' MUHAMMAD ATHAR SAEED, J.---This Criminal Acquittal Appal has bden filed under section 417, Ct.
P.C. Against the order of the Special Judge Anticorruption (Provincial), Karachi dated 14-10-2006 in Special Case No,37 of .2005 by which the Anti-corruption Judge had allowed the application under section 249A, Cr.P.C. Filed by the respondent and consequently acquitted all the accused including absconding accused Syed Musharaf Hussain and Muhammad Hafiz.
2. Brief facts of the case are that the present appellant had filed an F.I.R on 27-2-2005 under sections 161, 420, 467, 471, 34, P.P.0 read with section 5(2) Act II of the Prevention of Corruption Act, 1947 against the present respondents including Sub-Registrar Agricultural Land, East Karachi Zafar Baloch allegedly for preparing two forged sub-general power of attorneys on the basis of the two general power of attorneys attested by two different notary publics in respect of properties bearing No, WO-3/30 total measuring 685 Square Yards situated at Wadho Mal Udha Ram Quarters.
Karachi and Agricultrural Land measuring 30 kanals and 4 marlas vide Khewat No,274, Khatoni No,492 to 508, Khasra Nos.2479/C8-0 2480/(6-4-0) 2481/(8-0-0) 2482 (8-0-0) situated at-Moza Bhai Kot, tehsil and District Lahore, Charge Sheet was issued against all the ace-used persons the present respondents and an order was passed by Judge Anticorruption that the Charge Sheet was accepted and for issuance of non-bailable warrants against absconder and production order for applicant No,4, who was confined at jail. The hearing of the case was conducted by the Special Judge Anticorruption on various dates and on the date of final hearing. Mr. Iqtidar Ali Hashmi Advocate had appeared and filed his power and sought permission to assist the prosecutor. Such prayer was allowed, but when he requested for adjournment by making statement that he had to appear in the NAB Court, the learned Anti-corruption Judge allegedly for maintaining the decorum of the Court refused his application for adjournment and after hearing the defence counsel and prosecutor passed the order allowing the application under section 249-A Cr.P.C. And acquitting the present respondents. Hence this Criminal Acquittal Appeal,
3. I have heard the learned counsel for the appellant Mr. Lqtidar Ali Hashmi and the learned counsel for respondents No,1 to 5 Mr. Ilyas Khan, the learned counsel for respondent No,5 Mr. Muhammad Farooq and the learned State Counsel Ms. Afsheen Aman.
4. The main contention of the learned counsel for the applicant is that the impugned order is a non-speaking order and has been passed without . Hearing the complainant or his counsel and without examining the documents which have been alleged to be fake and forged and on the basis of which the F.I.R. Was registered against the respondents and without recording any evidence in respect of those documents and bringing any reasons on record rejecting the allegations made in the F.I.R. He read section 249-A Cr.P.C. And submitted that both the conditions i.e, charge should be groundless and that there is no probability of the accused of being convicted of offence should simultaneously exist for the Magistrate to acquit the applicant at any stage of the proceedings and according to the learned counsel none of these grounds were taken by the present respondents in their application under section 249-A Cr.P.C. However, the learned counsel admitted that he has not attached the copy of application under section 249-A Cr.P:C. Nor did he furnish a copy during the hearing of the case. The learned counsel then 'submitted that no order under section 249-A Cr.P.C. Can be passed without framing issues and without recording evidence and examining the documents.. He also submitted. That before passing an order under section 249-A Cr.P.C. It is necessary to hear the complainant. He also submitted that when an order under section 249-A Cr.P.C. Is passed it is necessary for the accused to be present in Court. However, in this case even absconders were directed to be acquitted although neither they nor their counsel were present in the Court at the time of the passing of the order under section 249-A Cr.P.C. In support of his arguments he relied on the following judgment:-
(1) A Habib Ahmed v. M.K.G.Scott Christian and 5 others (PLD 1992 S.0 358).
(2) The State through Advocate General, Sindh High Court of Karachi v. Raja Abdul Rehman (2005 SCMR 1544).
(3) Zahoor-ud-Din v. Khushi Muhammad and 6 others. (1998 SCMR 1840).
