' Applicants have filed the instant Criminal Misc. Application for quashment of proceedings pending against them in the Court of Special Judge Anti-Corruption (Provincial) Hyderabad in shape of private complaint filed by Respondent No, 01 u/Ss. 420, 468, 471, 167, 403, PPC read with Section 5(2) of Anti-Corruption Act, 1947 on the facts and grounds mentioned in the above petition.
2. Learned counsel for the applicants had contended that no FIR was lodged and the allegations leveled in the complaint are false and frivolous, which was filed with delay of more than three months; that no one is alleged to have prepared or used forced documents as genuine; that no allegation as to how applicants/accused had gained monitory benefits from the proprietor of RAR Associate while offering allotment of a plot; that plot in question originally belonged to SITE and Respondent No, 1 (complainant) is a tenant/licensee thereof and SITE reserve its right to initiate proceedings for ejectment of a person if any violation is committed by him, as such, no criminal offence is made out against the applicant/accused and at the most if Respondent No, 1 (complainant) claims any right on plot in-question he could, have .Filed a civil suit for his right; that the cognizance taken by the learned trial Court in a case is unwarranted and that since the trial Court has taken cognizance in the complaint, no useful purpose will be served if an application u/S. 249-A, Cr.P.C. Is made before said Court for acquittal of accused, as no criminal offence has been made out either from the statement of complainant or from preliminary inquiry even then case has been brought on record, and lastly he has submitted that this is a fit case for quashment inspote of the fact that applicant/accused has not moved that trial Court u/S. 249-A, Cr.P.C. In support of his contention, learned counsel for the applicants has relied upon the case of Mahmood and another v. Mumtaz Ali and another (2007 PCr.LJ 1623), Mircij Khan v. Gul Ahmed and 3 others (2000 SCM R 122), Muhammad Ramzan Balouch v. The State (2001 PCr.LJ 1538), Syed Mazhar Ali (1984 PCr.LJ 354), Mazhar Ibnehassan Siddiqui and 2 other v. The State and another (1997 PCr.LJ 1030), Moosa Karim v.
The State (PLD 1985 Karachi 720), Abdul Rashid and 2 others v. The State and another (1987 PCr.LJ, 1380) and Loung Khan and 2 others v. Muhammad Jumman and 2 others (1982 PCr.LJ 1039).
3. Learned counsel appearing for Respondent No, 1 submitted that the application under Section 561-A, Cr.P.C. Before this Court is not maintainable and the applicants have equal and efficacious remedy available before the trial Court. He further submits that the applicant by playing fraud and misrepresentation manipulated the documents and thereby they have not only taken the monitory gain but have caused mental and financial loss to the Respondent No, .1 who being owner of a plot mentioned in the contents of the petition is being harassed by the respondents by allowing strangers to get allotments of the same in furtherance of their common intention and thereby they have committed fraud with the respondent.
4. Learned counsel for State has argued that the order of the trial Court for taking cognizance is in accordance with law.
5. I have carefully considered the submissions made by parties counsel and gone through the private complaint a copy of which is available on record at page 13 as well as statement of the complainant, report of preliminary inquiry held by Circle officer ACE Jamshoro. A perusal of record will show that the allegations in the complaint and statement recorded u/S. 200, Cr.P.C. Are that Respondent No, 1 claiming himself as owner of Plot No, P/4 and P/4-A situated at SITE area Kotri which was let out by him to Makka Madina CNG and said subletting was approved by Applicants No, 1 to 7. It was alleged that the green belt of the main Road of National Highway towards thatta is part and parcel of plot of Respondent No, 1 (Complainant); that one Abdul Rafi Abbasi, the partner of Makka Madina CNG and proprietor of RAR Associates moved an application for conversion of green belt into commercial and its allotment in his favour that on 19.7.2013 Applicant No, 3 issued final Letter No, Adm/Kt/3357 for allotment of said land of green belt for commercial purpose; that on knowing about such allotment, Respondent No, 01 (complainant) served a legal notice on Applicant No, 01 to 03 and 06 advising them not to convert the said area of green belt into commercial as it, ultimately, would close the access to Makka Madina CNG from road side, consequently Respondent No, 03 cancelled the Allotment No, Adm/Kt/3200 dated 10.7.2013 and withdrew the final Letter No, Adm/Kt/3357 dated 19.07.2013. It was further alleged that once again Respondent No, 1 to 7 along with their staff and in connivance with said Abdul Rafi Abbasi processed summary for illegal allotment of green belt/Plot No, P/4/A/1 which is manipulation of record and in contravention of their official duties.
