1. ' ABDUL HADI KHOSO, J.---This is an application under section 561-A, Cr.P.C., in which the applicant has prayed that the proceedings of the Special Case No, 24 of 1998 arising out of crime No,8 of 1998, Police Station ACE Dadu under sections 409, 420, 467, 468, 471, 477-A, 218, 34, P.P.C. R/W/S. 5(2), Act-II of 1947 may be quashed against him.
2. ' The facts of the case in brief are that this case was registered on behalf of State under the order of Deputy Director Anti-Corruption Establishment Hyderabad under his Endorsement No, ACM/98/R/2754 dated 12-3-1998. The enquiry was conducted by Director Enquiries-II Mr. Shafqat Ali S. Talpur and the then Deputy Commissioner Dadu Mr. Abdul Razak Abassi, and the Secretary Land Utilization Board of Revenue Sindh.
3. ' The applicant has submitted that in the F.I.R. Dated 12-3-1998 his name is not mentioned and during the investigation in the interim challan dated 27-3-1998; his name was also not mentioned and thereafter in the amended challan dated 16-6-1999, his name was also not mentioned as an accused but later on in the Charge sheet No,03/2000 dated 21-2-2000 he has been shown as accused in the case. Allegations of fraud were levelled against all the accused relating to acquisition of land surrounding Manchhar lake falling within the jurisdiction of Taluka Johi and Sehwan. It is alleged in the challan that actually Evacuee land belonging to Provincial Government was illegally converted as private land through bogus claims or otherwise with the connivance of lower staff of Revenue and land grabbers since 1975 and further that 100% payment of compensation in respect of some bogus claims were made to one Haji Muhammad Alam Jahejo in capacity of attorney of awardees. Further it is mentioned that Deputy Commissioner Dadu with his report submitted the list of bogus khatedars of both Talukas. Viz. Johi and Sehwan to whom the payments were made, thus the payment to such khatedars is not justified and Assistant Commissioners are usually responsible for making payment to bogus claimants amounting to Rs,49,40,834.30, which is wrongful loss to Government wrongful gain to themselves and private persons.
4. ' This case was registered by Mr. Gull Baig Jatoi, C.O. ACE, Dadu on behalf of State against Ex-Chief Minister Syed Abdullah Shah and about 60 others. The allegation against the applicant was that in the capacity of Assistant Commissioner he had made payment to the claimants among them there were bogus claimants, the said amount was provided by Finance Department which was sanctioned Rs, 3,78,00,000 dated 12-4-1994 from the Budget 1993-94 and was placed at the disposal of Deputy Commissioner, Dadu, who further distributed the said amount to the concerned Assistant Commissioners as under:-- Assistant Commissioner, SehwanRs. 2,53,00,000 Assistant Commissioner, Dadu Rs. 1,25,00,000 Total Rs. 3,78,00,000 ' The Assistant Commissioner Sehwan the present applicant had made the payment of Rs, 1,87,00,646-75 and Assistant Commissioner, Dadu has made payment to the claimants Rs, 1,24,99,969.00 and there remained balance Rs, 66,13,816.85.
5. ' It is stated in the challan that a Provincial Cabinet in its meeting held on 2-11-1992 approved the payment of compensation at the rate of Rs,15000 per acre and further decided (1) that loan amount of Rs,5,50,64,693 outstanding against affectees may be got adjusted by the Government of Sindh from the compensation amount (2) it was also decided that each payment be made to the extent at least 10% of the balance amount only (3) the rest of the amount may be paid in shape of bonds (4) the Government of Sindh Finance Department sanctioned Rs,3,78,14,432 on 12-4-1994 from the budget of concerned Assistant Commissioners as mentioned above. Thus the payment has not been made in accordance with the decision of Provincial Cabinet but however, the then Chief Minister Syed Abdullah Shah regularized the excess payment made to the khatedars against the Cabinet decision.
6. ' I have heard the applicant in person and the learned D.P.G. For the State.
7. ' The applicant has submitted that his name in the final challan was mentioned with mala fide; that he had not made payment to any bogus land owner and the payment if any to the claimants was made after due verification of Revenue Record to the land owners who had inherited lands from their forefathers and whose names were approved for payment by the high powered committee as genuine landlord and there is absolutely no evidence or proof directly connecting ulterior motive or causing loss to government or gain to the applicant or land-owners; that even in lodging the F.I.R. There is inordinate delay of five years and he did not make any excess payment more than the approved rate of Rs,15000 per acre to any affectee land owner and he had made the payment of compensation to the genuine land owner of Taluka Sehwan only duly verified by the Revenue Officers and staff according to entries in the Revenue Record of Inheritors all the payments made by the applicant were through cross cheques duly verified and identified owners, therefore, there was no question of misappropriation of funds; that the agreement was got signed from 'claimants that in case any excess payment is found they will return the same to the government as per the agreement they had signed the same before receiving the cheques of payment and even otherwise if any excess payment is found will be recoverable as government dues under the law from the payees; that there has been inordinate delay in investigation and prosecution in this case he has served there till 1994 but the F.I.R. Was registered in 1998 while final challan was presented in the year 2000; that 16 years have been passed when the alleged act was shown committed and despite 12 years of prosecution efforts even the charge has not been framed in the case and he is a noble and honest government servant and is being dragged since long.
