NAZEER AHMAD vs The STATE

ORDER

1. JAVID IQBAL, J.--Both these petitions for leave to appeal namely Criminal Petition No. 105 of 1986 and Criminal Petition No. 106 of 1986 arise out of the same judgment passed by the learned Single Judge of the Lahore High Court Lahore on 2nd February 1986. These are, therefore, being taken up together.

2. The background is that a case was registered at Police Station Directorate ACE, Lahore on 21st January 1981 about certain irregularities, fraud and embezzlement committed in the course of allotment of some plots etc. In respect of the Area Development Scheme of Chak No. 213-RB Faisalabad. As a result a number of cases were instituted in the Court of Special Judge, Anti- Corruption against public servants as well as private persons. Thus, the public servants and private persons including the present petitioner were involved in cases under section 468/467/471/379/109 of the Pakistan Penal Code, read with section 5(2) of the Prevention of Corruption Act. The Special Judge Anti-Corruption vide his separate judgments found no case made out as against the public servants but as regards the private persons he held that they had committed offences which were not triable by him but by the ordinary criminal Court. He, therefore, acquitted the public servants but so far as the private persons were concerned he forwarded their cases to the Sessions Court for entrustment to a competent Magistrate for holding trial as against them. As a result the files were sent to the Sessions Court and the Sessions Judge entrusted the cases against the petitioner along with others to a Section 30 Magistrate at Lahore. Being aggrieved the present petitioner filed quashment petitions before the Lahore High Court, Lahore. In one of the cases namely of Wahidur Rahman who had preferred an appeal, it was partly accepted by a learned Single Judge vide his judgment, dated 20th November, 1985 to the extent that he set aside the direction of the Special Judge about retrial of the private persons who were accused and substituted it with the direction that the matter should be left to the discretion of the State. So far as Nazir Ahmad petitioner is concerned similar observation has been made in his case i.e. That it should be left to the discretion of the State whether to prosecute him or not. Thus, the learned Single Judge of the Lahore High Court, Lahore in one of the criminal miscellaneous petitions of the petitioner Nazir Ahmad before him (Criminal Miscellaneous Petition No. 180-Q of 1385) dismissed the same observing that the matter should be left to the discretion of the State whether to prosecute the present petitioner as a private person under the aforesaid sections or not. But in the other two petitions filed by the same petitioner namely Criminal Miscellaneous Petitions Nos. 193-Q of 1985 and 213-Q of 1985 the Special Judge had found prima facie evidence against the petitioner. Therefore, in Criminal Miscellaneous Petition No.213-Q of 1985 the evidence had disclosed that he had substituted some other person for one Ghulam Nabi who was allotted a plot under the Scheme in the Chak, that he prepared a general power of attorney purportedly in the name of the allottee and that he got a false identity card by submitting an application form and thus facilitated the delivery of the allotment order and the possession of the plot to some other person impersonating as the original allottee. The learned Single Judge observed that since the present petitioner was held liable for trial for offences of cheating, forgery etc. In the Court of a competent Magistrate and that since the challan with the accompanying papers against the petitioner had been sent by the Government after due scrutiny for trial, the Special Judge was not in error in sending the case of the petitioner to Sessions Court for entrustment to the competent Magistrate for trial. Thus, Criminal Miscellaneous Petition No.213- Q of 1985 was dismissed by the learned Single Judge with the remark that in case the Public Prosecutor or the petitioner intended to move the Government for withdrawal of the case as against the petitioner nothing herein contained would stop them from doing so.

3. Learned counsel for the petitioner states that while disposing of these petitions the learned Single Judge should have added the same observation which was contained in Criminal Miscellaneous Petition No. 180-Q of 1985 in respect of the present petitioner i.e. That it should be left to the discretion of the State as to whether or not to prosecute the private persons including the petitioner in such circumstances. He further argued that the aforesaid observation was recorded by the learned Judge in Criminal Miscellaneous Petition No.180-Q of 1985 of the petitioner whereas it is absent in the other two Criminal Miscellaneous Petitions of the petitioner namely Criminal Miscellaneous Petitions Nos. 193-Q and 213-Q of 1985. After hearing the learned counsel we are of the view that obviously it is the discretion of the State whether to prosecute the present petitioner of the aforesaid offences or not and that the discretion cannot be taken away. Furthermore, while dismissing Criminal Miscellaneous Petitions Nos.193-Q and 213-Q of 1985 without adding any further observation the learned Single Judge has remarked that in case the Public Prosecutor or the petitioner desired to move the Government for withdrawal of the cases nothing herein contained) shall restrain them from doing so.

4. It may be noted that Criminal Petition No.105 of 1986 is also barred by 12 days. But since we have dismissed both these petitions on merits no order is called for in respect of delay.