ORDER
SHEET
IN
THE HIGH COURT OF SINDH AT KARACHI
C.P. No.D-1501
of 2011
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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Priority Case
1.
For Orders
on Office Objection
2.
For Hearing
of Main Case
3.
For Hearing
of Misc. No. 6943/2011
13.01.2016
Mr. Jhamat Jethanand,
advocate for petitioners
Mr. Saifullah, A.A.G.
Mr. Muhammad Iqbal Awan, A.P.G.
I.O. Irfan
Ali Arbab, Circle Officer, Anti-Corruption
Establishment, Sujawal.
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Through
instant constitution petition, petitioners seek quashment of F.I.R. bearing No.07/2011,
registered at P.S. A.C.E Sujawal
for offences under sections 420, 465, 468, 471, 477, 218, 34, PPC read with section 5(2) of the Prevention of Corruption
Act-II, 1947.
Brief
facts of the prosecution case as disclosed in the F.I.R.
are that on 02.04.2011 SIP Muhammad Moosa Brohi of P.S. ACE Thatta lodged
his report, it was recorded vide Crime No. 07/2011, at PS A.C.E
Sujawal for offences under sections 420, 465, 468,
471, 477, 218, 34, PPC read with Section 5(2) of the
Prevention of Corruption Act-II, 1947. During course of investigation,
investigation officer in his final report has mentioned that from the perusal
of record, photocopies of the record of rights regarding disputed Survey Nos.76, 79 and 80, it is established that accused Tapedar Ali Muhammad Lohar has
made Entry No.741 dated 19.12.2002 in respect of
property consisting of 8 shops and godowns in the
name of accused Ahmed son of Haji Muhammad Hanif, Ghulam Muhammad, Umer Ali, Mst. Ayesha and others, fraudulently.
I.O is present and submits
that after investigation challan has been submitted against petitioners/accused
before learned Special Judge, Anti-Corruption (Provincial) Hyderabad under
sections 420, 465, 468, 471, 477, 218, 34 PPC read
with Section 5(2) of the Prevention of Corruption Act-II, 1947.
Mr.
Jhamat Jethanand, learned
advocate for petitioners, mainly contended that from the contents of F.I.R. and other material offences under sections 420, 465,
468, 471, 477, 218, 34, PPC read with Section 5(2) of
the Prevention of Corruption Act-II, 1947 are not made out. He has also argued
that petitioners/accused had purchased plot from one hindu by
way of registered sale deed. In support of his contentions, Mr. Jhamat Jethananad has relied upon
number of documents. He lastly argued that dispute is of civil nature and High
Court under inherent powers may pass such orders to prevent the abuse of
process of law without approaching the trial Court in the first instance. In
support of his contentions, he relied upon the cases THE STATE versus ASIF ALI ZARDARI and another
(1994 SCMR 798); Malik SALMAN KHALID versus SHABBIR AHMAD, D & S J, Karachi and another (1993 SCMR 1873) and MUSHARAF ALI and another versus MUHAMMAD JAMIL and other (1992 M L D [Karachi] 591).
M/s.
Saifullah, Assistant Advocate General Sindh and Muhammad Iqbal Awan,
Assistant Prosecutor General Sindh argued that from the contents of F.I.R., other material and final report, offences are made
out and there is probability of conviction of petitioners/accused in this case.
It is also argued that challan has been submitted, prosecution may be provided
an opportunity to prove it’s
case before the trial Court.
We
have carefully heard the learned counsel for the parties and perused the
relevant record.
It
appears that final report has been submitted by the investigation officer before
trial Court by collecting material against accused. We are unable to agree with
the arguments advanced by learned counsel appearing on behalf of petitioners/accused
that offence falls within the jurisdictional domain of Civil Court. F.I.R./case cannot be quashed merely on the ground that dispute
is of civil nature. In this regard we are fortified by the dictum laid down in
the case titled Dr. Sher Afghan Khan Niazi versus Ali
S. Habib and others (2011 SCMR 1813). At this stage,
no reliance can be placed upon the documents referred by learned advocate for
petitioners/accused, without providing an opportunity to prosecution to rebut
the same at trial. It is admitted fact that petitioners/accused did not
approach the trial Court under section 249-A Cr.PC for pre-mature acquittal.
