AZIZ-UR-REHMAN, J.---Through the instant Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed on 18.03.2017, the Petitioner viz. Lal Bux son of Sokharo Khan is seeking inter alia declarations and directions mainly on the basis of assertions/allegations of 'mis-appropriations', 'fraud' and 'embezzlement' to the official Respondents Nos,2 and 5 against the persons, who are involved in 'mis-appropriation', 'mal- administration' and 'corrupt practices' in respect of fake Demand Notes pertaining to the sale `transaction of three [03] plots i,e, Plots Nos,D-6, D-7, D-8, Street No,3, Bath Island, Clifton, Karachi [hereinafter referred to as 'subject property'] for bringing them to justice. The prayers sought by the petitioner read as follows:-- a. To direct the respondent No,2 to produce the entire records of payment as well as record of lease. b. Direct the respondent No,5/FIA to produce record relating to the investigation of the case with regard to progress up-to-date. c. Bring to justice all those persons who are involved in misappropriation and mal- administration/corrupt practices. d. Restrain Respondent No,2/PIDC, not to sell the whole or part of the property situated at Bath Island, without prior permission of this Hon'ble Court. e. For this prayer a separate application is being respectfully submitted herewith along with the affidavit f. Grant cost of this petition and grant any other relief which might be appropriate in the circumstances of the case.
2. The relevant and essential facts leading to the filing and 'disposal' of the above petition are as follows:--
3. According to Petitioner' version, Pakistan Industrial Development Corporation [In short PIDC], sometime in the year, 1955 had purchased three [03] plots i,e, Plots Nos,D-6, D-7, D-8, admeasuring about 7250 sq.yds, situated in Street No,3, Bath Island, Clifton, Karachi, from Karachi Municipal Corporation [In short KMC], in auction. The 'subject property', as stated by the Petitioner, is comprising 30 Flats of two [2] bedrooms, and three [3] bedrooms which are meant for officers and 60 staff and servant quarters. All the subject Flats, as appears from 'para '18' of the Memo of Petition [In short MoP], are presently lying vacant.
4. For the purpose of proper lease documents in respect of the 'subject property', PIDC as asserted had approached KMC through a committee comprising (i) Rehan-ul-Hasnat, Ex.GM [Admin and Personnel], (ii). Yasir Nabi Memon Morai, Ex.GM/Legal, (iii), Deedar Ali Kalhoro, DMG [Insurance and Estate] duly constituted in the Board of Directors' meeting of PIDC [In short BoD] held on 3rd May, 2012.
5. Respondent No,6, viz. Ashfaq Ansari, the then Director Saddar Town of KMC, per Petitioner's version, had arranged Demand Note[s] of Rs,46,717,348/- in respect of 'subject property', which 'Demand Note[s]', as alleged, were later on found faked/forged. Thereafter, a cheque bearing No,001000 2209400039 DATED 17.08.2012 in the sum of Rs,46,717,348/- favouring KMC was issued. On the very next day i,e, on 18.08.2012, Allied Bank Ltd. prepared/issued a new Pay Order bearing No,AAH 10695592 in favour of one Klient Master Corporation instead of KMC. In this manner, in the year, 2012, the said amount of Rs,46,717,348/- paid through cheque/pay order was embezzled and mis-appropriated by way of playing fraud.
6. The amount of Rs,46,717,348/- though was embezzled/mis-appropriated, but PIDC now seems in a drill to sale out the 'subject property' Per Petitioner's stand, in this regard some auction/tender notices [of un-known dates] have also been published in Newspapers. Against such process/attempts of sale, a Civil Suit No,1587 of 2013 [Messrs Prime Builders v. PIDC (Pvt.) Ltd.], is still pending adjudication before a Court of competent jurisdiction. Apart from the aforesaid suit, another Constitutional Petition No,D-4956 of 2016 [Messrs Mansoor-ul-Haq Solangi v. SBCA and 4 otherS] viz-a-viz. demolishing the 'subject property' is also pending before this Court. The prayers sought in Constitution Petition No,D-4956 of 2016 read as follows: - a. That this Hon'ble Court may be pleased to restrain the respondents from demolishing or interpolating the status of the building at once and suspend the impugned order dated 29-08- 2016 and 01-09-2016 passed by the Respondents. b. Restrain the respondents from harassing or creating any hurdles in the peacefully living of the petitioner and his dependents and should not disturb easement rights of the petitioner in any manner. c. Meanwhile, this Honourable Court may be pleased to grant ad-interim relief. d. Grant cost of this petition and grant any other relief which might he appropriate in the circumstances of the case.