8. ' The applicant has further submitted that he had filed Criminal Miscellaneous Application No, 221 of 2001 in the honourable High Court, Circuit Hyderabad, in which the honourable High Court had passed order dated 10-5-2001 that the "trial Court is directed to expedite the proceedings of the case arising out of Crime N.o.08 of 1998 of PS ACE Dadu". Even thereafter the charge was not framed, thereafter in the year 2003 the applicant had filed another Criminal Miscellaneous Application No, 149 of 2003 in the honourable High Court, in which on 13-9-2004 the honourable High Court had passed order directing the trial Court, "to bifurcate the case of present applicant from those who are absconders and frame the charge within 15 days and thereafter record the evidence and conclude the matter as expeditiously as possible but not later than three months from the receipt of this order. The trial Court to submit report of the progress of every month to the Additional Registrar of this Court" but yet up till now even charge has not been framed and the prosecution has failed to bring any evidence against the applicant.
9. ' The applicant has relied upon the cases of "Israr Hussain v. The State" (1986 PCrLJ 574), "Mushtaque Ahmed and others v. The State" (PLD 1963 (W.P.) Quetta 13 and "Amanullah Khan and others v. The State" (1965 (W.P.) Kar 310 and "Malik Fazil Karim v. The State" (PLD 1957 (W.P.) Lahore 837). The applicant had moved application under section 249-A, Cr.P.C. In the. Trial Court but his application was dismissed on 16-3-2010, thereafter he has filed the present application for quashment.
10. ' Learned D.P.G. Has opposed the application and has stated that in the final challan his name is mentioned and there is allegation against the applicant for making excess payment and payment to the bogus claimants.
11. ' After hearing the applicant and D.P.G. For the State went through the file of case. I have drawn my attention to the contents of charge sheet in which it is mainly mentioned that payments have not been made in accordance with the decision of Provincial Cabinet but however the then Chief Minister Syed Abdullah Shah had regularized the excess payment made to the khatedars against the Government of Sindh Cabinet decision and there are general allegations that there were bogus and suspicious entries regarding the land in Taluka Johi and Sehwan but there is no any allegation against the present applicant either he had committed any forgery or prepared any bogus record and there is no apparent allegation that he converted the amount in his own benefit. As per contention of the applicant that till date no any entry of the land has been cancelled by the concerned Revenue authorities and it is evident that there were no bogus entries or any undue or excess payment was made to any bogus claimant but as per applicant the case appears to be politically motivated. The applicant is being dragged since the year 2000 without any progress in the case and the prosecution has failed to bring any evidence against him in such long period even till date charge has not been framed against him though previously two times the honourable High Court has issued directions in Criminal Miscellaneous Application No, 221 of 2001 on 10-5-2001 and in Criminal Miscellaneous Application No, M9 of 2003 on 13-9-2004 and if further proceedings in the case are continued, would amount to grave abuse of process of the Court and abuse of process of law. Considering and applying mind to the above circumstances I have come to the conclusion that only there are allegations of general nature and no any direct evidence is alleged to be against the applicant, whatever the payment was made and amount was distributed among the claimants that was official duty of the applicant and there is no substantial allegation of mala fide or converting the property/amount in his own benefit or committing any forgery in the Revenue Record of Rights but whatever he has done that appears to have been done while discharging his official duty, on the basis of the Revenue Record already existing in the names of the claimants which as per applicant was inherited by the claimants from their fore-fathers. It also does not convince to the mind that when there is allegation of distribution of amount to the bogus claimants as per revenue entries then why the same entries of beneficiaries whom the amount has been paid, have not been cancelled/removed from the Revenue Record of rights or any effort has been made to recover the same from the alleged bogus beneficiaries though there was an agreement signed by those khatedars who received the payment that in case of excess payment to them they are bound to refund the same. Moreover the applicant has only distributed the amount to the land owners/claimants through cross cheques, therefore, it is crystal clear that there was no mala fide on the part of applicant or any wrong act was done by him. As the rosecution has failed to bring any substantial evidence on record and even failed to frame the charge against the applicant/accused on the repeated directions of the High Court issued in the year 2001 and 2004, therefore, such abuse of process of Court cannot be permitted, as such in view of the authorities quoted above the proceedings of the Special Case No, 24 of 1998 arising out of Crime No, 08 of 1998, PS ACE Dadu under section 409, 420, 467, 468, 471, 477-A, 218, 34, P.P.C. Read with section 5(2), Act-II of 1947 against applicant Tameezuddin Khoro are hereby quashed. The above are the reasons of my short order dated 28-6-2010.
12. ' The Criminal Miscellaneous Application stands disposed of along with pending application.