1. ' MRS. QAISER IQBAL, J.---Applicants Muhammad Asif son of Muhammad Arif and Aqil Mian son of Reghib Ali have resorted to Miscellaneous Application under section 561-A, Cr.P.C. For judgment proceedings arising out of Special case under sections 420/ 468/471/109, P.P.C. Read with section 5(2) of Prevention of Corruption Act, 1947 pending before the learned Special Judge Anti- Corruption (Provincial) Karachi.
2. ' The brief facts as disclosed in the report are reproduced herein-below in extenso:-- ' That case is registered under the orders of the competent authority and approval of Chairman, Anti-Corruption Committee No,III, District East, Karachi, dated 6-6-1998 the brief facts of this case are as under:-- "That a Plot No,A-20, Block 13-D/1, Gulshan-e-Iqbal, Karachi has been transferred by K.D.A. On the basis of an application given by accused Iftikhar Hussain Butt, dated 6-7-1995 claiming to be brother and attorney of the original owner of the plot. But the original owner/allottee Mr. Wazir Hussain Butt appeared before K.D.A. And A.C.E., Karachi has disclosed that he had neither given a power-of-attorney to anybody nor he has any brother namely Ifitkhar Hussain Butt. The K.D.A. Sent powerof-attorney to the Ministry of Foreign Affairs, Karachi for verification where from it has then confirmed that the same was fictitious/bogus and further N.I.C. Of accused Iftikhar Hussain Butt was verified from AD/SRDO Daska which was also found to be bogus by an Enquiry Officer of K.D.A., who further established that the entire transfer case was prepared/processed by accused Aqil Mian, Senior Clerk, K.D.A. (Land Department) who also made the endorsement that "Original Documents seen and returned" and further noting/recommendation for approval of transfer of plot was -prepared/made by him and submitted before his superior for further approval of transfer case and accordingly the plot was transferred in favour of accused Attaul-Manan by fraudulent means via K.D.A. Transfer Order No,411, dated 25-7-1995.
3. ' From the above-said facts, it has been established that accused K.D.A. Official namely Aqil Mian, Senior Clerk and others with the connivance of private persons accused Iftikhar Hussain Butt and Atta-ul-Mannan arranged bogus power-of-attorney of Plot No,A-20, Block 13-D/1, Gulshan-e-Iqbal, Karachi in their names and thus they in collusion with each other have committed an offence punishable under sections 420/ 468/471/34, P.P.C. Read with section 5(2) Act-II of 1947. Hence this is registered."
4. ' After usual investigation the applicants along with Azam Ali Laghari, Assistant Director, K.D.A. (Land Department) were charged for commission of the offences. During the course of proceedings co- accused Azam Ali Laghari was acquitted by Special Judge on 25-1-2003.
5. ' It is contended by Mr. Ali Ahmed Junejo, learned counsel for applicant Muhammad Asif that during trial statement of P. W.1 Syed Munawar Ali, Estate Broker and P.W.2. Muhammad Shahid were recorded, they have stated to have been informed about the availability of the plots in question for sale by broker Orangzeb, who had handed over copies of the title documents of the plots, which were delivered to broker Muhammad Yamin at Abbasi Estate Agency and he got the title documents verified, thereafter Iftikhar Hussain Butt, the absconding accused sold the plot to Atta- ul-Mannan with the help of above-referred estate brokers fraudulently got it transferred in his name. P.W.3. Major Mazhar-ul-haq was also examined. His testimony is hearsay and has not involved the applicants in the commission of the crime. It is next urged by Mr. Ali Ahmed Junejo that in the last six years prosecution could examine only three witnesses in respect of the allegations that the applicant was Incharge allocated the work in Scheme No,24, Gulshan-eIqbal and had signed a note recommended the transfer which is borne out from the evidence of the witnesses examined by the Trial Court.
6. ' Mr. Abdul Ghafoor Khan, learned counsel for the applicant Aqil Mian has contended that he was deputed as Senior Clerk in Karachi Development Authority and had made endorsement "original documents seen and returned" on the title documents of the plot in question, there is no allegation that he had forged the documents or dishonestly or fraudulently used the same knowing it to be as such the case of the transfer of the plot was processed by co-accused Muhammad Asif and transfer was allowed by Azam Ali Laghari, Assistant Director, K.D.A., who has been acquitted. It is urged that complainant Nazeer Hussain has filed a Civil Suit No,460/1998 in the High Court of Sindh, which was compromised and decreed, after the matter was decreed in favour of the complainant he has lost interest in the case, therefore, his evidence could not be recorded in the last six years.
7. ' Ms. Afsheen Aman, learned counsel for the State has supported the impugned order.
8. ' I have considered-the arguments advanced at bar and have gone through the record of the case.
9. ' Co-accused Azam Ali Laghari has been acquitted on the ground that there was no evidence available against him with the prosecution showing his involvement in collusion with co-accused Iftikhar Hussain Butt, whereas the role assigned to the applicants cannot be brushed aside on the premises that they are involved in fraudulent and dishonest deeds for causing benefit to third party. It appears that from the statement of A Major Mazhar-ul-Haq, Director Legal Affairs of K.D.A., the transfer was approved by Azam Ali Laghari, Assistant Director on the basis of endorsement of the applicant Aqil Mian. The role of applicant Aqil Mian was that he had put endorsement on the case that the original documents were seen and returned, this disclosed to him by the dealing clerk applicant Muhammad Asif. From the appraisal of the testimony of P.W. Muhammad Shahid, he has not said any word against applicants, whereas P.W. Syed Munawar Ali, an Estate Agent has deposed that he had appeared before applicant Aqil Mian, who recorded the statement of Atta-ul- Mannan and absconding accused Iftikhar Hussain Butt, later the plot was transferred in the name of Atta-ul-Mannan, nowhere he has implicated applicant Muhammad Asif. On account of scanty evidence available on the record and the fact borne out from Suit No,460/1998 compromised by P.W. Nazeer Hussain in the High Court of Sindh on 2-8-2007, it is abundantly clear that he had withdrawn all cases, complaints and objections filed at all levels up to K.D.A. Now sitting with the City District Government, Karachi and law-enforcing agency. I am conscious of the fact that criminal case cannot be decided on the basis of a civil suit yet upon taking into consideration the attending circumstances of the case it transpires that the transfer was allowed by the acquitted accused Azam Ali Laghari on the basis of alleged endorsement of the application yet he was acquitted from the charges levelled against him. The question of loss caused to the complainant Nazeer Hussain does not arise as he was already proceeded to record compromise in civil suit filed by him against K.D.A. And others, which manifestly shows that he had no interest to pursue the F.I.R.
10. Lodged against the applicants, therefore, he did not appear before the Trial Court despite the lapse of six years. Statements of material witnesses recorded by the Trial Court did not implicate the applicants in the commission of the crime, therefore, inordinate delay in disposal of the case has resulted in abuse of the process of law, therefore, the charges levelled against the applicants are groundless.
11. ' In the above circumstances, the applicants Muhammad Asif and Aqil Mian are acquitted from the charges levelled against them, they are on bail, the bail bonds stand cancelled, sureties stand discharged.
12. ' As a consequence of the above discussion Criminal Miscellaneous Applications Nos. 119 and 127 of 2007 stand allowed in B above terms.