7. On 22.03.2017, when instant petition came-up before the Court, then while, granting the urgent application, the Petitioner was directed to comply with the office objection[s] before the next date.
Besides, notice was ordered to be issued to the Respondents as well as learned DAG and learned A.G. Sindh for a date to be fixed after four [4] weeks.
8. Upon service, a detailed 'counter-affidavit' was filed on behalf of the Respondents Nos,2, 8 and 9 wherein, the . 'adverse allegations' levelled by the Petitioner were vehemently and specifically denied as being mala fide, malicious, mis-conceived and incorrect. Besides, the maintainability of the petition in hand, was also questioned/challenged, inter alia, on the ground that since, the matter pertains to the Federation of Pakistan and its' functionaries, as such, the Petitioner has no locus standi or otherwise, is an aggrieved-person to file the instant petition. Moreover, the Petitioner under law cannot raise/agitate a factual controversy of civil nature in the Constitution Petition which matter otherwise, also does nothing with the Petitioner. In response to the 'counter-affidavit' filed by Respondents Nos,2, 8 and 9, the Petitioner instead of filing an 'affidavit-in-rejoinder' opted to file 'legal objections' wherein, the stand taken/ averments made by Respondents Nos,2, 8 and 9, was/were not only denied, but also controverted.
9. Respondent No,5, likewise, also came forward and filed 'para-wise comments'. In 'para 13' of the 'para-wise comments', it was specifically denied that any crime, as alleged by the Petitioner, has ever been committed during the bank transactions. Under the heading of 'FACTS', further submissions made by Respondent No,5 reads as follows:-- "... a written complaint of Respondent No,9 into the allegation of embezzlement of PIDC funds of Rs,46,717,348/- was 'received to the Director FIA Sindh Zone and after comprehensive enquiry a case vide FIR No,24/2017 under Sections 409, 420, 468, 471, 109, P.P.C. read wtih Section 5(2) Act-11, PCA, 1947 dated 18.10.2016 was registered in FIA Commercial Bank Circle Karachi against 04 accused persons which is pending trial in the Court of Special Judge Anti Corruption (Central-I) at Karachi. The Petitioner did not call, nor required, neither did the Petitioner approached to the FIA authorities during the course of enquiry or during the course of investigation of the instant case."
[Emphasis supplied].
10.In response to the 'para-wise comments' of Respondent No,5, no any reply in opposition thereof, was filed by the Petitioner, as such, the assertions to the aforesaid effect as well as all other averments of adverse nature levelled by the Respondent No,5, in its' comments' have gone unchallenged/un-rebutted. Lastly, on 08.11.2017, when the above Petition came-up before us then we heard the learned counsel for the parties as well as learned DAG and learned AAG who adopted the arguments advanced by learned DAG and also perused the available record.
11.Mr. Imtiaz Mansoor Solangi, learned counsel for the Petitioner, contended forcefully that since, the official Respondent No,6 and some other persons have committed fraud inter alia by way of issuing fake Demand Note[s]. Per learned counsel, on the very next date, the cheque No,0010002209400039 dated 17.08.2012 in the sum of Rs,46,717,348/- was replaced by a pay order dated 18.8.2012 in favour of one Klient Master Corporation [who is not party to the instant CP], instead of issuing the same in favour of KMC towards' sale consideration in respect of the 'subject property'. According to the Petitioner's version, the aforesaid amount of Rs,46,717,348/- meant to be paid to KMC was, nevertheless, embezzled / mis-appropriated, hence the instant petition was filed on 18.03.2016 by the Petitioner on account of such embezzlement / mis-appropriation and fraud occurred / committed in the year, 2012.