6. It is an admitted position on record that Respondent No, 01 (complainant) has not brought on record with his complaint or in his statement, recorded u/S. 200,, Cr.2.C. Any documentary evidence to show if Abdul Rafi Abbasi proprietor of RAR Associates had moved the application for conversion of green belt of national highway for commercial purpose nor any document to show if the land ear marked for allotment to him was part and parcel of his plot, even the copy of legal notice produced with complaint does not show if the same had been served before cancellation of allotment made to M/s. RAR Associates, but the legal notice is of same date when offer of allotment No, Adm/Kt/3200 dated 10.07.2013 and final Letter No, Adm/Kt/3357 dated 19.07.2013 was cancelled and withdrawn by the Secretary SITE vide his letter dated 30.07.2013 due to non-availability of land on record at page-45. Admittedly no further record is produced by Respondent No, 1 to show if after cancellation of offer of allotment on 30.7.2013, if any application was moved for re -allotment of said piece of land or its process was floated by applicants, even there is no document to that effect on record. Respondent No, 1 did not approach the concerned authority of AEE immediately after the alleged incident. On the contrary, C.O. AEE in his report on preliminary enquiry conducted on the directions of Court has clearly disclosed that no criminal offence is made out against the applicants. Furthermore, as provided u/S. 222, Cr.P.C. It is necessary that charge should contain particulars as to time and place of alleged offence and in the present case the record is silent about the date, month year and the time of alleged incident of reprocess of allotment of plot in question for monetary gain a are not disclosed in the complaint or statement u/S. 200, Cr.P.C.
Which is sketchy and vogue but still learned Judge Anti-corruption Court took cognizance without applying his mind to the facts of the case. In the circumstances mere reading of complaint and statement of the complainant, in my opinion do not at all disclosed any criminal offence committed by the applicants. It is settled law that if on the basis of facts admitted and patent on record no offence can be made out, .Then it would amount to abuse of process of law to allow the prosecution to continue the trial. In this regard, reliance is placed on case of Mairaj Khan v/s. Gul Ahmed and 3 others reported in 2000 SCM R 122. Now, the only point which requires consideration is whether above petition is maintainable as the applicant has not moved the learned trial Court u/S. 249-A, Cr.P.C. Before approaching this Court. In this regard learned counsel for the applicant has relied upon case reported in 2001 PCr.LJ 1538 wherein it has been held that where prosecution does not possess any evidence whatsoever to bring on the record against the applicant/accused then it would be a clear case of abuse of process of law for invoking of such jurisdiction of High Court to prevent the same and in case reported in 1984 PCr.LJ 3541, it has been observed that where the cognizance is taken by the learned trial Court after holding preliminary inquiry, moving of the application u/S. 249-A, Cr.P.C. At the initial stage would be futile exercise and the remedy u/S. 561 A, Cr.P.C., in such a case would be available to the applicants.
7. Having regard to the above factual and legal position, I am of the view that the continuation of criminal proceedings against the applicants is abuse of process of law and consequently the proceedings pending against them in the Court of Special Judge Anti-Corruption (Provincial), Hyderabad in (Private Complaint No, 114/2014 Re: Muhammad Farooque vs. Ali. Nawaz Jagirani & others u/S. 426/67, 468,471/34, PPC are quashed. In the result the application filed by the applicants u/S 561, A, Cr. P.C. Is allowed.