IMRAN AHMED Versus PROVINCE OF PUNJAB

MEHMOOD MAQBOOL BAJWA, J.--- Through present writ petition, petitioner calls in question the action of Anti-corruption Establishment, proceeding against the petitioner with inquiry/ investigation, further seeking quashment of crime reports bearing No. 15 of 2014 registered under sections 409, 420, 468, 471 of. The Pakistan Penal Code, 1860 (Act No. XLV of 1860) (hereinafter called "Act No.XLV of 1860") and section 5(2) of The Prevention of Corruption Act, 1947 (II of 1947) (hereinafter called "Act II of 1947") with the Regional Office of Anti-Corruption Establishment, Faisalabad, on legal as well factual premises.

2. Facts in brief for the disposal of present writ petition are that inquiry was initiated against Brig. (Retd.) Muhammad Farooq Maan, Ex-Chairman, Punjab Cooperative Board for Liquidation, Lahore (hereinafter called "PCBL"), Khawaja Riaz Ahmed, Ex-Additional Secretary (Property), PCBL, Sheikh Muhammad Masood, Ex-Deputy Secretary (Property), PCBL and Imran Ahmed, Chief Executive, M/s. Niagra Mills (Pvt.) Ltd. (present petitioner).

After conclusion of inquiry, crime report was lodged against petitioner and three above-named persons.

3. Learned counsel for the petitioner, at the very outset, contends that he does not press the petition to the extent of first relief regarding annulment of the investigation and as such, same stands dismissed as not pressed to that extent.

4. Complaint was sent by Nazar Muhammad Chauhan, PCBL to the Anti-Corruption Establishment and after conclusion of inquiry finding the allegations prima facie correct, crime report was lodged. In order to appreciate the contentions of adversaries which are required to be dealt with, it is necessary to reproduce the contents of crime report which are as follows:-

