1. This Criminal Misc. Application under Section 561-A Cr.P.C. has been filed by applicant Raza Muhammad Bhutto for quashment of proceedings arising out of FIR No, GO-11 of 2005 under Sections 467/468/471/477-A/420/34 PPC read with Section 5(2) of Act II of 1947.
2. The brief facts of the prosecution case are that on 20.09.2005 Khair Muhammad Shah, Sub Circle Officer, Anti Corruption Establishment Kotri had lodged FIR No, 11 of 2005, stating therein as under : "This case is being registered as per approval of AC-II Jamshoro dated 30.8.2005, that during the proceedings of Criminal Bail Application No, S-392/2004 as per directions of Hon'ble High Court, Additional Advocate General Hyderabad verified/ scrutinized the revenue record of Tal. Thana Sola Khan pertaining to the incumbency period of Raza Muhammad Bhutto Ex. Mukhtiarkar Tal Thana Bola Khan & others.
3. Additional Advocate General Hyderabad furnished his report showing that 20 entries of Deh Kalo Khoher and Hatay Buth were found fake and bogus.
4. The Senior Member Board of Revenue was present and undertake to take disciplinary and criminal prosecution against the alleged Mukhtiarkar Thana Bola Khan and Tapedars concerned.
5. Inspector Ayaz Ahmed Pandhyani has further reported that enquiry was held against alleged officer/officials at departmental level but enquiry officer has deliberately ignored the documentary evidence and has malafidely exonerated the respondents from the allegations, though a very responsible officer i,e, Advocate General has reported against the said officers/officials.
6. During the course of enquiry it has been revealed that bogus entries of V.F. VII-A, Deh Kalo Khokar were kept in respect of following survey Numbers showing purchased by Shahnawaz from mean, Mian Bux and Dooro Khan without showing the consideration amount and Challan No, under which Govt. fee was deposited and date on which land was purchased.
1. Entry No, 228, VF VII-A by referring Entry No, 54 of D.K. No, 7401 (Missing) S. No, 676/1 and 675/1 Total Area 10000 acres.
2. Entry No, 234 VF VII-A by referring Entry No, 18 of D.K. No, 7401 (missing) S. No, 672/1, 673/1 and 674/1 Total Area 131-00 acres.
7. 3.Entry No, 241 VF VII-A by referring Entry No, 56 Dakhal Khaij Book No, 7401 (missing) No, 8/1 area 40- 20 acres.
8. But the sale certificate was fraudulently been issued in the name of Shah Nawaz Baloch and the above mentioned land 230-20 acres except S. No, 674/1 was sold out by Muhammad Usman Jakhro attorney of Shah Nawaz to Zahid son of Abdul Razzaque in sum of Rs, 18,00,000/- under Registered Deed No 40, dated 16.01.2003 at Sub Registrar Office Kotri.
9. Despite of the facts that the land has illegally been entered in the name of Shah Nawaz, accused M/Kar & Tapedar kept Entry No 14 dated 17.06.2003 in favour of purchaser Zahid son of Abdul Razzaque. Hence, in this way all the accused persons cheated the Govt. by disposing of the Govt. land fraudulently. The entry was cancelled by EOD Revenue Jamshoro Order No, 110 dated 11.03.2005.
10. All accused persons with the connivance of each other committed offence punishable U/s 467/468/471 /477-a/420/34 PPC R/w Sec. 5(2) Act, II of 1947 hence the case is registered on behalf of the state".
11. I have heard learned counsel for the applicant Mr. Mehmood A. Qureshi, and Mr. Asadullah Baloch, learned counsel for the State.
12. Learned counsel for the applicant has stated that on the basis of above facts and Order No 110 dated 11.03.2005, passed by the Executive District Officer, (EDO) Revenue, Jamshoro, number of FIRs have been registered against the applicant and FIR No 11 of 2005 is one of them. He has stated that the applicant had challenged the Order No 110 dated 11.03.2005 of EDO Revenue Jamshoro before this Court in CP No, D1329 of 2005 and learned Division Bench of this Court consisting of Mr. Justice Ghulam Rabbani (as he then was) and. Mr. Justice Munib Ahmed Khan vide order dated 27.10.2005 had set aside the above mentioned Order No, 110 dated 11.3.2005. Learned counsel for the applicant has submitted copy of that order as Annexure "G" to this application, which is at page 105 of the Court file and reproduced as under: It is contended by Mr. Raza Hashmi, learned counsel for the petitioners that the land in question was purchased by the petitioners under registered sale-deed Bearing No, 150 dated 153-2004, and on the basis of such transaction on 26-3-2004 and entry Bearing No, 107 was maintained in the register of mutation maintained by the revenue authorities yet, learned executive district officers revenue Jamshoro without affording an opportunity of hearing, on the basis of some reports of lower staff cancelled the original entries by way of an order dated 11.3.2005, it is further contented by the learned EDO revenue illegally exercised his powers under Section 164 of the Sindh land revenue act by not following the mandate of the said provision which clearly provides that no order, shall be passed under the said act reversing or modifying any proceedings or order of subordinate revenue officers effecting any person without giving such person an opportunity of being heard. It is argued by Mr. Raza Hashmi that since violation of the provision of the law has taken place; the impugned order is rendered null and void and need to be quashed.
13. It is admitted by Mr. Qazi Khalid the learned additional advocate general on consultation of the learned EDO, present in the Court, that the name of the petitioner was entered in the revenue record on the basis of registered sale-deed has pointed out by Mr. Raza Hashmi and that a mistake has taken place at the time of passing of the impugned order due to which no opportunity of hearing was provided. It is suggested by him that in all fairness the impugned order be set aside and the matter remanded to the learned EDO and to decide the questions involved in the matter afresh after hearing petitioner and in accordance with law.
