HIGH COURT OF SINDH AT KARACHI

Crl. Misc. Application No.56 of 2012

------------------------------------------------------------------------------------

Date Order with signature of Judge

----------------------------------------------------------------------------------

Date of hearing 22.10.2012

---------------------------------

Mr. Amir Mansoob Qureshi, Advocate for the Applicant.

Ms. Rahat Ahsan, D.P.G.

>><<

SYED HASAN AZHAR RIZVI J: By this Criminal Misc. Application filed under Section 561-A of Criminal Procedure Code the Applicant has prayed for his acquittal and quashment of the proceeding in Special Case No.159/2011 Special Judge Anti Corruption (Provincial), Karachi as the proceeding of the case would be futile exercise and amounts to abuse the process of law.

2. Brief facts of the care are that on 24.8.2011 at 13:20 hours one Muhammad Sajid lodged FIR No.444/2011 at P.S. Zaman Town, Karachi-East regarding the incident took place on 22.8.2011 in between 0300 to 0400 hours. The investigation of that FIR, according to column No.5 of the FIR, was entrusted to SIP Ali Murad Sher. Challan/charge-sheet of the case was not submitted under section 173 Cr.P.C. before the Court of Judicial Magistrate therefore, on 17.9.2011 learned XVII Judicial Magistrate, Karachi-East issued show cause notice to the SHO P.S. Zaman Town, Karachi. On 22.9.2011 SHO P.S. Zaman Town submitted reply of Show Cause Notice, wherein he stated that as per Column No.5 of the FIR SIP Ali Murad Sher of P.S. Zaman Town was conducting investigation but due to sudden shahadat of his first cousin namely DSP Abdul Latif Sher, who was killed in an encounter by notorious criminal at Shikarpur, he had to rushed to District Shikarpur to attend burial ceremony. Learned Judicial Magistrate was not satisfied by the reply of the show cause notice submitted by the SHO and had passed order dated 22.10.2012 to register Direct Complaint against the SHO for non-compliance of section 173 Cr.P.C. On the same day viz. 22.9.2011 Reader of the Judicial Magistrate-IX, Karachi-East lodged Direct Complaint before the Special Judge Anti Corruption (Provincial), Karachi that the present Applicant being SHO of P.S. Zaman Town failed to submit report under section 173 Cr.P.C. within stipulated time, his reply was not found satisfactory and he intentionally and deliberately disobeyed the lawful orders of the Court, therefore, he is liable to be prosecuted under section 166 PPC. Learned Special Judge Anti Corruption (Provincial), Karachi took cognizance on the Direct Complaint and case was registered against the Applicant under section 166 PPC read with section 5(2) of the Prevention of Corruption Act, 1947. Present Applicant filed an Application under section 249-A Cr.P.C. before the Special Judge Anti Corruption (Provincial), Karachi, which was dismissed on 23.1.2012, hence the Applicant impugned the said order in the present Criminal Misc. Application.

3. Mr. Amir Mansoob Qureshi learned Counsel for the Applicant contended that the delay in filing of report under section 173 Cr.P.C. was neither intentional not deliberate as on 20.9.2011 first cousin of the Investigating Officer of the case SIP Ali Murad Sher namely DSP Abdul Latif Sher was brutally murdered therefore, the Investigating Officer of the case left for Khairpur where he lodged FIR No.215/2011 at P.S. New Fojdari, District Shikarpur under sections 302/324/34/120/427-B PPC and section 7 of the Anti Terrorism Act regarding murder of his cousin. Certified copy of the said FIR is enclosed as Annexure A/5” at page 41 with the memo of Application. Learned Counsel further submitted that due to sudden shahadat of the first cousin of Investigating Officer SIP Ali Murad Sher, he had rushed to Khairpur and in emergency could not hand over original file of the investigation to any other officer. He further submitted that these facts were mentioned in the reply of Show Cause Notice but the learned Judicial Magistrate in the Direct Complaint filed before the Special Judge Anti Corruption (Provincial), Karachi, did not even mention the same in the body of the complaint. SIP Ali Murad Sher Investigating Officer of the case immediately after his return submitted charge-sheet on 01.10.2011 before the Judicial Magistrate, who passed order on 03.10.2011 for issuance of show cause notice to the Investigating Officer for delay in submission of the charge-sheet. Certified copy of the charge-sheet is enclosed as Annexure “A/6” at Page 51 with the Memo of Application. Learned Counsel for the Applicant has also argued that Applicant was posted as SHO P.S. Zaman Town on 24.8.2011 and took charge in the evening whereas the incident was of 22.8.2011 and subject FIR was registered before taking the charge by the Applicant as SHO of P.S. Zaman Town. Learned Counsel further contended that in an identical situation show cause notice was issued to one Malik Aamir of P.S. Awami Colony when the FIR was registered on 28.8.2011 and Malik Aamir assumed the charge of SHO on 10.9.2011. The Court in Special Case No.58/2011 vide order dated 12.9.2012 acquitted said Malik Aamir under section 249-A Cr.P.C. in similar circumstances and stated in the order that “Applicant cannot be termed deliberate and the charge appears to be groundless and there appears no probability of his conviction”. The learned Counsel for the Applicant has placed on record certified copy of the order, referred to above. To support his contention he has placed reliance upon the case of Muhammad Ramzan versus Rahib and others reported in PLD 2010 SC 585.

