KARACHI, May 4: A division bench of the Sindh High Court allowed on Friday appeals of Ramesh M. Udeshi, a former provincial secretary, against an accountability court judgment and disallowed the state’s appeal against his acquittal.
The bench consisted of Justice Roshan Essani and Justice Mujeebullah Siddiqui.
Justice Siddiqui, who authored the 83-page judgment, quashed the conviction and sentence of the applicant/accused Ramesh M. Udeshi in criminal accountability appeal No 45 of 2001. He upheld the impugned orders of the judges of the accountability court Nos II and III in reference Nos 13, 14, 15, 16, 17 and 18 of 2001.
The revision applications assailing the orders in these reference applications were dismissed and the impugned orders of the judge of the accountability court No IV in reference Nos 20, 21, 22 and 23 of 2001 were set aside.
The proceedings in these references were quashed against applicant/accused Ramesh M. Udeshi only. His criminal revision application Nos 147, 148, 149 and 150 of 2000 were allowed.
The bench also observed that “that the learned judge of accountability court No IV should also try to give more impression of an impartial arbiter having no inclination, pro-prosecution or defence.
“The credibility of judiciary lies in complete impartiality, total transparency, adhering to the established principles of dispensation of justice without fear and favour, without giving any impression of inclination towards either of the parties. All above appeals and revision applications arose out of a similar set of facts but were directed against four different orders of the trial courts,” the judgment said.
Accused Ramesh Udeshi was secretary land utilization department of the government of Sindh. At the relevant time Syed Abdullah Shah was chief minister, 26 persons were leased out lands measuring different areas in various Dehs of Karachi East, for 30 years for the purpose of poultry farming.
The lands were originally leased out by the deputy commissioner Karachi East. The chief minister entertained applications from all the 26 lessees, seeking conversion of the lands and the chief minister vide orders dated January 15, 1994, allowed the conversion in relaxation of policy and existing ban.
The chief minister not only allowed the land meant for poultry farms to be converted for industrial/residential/commercial purposes, but extended the period of lease from 30 years to 99 years at the rate of Rs25,000 an acre.
All the applications which were entertained directly by the chief minister and were allowed by him were sent to accused Ramesh M. Udeshi and he, in the capacity of secretary government of Sindh land utilization department, prepared summary on Jan 20.
The appellant was subsequently convicted by an accountability court for causing tremendous loss to the government.
The bench noted with interest that in the charges framed by the judge of the accountability court No I in the earlier references it had been stated that he committed an offence by floating the joint summary of 26 beneficiaries in violation of law and issued conversion order informing the deputy commissioner, Malir, who issued letter to the Mukhtiarkar Malir, and thereby the accused/ applicant, Udeshi, committed an offence. However, the judge of the accountability court No IV had not given any such particular in the charges framed by him and had confined the charge to the misuse of authority by the accused applicant thereby favouring the beneficiaries and causing loss to the government.
Although it was the requirement of law that while framing charge the court should include such particulars in the charge which an accused was required to defend and the time and place of the alleged offence was also required to be included in the charge, but the accountability court No IV judge had not stated in the charge framed by him that the accused/applicant committed offence by issuing the letters to the deputy commissioner Malir and the Mukhtiarkar.
The bench was of the opinion that the deputy prosecutor-general of NAB, Anwar Tariq Khan, while arguing that the accountability court No IV had rightly rejected the application under section 403 of CrPC because the accused applicant committed distinct offences by issuing the letters to the deputy commissioner Malir, but failed to notice the charge framed by the judge.
The bench was persuaded by counsel for the appellant Mrs Ismat Mehdi, to agree with her submissions and did not subscribe to the contentions raised by the DPG whereby he had assailed the orders of the judges of the accountability court Nos II & III and had supported the impugned order of the accountability court No IV, who had rejected the application under Section 403 of CrPC.
Counsel Mehdi had argued that her client had submitted that the judgment dated September 18, 2001, delivered by the accountability court No II in the reference 12/2001, assailed in accountability appeal No 45 of 2001 was contradictory to the findings of the same judge while deciding the reference Nos 13, 14 and 15 of 2001.
She had argued that her client was already convicted in earlier reference Nos 17, 18 and 19 of 2000 on the basis of the same set of facts and for the same offence. It was her contention that judge while deciding reference Nos 13, 14 and 15 of 2001 had rightly held that the accused could not be prosecuted or punished for the same offence after he was convicted in earlier references.
“We are of the considered opinion that the accused/applicant was already tried and convicted of the commission of offence and subsequently on the basis of observations made by the judge of the accountability court No I, accused/ applicant Ramesh M. Udeshi could not be tried again for the same offence or for the offence on the same facts,” the bench held in its judgment.
It noted that a careful reading of all the impugned orders showed that judge of the accountability court No III ( Rehmat Husain Jafferi) had very rightly and elaborately considered the facts and the proposition of law with the clarity of thought, which was commendable. The bench held that the judge had correctly appreciated the facts as well as the law as an upright judicial officer.
The bench was however “constrained to observe that judicial officers should avoid making such observations as has been done by the judge of the accountability court No I, while deciding reference No 18 of 2000.
“The judicial officers are required to maintain the very high quality of impartiality and have to avoid everything meticulously which may lead to the inference or impression that the judge has transgressed his limits and has entered into the field which is reserved for the prosecutors and the defence.”
It was held that once the accused applicant was tried and convicted on the basis of joint summary floated by him from which benefits flowed to 26 persons and on account of a single direction to the deputy commissioner Malir, the subsequent prosecution and trial on the same set of facts was barred under the law.
The bench nevertheless clarified that this bar was confined to the applicant/accused Ramesh M. Udeshi, only who had already been tried and convicted in the earlier references, which had nothing to do with the prosecution and trial of the beneficiaries who had not been earlier convicted and tried for the commission of corruption and corrupt practices.