Criminal Miscellaneous Application No. 261 of 2012
Present
Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 24.12.2012
Date of order : 24.12.2012
Applicant : Rehana Kausar through
Mr.Muhammad Saleem, advocate
a/w applicant
Versus
Respondent : The State & others
Respondent No.2 : Abdul Aziz Fazlani through M/s
Javaid Ahmed Chhatri and Farah
Awan, advocates a/w respondent
No.2.
Ms Seema Zaidi, APG a/w ASI
Faraz Shahnawaz, Investigation
Branch, P.S. Jauharabad,
Karachi.
O R D E R
Aqeel Ahmed Abbasi, J. Through instant Criminal Miscellaneous Application, the applicant has assailed the order dated 13.7.2012 passed by the XIIth Civil Judge & Judicial Magistrate, Karachi-Central on a Final Report submitted under Section 173 Cr.P.C in Crime No.149/2012 under Section 420/506-B/34 PPC, P.S. Jauharabad, Karachi approving the disposal of the case in “A” Class and the order dated 7.9.2012 passed on an application filed under section 249-A Cr.P.C R/W 173 Cr.P.C.
2. Brief facts of the case as stated by the applicant are that pursuant to a judgment and decree dated 28.2.2009 passed by Civil and Family Judge-X, Karachi-West in Family Suit No.905 of 2005 filed by the applicant Mst. Rehana Kausar against her husband Abdul Hameed, father-in-law Abdul Razaque and respondent No.2 namely, Abdul Aziz Fazlani, Flat No.404-A, 4th Floor, BS-41, Talha Arcade, Block-7, Federal “B” Area, Karachi, was directed to be transferred in favour of the applicant. The said judgment and decree was challenged by Abdul Hameed and Abdul Razque before IInd Additional District Judge, Karachi-West, Family Appeal No.14 of 2009, which was dismissed vide order dated 10.11.2009. Thereafter a Constitution Petition No.28 of 2010 was filed before this Court by the same appellants, which was also dismissed vide judgment dated 18.2.2011 and the judgment and decree passed by the learned Family Court was maintained. The judgment of High Court was assailed before the Hon’ble Supreme Court in C.P.No.283-K of 2011, who vide order dated 27.9.2011 dismissed the petition. The complainant in the instant case namely, Abdul Aziz Fazlani was party to all the above mentioned proceedings and also attended the same.
3. It has been further stated that the complainant, having failed to establish any right or title over above mentioned property with malafide intention lodged an FIR No.149/2012 under Section 506-B/420/34 PPC at P.S. Jauharabad, Karachi in respect of the same property alleging that fraud has been played upon him by Abdul Hameed and Abdul Razaque and also applicant Mst. Rehana Kausar. The matter was investigated by the I.O., who submitted Final Report under Section 173 Cr.P.C. for disposal of the case in “A” Class on the grounds that the applicant has not come forward to substantiate his claim. The concerned Magistrate while approving such report of disposal of the case in “A” Class also observed that the case is being kept for further investigation as it is alive case. The applicant being aggrieved by such disposal of the case in “A” Class and hereinabove observation made by the Magistrate filed an application under Section 249-A read with section 173 Cr.P.C, wherein it was urged that since the complainant has failed to substantiate the allegations, and the I.O. also has failed to conclude the investigation, therefore, either the case may be disposed of as cancelled class or alternatively the applicant Mst. Rehana Kausar may be acquitted from all charges in view of the judgment of the Hon’ble Supreme Court in the instant matter.
4. Learned counsel for the applicant has submitted that the complainant, with malafide intention, by concealing the material facts and with the connivance of Abdul Hameed and Abdul Razaque has once again attempted to involve the complainant in the above FIR in order to cause harassment and to grab the subject flat, which stands decreed in favour of the applicant by the Hon’ble Supreme Court of Pakistan. Per learned counsel, the above FIR was liable to be cancelled as False ‘B’ Class instead of being disposed of in ‘A’ Class.
5. Notices were issued pursuant to which the complainant Abdul Aziz Fazlani attended the Court alongwith his counsel, whereas the State was represented by learned APG alongwith ASI Faraz Shahnawaz, Investigating Officer of the case. While confronted with the hereinabove position, learned counsel for the applicant under instructions of his client submitted that the complainant has no grievance against the applicant namely, Mst. Rehana Kausar, whose claim and entitlement over Flat No.404-A, 4th Floor, BS-41, Talha Arcade, Block-7, Federal “B” Area, Karachi, has duly been determined by the Hon’ble Supreme Court. However, the grievance of the applicant is against Abdul Hameed and Abdul Razaque, who according to learned counsel, have defrauded the complainant. It has been further stated that the I.O of the case may be directed to investigate the above FIR against Abdul Hameed and Abdul Razaque and submit challan before the concerned Magistrate. The I.O of the case present in Court submitted that inspite of repeated reminders the complainant Abdul Aziz Fazlani in the above mentioned FIR did not come forward to substantiate his allegations nor produced any documentary evidence in support of his claim.
6. After hearing both the learned counsel, learned APG and I.O. of the case and from perusal of record it appears that no case is made out against the applicant in respect of Flat No.404-A, 4th Floor, BS-41, Talha Arcade, Block-7, Federal “B” Area, Karachi, whose entitlement in favour of the applicant stands established by the judgment of the Hon’ble Supreme Court. Accordingly, instant Criminal Miscellaneous Application is being disposed of with the directions to the I.O. to investigate the FIR No.149/2012 against the above named accused persons only, in accordance with law, whereas the applicant Mst. Rehana Kausar shall not be harassed in any manner in the above matter. If the complainant fails to establish the prima-facie case against the above accused persons or does not cooperate with the investigation by producing any material, which may connect them with the instant crime, the I.O. of the case may submit Final Report under section 173 Cr.P.C. for disposal of the case in accordance with law preferably within a period of two weeks from today. The concerned Magistrate is directed to pass appropriate orders on such report strictly in accordance with law within a period of two weeks, whereas compliance report shall be submitted through M.I.T of this Court after disposal of the Final Report. Copy of this order may be forwarded to the concerned I.O for compliance.
Instant Criminal Miscellaneous Application stands disposed of in the above terms.
JUDGE