ALI MUHAMMAD BUGHIO vs Chaudhry HAMEEDULLAH, INSPECTOR ANTI-

ORDER

NAIMATULLAH PHULPOTO, J.---Through the instant constitution petition, petitioner/accused Ali Muhammad Bughio seeks quashment of the FIR No, 15/2011, registereA. At P.S Anti-Corruption Establishment, Karachi for offences uiiuer sections 420, 468, 471, 477-A, 409, 34, P.P.C. Read with section 5(2) Act-II, Anti-Corruption Prevention Act, 1947.

2. After usual investigation, challan was submitted against accused Ali Muhammad Bughio and others.

3. In the final report, it is mentioned by the I. O. That official of Excise and Taxation Department and Bank cashier in collusion with each other after receiving the amount from tax payers issued fake challans/endorsed Excise stamp in Motor Registration. They deliberately did not follow procedure.

While Petitioner/accused Ali Muhammad Bughio, the then Head cashier neither asked accused persons to submit daily statement of challans nor checked daily statement provided by Deputy Director Computer and misused the official powers for corruption. Present, accused and others were recommended for prosecution. Now the case is pending trial before the Court of Special Judge Anti-Corruption (Provincial) Karachi.

4. Learned counsel for the Petitioner pointed out that charge has been framed against petitioner/accused and others and now the case is fixed for trial. Learned counsel for the petitioner mainly contended that there is no direct evidence against the petitioner to connect him in the commission of the offence. He further argued that for the mala fide reasons, petitioner has been challaned in this case. He has submitted that case against Petitioner/accused shall not end to the conviction and proceedings will be abuse of the process of Court.

5. Mr. Rafiq Rajori learned Additional Advocate General Sindh and Mr. Abdullah Rajput learned Assistant Prosecutor General Sindh referred to the final report and stated that petitioner/accused was head cashier and in collusion with Excise and Taxation officials, after receiving the amount from tax payers, issued fake challans/endorsed excise stamp of Motor Registration and deliberately did not follow the legal procedure. It is argued that case is pending before the competent court of law and charge has already been framed. It is submitted that this is not a fit case for quashment of FIR. Lastly, it is argued that alternate remedy is always available to the petitioner, he may approach to trial court for seeking relief.

6.After hearing the learned counsel for the parties, we have perused the relevant record. Prima facie, sufficient material has been collected against the petitioner/accused to connect him in the commission of the offence. In final report role assigned to the petitioner has specifically been mentioned, the case has already been challaned and it is pending before competent court of law, where charge has already been framed. Now fate of the case is to be decided by the trial court. It is surprising that jurisdiction of this Court has been invoked without availing remedies before trial Court by making application under section 249-A or 265-K, Cr.P.C. There is factual controversy in the case. As such, it would be unfair to quash FIR/proceedings without trial. In the case reported as Muhammad Saleem Bhatti v. Syed Safdar Ali Rizvi and 2 others (2006 SCM R 1957), the Honourable Supreme Court has held as under: "6. We have heard learned counsel for the parties and have gone through the impugned judgment as well as the relevant material placed on record. It is to be noted that the learned High Court has to exercise jurisdiction under Article 199 of the Constitution in view of the certain parameters laid down by the Constitution itself as well as by this Court from time to time.

Undoubtedly the High Court is not supposed to enter into a factual controversy unless it is established that certain facts are not disputed between the parties. Prima facie, complainant alleged that respondent had committed fraud falling within mischief of sections 406/420/468/471, P.P. C. And the counter-claim has been put up by the respondent. According to him there was factual controversy between the parties, therefore, in such situation it was not fair to quash the FIR, which was under investigation and was at preliminary stage. It is also to be noted that besides availing the constitutional remedy there was also alternate remedy for the respondent by making application under section 249-A or 265-K, Cr. P. C. After submission of Challan or by invoking the jurisdiction of the competent Courts under section 439, Cr. P. C. By invoking jurisdiction of the High Court under section 561-A, Cr.P.C. If need be. Surprisingly the jurisdiction of the High Court has been invoked without availing the appropriate remedies as pointed hereinabove."

7. Reliance is also placed on the case reported as Riaz Ali alias Rajoo v. The State (2011 YLR 997), wherein this Court has observed as under: "12. The Hon'ble Supreme Court in case of A. Habib Ahmed v. M. K. G Scott Christian and 5 others (PLD 1992 Supreme Court 353), has formed view that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as "honourably acquitted by a competent Court." On the other hand if the evidence against the accused discloses a prima facie case then justice clearly requires that the trial should proceed according. To law." The inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievance for which no other procedure is available. The power given by section 561-A Cr.P.C., can certainly, not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute."

8. For the above stated reasons, we hold that no case for quashment of the FIR/proceedings is made out, therefore, the petition is dismissed.