Other contentions raised by Mr. Jahmat Jethanand require deeper appreciation of evidence which is
exclusive function of the trial Court. Article 199 of the Constitution cannot
be used to override the express provisions of law to offer just another remedy
where a remedy already exists or to circumvent the normal course of law. It is
settled law that while considering the question of quashing a criminal
proceeding at initial stage when entire evidence was yet to be recorded,
allegations against accused have to be accepted on their face value and then
determined if they constitute an offence.
Prima facie, there is sufficient evidence/material
against the petitioners/accused to connect them in the commission of offence.
Deeper appreciation of evidence is exclusive function of trial Court. The law
is quite settled now that after taking cognizance of a case by trial Court, F.I.R/proceedings in that case cannot be quashed and fate
of accused person challaned therein is to be decided
by the trial Court itself, as laid down by Honourable Supreme Court in the case
of Director General, Anti-Corruption Establishment, Lahore and others versus
Muhammad Akram Khan (PLD 2013 Supreme Court 401),
relevant portion is reproduced as under:
2. After
hearing the learned Additional Advocate-General, Punjab appearing for the
appellants and the learned counsel for respondent No.1
and having gone through the record of the case with their assistance we have
found that through the impugned order the learned Judge-in-Chamber of the
Lahore High Court, Lahore had partially quashed the relevant F.I.R. to the extent of respondent No.1
whereas partial quashing of an F.I.R. to the extent
of some of the accused persons mentioned therein is a legal impossibility.
Apart from that the impugned order had been passed by the learned
Judge-in-Chamber of the Lahore High Court, Lahore at a time when a Challan in
the relevant criminal case had already been submitted before the learned trial
court and the learned Trial court had already taken cognizance of the case. The
law is quite settled by now that after taking of cognizance of a case by a
trial court the F.I.R. registered in that case cannot
be quashed and the fate of the case and of the accused persons
challaned therein is to be determined by the trial
court itself. It goes without saying that if after taking of cognizance of a case
by the trial court an accused person deems himself to be
innocent and falsely
implicated and he
wishes to avoid
the rigours
of a trial
then the law
has provided him
a remedy under sections 249-A/265-K, Cr.P.C. to seek
his premature acquittal if the charge against him is groundless or there is no
probability of his conviction.
Needless to mention here, if the
petitioners/accused deem themselves to be innocent and falsely involved in the
case, they would be at liberty to avail remedy provided to them before trial
Court under section 249-A, Cr.PC
Mr.
Jhamat Jethanand, advocate
for the petitioners, at the end submitted that protective bail may be granted
to the petitioners/accused with direction to surrender before the trial Court.
He has also pointed out that this Court vide order dated 18.05.2011 ordered
that petitioners shall not be arrested in the aforesaid crime, during pendency
of petition, subject to furnishing solvent surety in the sum of Rs.100,000/- each with PR bond in the like amount.
Without touching the merits of the case, protective bail for a period of 7 days from today is granted to the petitioners/accused, namely, Ahmed S/o Khalifo Haji Muhammad Hanif, Ghulam Muhammad S/o Khalifo Haji Muhammad Hanif , Umer Ali S/o Khalifo Haji Muhammad Hanif, Mst. Ayesha daughter of Khalifo Haji Muhammad Hanif, Mst. Fatima daughter of Khalifo Haji Muhammad Hanif, Halima D/o Khalifo Haji Muhammad Hanif, Mst. Basran D/o Khalifo Haji Muhammad Hanif Mst. Hajiran D/o Khalifo Haji Muhammad Hanif and Muhammad Hussain son of Muhammad Dars, subject to their furnishing solvent surety in the sum of Rs.100,000/- each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. Mr. Jhamat Jethanand further submitted that surety has already been furnished by the petitioners/accused in this petition. Nazir is directed to accept the same surety. Petitioners/accused are directed to approach trial Court within seven (7) days. Order of granting protective bail to the petitioners/accused shall cease to have its effect after expiry of seven days from today or when the petitioners/accused surrender before the trial Court, which one occurs earlier.
For what has been discussed above,
instant constitution petition is without merit, the same is dismissed.
It is made clear that observations
made herein above are tentative in nature and the trial Court shall not be
influenced by such observations while deciding the case of the
petitioners/accused on merits.
J U D G E
J
U D G E
Gulsher/PS