14. In view of the above admitted position the impugned order is set aside and the matter is remanded to the learned EDO revenue, Jamshoro to decide the sane after providing an opportunity of hearing to the petitioners and in accordance with law.
15. The Learned counsel has argued that FIR No, 11. of 2005 was lodged on the basis of Order No, 110 dated 11.03.2005 which was challenged by the applicant in CP No, D-1239 of 2005 before DB of this Court and the Division Bench was pleased to set aside the same. He has developed an argument by narrating the above facts to the effect that the FIR was lodged under. Order No, 110 of 2005 dated 11.03.2005 and once that order has been set aside by the Division Bench of this Court, the registration of FIR is also nullified and any proceedings initiated on such FIR are liable to be quashed in the interest of justice.
16. He has further argued that the applicant had already been exonerated in the previous inquiry conducted by EDO Revenue Sehwan on 26.11.2004. He has further added that the name of the applicant does not appear in the FIR. He has further argued that there are reasonable grounds for believing that the applicant is not guilty of the alleged offence and there is no -probability of his conviction even if the entire proceedings are allowed to be continued.
17. In support of his argument, learned counsel for the applicant has relied upon:--
(1) 2002 S.C.M.R. 1076 Maqbool Rehman v. The State and others
(2) 2002 P.Cr.L.J. (Kar.) 9, Mst. Gul Reza and others v. The State and others
(3) NLR 2003 Cr. LHR 663, Khalid Mehmood v. Fateh Khan etc
(4) NLR 2001 SC 282, The State v. Asif Ali and Muhammad Zahid Mr. Asadullah Baloch, Learned counsel for the State has opposed the quashment of proceedings and has stated that this man has made twenty entries in the record and as such he has committed offence punishable with imprisonment.
18. I have heard the learned counsel for the applicant as well as Learned counsel for the State and have perused the record, the order of Division Bench of this Court setting aside the Order No, 110 dated 11.03.2005 as well as its effect on the present FIR and the case.
19. I have gone through the case law cited by the learned counsel for the petitioner reported in 2002 SCM R 1076 (Maqbool-ur-Rehman v. The State), the relevant portion at page 1079 in Paragraph 6 is reproduced as under: "6. In law, Section 561-A Cr.P.C. does not confer inherent jurisdiction on the High Court. It merely assumes that there is something as "inherent jurisdiction" and then it preserves it to enable the High Court to make such orders as may be necessary to give effect to an order Criminal Procedure Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is true that ordinarily inherent powers of the. Court should not be invoked because inherent powers are exercised in extraordinary cases in the interest of justice. It may be pertinent to note that such power do not extend to uncalled for an unwarranted interference with the procedure prescribed by law, which must always be followed. Normally, High Court does not exercise its inherent jurisdiction unless there is gross miscarriage of justice and interference by the High Court seems to be necessary to prevent abuse of process of Court or to secure the ends of justice. Jurisdiction under Section 561-A, Cr.P.C. is neither alternative nor additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary course of criminal procedure. This kind of jurisdiction is extraordinary in nature and design to be substantial justice. It is neither akin to appellate jurisdiction nor to the revisional jurisdiction. The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non-separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provision in the Code of Criminal Procedure be deemed to possess in its very Constitution all such powers are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle when the law gives a person anything, it gives him that, without which it cannot exist. It would thus, emerge from the resume of various pronouncements by the superior Courts that the High Court has, in view of its general jurisdiction over all the Criminal Courts subordinate to its, inherent powers to give effect to any order of any such Court under the Code and to prevent the abuse of process of any such Court or otherwise to secure the ends of justice".
20. The order dated 27.10.2005 passed by learned Division Bench of this Court in CP No, D-1329 of 2005 has observed as follows: In view of the above admitted position the impugned order is set aside and the matter is remanded to the learned EDO revenue Jamshoro to decide the same after providing an opportunity of hearing to the petitioners and in accordance with lave.
21. In the above circumstances, I am of the view that the proceedings in FIR No, 11 of 2008 will be an exercise of futility and accused cannot be convicted in this case unless in terms of order passed by learned Division Bench of this Court in CP No, 1329 of 2005 a fresh inquiry is held and in the light of findings of that inquiry further proceedings are initiated. As far as present proceedings are concerned, these were based on impugned Order No, 110 dated 11.03.2005. The said order itself has been set aside by learned Division Bench of this Court vide order dated 27.10.2005. The accused is in his advance age. In all fairness upon consideration of the above mentioned facts and case law and perusal of the record of this case I am of the opinion that there is no likelihood of conviction of the applicant in this case. It has been held in 2002 SCM R 1076 relevant portion of which is at page 1081 in Paragraph 9, which is reproduced as under : "9. In law, there is no warrant for the argument that since the charge had been framed by the trial Court, proceedings could not be buried by way of quashment. The petitioner appears to be labouring under a misconception of law, that in all cases where the accused persons are summoned by a Court of law, it is incumbent upon the Court to record the evidence. There is no invariable rule of law and it will depend on the facts of each case whether to allow the prosecution to continue or to nip in the bud. In the case in hand, we think that the course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice. The grounds, which prevailed with the High Court for exercise of its inherent jurisdiction, are neither artificial nor perverse or shocking. Indeed in the circumstances of the case High Court was under a duty to ensure that the process of law was not allowed to be misused and indeed by passing the impugned judgment it has prevented the mischief and advanced the cause of justice."
22. On careful and conscious examination of the facts and circumstances of the case from every angle and upon perusal of the case law I am of the view that this is a fit case for quashment of proceedings which otherwise will amount sheer abuse of process of law, resultantly this Cr. Misc.
23. Application is allowed and the proceedings are quashed.