Kindly refer to the subject cited above, brief facts of the case are that land measuring 29-kanals 19-marlas 90-sq.ft. comprising khasra No. 1460/1 (10k-15m), 1460/2/1 (Ok-5m), 1460/2/2 (6-k-9m-07 sq.ft.) and 1458 (12-k-10m-83 sq.ft.) as reflected in the Jama Bandi for the year 1997-98 of Chak # 212/R.B. Tehsil and District Faisalabad (commonly known as Railway Road, Faisalabad) was owned by the defunct National Industrial Credit Finance Cooperation (NICFC), which was later on liquidated to the Punjab Cooperative Board for Liquidation (PCBL), in 1997. Out of the above chunk of land, area to the extent of 26 kanals 18 marlas was put to sale through sealed bids on 15.03.2004 and the same was sold out to Mr. Imran Ahmad of Niagra Mills (Pvt.) Ltd. Faisalabad, the highest bidder for a consideration of Rs. 27,51,00,000/- as lump sum + 2% liquidation charges under terms and conditions contained in public notice appeared in print media regarding sale of said property, auction purchaser was bound to make payment of earnest amount equal to 25% of the bid within 7 days of the intimation of the approval of the bid whereas remaining 75% was to be deposited within 30 days and in case of default, the security amount was liable to be forfeited in the favour of PCBL 2) in a complaint filed by Ch. Liaqat Ali, resident of House # 237-C Gulberg Colony, Faisalabad, before the honourable Chief Justice, Supreme Court of Pakistan, Islamabad, serious allegations have been leveled on sale transaction of this property against the Ex-Chairman Brig. (Retd.) Mr. Muhammad Farooq Maan, Auction Purchaser, beneficiary and other top level officers of PCBL. The complaint led to a though probe in the matter and following blatant irregularities were found to have been committed in this sale transaction. 3) As stated above, sale proceeds were to be realized from the auction purchaser in the following manner, i) 25% of the bid was to be paid within 7 days of the intimation of the acceptance of the bid, ii) Remaining 75% was to be deposited within 30 days. Liquidation charges @ 2% were also to be paid along with the above said 75% amount. 4) Records shows that vide letter No. PCBL/P-2009 dated 04.05.2004, last date for the payment of entire amount was extended uptill 5th of July, 2004. From the perusal of payment table, it transpires that auction purchaser paid Rs. 217,298,542/- up till the stipulated period whereas an amount of Rs. 47,960,752/- was paid on 31.03.2008. An amount of Rs. 15,342,706/- is still outstanding against him. In this situation, as per the terms and conditions laid down for auction, security amount of the auction purchaser should have been forfeited and the bid should have been cancelled. Another aspect of the matter is that alienation of the property was to be done on receipt of full amount of consideration but ex-management of the PCBL alienated 26 kanals of land to the auction purchaser and two other unconcerned persons for which detail would be given in the following paras. The idea behind this act was that auction purchaser gets the property by paying 1st installment and makes the remaining payments through subsequent selling. 5) Prior to putting to sale the land in question, it was obligatory duty of PCBL administration to get the market price of such precious commercial property assessed by a recognized professional evaluation firm like NESPAK, Iqbal-e-Nanjee etc. or through DPAC. PCBL authorities instead of adopting right course, got assessed the price of the property in question through Messrs United Enterprises (Pvt.) Ltd. which is not duly recognized by the Pakistan Banking Association (PBA). It was rather run by ex-military personnel close to the ex-management of PCBL. This firm assessed the market price of the land under reference as Rs. 269,500,000/- as against the price notified by the district collector, Faisalabad in the valuation table, which was to Rs. 492,586,000/- @ Rs. 897,000/- per Marla. The property under reference has been sold out at much lower side than that of market price prevailing at that time, as it was boom time. There is nothing on recording to prove that necessary permission was sought from competent authority prior to the issuance of the N.O.C's and sale deeds in favour of different persons. Amazingly showing an indecent haste, N.O.Cs were issued and sale deeds were got registered on the same date i.e. 05.07.2004. This was oblivious to the provision of registration of any document in favour of a person other than auction purchaser. 7) Auction purchaser has already been delivered the possession of 26 kanals of land on 10.06.2004 and possession of 18 marlas has not so far been delivered due to subsistence of status quo order dated 12.01.2005 issued by the Honourable Lahore High Court, Lahore in case No. 29-2005 titled as Muhammad Aslam v. Nazir Ali. Despite the fact that the auction purchaser has been delivered the possession of main chunk of land and only a meager part of the land is yet to be transferred, an amount of Rs. 15,342,706/- is yet to be paid by the auction purchaser. Secretary, Additional Secretary (P) and Deputy Secretary, PCBL executed sale deeds directly in favour of persons other than the auction purchaser. The detail of these transactions is as under: 1) M/S Kohistan Corporation 4 kanals 10 marlas vide deed No.9243 dated 05.07.2004. 2) M/S Elite Home Fashion 11 kanals 7 marlas vide sale deed No. 9244 dated 05.07.2004. 3) Mr. Imran Pasha (Auction Purchaser) 4 kanals 1 marla vide deed No. 9245 dated 05.07.2004. 9) Execution of sale deeds in favour of persons other than the auction purchaser is neither covered by the law not it was permissible unless the auction purchaser had made full payment of consideration. Moreover this act of ex-PCBL authorities have caused colossal loss to Govt. exchequer in the shape of evasion of stamp duty, registration fee, CVT and Town fee leviable @ 6 to 8% on the total value of land. 10) M/S Elite Home Fashion to whom property was alienated directly and unauthorizedly by the PCBL authorities in 2004 for a consideration of approximately Rs. 5.1 Lac per marla, sold out the same just after one year @ Rs. 9/10 lac per marla approximately. This fact obviates that the magnitude of forgery and fraud committed in this bargain. Detail of sale is as under: a) Vide sale deed No. 16322 dated 05.10.2005, area measuring 1 kanal 2 marlas was sold out for a consideration of Rs. 21,137,500/- in favour of M/S Fortress Textile @ Rs. 960,000/- per marla. b) vide sale deed No. 16321 dated 05.10.2005, area measuring 4 marla and 06 Sarsahi was sold out for a consideration of Rs. 42 lac @ Rs. 9 lac in favour of M/S Kohistan Corporation. 11) From the perusal of the above facts, it is not much difficult to make out the gravity of monetary loss caused to the Govt. Exchequer due to the inefficiency, misconduct and corrupt practices of ex-PCBL authorities including Brig. (Retd.) Muhammad Farooq Maan, Secretary, Additional Secretary (P) and Deputy Secretary (P), who were at the helm of the affairs at that time. The deal was not at all transparent and was reasonably believe that the Ex PCBL authorities involved in this transgression have delivered illegal monetary benefits from this sale transaction. Necessary proceedings have been initiated to revoke/recall the auction proceedings. In view of the above, it is requested that a criminal case under ACE laws be registered-------"

