ORDER SHEET
IN THE HIGH COURT OF
SINDH AT KARACHI
Cr. Misc.
Application No.178 of 2023
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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1. For orders on M.A.
No.3283/203
2. For hearing of main
case
3. For hearing of M.A.
No.3284/2023
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20.05.2025
Mr. Musharraf Azhar,
advocate for applicant
Ms. Amna
Ansari, Additional Prosecutor General Sindh
IO/SIP Khadim
Hussain of PS North Nazimabad,
Karachi
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Applicant Mst.
Nagma, complainant of FIR No.450/2022, registered at
P.S. North Nazimabad, Karachi for offence under
section 420, 406, 468, 471, 34, PPC, has impugned order dated 11.02.2023,
passed by learned Civil Judge & Judicial Magistrate-XVII Karachi Central
whereby learned Magistrate approved the summary/report submitted by the IO for
cancellation of FIR from “B” class to “C” Class.
2. Briefly, facts of the case are that
complainant invested Rs.4,500,000/- with nominated
accused Kasahif Ali and Shaukat
Ali, close friends of her husband, subject to payment of profit on such
investment, which they failed to. Accused persons gave her file of Plot
No.A-001, Block-13, Scheme 36, Gulistan-e-Johar, Karachi, as security, which on inquiry from
department concerned found forged. Hence the subject FIR.
3. Learned counsel for applicant submits
that first IO submitted interim challan before the
competent Court of law, thereafter, investigation was transferred to second IO,
who conducted unfair investigation and looking to his behaviour,
applicant moved application against him for transfer of investigation, therefore,
she filed application under section 22-A&B, Cr.PC
for change of investigation before Ex-Officio Justice of Peace. During pendency
of that application, second IO mala fidely submitted
report under “B” class and learned concerned Magistrate approved the same by
converting it from “B” Class to “C” Class. He further submits that impugned
order is illegal for the reason that sufficient material is available on record
for taking cognizance against the nominated accused persons, therefore, he
submits that impugned order may be set aside with direction to the concerned
Magistrate to take cognizance of the matter in accordance with law.
4. On the other hand, learned Additional
Prosecutor General Sindh supported the impugned order and submits that impugned
order has been passed by learned Magistrate after hearing the parties and evaluating
the material available on record; that there is no any illegality or
irregularity in the impugned order whereby summary was approved by converting
it from “B” class to “C” class.
5. Heard learned counsel for applicant,
learned Additional Prosecutor General Sindh and perused the material available
on record.
6. It is a matter of record that IO
submitted summary before learned concerned Magistrate under “B” class, whereas
the learned Magistrate approved the same by converting it from “B” class to “C”
Class. I have gone through the impugned order. The observations made by learned
Magistrate are reproduced as under:
a) The Complainant alleges that she
invested a huge sum of money of Rs.45,00,000/- (Rupees
forty-five lacs only) with both nominated Accused persons
by borrowing this money from her brothers. In the FIR as well as in her 161 Cr.
P.C. statement, the Complainant has not disclosed the mode of receiving of the
amount of Rs.45,00,000/- (Rupees forty-five lacs only) from her brothers to her, and then it's payment
by her to the nominated Accused persons. She has also not named her brothers,
from whom she borrowed this money, as witnesses in favour
of her case.
b) She has also not disclosed whether such
an agreement was reduced in writing or otherwise. It is an admitted position
that she has not provided any written agreement to both the Investigation
Officers during the investigation, or the author of
the FIR at the time of the lodging of the FIR. Even otherwise, she has not
stated the date, time, and place when she paid this money to the nominated accused
persons. The names of witnesses in whose presence such amount was paid. She
only states that such an amount was paid between 01.11.2021 to 01.04.2022, but
does not state if it was paid in installments or lump sum or any other manner.
c) It is an admitted position that she has
not provided any cash, cheque, or online payment
receipts duly signed by both parties to both investigation officers and the
author of the FIR to prove such payment. The Complainant has allegedly handed
over a huge amount to the nominated Accused persons without keeping any record
of such transaction or reducing it into writing which does not appeal to the
prudence of an ordinary person. It is an admitted position that she has no
blood relationship or close friendship or any other familial terms of such a
nature that she entrusted the nominated Accused persons with such a hefty
amount. Under such circumstances, the possibility of false implication in
respect of the payment of this money cannot be ruled out.
