Applicants above named have filed the above petition for quashment of proceedings pending against them, in the Court of Special Judge Anti---Corruption (Provincial) Karachi, on the following facts and grounds.
2. That the applicant No. 1 is the Honorary Secretary of Zahoor Education Society (Regd.). The said Society was established for academic institutions for boys and girls of Secondary and Primary levels in the locality of Liaquatabad Karachi. The applicant No. 1 is also an ex---Chairman of Roshanbagh Co-operative Housing Society Ltd., Karachi, is presently an elected member of the Managing Committee of the said Housing Society. The applicant No. 1 is thus rendering social services to the community at large according to his means and capacity for no consideration or remuneration except these of-humanity.
The applicant No. 2 is also a clerk in Karachi Development Authority, whereas the applicant No. 3 was allottee of a plot bearing No. B-71 admeasuring 120 Sq. Yards situated in Roshan Bagh Co- operative Hous--ing Society Limited.
3. That it so goes on record that one Mohammad Yunus was originally allotted a residential plot bearing No. 71/B situated in Roshan Bagh Co-operative Housing Society Ltd., Karachi, by its Managing Committee on 20th January, 1965. However the said allottee Mohammad Yunus did not abide by the terms and conditions of the said allotment, did not come forward to pay the dues to the Society in respect of the said plot. Neither did he come forward to take possession or utilize the same for his residential purposes. The Managing Committee of the Society, in view of the circumstances aforementioned issued a show-cause notice to the said Mohammad Yunus threatening cancellation in case of failure to give immediate attention to the terms and conditions of the allotment. The said Muhammad Yunus even did not care or bothered to give response to the said show-cause notice issued by the Society, whereupon the Managing Committee of the Society resolved to cancel and cancelled the allotment order issued in his favour on 5th January, 1969.
4. That subsequently by another resolution the Managing Committee of the Society, allotted the said plot of land to the applicant No. 3 on 1 May, 1973, inasmuch as, the said applicant was also a member of the said blousing Society, whose name was -kept on the waiting list. This allotment was made in favour of the applicant No. 3 on 1 May, 1973 subjected to the full payment of the land and other dues of the Society, which was duly paid by the applicant No. 3 to the Society on 15th May, 1973, for which a receipt was issued by the Society, under the signatures of elected Honorary Secretary of the Managing Committee.
5. That by a resolution dated 5th May, 1973 the Managing Committee of the Roshan Bagh Co- operative Housing Society Ltd. Resolved and elected the applicant No. 1 as Chairman of the Managing Committee. The information of his election as Chairman was communicated to the applicant No. 1 by the Honorary Secretary of the Society, vide his letter dated 15th. May, 1973 and thereafter the applicant assumed the office of Chairman of the Managing Committee of the Society.
6. That subsequently the Honorary Secretary of Society namely Sheikh Abdul Sattar applied for leave for two months with effect from 25th June, 1973, which leave was granted to him after resolution of the Managing Committee of the Society, which also resolved on 20th June, 1973, that the additional charge of the Honorary Secretary of the Society shall also be held during the absence of the said Secretary on leave, by the Chairman of the Society, that is the applicant No. 1.
7. That the applicant No. 1 in addition to charge of Chairman of the Society assumed the additional charge of the Honorary Secretary of the Society on 25th June, 1973. It is submitted, that during this period due to ill-health of the outgoing Honorary Secretary, much of the office work bad piled up, which also contained an allotment order to be issued in favour of the applicant No. 3, who had paid the total cost of the allotted plot and bad fulfilled alt other requirements in that behalf as late as on 15th May, 1973. Accordingly the applicant No. 1 had under his signature issued the allotment order in favour of the applicant No. 3 on the basis of the Office record and in accordance with the previous resolution of the Managing Committee of the Society.