5. Learned counsel for the petitioner highlighting the background submitted that petitioner, Imran Ahmed, Chief Executive, Niagra Mills (Pvt.) Ltd. in February, 2004 after getting knowledge regarding sale of land measuring 26 kanals 18 marlas situated at Railway Road, Faisalabad by the PCBL through auction/bidding express his intention to participate in the bidding through letter dated 18th of February, 2004 and deposited Rs. 5,00,000/- as security through letter dated 25th of February, 2004. Submitted that in the said letter, it was specifically written that petitioner shall participate in the bidding provided the property is free from all encumbrances and subject to delivery of possession by PCBL with transfer of title either in the name of petitioner or any of his nominee. Contended that petitioner participated in the auction along with other bidders and he was declared successful bidder with the offer of Rs.275.10 million through letter dated 22nd of March, 2004 and petitioner deposited 10% of the bid price as earnest money.

Further contended that later on, PCBL required the petitioner to deposit 25% of the offer price while accepting the offer of petitioner and accordingly, petitioner deposited Rs. 4,12,65,000/-.

6. Grievance of the petitioner as canvassed by learned counsel for the petitioner is that though sale deeds were executed and registered in favour of petitioner and his nominees but not in respect of whole of the property and land measuring 6 kanals 10 marlas could not be transferred in favour of either the petitioner or his nominee due to encroachment over the said land by unauthorized persons though time and again petitioner drew attention of competent authority on this aspect simultaneously showing his intention to pay the remaining amount but PCBL failed to get the possession of said land from the illegal occupants though letters were also written by the officers of PCBL to the district administration as well as local police for this purpose.

Further submitted that in view of failure of administration of PCBL, sale deed could not be executed in favour of petitioner in respect of remaining land for which petitioner cannot be held responsible.

7. Adverting to the moot point, it was submitted that keeping in view the allegations contained in the crime report, no offence can be spelled out against present petitioner. Contended that the allegations contained in the FIR regarding evasion of stamp duty, registration fee, CVT and Town fee etc., sale of the land on lesser price by the competent authority, transfer of piece of land in the name of nominees of petitioner, omission on the part of administration of PCBL to get the market value of land assessed by reputed evaluator recognized by Pakistan Banking Association (PBA) and non -payment of total sale price by the petitioner (which is justified due to non-transfer of whole land) would not be sufficient to proceed against the petitioner as said accusation will not attract the provisions of law under which case has been registered.

Continuing the arguments, it was submitted that the administration of PCBL did not make any attempt to get the sale deeds cancelled.

8. Controverting the arguments, learned Assistant Advocate General and learned counsel representing PCBL submitted that petitioner is a beneficiary by getting sale deeds registered in his name as well in the name of his nominees who not only evaded the payment of stamp duty and registration fee etc. but also has not paid the total sale price as agreed. Argued that sale-deeds could not have been executed and registered in favour of petitioner even for a piece of land without payment of total price. Further contended that transfer in favour of nominees of the petitioner is not only illegal but also violative of terms and conditions agreed.

Continuing the arguments, it was contended that the property which was commercial was shown as agricultural land which is against the record.

It was further submitted that petitioner in collusion with the administration of PCBL got the property alienated in his favour as well as his nominees at lesser price though the same could have been sold on higher rate.

Questioning the maintainability of writ petition, it was contended that factual controversy is required to be resolved in order to grant relief to the petitioner which exercise cannot be done by this Court while exercising constitutional jurisdiction.

