This application under section 561-A, Cr. P. C., has been filed by the applicant seeking quashment - of the case, State v. Hasibur Rehman and others under section 420/468/471/34, P. P. C. Read with section 5(2) of Act 11 of 1947 pending in the Court of Special Judge, Anti-Corruption (Provincial), Karachi.
2. The facts of the prosecution case in brief are that the complainant Mirza Ferozuddin purchased the disputed Plot No. 27/B of Block No. 19 (St-4) of Roshan Bagh Co-operative Housing Society, Federal 'B' Area, Karachi, from one Mst. Bilquees Fatima in 1971. The sale/transfer was formally approved by the Society on 3-2-1971 and the matter was referred to the K. D. A., for allotment of the same in his favour in 1972. He constructed a building on it in 1973 and was paying the taxes of it to the Excise and Taxation Department.' Mst. Husn Jehan also claimed ownership on the same plot after fabricating the record of the society in collusion with the officials of the society in year 1977. She approached the Summary Military Court `B' Headquarters of the Martial Law Zone 'C' byway of an application against the complainant and a notice was issued to him as a result of it. He appeared before the Summary Military Court in respond to the said notice and explained his side of the matter which resulted in dismissal of the application of Mst. Hush Jehan. He thereafter filed F. I. R. No. 36 of 1978 with Anti-Corruption Establishment, Karachi on 28-5-1978. The Inspector A. C. E. After usual investigation sent up the applicant and others to stand trial for the above offences.
3. The learned counsel for the applicant contends that the applicant is also one of the members of the Managing Committee of the Roshan Bagh Co-operative Housing Society Limited, and besides him there are other 8 members of the Managing Committee of the Society and also the following office-bearers.
(1) Chairman of the Managing Committee.
(2) President of the Society.
(3) Honorary Secretary of the Society who is also a member of the Society.
The respondent No. 2 who is a co-accused in the case is also the Honorary Secretary of the Society and so also the respondent No. 4 Mst. Hush Jehan who is a member of the Society. The disputed plot was originally allotted to Mst. Hush Jehan who somewhere in May, 1977 applied to the Society for issue of a duplicate copy of her allotment order as the original order was either lost or misplaced by her. The application of Mst. Hush Jehan was put up before the Managing Committee in its' meeting held on 28-5-1977 which was attended by Muhammad Jurair, Chairman of the Society, Hasibur Rehman, Honorary Secretary of the Society. Messrs Farooq A.I, Anzar Ahmed, Azeem Siddiqui, Farooq Haider and the applicant who are members of the committee. It was decided in the meeting that the applicant being a senior member of the committee who had also remained Chairman of the society should assist the Honorary Secretary for purposes of issue of a duplicate copy of the allotment order. The applicant after due considera--petition of the matter advised the Honorary Secretary that the duplicate copy be issued to Mst. Hush Jehan subject to her affidavit sworn in on a stamped paper of Rs. 5 for loss/misplacement of the original copy of the allotment order and also to publication of such notice in the popular Newspaper at her expense by way of public notice. Mst. Hush Jehan complied with the above terms and conditions and a decision to issue a duplicate copy of the allotment order to her was made in the meeting which was not even attended by the applicant. After getting the duplicate copy, she applied for issue of "No-Objection Certificate" for grant of lease of the plot to her by the K. D. A., which was also issued to her after going through the same process and procedure by the Honorary Secretary after a resolution of the Managing Committee.
4. It -has been further contended that the applicant has been involved in this case as he has a long-standing enmity with Mirza Sirajuddin who is father of the complainant. The applicant was cheated by Mirza Sirajuddin of Rs. 5,000 at the time when the applicant was Chairman of the Society and he filed such a criminal case against him under section 420, P. P. C. Through police which is being tried in the magisterial Court. Mst. Hush Jehau happens to be a maternal cousin-sister of Mirza Sirajuddin who developed a dispute, with his son Mirza Ferozuddin, on the plot for which Mirza Ferozuddin filed a Civil Suit No. 1334/ 1977 in the Civil Court No. XXII, Karachi, against Mst. Hush Jehan, which was dismissed on 22-12-1977. He thereafter invoked the provisions of section 54 of the Co-operative Societies Act for starting arbitration proceedings before the nominee of the Registrar of the Co-operative Housing Societies. Karachi against Mst. Hush Jehan wherein the Roshan Bagh Co-operative Housing Society was also made the party and the applicant was nominated to defend the society in the arbitration proceedings. Mirza Sirajuddin appeared for his son Ferozuddin. The nominee of the Registrar gave an award on 7-2-1978 in favour of Mirza Ferozuddin, which was agitated by the applicant by filing on appeal under section 64-A of the Co-operative Housing Societies Act, before the Deputy Registrar Co-operative Housing Society, Karachi. It was during pendency of this appeal when the complainant subverted the process of law by maliciously distorting a civil dispute involving business of the Co-operative Housing Society, into a criminal prosecution by lodging the above false F. I. R., against the applicant, Mst. Hush Jehan and others. The applicant's stand was supported by the Chairman and member of the Society who were examined during course of investigation of the case.