8. That the previous allottee Mohammad Yunus whose allotment was cancelled by the Managing Committee on 5th January, 1969 woke up from his slumbers and lodged a complaint with the Deputy Registrar Co-opera--tive Societies, Karachi, in respect of the cancellation of his allotment by the Managing Committee. The learned Deputy Registrar Co-operative Societies considered the application of the said previous allottee and passed an order on 24th August, 1973 advising the said previous allottee to submit a proper case for purposes of arbitration, as envisaged by section 54 of the Co-operative Societies Act, which is a mandatory provision of law of Co-operative Societies and provides a special forum for resolving disputes between members and the Managing Committee of the Society relating to the affairs of a Co-operative Society.
9. That as against the order of the learned Deputy Registrar Co-ope--rative Societies and in violation of section 70-A of the Co-operative Societies Act, the previous allottee Mohammad Yunus instituted a civil suit bearing No. 333 of 1974 in respect of the same matter, before the learned Civil Court No. 9 at Karachi, wherein the applicant No. t was also cited as one of the defendants. It is submitted, that in the meanwhile the applicant had left the Office of the Chairman of the Society on 10th November, 1973, in view of a compromise arrived at between the Manag--ing Committee of the Society and the authorities of the Co-operative Department as is shown in the order dated 10th November, 1973. Under these circumstances the applicant No. 1 was handicapped in defending the said suit, which was decreed by the learned Civil Court, ex parte on 19th February, 1975.st st
10. That in the meanwhile the applicant No. 3 bad sold out the said residential plot to one Hasan Shahid, who having purchased the same started raising construction thereon.
11. That the previous allottee after having obtained ex parte decree in civil suit No. 333 of 1974 did not go for the execution of the same and instead started causing interference in the possession and possessory rights of Hassan Shahid, who instituted Civil Suit No. 923 of 1976 for permanent prohibitory injunction against the previous allottee Mohammad Yunus, wherein the learned Civil Court passed a confirmation order maintaining status quo in respect of the said plot, in favour of the plaintiff Hasan Shahid.
12. That by way of counter blast the previous allottee Mohammad Yunus filed another suit for possession, under section 9 of the Specific Relief Act bearing No. 1502 of 1976, in the same Civil Court against Hasan Shahid.
13. That the Karachi Development Authority with the consent of the then Administrator Roshan Bagh Co-operative Housing Society had leased out the said plot of land in favour of applicant No. 3. The previous allottee Mohammad Younus filed yet another suit No. 2208 of 1976, against the applicant No. 3, the K. D. A. And others for cancellation of the lease deed granted by the K. D. A. In favour of applicant No. 3.
In the civil suit filed earlier by Hasan Shahid against Mohammad Yunus issues have been framed and evidence have been recorded.
14. That in the meanwhile elections were held in the society and new Managing Committee emerged causing thereby removal of the administra--tor from the helm of affairs and one Abdul Malik was elected as Honorary Secretary of the said Society as a result of elections. However this gentle--man misembarked upon a chain of misdeeds and misconduct, duplication in allotments tampering of the Society's record, defalcation, etc. Where--upon a show-cause notice was issued to him under rule 48 of the Co-opera--tive Societies Rules on 4th April,. 1975 and finally the Deputy Registrar one again superseded the Managing Committee on 25th April, 1975 and a new administrator Shamsuddin Bhudwani was appointed. This gentleman did not surrender the record of the Society nor handed over the charge of the administrator as required and absconded, whereafter another show--cause notice was issued to him, under section 4-A of the Ca-operative Societies Act on 18th June, 1975.
15. That one Shah Mohammad son of not ascertainable was and still is in Office of Karachi Police (this Shah Mohammad was a party to this quashment application as respondent ho. 2 and his name has been deleted from the application by an older passed blk Mr. Justice G. M Shah after admission of this quashment application). Once this Police Officer happened to be posted as Sub- Inspector of Police at Liaquatabad Police Station and unfortunate]), the applicant No. 1 who happened to incur the enmity of the said Police Officer, who by abusing his official status had admitted to pressurise the applicant No. 1 to give admission to some children of- Police Officers in higher classes, without qualification of the lower classes, in the Schools being managed at Liaquatabad by the Education Society of which the applicant No. 1 was and still is the Honorary Secretary.