Making reference to the contents of writ petition, it was submitted that there are more than one accused nominated in the crime report but only the petitioner has approached this Court seeking quashment and as such petition is liable to be dismissed on this score alone as partial quashment is not permissible. Help was sought from the dictum laid down in "Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others" (PLD 2013 Supreme Court 401).

Further argued that one of the accused i.e. Ex-Chairman, PCBL approached this Court by filing writ petition assailing the legality of inquiry against him but without any success.

9. Exercising the right of rebuttal, learned counsel for the petitioner while controverting the arguments regarding resolution of factual controversy submitted that facts are admitted as is evident from the copies of letters written by the petitioner to the administration of PCBL and letters written by PCBL to the petitioner as well as district administration and local police placed on record.

Replying the argument regarding maintainability of the petition on the base of partial quashment while seeking help from the dictum laid down in "State of Islamic Republic of Pakistan through Deputy Attorney-General for Pakistan v. Kenneth Marshal and 2 others" (2005 SCMR 594), it was argued that partial quashment is permissible and the Apex Court dismissed the appeal preferred against the judgment of Hon'ble High Court of Sindh making partial quashment.

10. Conscious consideration has been given to the arguments advanced by the adversaries.

11. Prior to dealing with the respective contentions of the adversaries on merits, it is desirable to know the yardstick for quashment of FIR and the material which can be taken into consideration for this purpose.

12. Matter was examined by the Hon'ble Supreme Court and different High Courts in "Mula Bakhsh and 8 others v. The State and 2 others" (1977 SCMR 292), "Faryad Hussain Bokhari v. The State and others" (1990 PCr.LJ 201), "Muhammad Munir v. Senior Superintendent of Police and others" (1995 PCr.LJ 1616), "Shaikh Rashid Ahmad v. Mr. Lutf Ali Malik and another" (1995 PCr.LJ 717), "Miraj Khan v. Gul Ahmed and 3 others" (2000 SCMR 122), "Col. Shah Sadiq v. Muhammad Ashiq and others" (2006 SCMR 276), "Rafique Bibi v. Muhammad Sharif and others" (2006 SCMR 512), "Haji Sardar Khalid Saleem v. Muhammad Ashraf and others" (2006 SCMR 1192), "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813) and "Rana Shahid Ahmad Khan v. Tanveer Ahmed and others" (2011 SCMR 1937).

After going through the precedents referred, following points can be formulated, required to be kept in view while dealing with the question of quashment of FIR:-

(i) An FIR can be quashed whereby allegations made in the complaint taking it as gospel truth in their entirety do not prima facie constitute an offence against the accused.

(ii) An FIR may be quashed if it is a clear abuse of process of the Court but power to quash shall not, however, be used to stifle the legitimate prosecution.

(iii) The power has to be used sparingly and with abundant caution.

(iv) The allegations contained in the FIR are not required to be verbatim reproduction of legal ingredients of the offence alleged. If the necessary factual foundation mentioned in the complaint suggests prima facie commission of a cognizable or non-cognizable offence, then proceedings cannot be quashed.

(v) Allegations contained in the FIR may make out purely a civil wrong.

(vi) Factual controversy cannot be resolved in order to grant relief.

In "Emperor v. Khawaja Nazir Ahmad" (AIR (32) 1945 Privy Council 18), it was held that if keeping in view the allegations no cognizable offence is made out, interference by the High Court would be justified.

13. Keeping in view the above yardstick, respective contentions of adversaries are required to be examined treating the accusation contained in the FIR as correct.

14. As referred earlier, case was registered against the petitioner and others under the provisions of sections 409, 420, 468 and 471 of The Act No. XLV of 1860 read with section 5(2) of The Act II of 1947.

15. In order to attract the provisions of section 409 of The Act No.XLV of 1860, the following ingredients are required to co-exist in order to suggest the culpability of accused.

(i) The accused is a public servant.

(ii) There is entrustment of property to the accused in his such capacity, and

(iii) He commits breach of trust as defined in section 405 of The Act No. XLV of 1860.

