TAUSIF AHMED Versus The SPECIAL JUDGE, ANTI-CORRUPTION (CENTRAL) KARACHI
ORDER
SYED MUHAMMAD FAROOQ SHAH, J.--- To ascertain and determine the maintainability of instant Cr. Revision Application, filed under sections 435 and 439, Cr.P.C. against the acquittal of accused/respondent Nos.2 to 5 under section 249-A, vide order dated 23.6.2009, announced by learned Special Judge (Central) II Karachi, both the learned counsel afforded opportunity of hearing, besides on merits of the case as well.
2. Learned counsel for the applicant read out the allegations leveled in the FIR No.81/2006 registered on 27.12.2006 on the report of complainant Abdul Latif AD ACE, Karachi against Muhammad Ashfaque, General Secretary of the Gulistan-e-Zarin Cooperative Housing Society, who caused financial loss to the Society by violating the rules and regulations just to gain financial benefits for himself and his companions. It is alleged that said Muhammad Ashfaque disposed of 54 commercial plots by allotting the same to his own person instead of selling through auction. As the other accused namely Masroor Ahmed Siddiqui Administrator of the Society was found in league with said Muhammad Ashfaque; however, they could not get master plan from the KDA; that the accused Muhammad Ashfaque re-allotted 34 cancelled residential/commercial plots hence allottee had suffered. Said Muhammad Ashfaque allotted amenity Plot No. ST-1 to his mother and after her death leased out to a trust and subsequently converted it to a school in the name of Gulistan-e-Zarin School. He had also converted Plot No.ST-3 into a park. Further, he had allotted plots R-421 and R-522 in violation of rules. It has further been alleged that the said Muhammad Ashfaque destroyed the record, misappropriated funds, which amounts to criminal activities.
3. A perusal of the FIR reveals that name of respondent Nos. 2 to 5 does not transpire in the FIR excepting accused Masroor Ahmed Siddiqui. The evidence collected by the Investigating Officer does not show entrustment of property to the applicant dishonestly and there is nothing on the record to show that respondents 2 to 5 demanded or obtained illegal gratification. It is submitted by learned counsel for respondent that no case in respect of favour to management of the society has been shown and the commercial plots were to be disposed of through open auction. Moreso, the interim challan submitted by the Investigating Officer Haq Nawaz Inspector Anti-Corruption, Karachi shows that during the investigation relevant record was collected and statements of witnesses were recorded, accused Muhammad Ashfaque founder and General Secretary of the Society and the officials of Registration office Cooperative Society were arrested, however, charge sheet does not specifically show the involvement of respondents Nos. 2 to 5 in commission of the said offence. A perusal of charge sheet submitted by the Investigating Officer depicts vague and general type of allegations those are against the secretary of the society namely Muhammad Ashfaque and management of the society and no specific instance of any misappropriation or manipulation of record or misconduct by the applicant has been mentioned in the FIR. The impugned order appears to be well reasoned and speaking one, its concluding paragraphs show that accused were acquitted under section 249-A, Cr.P.C. before framing of charge as there was no probability of conviction of any of the accused on conclusion of the trial.
4. Learned counsel for the applicant submitted that the Revision Application against the impugned order passed under section 249-A, Cr.P.C. is very much applicable, as the law leans adjudication on merits as it is yet to be determined after adducing evidence by both the sides about the charges leveled against the applicant. To support his contentions learned counsel for the applicant placed reliance on the cases of Muaz Ahmad v. Haji Muhammad Ramzan (2008 SCMR 529) and Muhammad Hashim v. Presiding Officer, Special Banking Court, Karachi (2007 YLR 2651).
