
leadership, there is no doubt that the respondent acted wrongly. There is also no 
doubt that if the appointments made at his instance were to be challenged in Court 
of law, these would be struck down as political appointments. However, the fact 
remains that upon considering the record, the adoption by the respondent of a 
means suggested by the Chairman, OGDC (PW-3) which enjoys past precedent 
and practice, namely, relaxation of rules, does not in the absence of his knowledge 
of illegality or willful commission of an illegal act amount to an offence under 
Section 3(1)(d) of the Ehtesab Ordinance or Section 3(2)(e) of the PPPO of 1977. 
The learned High Court in the impugned judgment acquitted the respondent of the 
offence charged against him. The reversal of a finding of acquittal of an accused 
is resorted exceptionally by an Appellate Court. Such an order is passed where the 
finding of the acquitting Court is found to be perverse, shocking or impossible. 
The comprehensive statement of law made in Ghulam Sikandar vs. Mamaraz 
Khan (PLD 1985 SC 11) is most apt. The same is reproduced below: 
“However, 
notwithstanding 
the 
diversity 
of 
facts 
and 
circumstances of each case, amongst others, some of the important and 
consistently followed principles can be clearly visualized from the cited 
and other cases law on the question of setting aside an acquittal by this 
Court. They are as follows:- 
(1) In an appeal against acquittal the Supreme Court would not on 
principle ordinarily interfere and instead would give due weight 
and consideration to the findings of Court acquitting the accused. 
The approach is slightly different than that in an appeal against 
conviction when leave is granted only for the re-appraisement of 
evidence which then is undertaken so as to see that benefit of 
every reasonable doubt should be extended to the accused. This 
difference of approach is mainly conditioned by the fact that the 
acquittal carries with it the two well-accepted presumption: One  
initial, that, till found guilty, the accused is innocent; and Two that 
again after the trial a Court below confirmed the assumption of 
innocence. 
(2) The acquittal will not carry the second presumption and will also 
thus lose the first one if on points having conclusive effect on the 
 
67 
Criminal Appeal No. 264 of 2006 
end result the Court below: (a) disregarded material evidence; (b) 
misread such evidence ; (c) received such evidence illegally.  
(3) In either case, the well-known principles of re-appraisement of 
evidence will have to be kept in view when examining the 
strength of the views expressed by the Court below. They will not 
be brushed aside lightly on mere assumptions keeping always in 
view that a departure from the normal principle must be 
necessitated by obligatory observances of some higher principle 
as noted above and for no other reason.  
(4) The Court would not interfere with acquittal merely because on 
re-appraisal of the evidence it comes to the conclusion different 
from that of the Court acquitting the accused provided both the 
conclusions are reasonably possible. If however, the conclusion 
reached by that Court was such that no reasonable person would 
conceivably reach the same and was impossible then this Court 
would interfere in exceptional cases on overwhelming proof 
resulting in conclusion and irresistible conclusion; and that too 
with a view only to avoid grave miscarriage of justice and for no 
other purpose. The important test visualized in these cases, in this 
behalf was that the finding sought to be interfered with, after 
scrutiny under the foregoing searching light, should be found 
wholly as artificial, shocking and ridiculous.”    
 
 
 
18. 
 
The foregoing principles of law narrated in relation to the reversal 
of the findings of acquittal merit consideration and application in the present case. 
This would be a strong additional ground available under the law to exercise 
restraint in relation to attaching criminal liability to the conduct of the respondent. 
19. 
 
Having expressed my humble view in relation to the facts of this 
case, it is noted with great admiration that the clear principles of law now 
governing the matter of employment to public posts that are regulated by rules or 
regulations have been ably set out in the majority opinion rendered be my learned 
brother Asif Saeed Khan Khosa, J. The terse and abbreviated reliance on Article 
18 of the Constitution for ensuring transparent appointment of pubic posts in 
governmental, statutory or autonomous entities through competition has been 
elaborated extensively by him, with which I respectfully agree. Having endorsed 
those views, I support the direction given in paragraph 35 of the said opinion.  
20. 
 
For the foregoing reasons and discussion, I do not find any merit in 
this appeal and dismiss the same accordingly.  
 
 
 
 
 
 
 
(Umar Ata Bandial, J.)          
 
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Criminal Appeal No. 264 of 2006 
      
JUDGMENT OF THE COURT 
 
 
 
 
By a majority of two against one this appeal is allowed in the 
terms noted in the opinion recorded by Asif Saeed Khan Khosa, J. 
which opinion is declared to be the judgment of the Court. 
 
 
Judge 
 
Judge 
 
Judge 
 
Islamabad 
20.01.2016 
 
Approved for reporting. 
 
