Mst. GUL REZA and others vs THE STATE and others

ORDER

1. ' Through an application under section 561-A, Cr.P.C. The applicants have prayed for quashment of the proceedings pending against them which have been initiated by respondents Nos.1, 2 and 3 in pursuance of Complaint No,60 of 2000, submitted by respondent No,4.

2. ' Briefly stated the facts as narrated in the, application are that the petitioners Nos.1 to 12 are legal heirs of one Haji Adam Khan who' was permanent resident of Karachi and died on 20-7-1988.

3. Respondent No,4 was second wife of the said deceased having been married in the year 1975. The said Haji Adam Khan owned certain properties which were gifted by him during his lifetime in favour of petitioners Nos.2 to 12 before contracting the second marriage. It is stated that respondent No,4 after the death of Haji Adam Khan picked up dispute over the distribution of property of the deceased which was gifted in favour of petitioners Nos.2 to 12. Consequently, a Civil Suit No,104 of 1989 was filed which is still pending. However, in the meantime the respondent submitted a complaint bearing No,60 of 2000 to the Anti-Corruption Authorities, resultantly the Anti-Corruption Authorities, who were impleaded as respondents Nos.1, 2 and 3, initiated inquiries in the matter.

4. ' It has been alleged that the respondent No,4 and the other legal heirs have filed this frivolous complaint in order to pressurize the petitioners for giving them the share of the property already gifted by deceased Haji Adam Khan to the petitioners. It was further alleged that the proceedings/investigation being conducted by respondents Nos.1, 2 and 3 on the basis of said complaint was abuse of process of law.

5. ' In support of this petition Mr. Khawaja Sharful Islam learned counsel for the applicants has contended that the entire proceedings and the inquiry initiated by the respondents Nos.1, 2 and 3 was malicious and without lawful authority as the dispute in respect of the property was of civil nature and was sub judice before this Court in Civil Suit No,104 of 1989. He further contends that until it is adjudicated in the said suit that whether the stamp papers were genuine or forged, the investigation by the Anti-Corruption, Authorities was unwarranted. Learned counsel next argued that the registration of case by respondents Nos.1, 2 and 3 on the basis of false and frivolous complaint submitted by respondent No,4 was abuse of powers and as such proceedings were liable to be quashed.

6. ' Mr. Qazi Wali Muhammad, learned counsel appearing for the State, on the other hand, contended that the instant applicant was not maintainable as it was maliciously filed to stifle the investigation.

7. ' I have perused the petition and documents annexed therewith and have considered the arguments.

8. ' On perusal of a confidential letter dated 20-1-2001, filed by the applicants, alongwith application (P.4), addressed by the Deputy Director (Headquarters), Anti-Corruption Establishment, Sindh, Karachi to the Deputy Director, Anti-Corruption Establishment, Karachi, it is revealed that there was a complaint against certain public servants with whose connivance, the petitioner No,2 Habibullah Khan is alleged to have usurped the property of his deceased father by managing 12 stamp papers having been prepared by accused Stamp Vendor Ajmal Khan in back date i,e, 1-2-1988 before the date of death of his father Haji Adam Khan on 20-7-1988. Since the public servants were involved in the forgery having been committed in the manner stated in the above referred letter, the matter was placed before concerned Anti-Corruption Committee which approved the registration of case against the persons concerned as is evident from the letter dated 10-5-2001 annexed with the application (P.3), addressed by respondent No,3 to respondent No,

1. Viz. Director, Anti-Corruption.

9. The facts stated above clearly reveal the registration of case against petitioners more particularly petitioner No,2 and certain Government officials for having committed fraud and forgery, yet the petitioners did not submit the copy of the F.I.R. Purposely, though during the course of arguments learned counsel for the applicants candidly admitted that the F.I.R. Has been registered. This fact by itself shows that the applicants have not approached this Court with clean hands and suppressed the material facts. It is an admitted position that the investigation of the case was not complete and that no challan was submitted in the Court. It has not been shown as to whether proceedings of any kind are pending before any Court. Even no order has been filed alongwith this petition.

10. ' This Court, no doubt under its inherent powers may quash the judicial proceedings if it was shown that the proceedings amount to an abuse of the process of Court. A plain reading of section 561-A, Cr.P.C. Shows that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent powers of this Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. In the instant case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any Court does not arise at all.

11. ' Learned counsel has laid much emphasis on the -contention that complaint registered against them was mala fide and that because a civil litigation was pending the proceedings were liable to be quashed. The argument is devoid of force, and in my view this cannot be valid ground to pass any order to thwart the criminal procedure or for that matter to quash the F.I.R. Honourable Supreme Court in the case of Ahmed Saeed v. The State, reported in 1996 SCM R 186, in the identical circumstances was pleased to hold as under:-- "We are afraid that the High Court under section 561-A, Cr.P.C., could not quash F.I.R. On the ground of mala fide or on the ground that F.I.R. Discloses civil liability."

12. ' In the above titled case, the Honourable Supreme Court did not approve the view taken by the Lahore High Court. The apex Court was pleased to convert the petition into appeal and allowed the same thereby setting aside the judgment of Lahore High Court by which Lahore High Court has quashed the F.I.R.

13. ' Their Lordships of Honourable Supreme Court in the case of A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353, were pleased to hold that if a prima facie offence had been committed the ordinary course of trial before the Court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court. It was, further held that the High Court would not in its discretionary jurisdiction short circuit the normal procedure of trial as provided by the law.

14. It is well-settled that criminal proceedings are not barred in presence of civil proceedings and that civil and criminal actions can be pursued simultaneously.

15. ' It may further be emphasized that the High Court cannot assume the role of investigation, as the authority to register and investigate the case, in law vests in the police and not in the Court.

16. ' This criminal miscellaneous application ex facie appears to be tainted with malice, and has been filed to thwart due process of law. The application is not maintainable and is accordingly dismissed in limine alongwith pending applications.

17. ' These are the reasons for short order, dated 1-8-2001.