The applicants Naseem ul Haq Malik son of Ghulam Haider Malik and Attaullah Anjum son of Ghulam Ali have applied for quashment of Criminal Case No, 79/2000 and Charge Sheet No, 3/2005 under Sections 109/471/468/420/40 PPC read with Section 5(2) of Act-II of 1947 of ACE, Karachi pending adjudication in the Court of Special Judge Anti-Corruption (Provincial) Karachi. Precisely the prosecution story as depicted by Inspector ACE Syed Tahir Hussain in respect lodged on 5.8.2000 reads as under: _ "A written Letter No, DROE/1(223)/1693-473 dated 14.5.1998 Was received today from Deputy Registrar Co-operative Societies, Karachi addressed to Director ACE Sindh. Karachi through, higher officers alongwith enquiry report from Rais Ahmad Khan, Assistant Registrar Co-operative Society.
As per enquiry report, accused Attaullah Anjum SI. Co-operative Society was appointed as OS by the AOF Ex-service Men Co-operative Housing Society, Karachi, who remained against this post upto 27.8.1997. This enquiry was conducted on the application of the society. It reveals from the enquiry that SI Attaullah Anjum has committed many irregularities in the record of the society and embezzlement in the funds of the Society. On the basis of the above mentioned and enquiry report a complainant No, 61/1999 was lodged against SI Attaullah Anjum and was marked to me, Inspector Syed Tahir Hussain Shah for conducting further enquiry. During the enquiry the record of Ex-service Men Co-operative Housing Society Limited was taken into custody and perused as well as the statements of related offices and employees of the society were recorded. During enquiry it reveled that Nasimul Haq Malik Ex. Administrator of Ex-service Men Co-operative Housing. Society had appointed SI Attaullah Anjum as part time Office Superintendent without the approval of the competent authority. Attaullah Anjum in ,connivance with Nasim-ul-Haq Malik committed embezzlement of lacs of rupees in the funds of the society and transferred the plot in favour of his favourities by mis-appropriation in the record and also has not entered the amount in the record of the society received against development charges nor deposited the same in the account of the society. This act of. accused Attaullah Anjum. BPS-11, SI, Co-operative Society and Nasimul Haq Malik, BPS Administrator Cooperative Housing Society comes under Sections 409/420/467/ 468/471/109 PPC read with Section 5(2) of Act-II of 1947. So the case against accused Nasim ul Haq Malik Ex-Administrator and Attaullah Anjum SI Co-operative Housing Society etc., is registered with permission from the Competent authority. I, therefore, Syed Tahir Hussain Shah investigate. This case is registered under Section 154, Cr.P.C. and as per the provisions of Section 157, Cr.P.C. the copies of the FIR are sent to the concerned authorities.
Sd/- in English Syed Tahir Hussain Shah"
In the year 1996-97 the Co-operative Department, Government of Sindh had conducted an enquiry into the affairs of the Cooperative Society namely Ex-Service Men Co-operative Housing Society, Karachi regarding the malpractice and irregularities committed by its management. The then SDM Ghlshan-e-Iqbal had sealed the office of the management and had not handed over its record. It is alleged that the Application No, 1 was appointed by the Government as Administrator, who appointed the Applicant No, 2 as Office Superintendent to look after the affairs of the society. The Applicant No, 1 after a few months had written a letter dated 13.3.1997 to the Secretary. Food and Co-operative Department, Government of Sindh that due to heavy rush of work he was not in a position to run the affairs of the society smoothly. The Applicant No, 1 was subsequently appointed as Deputy Registrar at Sukkur, subsequent thereof Applicant No, 1 got a notice published in Daily Jang dated 30.9.1997 requesting the members of the Society to submit Photo-stat copies of their title documents. On 27.8.1997 the Applicant No, 1 handed over the charge of the society to the management as per orders of Sindh Government dated 6.8.1997.
The Applicant No, 2 being Office Superintendent looked after the affairs of the business of the society after taking over the charge as Mr.' Fazal-ur-Rehman Anwar, Honourary Secretary of the Society after 27.8.1997 was only engaged in the correspondence with the Applicant No,
2. It is alleged that the Secretary of the Society after taking over the charge had made a complaint against the Applicant No, 2, Deputy Registrar had submitted the report, matter was placed before the Advisor for cooperation, on approval from the Advisor necessary directions were issued to DRCS, Karachi by the Secretary, Government of Sindh for registration of the case. The department did not instruct to file FIR against the Applicant No,
1. It is alleged that on different enquiries conducted by different departments by different investigating agencies the applicants were found innocent. The applicants who were connected with the commission of crime vide Charge Sheet No, 3/2005 immediately moved for bail before arrest. The Applicant No, 2 was forcibly retired on 11.3.2002. He has resorted to file departmental appeal, which was dismissed preferred Appeal No, 115/2005 before the Sindh Service Tribunal, Karachi, which was allowed.
Ch. Abdul Rasheed, learned counsel for the applicants has contended that the Applicant No, 1 has been victimized at the instance of Secretary Mr. Mumtazur Rehman now working as Chief Controller of Buildings, K.B.C.A. FIR has been registered after three years of the investigation on 5.8.2000 and charge sheet has been submitted on 31.3.2005 after more than eight years of commencement of investigation in the trial Court on the active directions of the Secretary Mr. Mumtazur Rehman, which is based upon mala fide and ulterior, motives. It is urged that the prosecution did not have any incriminating evidence. Government of Sindh has failed to produce nay documentary evidence regarding the implication of the applicants on the charges of illegal and unlawful allotment/transfer of plots misappropriation of the amount of development charges, even before the Sindh Service as Tribunal as well as the Supreme Court of Pakistan all the allegations were dealt in C.P. No, 44/K-2006 preferred by the Applicant No,
2. It is urged that the prosecution did not fix individual liability, the management of the society was run by Mr. Fazal-ur-Rehman, its Honourary Secretary, who was convicted by NAB involved in criminal case. In support of the above contentions reliance has been placed on the cases of Miraj Khan vs. Gul Ahmed and 3 others (2000 S.C.M.R. 122) Muhammad Ali and another vs. Assistant Commissioner, Narowal and another (1987 S.C.M.R. 795) and All Muhammad vs. The State (1996 P.Cr. L.J.(Karachi) 1347).
Ms. Afsheen Aman, learned counsel for the State has opposed the moved of the applicant has contended that the charge sheet has been submitted after inordinate delay, which does not support the applicants' plea of false involvement in the case.
It is a cardinal principle of law that every criminal case should be adjudged on its one facts and merits. The main consideration to the kept in mind is whether the continuance of the proceedings before the trial forum would be futile exercise and shall result in abuse of process of Court or not. If on the basis of the facts admitted and patent on record no case is made out then it would amount abuse of process of law to allow the prosecution to linger on with the case in which charge sheet has been filed after inordinate delay.
I am of the considered view that on the basis of facts admitted and patent on record no offence is spelled out against the applicant. In case the prosecution is allowed to continue, it will result in the process of abuse of Court. Consequently, FIR lodged against them is hereby quashed, Criminal Misc. Application No, 78 of 2007 is hereby allowed.
These are the reasons for the short order dated 17.8.2007, whereby this Cr. Misc. Application was allowed in above terms.