' HASAN FEROZ, J.---By this order I intend to dispose of Criminal Miscellaneous Application moved under section 561-A, Cr.P.C. In F.I.R. No,9/ 2012 of ACE Karachi under section 217, 218, 409, 420, 468, 471, 34, P.P.C. r/w section 5(2) Act-II of 1947 against order dated 31-5-2013 of learned District and Sessions Judge, Karachi (South) passed in his capacity as Incharge Special Judge Anti-Corruption (Provincial), Karachi, declining the final report of prosecution under section 173, Cr.P.C., for dropping the case against applicants and other accused persons awl ordered to issue the process. The applicants on being aggrieved by the above order moved the present application seeking inherent jurisdiction of this Court which has been heard at length.
2. The brief facts of the case as enumerated in the F.I.R. Are that F.I.R. No,9/2012 of ACE Karachi under sections 217, 218, 409, 568, 471, 34, P.P.C. r/w section 5(2) Act-II of 1947 against Liaquat Ali Qaim Khani and others and registered the same with the approval of. Competent Authority.
' The Final Report under section 173, Cr.P.C. Of the I.O. States that on his repatriation to parent department, investigation of the case remained under investigation with Inspector Hameedullah DACE Sindh Karachi and S.I. For conducting re-investigation on the orders of worthy Chief Secretary, Sindh passed on the application of accused Liaquat Ali by taking plea that during enquiry as well as investigation opportunity was not given to him to record his explanation.
' Matter was initiated with the allegation that DG Parks & Horticulture CDGK namely Liaquat Ali Qaim Khani in collusion with his staff/contractor and officers of Planning and Development CDGK Karachi involved in misappropriation of government funds provided for construction of Shaheed Benazir Bhutto Park. It is further alleged that they have misappropriated the amount of funds in different heads time to time in shape of fake false billing. During construction of Shaheed Benazir Bhutto Park, they in A collusion with each other shown that depth of park has been filled through sand and in this head drawn huge amount, but actually no depth was filled. He also awarded contracts to his favourite contractors on higher rates for his personal gain. He also purchased plants and equipments from his favourite vendors on high rates comparative to market prices and gained illegal monitory benefits.
3. The interim challan has been filed on 21-5-2012 citing the applicants as accused in the challan on the basis of investigation into the allegations where after in the interim challan loss to the tune of Rs,13,46,71,636 has been accrued showing the offence as a joint autocracy and depiction of common modus operandi. During the earlier investigation statements of as many as 19 witnesses have been recorded implicating the applicants as accused in massive corruption allegedly committed as shown in the Technical Reports of Technical Officer headed by Hanif Khan and Shafgat Hussain Manghan wherein applicants have been cited as accused and time was sought by the I.O. In the interim challan for concluding and completing the investigation.
4. Whereafter, on the representation of applicant Liaquat Ali re-investigation was ordered to be conducted during the course of re-investigation the missing items/material were found available in the wherehouse as per inspection report of the technical officer and the allegations cited in letter dated 26-4-2012 were termed as fabricated and malign. During reinvestigation in the second phase statement of applicant Liaquat Ali was also recorded and the relevant record and sites of the parks were also stated to be inspected through expert by two technical teams of Anti- Corruption Establishment*A.C.E) and the result of re-investigation revealed that no loss occurred to the Government/CDGK (defunct). The I.O. Recommended to place the matter before ACC-I to dispose of the matter under section 173 Cr.F.C. On the plea that the allegations as contained in the F.I.R. Have not been substantiated. Whereupon the Chairman ACE has recommended to the Chief Secretary Sindh/Chairman ACC-I to drop the case.
5. The Chief Secretary Sindh, on the recommendations of the Chairman ACE accepted the said report of the Chairman with the remarks "As recommended by Chairman ACE" however it is apparent on the face that this matter has neither been placed before ACC-I nor the competent authority (Chief Secretary Sindh) has passed speaking order to the facts arising out in this case with regard to alleged massive corruption, non-compliance of codal formalities leading to irregularities and illegalities which the same I.O. Sajjad Ali by his single stroke of pen discarded the word by word allegations of his earlier investigation although both being conducted by him thus the re-investigation left various aspects of earlier investigation untraced and unchecked in the re- investigation which surfaced from the technical report of Shafqat Manghan who physically inspected the site and concluded the loss as follows in the earlier stage of investigation as under:-- S. #Name of workApproximate Excess payment detected 1.Development portion "A" levelling and dressing the ground cutting filling the ground etc.Excess payment of Rs.39960241 made to the contractor 2.P/L 54" and 60" Dina sewerage pipe connecting Nehre Khayam to Sea with valve.Excess payment of Rs.21483730 made to the contractor 3.Lighting arrangement, laying irrigation system and installation of foundation.Excess payment of Rs.2102476 made to the contractor 4.Development portion "B" of Park Shaheed Benazir BhuttoExcess payment of Rs.12622815 made to the contractor 5.Development portion "C" of Park Shaheed Benazir BhuttoExcess payment of Rs.37650175 made to the contractor 6.Development portion "A" of Park Shaheed Benazir BhuttoExcess payment of Rs.20852199 made to the contractor 7.Total amount of excess payment which is loss to the Government.Rs.134671636.