Entrustment, dishonest misappropriation or conversion to one's own use or dishonest disposal of the property by the public servant are essential ingredients to constitute an offence under section 409 of The Act XLV of 1860. Reliance, is placed upon "Abdul Rashid Nasir and Cabers v. The State" (2009 SCMR 517).

It is an admitted fact that petitioner is not a public servant and as such question of entrustment, if any, or dishonest misappropriation, even if exist, by itself would not be sufficient to constitute an offence under section 409 of The Act No. XLV of 1860. Conviction, in the circumstances, cannot be recorded against the petitioner, even if the allegations contained in the FIR to the extent of offence are taken as gospel truth.

16. Provisions of Section 5 of The Act II of 1947 deals with the criminal misconduct of a public servant. The said provision of law also cannot be attracted to the case of petitioner as he is not a public servant.

17. Case was also registered under section 420 of The Act No. XLV of 1860. The said provision of law deals with the offence of cheating and dishonest inducement to deliver the property. The Section will be applied whereby the deceived person is dishonestly induced; to deliver any property to any person or to make alter or destroy; (a) whole or any part of the valuable security or (b) anything which is signed or sealed, and which is capable of being converted into a valuable security.

18. Provisions of section 468 of The Act No. XLV of 1860 deal with the offence of forgery with an intent that the document forged shall be used for the purpose of cheating.

Examining the provisions of section 471 of The Act No. XLV of 1860, the apex Court held in "Nasir Abbas v. The State and another" (2011 SCMR 1966) that actus reus under section 471 of The Act No.XLV of 1860 is the act of using a forged document as genuine and mens rea would be his dishonest intention and knowledge that the document is forged.

19. Keeping in view the ingredients of the offences under sections 420, 468 and 471 of The Act No. XLV of 1860, the allegations contained in the crime report are to be examined to settle the controversy i.e. whether any offence has been made out against the petitioner or not.

20. Text of the FIR has been reproduced in earlier part of the judgment for ready reference. As referred earlier, allegations contained in the crime report are that petitioner was bound to make payment of earnest money equal to 25% of the bidding within seven days of the intimation of approval of bids whereas remaining 70% was to be deposited within 30-days and in case of default, the security amount was liable to be forfeited in favour of PCBL but the petitioner failed to liquidate his liability so far as a deposit of remaining amount is concerned. The allegations when examined on the touchstone of ingredients of offences under discussion clearly reveal that provisions of sections 420, 468 and 471 of The Act No. XLV of 1860 by no stretch of imagination can be attracted to the case of petitioner.

21. Another allegation contained in the FIR is that table payment was not acted upon by the petitioner which while taking it as correct would not be sufficient to attract any of the provisions of law under reference.

22. Similarly, the accusation that amount of Rs. 1,53,42,706/- is still outstanding against the petitioner by itself would not be sufficient to suggest his culpability as the allegation does not constitute any offence keeping in view the ingredients of the offences referred earlier.

23. There is also an allegation that alienation of the property was to be made on receipt of entire amount of consideration but ex-management of PCBL alienated 20 kanals 8 marlas of land to the auction purchaser and to other unconcerned persons without payment of full and final price.

The allegations would not attract any provision of law against the petitioner under which case stands registered.

24. Another grievance agitated in the crime report is that prior to putting the land in question to alienation, it was obligatory duty of PCBL administration to get market price of such commercial property assessed by a recognized professional evaluation firm like NESPAK, Iqbal-e-Nanjee etc. or through DPAC but the same was not done.

Though the allegation was controverted by learned counsel for the petitioner but keeping in view the grievance, taking it as correct, provisions of sections 420, 468 and 471 of The Act No. XLV of 1860 are not attracted to the case of petitioner as no duty was cast upon the petitioner and it was the responsibility of the administration of PCBL.

25. The allegations contained in the crime report regarding alienation of the property at lower rate as compared to the market price at that time would not be sufficient to make out the case against petitioner under sections 420, 468 and 471 of The Act No. XLV of 1860, particularly when it was sold according to the decision of Board meeting held on 24th of March, 2004 on the stated terms.

Similarly, delivery of possession of 20 kanals and 8 marlas of land to the petitioner and his nominees on 10th of June, 2004 by itself would not be sufficient to make out any offence against the present petitioner.

