MUHAMMAD FAROOQ vs AHMED NAWAZ JAGIRANI and others

' MUSHIR ALAM, J.-- Through this appeal, by leave of the Court, the appellant Muhammad Farooq has impugned the judgment of the High Court of Sindh, Karachi, dated 15.05.2015, whereby Criminal Miscellaneous Application No.73 of 2015, filed by respondents Nos.1 to 7 erein, under Section 561-A, Cr.PC, was allowed and the proceedings pending in the Court of learned Special Judge, Anti- Corruption (Provincial), Hyderabad, initiated on a private complaint (Complaint No.I14 of 2014), moved by him (the appellant), under Sections 420; 468, 471, 167 and 403, PPC read with Section 5(2) of Prevention of Corruption Act-II, 1947, were quashed.

2. Brief facts, leading to the appeal in hand appear to be that the appellant, being owner of industrial/commercial Plots bearing No.P/4 and P/4-A, Site Area, Kotri, let out the same to Makkah Madina CNG Station, a partnership firm of Muhammad Naseem and Abdul Rafi Abbasi. It is the case of the appellant that green belt in front of subject plots was encroached upon by the tenant firm and on an application of one of its partner Abdul Rafi Abbasi, the green belt was converted into an independent plot to establish a Petrol Pump. On learning such fact, a legal notice dated 30.07.2013 was served on respondents No.1 to 3 and 6 and as a result, the respondent No.3 cancelled the allotment. The grievance of the appellant is that same process is being initiated again at the behest of one of the partner of tenant firm and the record is being manipulated by the official respondents to give undue favour to his tenant. As such, a direct complaint was filed in the Court of learned Special Judge, Anti-Corruption (Provincial), Hyderabad, who proceeded to record the statement of the complainant under Section 200, Cr.PC and thereafter on 30.10.2013, he passed the following order:- "After recording the above statement of complainant, I find it necessary that the preliminary enquiry be conducted in the matter to ascertain about the truth or otherwise of the complaint, therefore, this complaint be sent to the Circle Officer, Kotri, with directions to conduct impartial and fair enquiry and submit report before this Court within 15 days."

3. Inquiry was conducted and report dated 07.05.2015 was submitted containing the following findings:- "After having examined the documents/role of officers, it appears that the allotment of green belt has already been cancelled/ withdrawn by site authority"............

' In view of the above circumstances, it is recommended undersigned is advising to complainant ([he is needed/interested for getting green belt land that he may apply on proper forum i.e. SITE for consideration of allotment of green belt accordingly, furthermore Honourable Court is requested to consider recommendation of undersigned for closing above subject matter in the interest of justice."

4. On perusal of the relevant record and hearing the complainant, the learned Special Judge passed order dated 20.11.2014, which reads as under:- "After hearing the learned counsel for complainant and perusal of the relevant record, it transpires that the accused Nos.1 to 7 namely Ali Nawaz Jagirani, Shamsuddin Sahito, Hanif Solangi, Saifullah Khan, Faroque Tanoli, Rasheed Malano and Arif Zaidi in collusion with each other fraudulently converted the green belt area 0-37 acres i.e. Part of plots Nos. P14 and P/4-A of complainant situated at main road National Highway towards Thatta into industrial/ commercial plots on the false application of Abdul Rafi Abbasi moved an 30.07.2013 by preparing forged, fabricated and manipulated record, hence prima facie a case for the offences under section 420, 467, 468, 471/34 PPC read with Section 5(2) of Prevention of Corruption Act-II, 1947 appears to have been made out against the accused Nos.1 to 7, therefore, this direct complaint is brought on regular file."

5. Consequently, bailable warrants against the accused persons were issued.

6. Above order of the learned Special Court taking cognizance of the direct complaint filed by the appellant, was assailed before the High Court by the respondents Nos.1 to 7 under Section 561-A, Cr.PC seeking quashment of the proceedings. The matter came up for consideration before a learned Judge in Chambers in the High Court, who vide impugned order dated 15.05.2015, in consideration of the fact that "the complainant has not brought on record with his complaint or in his statement recorded under Section 200, Cr.PC any documentary evidence to show if Abdul Rafi Abbasi, proprietor of RAR Associate, had moved the application for conversion of green belt of National Highway for commercial purpose" and secondly that "as provided under Section 222, Cr.PC, 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 and are not disclosed in the complaint or statement under section 200, Cr.PC which is sketchy and vogue but still learned Judge, Anti-Corruption Court took cognizance without applying his mind to the facts of the case" concluded that continuation of criminal proceedings pending against the respondents in the Court of Special Judge, Anti-Corruption (Provincial), Hyderabad in direct complaint (Private Complaint No.114/2014) is abuse of process of law and consequently quashed the same and the application (Criminal Miscellaneous Application No.73 of 2015) was allowed.