12.Conversely, Mr. S. Ali Ahmed Tariq, learned counsel for the Respondents Nos,2, 8 and 9, learned DAG and learned Addl. A.G. Sindh, who adopted the arguments of learned DAG, contended in vehemence that neither the Petitioner is an aggrieved person or otherwise, concerned with transaction of sale taken place in the year, 2012. Learned Counsel for the Respondents.Nos,2, 8 and 9 and learned DAG next contended that apart from being a matter of civil nature, the so-called dispute, if any, is a matter between the Federation and its' functionaries. The Petitioner as such, has nothing to do with such transaction of sale taken place long ago in the year, 2012 between the KMC and PIDC. While, concluding their arguments, learned DAG/AG Sindh prayed that since, the Petitioner has no locus standi and/or otherwise, he is an aggrieved person, as such, the petition, in hand, filed under Article 199 of Constitution of Islamic Republic of Pakistan, . 1973 besides being not maintainable in law is liable to be dismissed with costs.
13.Heard.
14.Manifestly, the main allegations levelled in the Memo of Petition [in Short Mon are pertaining to the act of so-called fraud, misappropriation and embezzlement of Rs,46,717,348/-, which according to the Petitioner was meant for payment to KMC by PIDC towards' the 'sale transaction' taken place in the year, 2012, in respect of the 'subject property'. For the sake of arguments, if it is presumed so, then why KMC is not coming forward either to demand the said amount from PIDC or otherwise, initiate appropriate proceedings for recovery thereof.
15.Moreover, in the case in hand the particulars of the so-called fraud are also missing. In case of a fraud, it is needless to say, particulars of fraud are not only to be pleaded but also need to be proved in sufficient manner. Fraud has been defined in the following words:-- "A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury...A generic tern, embracing all Multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated" (Blacks' Law Dictionary Fifth Edition).
Since, fraud is a false representation of fact, as such, it cannot be presumed rather it is to be proved substantially through positive evidence. The general, evasive unspecific allegations, as the case in hand is, cannot be given any weight.
16.As far as, the word 'embezzlement' is concerned, in legal-terminology it stands for 'misappropriation'. Regarding dishonest, misappropriation, reference can be made to subsection
(2) of section 222, Cr.P.C., which reads as follows:-- Subsection (2) of section 222.---When the accused is charged with criminal breach of trust or dishonest misappropriation of money, it shall be sufficient to specify the gross sum in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 234: Provided that the time included between the first and last of such dates shall not exceed one year." [Emphasis supplied]
17. Nevertheless, fraud/mis-appropria-tion/embezzlement need to be proved through cogent evidence. Since, in the case in hand, the Respondents have denied the allegations of the Petitioner, as such, the disputed questions of fact requires the drill A of recording of evidence which cannot be undertaken in a petition filed under Article 199 of Constitution of Islamic Republic of Pakistan, 1973.
On this aspect of the matter, reliance can be placed on the case of Fida Hussain and another v.
Mst. Saiqa and others [2011 SC MR 1990]. The relevant portion thereof, reads as follows:- On examination of the material made available before us it becomes evident that the appellants had, in their replies (available at pages 23 and 45 of the paper book), specifically denied the allegations of respondent No, I and in support had produced some documents noted above meaning thereby that matter involved disputed facts which for the purpose of determination required factual inquiry by recording evidence. It is well settled by way of plethora of case-law laid down by Superior courts that the High Court is not to resolve the disputed question of facts in exercise of constitutional jurisdiction under Article 199 of the Constitution." [Emphasis supplied].
18.The Petitioner, it is significant to note, is well aware of the so-called fraud, embezzlement and mis-appropriation i,e, since, the year, 2012, but till filing of the instant petition at no stage, the Petitioner either has made an attempt to approach the concerned authorities by way of filing a complaint or otherwise, for taking/initiating proper action under the law.
19.Further, the Petitioner has also failed to show any cause/reason for issuing direction to the official Respondents Nos,2 and 5 [FM] regarding production of the record pertaining to the payment, lease and investigation of the case[s], it is worth to mention, against the official Respondents Nos,2 and 5 no allegations regarding their efficiency or otherwise, have been levelled by the Petitioner, which means that the official Respondents have performed / are performing their duties efficiently and in a professional manner. For this reason no directions, as prayed, need to be issued against the official Respondents Nos, 2 and 5 or any of them particularly, when the Petitioner has failed to show any cause and/or reason for issuing such directions.
20.As far as, the other prayers sought by the Petitioner are concerned, the same are not only mis- conceived, but also misleading in view of pending criminal case. Apart from the above, for getting a restraining order against the sale of 'subject property' the existence of three [3] ingredients i,e, [i].
