RASOOL KHAN and otherss vs Haji BANARAS KHAN and others

ABDUL HAMEED DOGAR, J.---Petitioners seek leave to appeal against the judgment dated 21-9-2001 passed by a learned Judge in Chambers of the Peshawar High Court, Circuit Bench, Abbottabad, whereby criminal appeal filed by them against the acquittal of the respondents was dismissed.

2. Briefly stated, the facts leading to the filing of the instant petition are that Suleman Khan moved an application to D.C. Abbottabad alleging therein that Mst.Habib Jee daughter of Allah Dad. Was an unmarried woman. She was old, sick, infirm, and unsound and her nephew Ansar Khan and his wife Mst.Rashida Begum took her to their house in order to grab her landed property through fraud and thereby they deprived him and other legal heirs of her legacy. It was asserted that they in deceitful manner got alienated her 170 Kanals, land through Mutations Nos. 5577, 5582, 5591, 5609 and 5613' on 27-3-1991. It was also alleged in the complaint that the value of the aforesaid property was more than sixteen lacs. An inquiry was conducted by Revenue Extra-Assistant Commissioner and submitted report that Mst.Habib Jee was in fact an old lady but mentally fit and admitted to have transferred the land by sale with her free consent. The Deputy Commissioner sent copy of the application of Suleman to Assistant Director, ACE, Abbottabad and on the basis of which F.I.R. No,9 dated 9-6-1991 was registered against respondents Haji Banaras Khan and others under sections 419/420/468/ 471/109 read with section 5 (2) of the Prevention of Corruption Act (hereinafter referred to as the Act) at Police Station Anti-corruption Establishment, Abbottabad.

3. The respondents were sent up to face trial before the Court of learned Special Judge, Anti- corruption, N.W.F.P., Peshawar, who after framing the charge acquitted all the respondents under section 249-A, Cr.P.C. On the basis of statement of Investigating Officer P.W.1 Mumtaz Zareen, D.S.P.

Circle Cantt., Abbottabad vide judgment dated. 13-6-2001.

4. The petitioners, feeling dissatisfied, assailed the said judgment through Criminal Appeal No,56 of 2001 before the Peshawar High Court, Circuit Bench, Abbottabad, which was dismissed in limine vide impugned judgment.

5. We have heard Mr.Fazal Ellahi Siddiqui, learned Advocate Supreme Court for the petitioners and Sardar Muhammad Ghazi, learned Advocate Supreme Court for the respondents and have gone through the record and proceedings of the case in minute particulars.

6. Learned counsel for the petitioners vehemently contended that the judgments of the trial Court as well as that of learned High Court are perverse and not sustainable in law. According to him, the application under section 249-A, P.P.C. Was prematurely allowed only on the statement of Investigating Officer, utterly in disregard to the norms and tradition of the criminal trial. In fact the petitioners' party would have produced the material evidence on the subject-matter if their statements had been recorded in the trial Court prior to recording the statement of the I.O. Whose statement is always recorded at the close of the prosecution evidence. The factum of fraudulently mutating the land of an old lady by respondents in collusion with the Revenue Authorities has been deliberately brushed aside in this case, hence the judgments of the trial Court as well as that of Appellate Court are liable to be set aside on this score alone.

7. On the other hand, learned counsel for the respondents has controverted the above contentions and argued that the both Courts below have rightly apprised the evidence and correctly acquitted the respondents, finding no cogent reason to proceed further with the trial. According to him, tire alleged mutations referred in the case of prosecution were attested on 27-3-1991 in favour of the respondents whereas the case of the prosecution against the respondents was registered in 2001 after a delay of about ten years, as such, were rightly acquitted.

8. The moot point to be considered in this case is very alienation of property by Mst. Habib Jee in favour of the respondents through above-mentioned mutations regarding which the Revenue as well as Anti-Corruption Authorities had held a detailed inquiry. There is no bar on the powers of the concerned Court to exercise its jurisdiction under section 249-A, Cr.P.C. And acquit an accused at any stage eve before framing of charge, after affording an opportunity of hearing to tie prosecutor and the accused, if it is found that the charge is groundless or there is no probability of accused being convicted and that further proceedings in the matter would be a futile exercise and result in abuse of process of Court. In the instant case also, trial Court while acquitting the respondents has exercised its jurisdiction exactly in accordance with law which is rightly maintained by the High Court.

9. It would be pertinent to note that the respondents have also resorted, to the civil remedy and have filed civil suit in the year 1998 which is pending adjudication, hence there was no justification to invoke the jurisdiction of the criminal Colin as the very fact that the mutation was fraudulently entered or not is yet to be determined by the Civil Court.

10. Accordingly, finding no force in the petition, the same is dismissed and leave to appeal refused.