(4) The State v. Muhammad Afzal and another (2000 MLD 220).
5. Replying to the arguments of the learned counsel for the appellant, the learned counsel for respondents Nos.1 to 5 Mr. Muhammad Ilyas Khan narrated certain facts which according to him were important for understanding the real controversy. He submitted that the incidents on the basis of which the F.I.R was filed took place between the years 1999 to 2002. However, the F.I.R was lodged on 9-9-2005 and no explanation has been given why the F.I.R was filed after such a long delay. The learned counsel went on to explain that the respondent No,3 is the real brother of the complainant and the complainant's daughter' Naureen was married to respondent No,1 and unfortunately divorce had taken place between them on 18-8-2004 and subsequent filing of the F.I.R by the complainant was a whiplash to avenge the divorce proceedings and had been initiated by the complainant due to the straining of relationship between them after the divorce. He in this connection said that the power of attorney was executed by the wife of the complainant and the former mother in law of the respondent in his favour on 1-3-1999. Replying to the contention of the learned counsel for the appellant that the order was passed behind their backs as neither the complainant nor his counsel was heard, the learned counsel submitted that the application for appearance by the learned counsel on behalf of the complainant was filed under section 493 Cr.P.C. Which provides that if any private person instructs a pleader to prosecute in any Court any person in any such case, the Public Prosecutor shall conduct the prosecution, and the pleader so instructed shall act therein, under his directions. He pointed out that the public prosecutor was present and had opposed the application and had been heard by the learned Judge and therefore, the requirements of section 493 had been fulfilled. He read section 249-A Cr.P.C. To point out that there is no requirement of examination of documents and a Magistrate has powers to acquit an accused at any stage of the case if he considers that the charge is groundless or that there is no probability of the accused being convicted of the offence and, therefore, non- examination of documents cannot render the impugned order without jurisdiction and liable to be cancelled. He pointed out that it is trite law that special law prevails over the general law and this is also provided by subsection (2) of section 5, Cr.P.C. He pointed out that section 81 of the Registration Act prescribes penalties including imprisonment for registration officer who has registered any document knowing it to be against the provisions of the Registration Act and this section shall prevail over the provisions of Cr.P.C. And only under section 81 the Registration Act, the Registrar can be penalized. The learned counsel then referred to provisions of Sindh Enquiries and Anti-corruption Act reported in Provincial Statute 1992 page 4 to point out that cases can only be investigated by Anticorruption Police only in respect of any government employee, in this connection he also relied on the judgment of this Court in the case of Muhammad Moosa v. The State in Criminal Bail Application No; 45 of 2004 in which the learned Judge has held in para.9 of his order that law does not authorize Anti-corruption Police to entertain any application of any private person in respect of private land if the complainant is a private person and it pertains to the entry of land which is not owner by the Government.
6. In this connection he further relied on judgment of the Indian High Court reported in AIR 1989 Patna 144. Besides the above cases the learned counsel also relied on the following cases:--
(1) Rasool Khan and others v. Haj Banaras Khan and others (PLD 2004 Supreme Court 364).
(2) Javaid Hamid v. Hassan Jan and 2 others (PLD 1991 Peshawar 121).
(3) Jehanzaib Shinwari and 4 others v. The State (PLD 2002 Peshawar 87).
7. The learned counsel for respondent No,6 and learned state counsel adopted the arguments of Mr. Muhammad Ilyas Khan learned counsel for respondents Nos.1 to 5.
8. I have examined the case in the light of the arguments of the learned counsel and have carefully perused the records of the case and the relevant laws and the judgments relied on by the learned counsel.
9. As already pointed out the main contention of the learned counsel for the appellant is that without examining the documents on record and without hearing the counsel of the complainant, order under section 249-A Cr.P.C. Could not be passed.
' I have perused the portion of the order where the learned Special Judge Anti-Corruption had refused the request for adjournment made by the senior counsel for complainant Mr. LA. Hashmi.