Prima facie case [ii]. Balance of Convenience and [iii]. Irreparable loss are must. In absence of any of the three ingredients, no any restraining order can be passed at the whims/wish of the Petitioner.
Since, in the instant case, none of the three [3] ingredients lies in favour of the Petitioner, as such, the prayer for restraining order is also refused. In this regard reference can be made to the case of Muhammad Abid and 2 others v. Nisar Ahmed [2000 SCM R 780]. The relevant portion thereof, reads as follows:-- "Even so, where plaintiff neither has a prima facie case, nor would suffer irreparable loss nor balance of convenience lies in his favour, as covered by Order XXXIX Rules 1 and 2 C.P.C. nor the interests of justice, in contemplate on of section 151 C.P.C. so warrant, it is a more appropriate exercise of discretion to refuse rather than allow the interim relief. " [Emphasis supplied]
21. Moreover, the instant petition has not been filed within a reasonable time, as such, the same is also hit by the 'doctrine of laches'. Besides, as evident from the contents of MOP, various legal proceedings i,e, CP, Suit and a Criminal case against the accused. of Crime/FIR No,24 of 2017, lodged by the Respondent No,9 on 18.10.2016 under Sections 409, 420, 468, 471 and 109, P.P.C. read with Sections 5(2) Act II PCA, 1947, are also pending adjudication before the appropriate fora. This factum is manifestly clear from paras 16 and 17 of the Memo of Petition. For ready reference, the said paras are reproduced herein-below:--
16. Per learned counsel for the Petitioner, Respondent No,2/PIDC wants to sell the entire property known as PIDC officers Flat situated on Plots Nos,D-6, D-7, D-8, admeasuring about 7250 sq.yds, situated in Street No,3, Bath Island, Clifton, Karachi. The proof whereof is that the management has thrice advertised the sale of its property by issuing three tender notices in press and the dispute about its such process is under adjudication in this Court.
17. Per learned counsel for the Petitioner, in order to achieve their foal, the PIDC in conjunction with the SBCA has declared the building in question as not fit for living and dangerous, and the dispute about its such process is under adjudication in this Court vide C.P. No,D-4956/2016 [Messrs Mansoorul Haque Solangi v. SBCA and others].
22. On aforesaid aspect of the matter, reliance can be placed on the cases of Tayyab lqbal v.
Member (Colonies) Board of Revenue, Punjab Lahore and 3 others [2005 CLC 1447]. The relevant extracts therefrom reads as follows:--
6. There is no period of limitation prescribed for filing of a Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but it has to be filed within a reasonable time. What is the reasonable time, has been interpreted by the superior judiciary of this country as time requisite for filing of appeals/revisions before this Court which is normally three months. The order dated 15-5-1999 revealed that it was passed after hearing the petitioners and their counsel who were marked present at the time of hearing. Meaning thereby that they were aware of the order, dated 15-5-1999 but in spite of it, filed the Constitutional petitions after four years, without explaining the lathes.. The petitioners did not move any application for condonation of lathes by giving reasons, hence, inordinate unexplained delay in approaching this Court could not have been condoned. Reference in this behalf can be made to the judgments in the case of Khiali Khan v. Haii Nazir and 4 others PLD 1997 SC 304.
7. Record further revealed that most of the petitioners have already filed their respective suits before the concerned Civil Court challenging the order of respondent No,1 dated 15-5-1999 and those suits are reported to be still pending before the trial, appellate/ revisional Courts. Pending determination of civil suit, invocation of Constitutional jurisdiction of this Court out of concealment of those proceedings was not only with unclean hands/mala fide but also could not have been done, at law. Reference in this behalf can be made to the judgment in the case of Haji Muhammad Ashraf v. The District Magistrate, Quetta and 3 others 2000 SCMR 238; Brig. Sahibdad Khan v. Secretary, Colonies, Board of Revenue, Government of _ the Punjab, Lahore and S others_ PLD 2000 Lah. 244, Haji Bossa., Limited and others v. The Federal Government of Pakistan through , The Secretary to the Government of Pakistan, Ministry of Food and (Agrarian Management), Islamabad and another 1986 CLC 11931 [Emphasis [Emphasis supplied].
23. For all the above reasons and discussions, we are of the considered opinion that the instant petition as framed and filed besides, being not maintainable is devoid of any merits. The same thus is dismissed in limine with all pending application[s], however, without any costs.