7. Learned ASC for the appellant contends that in the private complaint once the statement on Oath is recorded and after the preliminary inquiry, the Court took cognizance, the remedy if any available is not by way of directly invoking inherent jurisdiction of the High Court under Section 561- A, Cr.PC by-passing the remedy available under Section 249-A, Cr.PC, before the trial Court itself.

8. Mr. Shahadat Awan, learned ASC for the respondents supported the impugned judgment. It was urged that the green belt, if any, was converted and or allotted to the private respondents, such allotment was cancelled on receipt of legal notice, and therefore, no crime has been committed. It was further urged that if at all green belt in front of appellant's plot is converted and or allotted the remedy of civil proceedings is adequate to seek redressal of such grievance and direct criminal complaint is not the remedy. It was urged that the High Court has jurisdiction under Section 561-A Cr.P.C. To quash proceedings, which jurisdiction cannot be taken away. In support of his contentions, he has placed reliance on the cases reported as Mazhar Ali V. Ali Khan (1984 PCr.LJ 354) and Miraj Khan v.

Gul Ahmed (2000 SCM R 122).

9. Ms. Rehana Akhtar, learned Additional Prosecutor General, Sindh, does not support the impugned order. She contends that the trial Court after recording statement of the complainant under Section 200 Cr.P.0 and holding preliminary enquiry under Section 202 Cr.P.C, took cognizance of the offence complained of in exercise of powers under Section 204 Cr.P.C. According to her, inherent jurisdiction of the High Court under Section 561-A Cr.P.C. Cannot be invoked to quash the proceedings as remedy is available under Section 249-A, Cr.PC. According to her, the provisions of Section 561-A, Cr.PC could only be invoked where no other remedy is available. To buttress her contentions, she has placed reliance on State v. Abdul Rehman (2005 SCM R 1544) and Director General, Anti-Corruption v. Muhammad Akram Khan l(PLD 2013 Supreme Court 401).

10. We have heard the arguments of learned ASCs for the parties as well as the learned Additional Prosecutor General, Sindh, and perused the record. The orders passed either under Section 203, Cr.PC whereby the direct complaint is dismissed or under Section 204, Cr.PC whereby the Court has taken cognizance of an offence complained of and has issued warrants or summons for causing the accused to be brought or produced before the Court are judicial orders. Where taking cognizance of the offence after hearing the accused persons and the Prosecutor, the Court considers that the charge is groundless or that there is no probability of the accused being convicted of any charge, it may record acquittal under section 249-A Cr.P.0 and or Section 265-K Cr.P.0 as the case may be. The Sessions Judge and or the High Court under Sections 435 and 439 Cr.P.0 may exercise Revisional power to examine the legality or propriety of any order passed and or examine the regularity of any proceedings of the Court subordinate to it. Exercise of jurisdiction under Section 561-A, Cr.P.0 by the High Court is akin to the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; exercise of such jurisdiction is not to be exercised in routine and or as a matter of course merely because such jurisdiction is available and or could be exercised. Exercise of inherent jurisdiction is dependent on non availability of alternate and efficacious remedy and or existence of some extraordinary circumstances warranting exercise of such jurisdiction by-passing such alternate remedy by the High Court. Another rule of propriety, that has evolved by precedent law must not lose sight is that where two Courts have coextensive or concurrent jurisdiction, than the propriety demands that jurisdiction of Court of the lower grade is to be invoked in the first instance.

11. The remedy under Section 561-A, Cr.PC is not an alternate and or substitute for an express remedy as provided under the law in terms of Sections 435 to 439, Cr.P.C. And or Sections 249-A or 265-K, Cr.PC, as the case may be. One cannot be allowed to bypass and or circumvent the ordinary remedy in normal course of the event. In the case of Maqbool Rehman v. State (2002 SCM R 1076) in paragraph 6 thereof, it was held that "normally, High Cow, does not exercise 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.0 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 provisions should not be used to obstruct or direct the ordinary course of Criminal Procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice. It is neither akin to appellate nor the Revisional Jurisdiction."

12. A Bench of this Court in the case of Bashir Ahmed v. Zafar-ulIslam (PLD 2004 Supreme Court 298) after examining the legislative history of Section 561-A, Cr.PC in paragraph 23 of its judgment summarized the circumstances under which the inherent jurisdiction could be exercised by the High Court, which reads as under:- "(i) The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to override the express provisions of law;

(ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy for the redress of a grievance;

(iii) inherent powers can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation; and

(iv) in the matter of quashing criminal proceeding, the trial must ordinarily be permitted to take its regular course envisaged by law and the provision of section 561-A, Cr.PC should be invoked only in exceptional cases for reasons to be recorded."

