IN
THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-2308
of 2013
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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)
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1)
For hearing of CMA No.26755/2013 (u/s
476 Cr.PC)
2)
For hearing of CMA No.26756/2013 (u/s
114 CPC)
3)
For hearing of CMA No.25412/2013
(Review)
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17.02.2014
Mr. Murtaza Wahab,
Advocate for Respondent No.2.
M/s. Mehmood Alam
Rizvi and Obaid-ur-Rehmjan, Advocate for Respondent No.6.
Mr. Ali Haider
Saleem, Asstt: Prosecutor General Sindh
Chaudhry Muhammad
Rafiq, Asstt: Advocate General Sindh
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CMA
No.25412/2013: Through the instant application, respondent
No.6 seeks review of the Order dated 23.09.2013 passed by this Court in C.P.
No.D-2308/2013 to the extent that following remarks may be expunged:
“However, there is sufficient material
on record against accused Suleman and Munaf Ibrahim, therefore, proceedings
against accused Suleman and Munaf Ibrahim are not quashed, same shall proceed
before the trial Court on merits, strictly in accordance with law.”
Mr. Mehmood
Alam Rizvi, learned Advocate for Respondent No.6 mainly contended that
observations have been passed by this Court in order dated 23.09.2013 without
hearing the respondent No.6 trial Court shall be influenced by such
observations while deciding the case, the same are liable to be expunged. In
support of such contentions reliance has been placed on the cases reported as:
1. PLD
1996 Karachi 388 J. M. Hayat Qureshi Vs. The State
2. 1968
SCMR 1359 Shujauddin versus The State
Mr. Murtaza
Wahab, Advocate for Respondent No.2 complainant argued that no prejudice has
been caused to the Respondent No.6 by such observations proceedings were
quashed against Jahangir Siddiqui, Imran Shaikh and Ali Jahangir Siddiqui on
misreading of further statement of complainant and 161 Cr.PC statements of
prosecution witnesses. In support of his contentions he placed reliance on the
following cases:
1. PLD
2005 Supreme Court 311 Land Acquisition
Officer and Assistant Commissioner, Hyderabad versus Gul Muhammad through Legal
Heirs
2. PLD
1984 Supreme Court 44 – Mst. Karim
Khatoon versus the State
3. 1995
SCMR 922 Messers M. Y. Malik and Co. and
2 others versus Messers Spendlours International
Learned
D.P.G. argued that order dated 23.09.2013 has been passed by this Court on the
basis of further statement of the complainant and 161 Cr.PC statements of the
PWs and no case for review of the order is made out, however, it is submitted that
Respondent No.6 had not applied for quashment of the proceedings, trial Court
may be directed to decide the case without influenced from any observation made
against the Respondent No.6.
Learned
A.A.G. argued that scope of review is limited, there is no apparent error in
the order.
After
hearing the learned counsel for the parties we have come to the conclusion that
no case for review of the order dated 23.09.2013 is made out for the reasons
that in C.P. No.D-2308/2013 in prayer clause No.3 it is prayed as under:-
“3. Quash
the proceedings including the F.I.R. lodged against the Petitioner Mr. Ali
Jehangir Siddiqui and others on the basis of false, bogus, mischievous and
contradictory challan and complaint of the Respondent No.2”
It appears
that in the prayer clause, prayer was made for quashment of the proceedings
against petitioner Ali Jahangir Siddiqui and others. Therefore, this Court on
the basis of further statement of the complainant and 161 Cr.PC statements of
the PWs, quashed proceedings against Jehangir Siddiqui, Imran Shaikh and Ali
Jahangir Siddiqui and Court distinguished the case of accused Suleman and Munaf
Ibrahim and declined to quash the proceedings against accused Suleman and Munaf
Ibrahim and directed the trial Court to proceed with the case on merits
strictly in accordance with law. No error apparent on the face of record has
been pointed out, therefore, review application is
dismissed. However, it is made clear that our observations made in order dated
23.09.2013 were for the limited purpose to distinguish the case of accused
Suleman and Munaf Ibrahim. This Court did not travel beyond the record. This
Court had felt compelled to go into the case of accused Suleman and Munaf
Ibraim, as it was done on account of lengthy arguments of counsel for the
parties and such conclusion was reached by this Court was only for the disposal
of the instant Petition and should not be taken as ultimate findings on merit
of the case. Trial Court without being influenced by our observations shall
decide the case on merits strictly in accordance with law.
