IN THE HIGH COURT OF SINDH AT KARACHI

C.P. No.D-1500 of 2011

Present: Mr. Justice Irfan Saadat Khan

Mr. Justice Zafar Ahmed Rajput

M/s. Jhamat Jathanand & Suresh Kumar, advocates for petitioners.

Mr. Ahmed Pirzada, advocate for respondent No. 3.

Mr. Abdul Waheed Siyal, advocate for respondents No. 9 to 13.

Mr. Meeran Muhammad Shah, Addl .A.G.

Date of hearing: 17.09.2015.

Date of Judgment: 30.09.2015

J U D G M E N T

ZAFAR AHMED RAJPUT, J:- Through instant petition, the petitioners seek quashment of 13 F.I.Rs. bearing Nos. 08/2011, 09/2011, 10/2011, 11/2011, 12/2011, 13/2011, 14/2011, 15/2011, 16/2011, 17/2011, 18/2011, 19/2011 and 20/2011, registered at P.S. ACE Thatta, under sections 420, 468, 471, 477, 218, 34 P.P.C. read with section 5(2) Act-II of 1947.

2. Briefly stated, the facts of the case are that as per approval of ACC-II, Thatta, held on 28.3.2011, on the result of enquiry into complaint No. GO/7/2011 of ACE, Thatta made by one Syed Allah Rakhio Shah before the Chief Secretary, Sindh, Karachi, above-mentioned F.I.Rs were lodged by SIP Muhammad Mousa Brohi of ACE, Thatta on behalf of the State against the petitioners and officials of the Revenue Department, Govt. of Sindh, alleging therein that the complainant’s father late Ali Bux Shah and others had agriculture land at Taluka Ghorabari but the Revenue officials of Taluka Ghorabari with connivance changed the Khata on the basis of cheating and forgery by preparing bogus documents in favour of private persons/ beneficiaries.

3. Learned counsel for the petitioners has contended that the petitioners are innocent and have falsely been implicated in the above-mentioned F.I.Rs. He has further contended that the petitioners are the owners of the agriculture land, detail whereof has been shown in the attached schedule of property, by virtue of purchase/ inheritance for last more than 50 years and the entries in the revenue record have been made in pursuance of the sale transaction and inheritance. He has also contended that the title of the petitioners in respect of their respective agriculture land was challenged before the Revenue as well Civil Courts but all those proceedings ended in favour of petitioners, as such, the petitioners are in possession of the land in their own right but the respondents No. 5 to 8 have resorted to a mechanism to pressurize the petitioners to give up their valuable rights in the agriculture land. He has also contended that none of the ingredients of the offences alleged against the petitioners are made out and the dispute between petitioners and private respondents No. 9 to 13 is purely of civil nature, therefore, all the 13 F.I.Rs being malafide are liable to be quashed. In support of his contentions, the learned counsel for the petitioners has relied upon the following cases:-

(1) Maqbool Rehman v. The State & others (2002 SCMR 1076)

(2) The State v. Asif Ali Zardari (1994 SCMR 798)

(3) Malik Salman Khalid v. Shabbir Ahmed, D & S J, Karachi and

another (1993 SCMR 1873) and;

(4) Musharaf Ali and another v. Mohammad Jamil and another

(1992 MLD 591)

4. On the other hand learned counsel for the respondent No. 3 has contended that the respondent No. 13 had made a complaint to the Chief Secretary, Sindh, alleging therein that the petitioners have managed forged documents and entries in Record of Rights; as such, an inquiry was conducted by the ACE on the directions of Chief Secretary, Sindh, wherein it was established that the land was alienated to one Ali Bux for restricted tenure which does not confer proprietary rights, but the petitioners prepared forged orders for alienation of the land permanently with fake signatures of the Deputy Commissioner, Thatta purporting to have been issued in the years 1958, 1960 and 1962 when the Sindh Revenue Code was in field, wherein the designation of District Revenue Officer was “Collector” and the designation of Deputy Commissioner was introduced after notification of implementation of Sindh Land Revenue Act, on 1.1.1968, as such, the F.I.Rs were registered against the petitioners after conducting inquiry with the approval of competent authority against the revenue officials and petitioners, who are beneficiaries of forged order and entries in record of rights.

5. Learned AAG while adopting the arguments of learned counsel for respondent No. 3, has contended that after investigation the challans have been submitted before the Special Judge, Anti-Corruption (Provincial) Hyderabad, therefore, the petitioners should seek their remedy provided to them under section 249-A, Cr. P.C. for their premature acquittal.

6. Heard learned counsel for the parties and perused the material available on record as well as the decisions relied upon by the counsel for the petitioners.

7. It is alleged that the petitioners are beneficiaries of forged documents whereby agriculture land has been mutated in their names. Sufficient material has allegedly been collected by the Investigation Officer against the petitioners during the investigation and their cases were sent to Court for trial. This Court in exercise of its Constitutional jurisdiction is not vested with any power to take the note of an investigator. It is also outside the jurisdiction of this Court to embark upon or evaluate the facts and evidence of any case. Truthfulness of the allegations leveled in the F.I.Rs. can only be thrashed out through a detailed enquiry for which law provides a prescribed procedure. Any departure in our view from the said procedure would amount to obstruction or diversion of the ordinary course of criminal procedure, which is not permissible under the law. The Honourable Supreme Court in its pronouncements in the case of Haji Sardar Khalid Saleem v. Muhammad Ashraf and others (2006 SCMR 1192) and Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others (2006 SCMR 1957) has deprecated the practice of quashing of the F.I.Rs. when the case involves controversial questions of law and fact.

8. The purpose of quashing an F.I.R. in exercise of constitutional jurisdiction being primarily to save a person from the rigors of an unjustified investigation and if an investigation of a criminal case had already been finalized, the High Court would generally be slow in interfering in the matter at such a stage as in case of submission of challan before the court of competent jurisdiction, many remedies would become available to the affected persons. If criminal liability is spelt out from the facts and circumstances of a particular case, accused can be tried upon a criminal charge and in such a situation, quashment of F.I.Rs. would tantamount to throttling the investigation, which is not permissible under the law.

9. In our view 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 a cognizance of a case by the trial Court an accused person deems himself to be innocent and falsely implicated and 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. as the case may be, to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction. Reliance in this regard is placed upon case of Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan (PLD 2013 S.C. 401).

10. The case law relied upon by the learned counsel for the petitioner are distinguishable to the facts of the present case and in some of the cases to prevent abuse of the process of court or on the face of it no offence was made out, therefore, the proceedings were quashed under section 561-A, Cr. P.C., while in the instant case, after adverting to the contentions of the learned counsel appearing for the parties and examining the material available on record, we are of the view that this petition involves controversial facts which cannot be decided in writ jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan. The petition is, therefore, dismissed accordingly.

11. The petitioners were admitted into bail by this Court vide order dated 18.05.2012 in the sum of Rs.1,00,000/- each and P.R. Bond in like amount as an interim measurement. Their bail is converted into protective bail for fifteen days hereof on the same surety to enable them to appear before the trial Court and file proper bail application. Their protective bail shall, however, cease to have its effect on 14.10.2015 after Court hours or on the date on which the petitioners appear before the trial Court for filing bail application, whichever is earlier.

JUDGE

hanif