Syed BASHIR AHMAD SHAH vs THE STATE

ORDER

1. ' Today this matter is fixed for orders on M.A. 826 of 2001, however, both the learned counsel have agreed to decide the entire application, hence this judgment.

2. ' Present applicant is seeking qashment of the proceedings of Case No,62 of 1996 initiated on the basis of F.I.R. No,26 of 1996 of ACE Larkana under sections 409, 477-A, 471 and 34, P.P.C. Read with section 5(2) of Act-I1 of 1947.

3. ' Brief facts of the case are that in 1994 the applicant was appointed Director-General under the Larkana Development Authority Act, 1994. Under the said Act, the applicant was the Chief Executive Officer by virtue of section 7(2) of the said Act and the main object was to carry out the development, improvement and beautification of the urban areas of Larkana Division under the provisions of the said Act. According to the F.I.R. It is alleged that during the period 1994-95 various development schemes were undertaken by the L.D.A. By incurring amount of millions of rupees, without observing legal formalities, the payments were made in the advance to contractors without proper security and were not recovered from the contractors from the first ' five bills. It is further alleged that the serious defects were found specially in three works carried out by L.D.A. i.e, Lakhi Larkana Road, slaughter house at Larkana and Circular Road of Larkana thereby causing financial loss of Rs,1,86,56.996 to the Government exchequer by the accused.

4. Challan has been submitted by the Circle Officer Anti-Corruption Establishment Larkana, dated 16- 8-1997. According to the contents of the challan, the contents of the F.I.R. Have been reproduced in the contents of the challan copy: ' The applicant had filed Cr. Misc. No,1 of 1997 at Circuit Bench Larkana but the same was dismissed with directions to move application under section 249-A, Cr.P.C. Before the lower Court. Thereafter, the present applicant moved application under section 249-A, Cr.P.C. Before the trial Court and the same was rejected by the learned Special Judge Anti-Corruption Larkana vide order, dated 3-6- 1999, hence this Cr. Misc. Application under section 561-A, Cr.P.C.

5. ' While arguing the present application, Mr. Shaukat Zubedi, learned counsel for the applicant, had drawn my attention on the contents of the F.I.R. Vide Crime No,26 of 1996 which reveal that on the basis of the investigation report of Chief Minister's Inspection and Evaluation Team, Government of Sindh, the F.I.R. In question was recorded with regard to the working of Larkana Development Authority. Allegations of F.I.R. Are to the defects in works of (1) construction of Slaughter House at Larkana, (2) construction of Circular. Road, (3) reconditioning of Larkana Alakhi Road. According to the learned counsel, co-accused Muhammad Hanif contractor has been acquitted under section 249-A, Cr.P.C. By the trial Court and Syed Anwar Haider, Chairman Latkana Development Authority, has been let off by police. Learned 'counsel for the applicant has further contended that none of the ingredients of section 409, P.P.C. (misappropriation), 477-A, P.P.C. (falsification of accounts), and section 471, P.P.C. (using of forged documents) would be attracted on the facts mentioned in the charge-sheet of works being defective. According to the learned counsel delay would be fatal as the present applicant cannot be convicted for the offences charged on the basis of facts stated in the charge-sheet. Learned counsel has further placed on record the Sindh Government Gazette Publication by Authority, Karachi August 23, 1994 and has drawn my attention on sections 66(1), 67 and 68 of the said Gazette which are reproduced as under:- "66 (1) No Court shall have jurisdiction to grant any injunction or make any order or entertain any proceedings in relation to anything done or intended to be done under this Act."

6. "67 No suit or legal proceedings shall k against Government Authority, Agency or any other person in respect of anything done or intended to be done under this Act."

7. "68 The provisions contained in this Act, and the rules and regulations thereunder shall have effect notwithstanding anything contained in any other rules or regulations."

8. ' In support of his contentions, learned counsel for the applicant has placed reliance on a case Muhammad Yaqoob v. The State reported in 1984 PCr.LJ 1116 wherein the accused was acquitted on benefit of doubt under section 409, P.P.C. Read with section 5(2) of Act-II of 1947.

9. 'On the other hand Mr. Arshad Lodhi, Assistant Advocate-General for the State, has opposed to the prayer of the applicant and has submitted that the evidence is yet to be adduced before the trial Court and the trial Court be directed to proceed with the case.

10. ' I have considered the arguments rendered by the learned counsel for the parties and have gone through the material available on record. I have also examined the contents of the F.I.R. And the contents of the challan. According to the contents of F.I.R. And challan the present applicant Syed Bashir Ahmed Shah has remained at one time Director-General, Larkana Development Authority and the F.I.R. Has been registered against the present applicant and co-accused on the basis of investigation report of Chief Minister's Inspection and Evaluation Team, Government of Sindh and according to the contents of the F.I.R. The defects have been shown in working of (1) construction of Slaughter House at Larkana, (2) construction of Circular Road, (3) reconditioning' of Larkana Lakhi Road. Since only defect has been shown in the contents of the F.I.R and therefore, the prosecution is not duly armed with evidence against the present applicant with regard to misappropriation, falsification of accounts and using of forged documents and I am in fully agreement with the contentions of the learned counsel for the applicant that sections 409, 477-A and 471, P.P.C. Were not applicable in the instant case and it is not a case of misappropriation, falsification of accounts and using of forged documents. If the case is proceeded against the applicant on the charges as mentioned in the contents of the F.I.R. And in the contents of challan copy, no offence is made out under sections 409, 477-A and 471, P.P.C. And the proceedings before the trial Court would amount to the abuse of process of law and charge will be groundless, particularly in view of sections 66(1), 67 and 68 of the Sindh Government Gazette, Karachi, August 23, 1994. Besides co-accused namely Muhammad Hanif has been acquitted under section 249-A, Cr.P.C. And Syed Anwar Hussain, Chairman Larkana Development Authority, has been let off by police.

11. 'Accordingly, proceedings of Special 'Case No,62 of 1996 pending in the Court of learned Special Judge Anti-Corruption, Larkana, are quashed. Applicant is on bail, his bail bond and surety stand discharged.

12. ' Ciminal Miscellaneous No,333 of 1999 stands disposed of alongwith listed application.