CMA No.26755/2013: Through the instant application, the Respondent
No.2/Complainant has prayed to take cognizance of perjury committed by the
petitioners in this petition. Mr. Murtaza Wahab, Advocate for the Respondent
No.2 has argued that the proceedings were quashed by misquoting the order dated
22.04.2013 by the petitioners while replacing the word “fully” with the word
“falsely” from the order passed by Civil Judge and Judicial Magistrate.
After
hearing the learned counsel for the parties we have come to the conclusion that
while deciding the review application in Constitution Petition question of
perjury cannot be decided by this Court. Moreover, it is disputed question of
facts, which requires evidence. Hence, application is without merit, the same
is accordingly dismissed.
CMA No.26756/2013: Respondent No.2, complainant through the instant
application seeks review of the order dated 23.09.2013 on the ground that
material produced by the Respondent No.2 has not been properly adjudicated by
this Court, Investigation Officer had not recorded the 161 Cr.PC statements of
the PWs properly on the basis of which proceedings have been quashed against
Jehangir Siddiqui, Imran Shaikh and Ali Jahangir Siddiqui.
Mr. Mehmood Alam Rizvi opposed the application and argued
that proceedings were quashed against Jehangir Siddiqui, Imran Shaikh and Ali
Jahangir Siddiqui on the basis of further statement of the complainant and 161
Cr.PC statements of the PWs.
Learned
D.P.G. and A.A.G. argued that the review application,
merits no consideration.
The record reflects
that order dated 23.09.2013 was passed by this Court by considering the
relevant material on the record. Para 10 of the order is
reproduced as under:
“10. It is settled law that this Court in
exceptional cases exercise jurisdiction without waiting for trial Court to pass
order under section 249A or 265-K Cr.PC if the facts of the case so warrant.
Main consideration to be kept in view would be whether the continuance of
proceedings before the trial Court would be a futile exercise, wastage of time
and abuse of process of Court or not and if on the basis of facts admitted and
patent on record no offence can be made out and it would amount to abuse of
process of law to allow the prosecution to continue with the trial on the basis
of material available on record. Complainant Abdul Ghani son of Haji Usman in
his further statement recorded on 07.04.2013 and above named PWs in their 161
Cr.PC statements did not implicate accused namely (1) Jehangir Siddiqui, (2)
Imran Shaikh and (3) Ali Jehangir Siddiqui, as such, no case against (1)
Jehangir Siddiqui, (2) Imran Shaikh and (3) Ali Jehangir Siddiqui is made out
and case against them would not end to the conviction, order dated 22.04.2013
passed by learned Civil Judge/Judicial Magistrate Karachi South against
Jehangir Siddiqui, Imran Shaikh and Ali Juhangir Siddiqui is not sustainable
under the law. Case against accused Jehangir Siddiqui, Imran Shaikh and Ali
Juhangir Siddiqui for quashment of proceedings is made out. Proceedings against
these three accused would be abuse of process of law. Therefore, while relying
upon the case of Mst. Ghafooran vs. Muhammad Bashir and others reported in 1977
SCMR 294, proceedings against accused (1) Jehangir Siddiqui, (2) Imran Shaikh
and (3) Ali Jehangir Siddiqui arising out of F.I.R. No.86/2013 of P.S. Saddar
South Karachi are hereby quashed. However, there is sufficient material on
record against accused Suleman and Munaf Ibrahim, therefore, proceedings against
accused Suleman and Munaf Ibrahim are not quashed, same shall proceed before
the trial Court on merits, strictly in accordance with law.”
Contention
of Mr. Murtaza Wahab that entire material was not considered by this Court is
not correct. By detailed order further statement of the complainant Abdul Ghani
recorded on 07.04.2013 and 161 Cr.PC statements of the PWs in which they did
not implicate the accused Jehangir Siddiqui, Imran Shaikh and Ali Jahangir
Siddiqui, the proceedings were quashed against them. Scope of review in
Criminal Case is limited. No error on the face of record has been pointed out
by Mr. Murtaza Wahab. Hence, no case for review of the order dated 23.11.2013
is made out. Consequently, review the application is dismissed.
JUDGE
JUDGE
Gulsher/PA