4. Ms. Rahat Ahsaan learned DPG for the state supported the impugned order of the learned Special Judge Anti Corruption (Provincial), Karachi and vehemently opposed the arguments advanced by the learned Counsel for the Applicant. However, she admits that nothing has been stated in the Direct Complaint submitted by the submitted by the Reader of Judicial Magistrate before the Special Judge Anti Corruption (Provincial), Karachi regarding the reply/stand taken by the Applicant.

5. I have heard Mr. Amir Mansoob Qureshi, Advocate for the Applicant, Ms. Rahat Ahsaan learned DPG and perused the relevant record carefully with their assistance.

6. It would be advantageous to reproduce Article 18(3)(4)(5) & (6) of the Police Order, 2002, which are as under:-

18. Posting of heard of investigation. (1) ---

(2) ---

(3) The head of investigation in a District shall not be below the rank of Superintendent of police and shall be responsible to his own hierarchy subject to general control of the District Police Officer. Provided that the Investigation Wing shall be located within the police station and shall be responsible to its own hierarchy in the District under the general control of Officer-in-charge of the police station.

(4) All registered cases shall be investigated by the investigation staff in the district under the supervision of the head investigation. Provided that the Government may, by a special or general order, may entrust investigation of offences under Local and Special Laws as defined in the Pakistan Penal Code and punishable with imprisonment for a term not exceeding three years with or without any other punishment, to the police station staff.

(5) The District Police Officer shall not interfere with the process of investigation. The head of investigation shall however keep the District police officer informed of the progress of all cases which have a bearing on public order. The District police officer shall provide full support to the head of investigation in the performance of his duties.

(6) Investigation shall not be changed except after due deliberations and recommendations by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being in-charge of the investigation of the concerned district. provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation

7. On perusal of the record it appears that the Applicant at the time of registration of the FIR did not assume the charge of SHO of the concerned Police Station. SIP Ali Murad Sher/Investigating Officer of the case has already mentioned in the FIR that due to sudden shahadat of his cousin he had rushed to District Shikarpur to attend his burial and on 20.09.2011 had lodged FIR No.215/2011 at P.S. New Fojdari, District Shikarpur against the culprits, which is filed as Annexure A/5 with the Memo. Tere is no denial of the fact that the original police file of the investigation was with SIP Ali Murad Sher , who went in emergency and could not hand over the same to any other officer. On his return he immediately submitted report under section 173 Cr.P.C. before the competent Court on 01.10.2011, which is not disputed or challenged. Explanation by the present Applicant to the Show Cause Notice was not mentioned in the complaint filed by the Reader of the Judicial Magistrate-IX, Karachi-East at the time of filing Direct Complaint. These material grounds/points taken by the learned Counsel for the applicant before Special Judge Anti Corruption (Provincial), Karachi in the Application under section 249-A Cr.P.C. but the same were not taken into consideration by the learned Special Judge while passing the impugned order.

8. The question to be determined in the quashment matters is as to whether the machinery of law is being employed for an operation from which any result in furtherance of justice can accrue. A case which cannot possibly succeed, if allowed to continue would be an abuse of the possess of the Court and to quash it under section 561-A Cr.P.C. would secure the ends of justice.

9. It is well-settled that this Court is not denuded of its powers to quash the proceedings if it is satisfied from the material produced before it that prosecution has been launched for improper motive, merely to harass the accused, or the continuous of the same would be an abuse of the process of the Court or for other reasons which impel the Court to conclude that to allow the prosecution to continue would not be in the ends of justice.

10. As discussed above proceeding of the case before the Special Judge Anti Corruption (Provincial), Karachi would be a futile exercise and amounts to abuse the process of law when in an identical and similar type of case with slight variation learned Special Judge has already granted application under section 249-A Cr.P.C. Special Case No.58/2011, referred to above. In the present case also the charge is groundless and there is no probability of conviction of the Applicant.

11. Above are the reasons of my short order dated 22.10.2012 whereby the impugned order dated 23.1.2012 passed by the Special Judge Anti Corruption (Provincial), Karachi in Special Case No.159/2011 was set-aside, instant Criminal Misc. Application was allowed and the Applicant was acquitted, if not required in any other case.

Karachi

Dated : ____________ JUDGE