13. Even if the contention of Mr. Shahadat Awan, learned ASC for the respondents is taken, on its face value that inherent jurisdiction under Section 561-A, Cr.PC is coextensive with power under Section 249-A, Cr.PC and or under Section 265-K, Cr.PC as the case may be, therefore, no exception to the exercise of such jurisdiction by the High Court in the instant case could be taken, the contention is preposterous. As observed above, it is not the question of taking any exception to the exercise of inherent jurisdiction by the High Court. It is matter of regulating the exercise of inherent jurisdiction available with the High Court. It is now well entrenched legal position that where a power is coextensive with two or more Courts, in ordinary circumstances, propriety demands that the litigant must first seek remedy in the Court of the lowest jurisdiction. Mr. Shahadat Awan does not dispute that learned trial Court was seized of jurisdiction under Section 249-A, Cr.PC. No special and or extraordinary circumstances were either pleaded or considered by the learned Judge in Chambers in the High Court, while exercising its inherent jurisdiction Section 561-A, Cr.PC.

14. The learned Judge in Chambers in the High Court proceeded on a wrong assumption that the complainant has not brought on record sufficient material to show that the allotment was part and parcel of his land. It was not the case of the appellant that part and parcel of his plot has been allotted, but his case was that it was a green belt, a public amenity abutting his plot, which was converted into commercial plot and was allotted. It has also come on record that it was only on the complaint of the appellant such conversion and or allotment of the green belt was cancelled on the same date, which fact is mentioned in the inquiry report that "after having made complaint by Muhammad Farooque, the same allotment was withdrawn/cancelled by the site". To take cognizance of an offence in complaint case, burden of proof in preliminary enquiry for the issuance of process and or summons as the case may be is much lighter on the complainant and he is required to establish prima facie case, whereas, the burden of proof placed on the prosecution during regular trial is much stringent and the prosecution is required to establish and prove the case beyond reasonable doubt (see Noor Muhammad v. State (PLD 2007 Supreme Court 9 at page 14).

15. We have examined the cases, relied upon by learned ASC for the respondents and find that facts of the same are distinguishable. In the case of Mazhar Ali (supra), the Court concluded that it is a case of civil nature, which cannot be allowed to be converted into criminal proceedings. In the case of Miraj Khan (ibid), the complaint proceeded on the allegation that the accused persons were given certain amount as Qarze Hasna, there was no allegation that the amount was given as trust money, nor there was any allegation of fraudulent or dishonest misappropriation of the trust amount. Therefore, this Court did not interfere in the exercise of inherent jurisdiction by the High Court, whereby the proceedings in FIR were quashed.

16. We have seen the complaint. The list of documents shows that prima facie case for taking cognizance has arisen and no exception to such cognizance could be taken by the High Court in exercise of its inherent jurisdiction. In complaint case, trial Court is not required to examine material minutely and or in depth, but has merely see that prima facie a case has been made out to proceed further with the matter for issuance of process or summons; the High Court in exercise of inherent jurisdiction cannot strangulate the trial by overstretching its jurisdiction under Section 561- A, Cr.PC (see Noor Muhammad case, supra) and embark upon to examine adequacy and or inadequacy of evidence, which stage will only reach after charge is framed and complainant is given an opportunity to prove his case beyond reasonable doubt. Second ground to exercise the inherent jurisdiction by the High Court in the impugned judgment is premised on the assumption that "as provided under section 222, Cr.PC 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 and or not disclosed by the complaint or statement under section 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". Suffice it to say that for taking cognizance in complaint case only a prima facie case, as noted above, is required to be made out. In the case in hand, the stage of framing of charge has not as yet come. It is only when the charge is framed and if at all such charge is deficient or lacks any material particulars as assumed by the High Court, the same could always be remedied and or attended under Chapter XIX (Sections 221 to 240) of the Code of Criminal Procedure, 1898 which lays down an elaborate procedure for attending all matters relating to particulars of, alteration of, effect of, error in framing of charge and or matter incidental thereto. Therefore, exercise of inherent jurisdiction by the High Court on the assumption that "charge should contain particulars" does not furnish ground, basis or foundation to quash the proceedings as the charge has not yet been framed.

17. No extraordinary circumstances and or reasons were available nor were discussed by the learned Judge in Chambers warranting exercise of inherent jurisdiction bypassing ordinary remedy available to the respondents Nos.1 to 7, under Section 249-A, Cr.PC.

18. In view of the foregoing discussion, impugned order of the High Court dated 15.05.2015 is not sustainable in the eyes of law and is liable to be set aside. The learned Special Judge, Anti- Corruption (Provincial), Hyderabad, may proceed with the matter pending adjudication, strictly in accordance with law.

19. Above are the reasons for our sort order, which is reproduced as under:- "Heard the arguments of learned ASCs for the parties. For the reasons to be recorded separately, this appeal is allowed; the impugned judgment dated 15.05.2015 to set aside and the application under Section 561-A, Cr.PC moved before the High Court is dismissed.