16. During the administratorship of Mr. Shamsuddin Bhudwani some complaints by the members of Roshan Bagh Co-operative Housing Society were sent to D.
1. G. Police Crimes Branch Karachi, which were assigned to Mr. Shan Mohammad, who was then the D. S. P. In the Crime Branch. During the course of enquiries Shah Muhammad incidentally came to know about the association of the applicant No. 1 with the said Housing Society and thus be found an opportunity to avenge himself upon the applicant No. 1.
17. That is also so happened that Hasan Shahid the resent owner of the plot bearing No, 71-B reported a criminal case under section 447, P. P. C. To Gulberg Police Station, which was investigated by Sub-Inspector Mohammad Sadiq. In this criminal case Mohammad Yunus was arrested and a case was challaned. Mohammad Yunus made an application to police authorities against Hasan Shahid and Sub-Inspector Mohammad Sadiq. This application was also assigned to D.S.P. Shan Mohammad for purposes of enquiry. D.S.P. Shan Mohammad manipulated this application to suit his pre-conceived designs and got a criminal case registered, vide F. I. R. No. 12 of 1977 dated 10th January. 1977, under section 420/471/120-B, P. P. C. Read with section 5 (II) of the Prevention of Corruption Act, through his subordinate Inspector Afzal Hussain allegedly on the basis of so-called application of Mohammad Yunus.
18. That after the registration of the said criminal case D.S.P. Shan Mohammad himself took up the investigation from his subordinate Inspector Afzal Hussain and on 28th January 1977 sent a notice to the applicant No. 1 summoning him as an accused for purpose of investigation, although no grievance in the application was voiced against the applicant No. 1.
The applicant No. 1 and other persons namely Hasan Shahid, Irshad Hussain, Jamil and Azizur Rehman alleged to be involved in the said criminal case appeared Wore D.S.P. Shan Mohammad and gave their statement and also supplied the relevant documents relating to the pro--ceedings already pending in the Court of competent jurisdiction in con--nection with the said case.
In this connection it is further submitted, that immediately after the registration of the criminal case vide F.I.R. No. 12 of 1977 the applicant No. I apprehending his false and malicious arrest and humiliation at the hands of D.S.P. Shan Mohammad rushed to the learned Court of senior Special Judge Anti-Corruption at Karachi and obtained bail before arrest. Azizur Rehman applicant No. 2 Jamil Ahmad were arrested by the police and subsequently released on bail by the Court. D.S.P.
Shan Mohammad was additionally annoyed by the applicant No. 1, on his being able to obtain bail before arrest.
19. That subsequently D.S.P. Shan Mohammad was transferred from the Crimes Branch of Police to Anti-Corruption Establishment as a D.S.P.
The investigation of the criminal case, vide F.I.R. No. 12 of 1977 was resumed by his successor in office, in the crimes branch of the Police.
20. That p.S.P. Shan Mohammad was determined to take revenge from the applicant No. 1. He managed and manipulated to obtain yet another complaint, substantially based on same allegations as contained in F. I. R. 12 of 1977 from the so-called complainant Mohammad Yunus and thereby succeeded in securing the case papers of the said criminal case which was under investigation by the Crimes Branch of Police, and thus D.S.P. Shan Mohammad started one again causing harassm ent to the applicant No. 1.
21. That in the meanwhile the Crimes Branch had completed in--vestigation in the case and submitted a report under section 169, Cr. P. C. To the Court of Special Judge Anti-Corruption at Karachi.
22. That anticipating the result of investigation and the course being taken by the Crimes Branch its connection with F.I.R. 12 of 1977, D.S.P. Shan Mohammad hurriedly got, another case substantially on the same allegations registered at Anti-Corruption Establishment, vide F.I.R. 44 of 1979 dated 14th November, 1979 and himself became the complainant.
The allegations made in F I R 44 of 1979 are substantially the same as levelled in F.I.R. 12 of 1977.