The applicant's appeal was also : decided on 4-2-1979 whereby the Deputy Registrar of the Co-operative Societies suspended the award in question and granted permission to the parties to approach the competent Court of law as envisaged by section 54-A of the Co-operative Societies Act.
5. The learned counsel for the applicant has also contended that issue of duplicate copy of the allotment order was not the individual act of the applicant so that he should be made victim for criminal prosecution as the decision to issue a duplicate copy was made by the Managing Committee of the Society and actually in the meeting which was not attended by the applicant. He has singled out to face criminal case for no fault on his part and in a matter for which the complainant himself filed a civil suit and the applicant was neither a party in the civil suit nor any relief was sought against him. The dispute on the plot being purely of a civil nature in which parties have been agitating their respective claims in the civil Court as well as by invoking provisions of the Co- operative Societies Act. When the award was suspended by the Deputy Registrar of the Co-operative Societies, the complainant preferred a revision before the Provincial Government under section 64-A of the Co-operative Societies Act which was also dismissed.
6. Mst. Hush Jehan has however, filed the Suit No. 1065/1979 which is pending and order of status quo has been made by the civil Court. The prosecution case initiated on the F. I. R., filed by the complainant Ferozuddin Mirza in view of the above circumstances is abuse of the process of the Court as no offence whatsoever is constituted from the facts of the case. The proceedings therefore are liable to be set aside. He has relied upon ; 1980 P Cr. L J 818 and 823.
7. Mr. Azizul Hasan, the learned counsel for the complainant, on the other hand, contends that prima facie case against the applicant and others has been made out and it would be difficult to say at this stage as to what offence, if any, is constituted against the applicant. It being a clear case of forgery which could be determined only after the trial proceeds and the witnesses are examined in the Court. He relies upon 1979 SCMR 94.
8. Mr. Niaz Ahmed Khan, Advocate appearing for the States, has contended that the members of the Society being officers in terms of section 3(d) of the Co-operative Societies Act, 1925, are liable for their acts involving criminal liability. The circumstances under which duplicate allotment order has been issued to Mst. Hush Jehan are such which constitute a criminal offence and the acts of the members of the society under no circum-- stances are bona fide. The contention that because a civil suit in respect of the plot in question has been filed, the acts of the members of the Society involving criminal offence cannot be looked into is also not warranted by law.
9. Mr. A. Z. Shams, the learned counsel who appeared for the respondent No. 2 contended that this case been dragged in the Court for criminal liability only with a view to harass the applicant as well as respondent No. 2 and others and also to avoid civil litigation. These are purely civil causes which have been joined together into criminal liability otherwise filing of F. I. R. At the time when the proceedings were being agitated before the Deputy Registrar of the Co-operative Housing Society in an appeal against the award was not warranted by law.
It is an attempt to victimise the members and Secretary of the Housing Society so as to prevent them from purusing a matter involving business of the Housing Society.
10. I have carefully considered the contentions of the learned counsel for the applicant, complainant, State and the respondent. I have also gone through the citations referred to by them. The most significant aspect of the case is that there is a dispute on the ownership of the plot which is being claimed by the complainant as well as the respondent No. 4. The complainant came to know about the claim of the respondent No. 4 through a notice from the Summary-Military Court and he succeeded in getting the application of the respondent No. 4 dismissed there. He thereafter filed a civil suit No. 134 of 1977 which was rejected on the point that he as well as respondent No. 4 being members of the Society, the suit was barred by section 70-A of the Co-operative Societies Act. The complainant accepted this position and invoked the provisions of section 54 of the Co- operative Societies Act and got an "Award" in his favour from the nominee of the Registrar of the Co-operative Societies, Karachi which was suspended on appeal against the "Award". The copies of the documents have been placed on the record. The F. I. R. Of this case has been admittedly filed during pendency of this appeal and .The narration of events show that the' criminal case was initiated with a view to harass the applicant who nevertheless was agitation against the "Award" made in favour of the complainant and subsequently succeeded in getting it suspended. The existence of the case against the applicant and others is clear cut abuse of the process of the Court. It will be of no consequence to allow the proceedings of the case to be continued as no result in furtherance of justice can be accrued. It seems that the applicant and others have .Been dragged in the Court so as to pressurize them in the matter for which a civil suit in the first instance was filed by the complainant and now the civil suit filed by the respondent No. 4 is pending in the Court.
11. In the result, I hold this to be a fit case for exercise of inherent powers and the proceedings against the applicant are accordingly quashed. Since the case against the respondent Nos. 2 to 4 is basically of same nature, therefore proceedings against them are also quashed.