26. Execution of sale deeds in favour of persons other than auction purchaser (petitioner) is another allegation levelled in the crime report which by itself would not be sufficient to suggest commission of any cognizable offence against present petitioner.

27. Evasion of stamp duty and non-payment of registration fee etc. though may be factually correct but would not attract the offences under discussion.

28. Failure of the petitioner to pay the remaining amount would not attract the provisions of law under which case has been registered though it may create civil wrong.

29. Keeping in view the allegations contained in the FIR and material collected, nothing is available even to suggest that there was any element of cheating and dishonest inducement on the part of petitioner for the purpose of delivery of the property which was alienated in pursuance of the decision of the Board on the terms and conditions settled.

On the basis of allegations, sale deeds executed either in favour of petitioner or his nominees cannot be said to be forged instruments. The sale deeds were executed by the representative of PCBL and nothing is available to show that fraud was committed by the petitioner to get the documents executed in his favour and nominees.

When there is no evidence regarding preparation of forged document, question of its use as a genuine document knowing it to be forged does not arise at all. Even otherwise, the allegations and material collected during the course of investigation is totally silent.

30. It is further to be noted that question of sale of land in favour of petitioner was on the agenda in the meeting of PCBL Board on 24th of March, 2004 as is evident from the minutes of the meeting which were placed on record by learned counsel for the petitioner to which no exception has been taken on behalf of adversary.

Perusal of the minutes of meeting reveals that recommendation for sale of land measuring 26 kanals 18 marlas situated at Railway Road, Faisalabad was an additional agenda (item No. 1) in the meeting and decision on the said item reveals that the Board considered the highest offer made by M/s. Niagra Mills (Pvt.) Ltd. @ Rs. 27,51,000/- lump sum and approved the same.

It is to be noted that meeting was chaired by Brig. (Retd.) Muhammad Farooq Maan. Farkhanda Waseem Afzal, Secretary to Government of the Punjab, Cooperatives Department and Muhammad Ilyas Khan, Legal Advisor of PCBL, participated in the meeting on special invitation while Khalid Pervez, Registrar Cooperatives, Punjab, Lahore attended the meeting as Member of the Board. Ahmad N. Sukhera, Additional Finance Secretary (Budget), Government of the Punjab, Finance Department, Lahore and Mohammad Ghauri Qureshi, OSD (Legal), Government of the Punjab, Home Department participated in the meeting being representatives of Finance and Home Secretaries respectively.

31. It is an admitted fact that land was sold to the petitioner on the terms and conditions stated in the decision referred to.

In view of the matter, it cannot be said by any stretch of imagination that petitioner made any collusion with the administration of PCBL.

32. Viewed from whichever angle, provisions of sections 420, 468 and 471 of The Act No. XLV of 1860 are not attracted against the present petitioner keeping in view the allegations contained in the crime report.

33. This Court is conscious that allegation has been leveled against the petitioner and has been canvassed with vehemence that petitioner is beneficiary and there was collusion of petitioner with the ex-administration of PCBL which aspect has been dealt with earlier. It is further to be noted that no evidence was ever collected during the course of investigation and despite putting a specific question during the course of arguments, nothing was shown to the Court.

Even otherwise, sale of land in pursuance of decision of Board referred earlier at the rate approved is sufficient to rule out this element.

34. The learned Assistant Advocate General and learned counsel representing PCBL also pointed out that ex-Chairman of PCBL approached this Court by filing a writ petition in order to put restraint upon Anti -Corruption Establishment to proceed with the inquiry but said writ petition was dismissed.

Dismissal of the writ petition is not a moot point but the fact by itself would not be sufficient to dismiss the present writ petition because the role ascribed to the petitioner has to be examined while deciding the moot point and allegations against the Ex-Chairman, PCBL and other accused are not to be taken into consideration.

35. It is further to be noted that sale deeds in favour of petitioner and his nominees are still intact and no attempt was made to question its validity.

36. It is to be noted that in the discussion made in preceding paragraphs, this Court has confined itself to examine the allegations contained in the crime report against the present petitioner.