23. That under the circumstances the applicant No. 1 one again rushed to the Court of Senior Special Judge Anti-Corruption Karachi and obtained interim bail before arrest and thereafter the interim bail was confirmed by the Court of Special Judge Anti-Corruption at Karachi. So also Azizur Rehman.
24. That the Crimes Branch Police submitted a final report under section 169, Cr. P. C. To the Court of learned Special Judge Anti---Corruption at Karachi in connection with F.I.R. 12 of 1977, which report was considered and approval by the learned Special Judge and the applicant No. 1 and other persons were discharged and their surety bonds concelled and documents returned to their sureties in connection with F.I.R. 12 of 1977.
25. That the applicants were being harassed under the false colour of so-called investigation in connection with F.I.R. 44 of 1979, although the allegations contained in this F.I.R. Were found baseless by the Crimes Branch Police, who had submitted a final report in the Court of Special Judge, who has approved the same. Under the circumstances the apple--cants have filed the above quashment application against the mala fides of police investigation, which was admitted on, 8th April, 1980.
26. The applicants above named have challenged the maintainability of the present proceedings against them, in the Court of Special Judge, Anti-Corruption (Provincial) Karachi, on the basis of F.I.R. No. 44 of 1979 dated 14th November, 1979, on the grounds mentioned in the memo of above petition.
27. The learned Advocate for the applicants in support of the above petition submitted as under :-
(a) That no proper and legal sanction in respect of applicant No. 1 has been obtained by the prosecution, in the proceedings which are pending at present and as such on this ground alone the said pro--ceedings are liable to be quashed.
(b) That F.I.R. No. 44/79 was filed mala fidely, simply to harass the applicants, and as such the above application is maintainable and the case reported in PLD 1979 SC 94 is not applicable to the present proceedings.
(c) That basically dispute between the parties is a civil dispute and civil litigation in this connection is pending between the parties and as such the initiating of the proceedings in question, amounts to abuse of the process of the learned trial Court.
28. The above petition was taken up today when I heard the learned Advocate for the applicants.
No one was present on behalf of the State. I have gone through the F.I.R. In question as well as through the other annexures filed with the above petition and have taken into consideration the various submissions made by the learned Advocate for the applicant.
29. I find F.I.R. 12 of 1977 dated 10th January 1977 and F.I.R. 44/79 dated 11 November, 1979 basically contain the same facts. I further find, that the proceedings initiated under F.I.R. 12/77 on the basis of report under section 169, Cr. P. C. Were filed, vide order dated 9th February, 1980 of the Special Judge Anti-Corruption, Karachi. Copy of the said report and orders thereon are available on the file of the above petition at pages 117 and 119. The appraisal of both the F.I.Rs. And copy of the report under section 169, Cr. P. C. Clearly shows mala fide intention on the part of the complainant to harass the applicants and coerce them for settlement in respect of civil dispute over immovable property in which Suits Nos, 923/76, 1502/76 and 2208/76 are pending between the parties in competent civil Court. Therefore I am of the opinion that the above petition is maintainable and the case reported in PLD 1970 SC 94 as well as PLD 1982 SC 101. Do not bar maintainability of the above petition.
30. In view of my above conclusions, that F.I.R. No. 44/79 is basically the same as F.I.R. 12/77, the proceedings under the latter were dropped, with the approval of the Special Judge Anti-Corruption Karachi, as hereinabove mentioned, the initiating of the present proceedings pending against the applicants, in my opinion amounts to abuse of the process of the learned trial Court and were filed simply to put pressure on the applicants, to settle civil litigation pending between the parties in compe--tent civil Court and with mala fide intention to harass the applicants, A specially applicant No. 1, prima facie, by D.S. P. Shan Mohammad, the complainant in F.I. R. 44/79.
31. Therefore I allow the above petition and quash the proceeding pending against the applicants, in the Court of Special Judge, Anti-Cor--ruption (Provincial) Karachi, under F.I.R. 44/79 dated 14th November, 1979, as initiating of the said proceedings in my opinion, amounts to abuse of theth process of the said learned trial Court and consequently I discharge the bail bonds executed by the applicants.