IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD
Cr.Misc.Application No.S-594 of 2010
Date of hearing: 16.05.2011.
M/s. Pirbhulal Goklani and Azizullah Shaikh, Advocates for the Applicant.
Syed Meeral Shah, D.P.G for the State.
Muhammad Ali Mazhar-J:, This Criminal Miscellaneous Application has been brought to challenge an order dated 22.9.2010 passed by the Court of learned Special Judge Anti Corruption, Hyderabad in Special Case No.2/2001, whereby the application moved by the present applicant under Section 249-A Cr.P.C was dismissed.
1. The brief facts of the prosecution case are that the present accused/applicant in capacity of Mukhtiarkar, in collusion with co-accused including officials of Land Record & Settlement Office, Revenue Officer, Hyderabad and Mukhtiarkar Office, Thatta, fabricated false record in the year 1993 with intention to grab/misappropriate 28-00 acres land of complainant situated in Deh Nai Baran, Tapo Tando hafiz Shah Taluka and District Thatta and thereby they all, in furtherance of their common intention, committed offences punishable u/s 217, 409, 420, 467, 468, 471, 477-A/34 PPC read with section 5(2) of Prevention of Corruption Act, 1947.
2. The learned counsel for applicant argued that name of the present applicant was never mentioned in the F.I.R. nor he was implicated by the complainant and no role of the applicant has been assigned in the F.I.R. He further argued that F.I.R. was lodged after the delay of at least eight years and the applicant was retired in the year 2000. He further argued that main grievance for challenging the impugned order is that land in question is situated at Thatta and the present applicant was also performing his duties at Thatta and the offence alleged to have been committed in Thatta in official record, therefore, under the Sindh Enquiries and Anti Corruption Rules 1993, the enquiry and further proceedings for initiating prosecution could only be ordered by D.C.O, Thatta and no officer of Hyderabad but this important aspect has been overlooked by the trial Court while dismissing the application U/s 249-A Cr.P.C.
3. He further argued the trial court has failed to assign any cogent finding to this legal plea which makes the entire trial illegal and in excess of jurisdiction. The learned counsel referred to Sindh Enquiries and Anti-Corruption Rules 1993 in which the definition of competent authority in Section 2, clause (g) reads as under:-
“(g) “Competent authority” means the competent authority as specified in Schedule-I to accord permission either to hold an inquiry, or to order registration of a criminal case or to drop the case after investigation or decide departmental action to these rules (on its own or on the recommendation of Anti-Corruption Committee)”.
4. The learned counsel further referred to Rule 3 of Sindh Enquiries and Anti-Corruption Rules 1993 which pertains to the constitution of the Committees. For ready reference Rule 3 is reproduced as under:-
“3.Constitution of the Committees:- (1) The Committee shall consist of a Chairman and such number of members as may be determined by Government.
(2) There shall be the following Committees:-
(a) Provincial Anti-Corruption Committee abbreviated as (ACC-1).
(b) Divisional Anti-Corruption Committee abbreviated as (ACC-II).
(3) (a) The Chairman shall be a Secretary/member of Committee No.1, headed by the Chief Secretary.
(b) He will also attend the meetings of (Committee No.II).
5. The learned counsel further referred to Schedule-I which provides as under:-
“The authority/officer mentioned in coloumn-1 shall be the competent authority in respect of the public servants mentioned against.
a) District Coordination Officer Public Servants in BS-1 to 16.
(b) Chief Secretary Public Servants in BS-17 to 20.
(c) Chief Minister Public Servants in BS-21 and above.
(d) Chief Justice of the High Judicial Officer.
Court of Sindh.”
6. The learned D.P.G is also of the view that no specific finding has been given against the grounds raised in the application therefore, he does not support the impugned order.
7. The crux of application moved under Section 249-A Cr.P.C was relating to the alleged non availability of prior permission either to hold an enquiry or to order registration of case against the applicant. I have seen the impugned order and found that though the learned trial Court has reproduced the arguments of learned counsel for applicant in relation to the jurisdiction and non-accord of permission by D.C.O Thatta but he has not given any findings whether the prior permission in case of applicant has been accorded by the competent authority or not. The learned trial court simply referred to earlier meeting of Committee in which the other accused were implicated and not the applicant. The trial court has completely failed to consider whether for initiating the inquiry or prosecution against the present applicant any permission was accorded to by the competent authority in accordance with Schedule-I.
8. In the application moved under Section 249-A Cr.P.C, the applicant had taken specific grounds in paragraph 10 and 11 that the applicant/accused was the most senior public servant and according to inquiries and ACE Rules 1993, the competent authority was District Coordination Officer, Thatta, but in this matter, the District Coordination Officer Hyderabad (ACC-II) gave approval for the prosecution of case and only the Anti-Corruption Police Station Thatta had the jurisdiction to conduct inquiry and investigation, as such, approval accorded by District Coordination Officer Hyderabad is without jurisdiction. It was further averred that according to provision of section 3 of Sindh Prevention of Bribery and Corruption Act, 1950, the investigation in the anti-corruption cases shall be conducted by police officer not below the rank of an Inspector of Police, but in the present case the investigation has been conducted by Sub-Inspector of police without reference of any authorization.