In view of the matter, contention raised by the learned Assistant Advocate General as well as learned counsel representing PCBL that factual controversy is required to be resolved in order to grant relief to the petitioner is without force.

37. The next important question is regarding partial quashment of the FIR which was argued with vehemence by the adversaries.

38. Learned Assistant Advocate General as well as learned counsel representing PCBL banked upon the dictum laid down in "Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others" (PLD 2013 Supreme Court 401); and contended that partial quashment is not permissible.

Perusal of para-2 of the Report reveals that challan was submitted before the court of competent jurisdiction which was one of the grounds to allow the appeal preferred by the Director General, Anti corruption Establishment, Punjab, Lahore and the second ground was that partial quashment of FIR to the extent of some of the accused persons is a legal impossibility.

39. Controverting the arguments, learned counsel for the petitioner placed reliance upon the dictum laid down in "State of Islamic Republic of Pakistan through Deputy Attorney-General for Pakistan v. Kenneth Marshal and 2 others" (2005 SCMR 594) in which Hon'ble Supreme Court of Pakistan maintained the order of learned Sindh High Court at Karachi and dismissed the appeal against the order of partial quashment".

Perusal of para-7 of the Report reveals that the Apex Court granted leave to appeal vide order dated 30th of August, 1995 to examine "firstly, whether the judgment/order passed by the High Court quashing the proceedings was sustainable in law and facts, secondly, whether order could be passed by the High Court for partial quashment".

Dealing with the respective contentions of the adversaries, the Apex Court dismissed the appeal of the State and maintained the order of learned High Court of Sindh at Karachi.

It is to be noted that in para-12 of the Report under discussion, reference was made by the Hon'ble Supreme Court of Pakistan to the arguments advanced by learned counsel for the respondents on the question of partial quashment who sought help from the dictum laid down in "Maula Bux and 8 others v. The State and 2 others" (1977 SCMR 292), "The State v. Asif Ali Zardari and another" (1994 SCMR 798) and "Abdul Qadir Motiwala v. The State" (2000 PCr.LJ 1734).

40. I am conscious of the fact that rule of law relied upon by the learned Law Officer as well as learned counsel representing PCBL is later in time.

Perusal of the judgment relied upon by adversaries reveals that case of "Director-General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan and others" (PLD 2013 Supreme Court 401) was decided by Hon'ble Division Bench of the Apex Court while the case of "State of Islamic Republic of Pakistan through Deputy Attorney-General for Pakistan v. Kenneth Marshal and 2 others" (2005 SCMR 594) (relied upon by learned counsel for the petitioner) was decided by Hon'ble Full Bench (comprising three Hon'ble Judges of the Apex Court).

Since the Ratio in "State of Islamic Republic of Pakistan" (2005 SCMR 594) was enunciated by Hon'ble Larger Bench, therefore, has to be followed.

Reliance is placed upon "Atta Ullah and others v. Mst. Surraya Pareveen" (2006 SCMR 1637), "Messers Al-Mahmudia (Pvt.) Ltd. v. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others" (PLD 2007 Supreme Court 79) and "Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others" (PLD 2009 Supreme Court 879).

41. In view of the above state of law and facts, crime report does not suggest commission of any offence by the present petitioner and as such further proceedings in the crime report as well as submission of challan before the court of competent jurisdiction to the extent of petitioner will be an abuse of process of law.

42. This Court while exercising powers under Article 199 of The Constitution of Islamic Republic of Pakistan being custodian of fundamental rights of citizens is under constitutional obligation to protect the rights of the citizens and provide shield against any intervention made on the rights of the subject and protect him from discrimination, exploitation and mala fide proceedings.

43. Epitome of the above discussion is that while accepting the writ Petition, FIR No. 15 of 2014 registered under sections 409, 420, 468, 471 of The Act No. XLV of 1860 and section 5(2) of The Act II of 1947 with the Regional Office of Anti-corruption Establishment, Faisalabad is hereby quashed to the extent of petitioner with the option to the Investigating Officer to proceed against the co-accused in accordance with law.

MH/I-2/L Petition allowed.