d) She has stated that this amount was paid
by her to both nominated Accused persons between the period
of 01.11.2021 to 01.04.2022. The Travel History of the nominated Accused Shaukat Ali provided by the FIA to police provides that: Shaukat Ali departed from Pakistan on 27.03.2021. Then he
visited Pakistan on 27.04.2022 and departed on 01.06.2022. Meaning thereby that
he was not present in Pakistan during the period (01.11.2021 to 01.04.2022)
alleged by the Complainant.
e) The Complainant claims that both nominated
Accused persons are close friends of her husband. The IO has recorded 161 Cr.PC statements of Complainant's ex-husband, wherein he
has expressed no contact/ knowledge with the nominated Accused persons. He has
also stated that his marriage with the Complainant has already been dissolved
and she is now his ex-wife.
f) The I.O. has
annexed a copy of charge sheet of FIR # 717/2022, U/S 448, 468, 471, 420 PPC of
Police Station Mominabad lodged by the Complainant's
husband M. A. Latif S/o Muhammad Ibrahim against Mst. Naghma (the Complainant of this FIR). In that FIR, M.A. Latif stated that he married to Mst.
Naghma in 2007, but she obtained Khula
in January 2022.
g) The only witness named by the
Complainant is Syed Raza Jaffri
S/o Syed Zaheer Ahmed Jafferi,
a relative of the Complainant. In the FIR and her 161 Cr. P.C statement, the
Complainant has not provided if this person/ witness accompanied her when she
paid the alleged amount to the nominated Accused persons, or forged file of the
plot was handed over to her in this witness's presence. Hence, he is not a
natural or a chance witness and cannot be relied upon.
h) The Complainant states that when she
demanded returning her money from both nominated Accused persons, they called
her at North Nazimabad Board Office, Dilpasand Sweet, Block-A, Karachi, on a date she does not
recall, wherein they gave her a file of plot No. A-001,
Block-13, Scheme-36, Gulistan-e-Johar,
Karachi. She has neither stated the date, and time, nor any witness in
whose presence the nominated Accused persons handed over this file to her. Even
otherwise, the Travel History of Shaukat Ali provided
by FIA reveals that he left the country on 01.06.2022.
i) In the FIR, the date of the alleged
incident mentioned by the Complainant is 01.11.2021 to 01.04.2022, whereas the
place of the incident is mentioned as Service Road, near Dilpasand
Sweets, Block-13, North Nazimabad
Karachi. Wherein she claims payment of an amount to the nominated Accused
persons between the alleged period of 01.11.2021 to 01.04.2022 but claims to
receive a fake plot file near Dilpasand Sweets
address. Both are separate incidents and different offences. She appears to be
oblivious to the details of her own case.
j) The incident is alleged to have
happened between 01.11.2021 to 01.04.2022, whereas the FIR has been lodged by
the Complainant on 11.09.2022, after five months of the happening of the
incident. No explanation has been furnished by the Complainant in the FIR.
Hence, the possibility of lodging the FIR after due deliberation and
consultation cannot be ruled out.
7. I do not see any illegality or
irregularity committed by learned Magistrate while passing the impugned order,
which has been passed by her after evaluation of the material placed on record
before the learned concerned Magistrate and I agree with the opinion of learned
Magistrate that if cognizance would be taken and evidence is led in presence of
lacunas and infirmities in the case, no case of conviction has been made out,
therefore, it would be futile exercise to take cognizance in the present case.
It has also come on record that travel history of nominated accused Shaukat Ali collected by the IO from FIA authorities
reveals that he departed from Pakistan on 27.03.2021 and returned back on
27.04.2022 and again departed on 01.06.2022, which reflects that he was not
present in Pakistan during the period 01.11.2021 to 01.04.2022 as alleged by
the complainant and it negates the version of the complainant.
8. In view of foregoing facts and
circumstances of the case, impugned order dated 11.02.2023 is maintained and
instant criminal miscellaneous application is dismissed along with pending application(s).
J U D G E
Gulsher/PS