9. In order to appreciate the contentions of learned counsel, it would be necessary to make reference to Section 249‑A Cr.P.C which empowers the trial Court to acquit accused at any stage of the trial and the only requirements to be fulfilled are firstly that hearing is to be given to the prosecutor and counsel of accused and secondly reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. It is also clear that application can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application is to be filed after evidence of all the witnesses is recorded. The honorable supreme court in its judgment reported in PLD 2009 Supreme Court 102, held that Magistrate is given power under S.249-A, Cr.P.C. to acquit accused person at any stage of the case, if after hearing prosecutor and accused and for reasons to be recorded, he considers that charge is groundless or that there is no probability of the accused being convicted of any offence. In another judgment reported in PLD 1997 Supreme Court 275, it was held that High Court ordinarily is reluctant to quash proceedings under S.561-A, Cr.P.C. unless Trial Court exercises its powers under S.249-A or 265-K, Cr.P.C. which are incidentally of the same nature and in a way akin to and co-related with quashing of proceedings as envisaged under S.561-A, Cr.P.C High Court in exceptional cases can however, exercise its jurisdiction under S.561-A, Cr.P.C. without waiting for Trial Court to pass orders under Ss. 249-A & 265-K, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Expression "at any stage" used in Ss. 249-A & 265-K, Cr.P.C. indicates that any such stage can either be the very, initial stage after taking cognizance or middle stage after recording some proceedings or even a later stage. Exercise of powers under 5.561-A, Cr.P.C. by High Court at pre-trial stage cannot further the ends of justice if undertaken to determine whether the prosecution evidence likely to come on record is true or false.
10. This is fact that the present applicant has not been implicated in the FIR No.1/2001 and the trial court in its order observed that complainant Ghulam Abbas Abro who is attorney of Mst.Hakimzadi and Mst.Afroz moved to commissioner Hyderabad Division and Deputy Commissioner Thatta and at his request Anti-Corruption Committee-II, Hyderabad in its meeting held on 20.12.2000 decided to register the case against accused persons and same was communicated by Deputy Director ACE, Hyderabad to Circle Officer for registration of criminal case under Section 217, 420, 467, 468, 471, 477-A/34 P.P.C read with Section 5 of the Prevention of Corruption of Act 1947.
11. It is noteworthy and significant to point out that Rule 11 of Sindh Enquiries and Anti-Corruption Rules 1993 germane to registration of case which provides that criminal cases shall be registered by the Establishment under Prevention of Corruption Act 1947 and under such sections of the Pakistan Penal Code as have been set forth in the Schedule of the Act. (The Act means the Sindh Enquiries and Anti Corruption Act 1991). Sub-Rule (2) of Rule 11 further provides that no criminal case shall be registered against accused public servant without prior approval of the Competent Authority. However the proviso attached to this rule provides in unequivocal terms that prior approval shall not be necessary for registration of case against public servant likely to be caught red-handed as a result of raid/trap arranged by Establishment under supervision of a Magistrate and in case of non-availability the Gazetted Officer of the Establishment. Obviously, the proviso is not applicable in the present case as the applicant was never implicated in the case as a result of any raid or trap under the supervision of Magistrate.
12. In the impugned order, the trial court has failed to consider that if any
permission was accorded in the year 2000 then why the name of applicant was not mentioned in the FIR lodged in the year 2001 and if any permission was accorded in case of applicant subsequently, then this important aspect should have been mentioned in the order. It seems that while deciding the application, the trial court has not appreciated the documentary evidence and material available on record to find out the accord of permission in the case of applicant but on the basis of previous permission accorded for other accused persons, dismiss the application without examining the record with due diligence whether the competent authority as specified in Schedule-I has accorded permission in the case of applicant for registering criminal case against him or no permission was required under Sindh Enquiries and Anti Corruption Rules 1993.
13.Since the most crucial and foremost point as regards to the accord of permission remained untouched and has not been decided by the trial court, therefore, I deem it proper to set aside the impugned order and remand the matter with the direction to the learned trial Court to decide the application under Section 249-A Cr.P.C afresh within 20 days after hearing the prosecutor and accused and pass the order with coherent and convincing reasons after examining the available record whether the charge is groundless or there is no probability of the accused being convicted of any offence which is necessary to be analyzed and scrutinized by a court at the time of disposal of application keeping in view the unembroidered scope and language embedded and entrenched under Section 249-A Criminal Procedure Code.
The Criminal Miscellaneous Application is disposed of accordingly.