Although in the circumstances of the case the learned Judge Anti Corruption appears to be justified in refusing the adjournment but the comments made by him in respect of .The learned senior counsel are uncalled for and despite the fact, that no prayer has been made in this regard these comments are expunged. However, from a perusal of this part of the order it is seen that the Special Judge Anti Corruption has passed the order after hearing the learned Public Prosecutor and the learned counsel for the applicants and, therefore, the requirements of the judgments relied on by the learned counsel for the appellant has been met I had specifically asked the learned counsel for the appellant to furnish a judgment in which it has been held that without examining the documents an order under section 249-A cannot be passed. However, from a perusal of the judgments relied on by the learned counsel it is observed that not even a single judgment is on this point. On the other hand, in all these judgments it has been held that the trial Court can at any stage of the proceedings pass an order for acquittal under section 249-A Cr.P.C. And in various cases relied on by the learned counsel for the applicant, it is on the basis of the facts of the cases that the Superior courts have held that the order under section 249-A Cr.P.C. Has not been rightly passed.
10. The above quoted argument of the learned counsel for the respondent Mr. Muhammad Ilyas Khan that penalty against the Registering Officer for incorrectly A endorsing, copying translating or registering documents with intent to injure has been provided under section 81 of the Registration Act, 1908 and since it is a settled law that special laws prevail over the general laws, it will prevail over all the B general Acts and, therefore, for the purpose of taking action against the Sub-- Registrar Zafar Baloach action has to be taken under section 81 of the Registration Act, 1908, in my view, this argument carries a lot of weight.
11. The Special Judge Anti-Corruption in the impugned order has alsd expressed his view that since the matter is pending in the civil courts in respect of the above general powers of attorneys there was no need to .Knock the door of Anti-Corruption Court. This view of the learned Special Judge Anti-Corruption is in accordance F with the judgment of the Honourable Apex Court in the case of Rasool Khan and others v. Haji Banaras Khan and others. (PLD 2004 SC 364) relied on by the learned counsel where their lordships have held as under: -
(9) It would be pertinent to note that the respondents have also resorted to the civil remedy and have filed civil suit in the year 1998 which is pending adjudication, hence there was no justification to invoke the jurisdiction of the criminal Court as the very fact that the mutation was fraudulently entered or not is yet to be determined by the Civil Court.
12. It is also an admitted fact that the incidents on the basis of which the alleged F.I.R has been filed occurred between years 1999 to 2002 and the F.I.R was filed -on 9th September, 2005 and no reason for filing this delayed F.I.R has been advanced by the complainant before the Special Judge Anti-Corruption or even before this Court and, therefore, the contention of the learned counsel for the respondent seems to be correct that the F.I.R has been filed to avenge the divorce proceedings which had taken place between the respondent No,l and the daughter of the applicant after 2002.
13. It is also seen that admittedly the dispute is in respect of private land between private persons and just by arraying the Sub-Registrar Zafar Baloch as one of 'the accused in the complaint, the case has been brought under the Anti-Corruption laws. It was pointed out to the Anti-Corruption Authorities in the two letters written by the applicants/respondents that such a case is not maintainable under the Anti-Corruption Laws however the same was ignored by the Anti Corruption Authorities. In an unreported judgment of this Court in Criminal Bail Application No,D-92 of 2004 dated 3-9-2004 my learned brother Amir Hani Muslim J. Held as under:- ............... The law does not authorize Anti-Corruption Police to entertain any application of any private person in respect of private land. If a complaint of a private person pertains to an entry of land, which is not ' owned by the Government is allowed to be entertained it would amount to usurping the powers of revenue authority provided under the Sindh Land Revenue Act, 1967. The Officer of the Anti-Corruption can only take cognizance in those matters in which the Government land is involved and they do not have the authority to determine dispute in regard to entries pertaining to private lands nor the law authorized them to entertain any complaint in regard to title dispute between the private parties. The authority of Anti-Corruption Police is confined to investigate into the entries kept in respect of government lands and dispute in regard to the private lands are subject to jurisdiction of the revenue authorities and/or of the civil courts.
' I fully subscribe to the above views of my learned brother.
14. For the foregoing reasons I am of the considered opinion that the judgment of the Special Anti- Corruption Judge is unexceptionable and does not call for any interference by this Court. The Criminal Acquittal Appeal under section 417 of the Cr.P.C. Being without merits is dismissed.