5. Conversely, Mr. Rajput attacked upon the maintainability of instant Revision Application and stated that it does not show any cogent reasons that there is any illegality in the impugned order. It is next submitted that applicant has grievance against the accused Muhammad Ashfaque, Secretary of the Society, therefore, if at all proper recourse available to the applicant was to move an application under section 54 of the Co-Operative Societies Act before the Registrar concerned instead to invoke the jurisdiction of Anti-Corruption Court. Learned counsel submits that there is no link of the present accused in commission of misappropriation of amount or manipulation of the record, hence there was no probability of conviction of the accused. Reliance in this respect is being placed on Muhammad Azam v. The State (2005 PCr.LJ 906). It is submitted that investigation agency has failed to obtain necessary sanction under Rule 11 of the Sindh Inquiries and Anti-Corruption Rules, 1993 against the accused persons which was not incurable defect as held in Baij Nath Prasad Tripathi and Sudhakar Dube v. The State of Bhopal (PLD 1957 SC 406), Muhammad Abbas v. The State (1996 PCr.LJ 1248), Sheikh Haidar v. Registrar, Co-Operative Societies, Karachi and others (PLD 1966 Karachi 177) and Muhammad Haroon v. The State (2004 PCr.LJ 932); that there is no evidence against the accused that they have gained any financial benefit from the society and co-accused Muhammad Ashfaque and none of the prosecution witness stated the allegations of charges against the accused persons in their statements recorded under section 161, Cr.P.C. It is worthwhile to mention here that in law, if accused is acquitted, in such an event, section 417(2-A), Cr.P.C. empowers to an aggrieved person to file such an appeal within thirty days from the order of acquittal, however, learned counsel for the applicant by reading section 439, Cr.P.C. submitted that the High Court may convert the application under sections 435 and 439, Cr.P.C. into acquittal appeal. It needs not to emphasize here that the finding of acquittal cannot be converted into conviction while exercising powers of revision conferred upon this court in respect of cases of acquittal. For the sake of convenience paras 9 and 10 of a reported judgment delivered by the Hon'ble Supreme Court in the case of Badar Munir v. The State (2009 SCMR 569) reproduced herein below:-
"9. It is interesting to note that although High Court has been conferred power of an Appellate Court under section 423 of the Cr.P.C. while exercising the powers of revision under section 439 of the Cr.P.C. if read minutely has not awarded the power to appellate/revisional Court to convict any acquitted person by taking suo motu action. The commencing words of clause (a) of subsection (1) of section 423 of the Cr.P.C. have provided that the order of acquittal can be reversed but in such cases, the Appellate Court has to remit the case for further probe or for its retrial. In a controversy, to whether the power granted to an Appellate Court under clause (b) of subsection (1) of section 423 of the Cr.P.C. a High Court can reverse the finding of acquittal into that of conviction, the Federal Court in PLD 1954 Federal Court 141 (Shera and 6 others v. The Crown) while interpreting provision of section 423(1)(b)(2) and section 439(4) of the Cr.P.C. had taken into consideration this provision and had authoritatively by majority held that both these sections were not available to the High Court to reverse the finding of acquittal into conviction in the cloak of merely altering it. This judgment, with great respect has decided the controversy that under the provision of section 423 of the Cr.P.C. read with section 439 of the Cr.P.C. the revisional Court cannot convert the finding of acquittal into conviction. The above view was rightly followed by High Court of Sindh in the case titled Karl John Joseph and another v. The State) reported in PLD 2005 Karachi 4.
10. Accordingly we are constrained to hold that the learned Judges of the Division Bench of the Peshawar High Court, Peshawar were not empowered to exercise the suo motu power of revision, in such a manner so as to convert the judgment of acquittal into a judgment of conviction. Resultantly, the instant appeal which is although barred by 31 days' delay, yet in the interest of justice keeping in the view, the above facts and legal aspect, we condone and accept it, and we set aside the impugned judgment of the Peshawar High Court, Peshawar, and order the acquittal of the appellant forthwith, if no required in any other case."
6. At this juncture learned counsel for the applicant submits that the applicant did not approach this court with prayer to award conviction to the accused persons but seeks directions to the trial court to lead the evidence and decide the case on merits.
7. Suffice is to say that the principles as laid down under sections 249-A, 265-K and 561-A, Cr.P.C., provides acquittal of accused at any stage of the case or quashment of proceedings by this Court. Section 249-A, Cr.P.C. speaks about acquittal of accused by the learned Magistrate, if he considers that charge is groundless and there is no probability of the accused being convicted against the offence and there is no requirement of legislature that such application be filed under section 249-A, Cr.P.C. after evidence of prosecution witnesses is recorded; if a Magistrate judicially comes to conclusion that no criminal case is made out, he can acquit the accused; if FIR gives an idea as to what evidence can come against the accused, likewise in the present case and even that evidence is brought there is no probability of accused being convicted then it would be abuse of process of court to continue the trial. The bare reading of section 249-A, Cr.P.C. abundantly makes it clear that application under section 249-A, Cr.P.C. can be made at the very initial stage after taking cognizance or thereafter at any later stage, or even before recording of evidence if the trial court comes to the conclusion that no useful purpose would be served by proceeding further in the matter. In the present case, the facts of the case are such that no useful purpose would be served by proceeding the case against the accused/respondents Nos. 2 to 5, more particularly actual accused Muhammad Ashfaque is facing the trial. In such view of the matter, the citations relied upon by the learned counsel for applicant are not attracting in the peculiar facts and circumstances of the present case. Resultantly, instant revision application filed against the acquittal of respondents Nos. 2 to 5 being not maintainable under the law besides having no merits is hereby dismissed.
HBT/T-6/Sindh Application dismissed.