6. The above cases have been dealt with lightly in the re-investigation except the Garden Lights and Lamps are concerned the remaining electrical items were found in the stock/stores however earth-filling and sewerage pipes remained non-calculated as compared to M.B's and development of portion ABC of Benazir Park and has not been item-wise substantiated in the reinvestigation. Earlier in the Constitution Petition No,D-1141 of 2012 moved on behalf of the applicants/accused the Nazir of this Court has also inspected the site such report is also of use.
7. I have in my view the citations relied upon by the learned counsel PLD 2008 Kar. 567, 1993 SCMR 1503 whereby under inherent powers High Court can rectify the injustice. Learned counsel has also relied upon PLD 2008 Kar. 310 for invoking of provisions of section 265-K,. Cr.P.C. To do the real and substantial justice and to prevent the abuse of the process of Court. Reliance has also been placed on 1996 PCr.LJ 1348 wherein sanction for prosecution was not appended with the challan and no date for grant of sanction was mentioned in the order which cast a serious doubt on the prosecution assertion to grant of sanction for prosecution before taking cognizance was mandatory requirement which the prosecution had failed to fulfill in the circumstances.
8. I have also in my consideration 2003 YLR 701 S.C. (AJ&K), wherein reinvestigation by police is not debarred in a case even if the challan has been submitted and the police is competent to re- investigate and submit the .Challan on the basis of subsequent investigation.
9. I have also gone through the various dictum of the superior Courts pertaining to the police .Report under section 173, Cr.P.C. Covering the pros and cons of re-investigation and invoking of inherent powers of the Court as held in 2010 PCr.LJ 368 Karachi, 1998 MLD 2094 Lah. 2007 PCr.LJ 1515 Kar., PLD 2009 Lah. 101, 1975 PCr.LJ 120 Lah, 2002 PCr.LJ 310 Lah.
10. The present applicants have come to this Court to seek redress for ends of justice and under inherent powers vested in this Court the administrative order has been impugned. I am of the view that fair assessm ent cannot be made without considering the material available on record. There is word against word in the interim challan in juxta-position to final challan and incidentally by the same person who happens to be I.O. Sajjad Ali and in such a situation assessing the order passed by the learned Incharge trial Judge, requires material which apparently has not come in the consideration of the learned Incharge trial Judge, who has declined the report under section 173, Cr.P.C. And ordered for issuance of process.
11. I have also in my view the essence of Anti-Corruption Act, 1947 read with relevant Rules and find that the competent authority has powers to drop the case after investigation on its own or on the recommendations of 'Anti-Corruption Committee and in accordance with section 4(c) of Sindh Enquiries and Anti-Corruption Rules, 1994 recommendation seeking permission of competent authority to drop the case, seems to have not been followed inasmuch as the recommendations of the Chairman ACE are silent with regard to the earlier statements of 19 witnesses recorded by the I.O. Along with material collected during investigation and the re- investigation is only based on reports of two experts from outside. The magnitude of earth-filling, sewerage pipes and development of portion ABC of Benazir Park remained unsubstantiated in final charge-sheet as has also been reflected from the report of Nazir of this Court in C.P.No,D-1141 of 2012.
12. The stereotyped statements of Jan Muhammad and Halim Khan suppliers of Reti Bajri of Roop Chand contractor are not sufficient to substantiate in absence of verification of soil testing expert. I am, therefore, of the candid view that since the material for dropping the case against accused persons has not been fully brought before the learned Incharge trial Judge in the shape of final challan therefore, in order to meet the ends of justice from being prejudiced the applicants have prayed in this Court against the order of registration of case against all the cited accused persons as not falling within the scope of dis- B pensation of justice through administrative order since judicious requirements of law vis-a-vis the role and liability of each accused person pertaining to the present scam could only be assessed on the basis of correct portrayal of facts and evidence in accordance with law.
13. I have also in my view that although the powers are vested with the competent authority to drop the case, however, it ought to be on fair assessment and consideration of facts and evidence and not in mechanical manner for which due diligence is pre requisite. I therefore order as follows:--
(i) The Chief Secretary Sindh being the competent authority is required to place the material collected during investigation and re-investigation before ACC-I; along with all reports on record and evidence procured by the I.O. During the course of reinvestigatiorrwhere upon appraisal of the entire material, the recommendations of Anti-Corruption Committee (ACC-1) be submitted not later than 60 (Sixty days) before the trial Court.
(ii) Till then the operation of impugned order dated 31-5-2013 of learned Incharge Special Judge, Anti-Corruption (Provincial) is 'suspended and the proceedings against all the accused are stayed.
(iii) On arrival of above stated recommendations of ACC-1/ Competent Authority, in the trial Court, the impugned order dated 31-5-2013 shall cease to be operative and deemed to have no effect.
(iv) The trial Court is directed to pass afresh order on the basis of recommendations of ACC-I/ Competent Authority keeping in view the material in its true perspective by applying judicious mind in accordance with law after providing fair opportunity to the parties.
14. The observations made in this order are of tentative nature. Criminal Miscellaneous Application No,155 of 2013 stands disposed of in terms of directions above.