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

Gulsher/PS