MRS. RASHIDA ASAD, J.---This common order is meant to dispose of above both Criminal Misc. Applications as both the applicants are aggrieved of the same order and proceedings. These Criminal Miscellaneous Applications have been directed under section 561-A, Cr.P.C. against a common order dated 13.04.2016 whereby the Learned Special Judge Anti-Corruption (Provincial ), hereinafter the learned trial court, was pleased to order for registration of Criminal Case (Special Case No.26/2016) under sections 161/420/468/34, P.P.C. read with 5(2) of Prevention of Corruption Act (PCA), 1947, pursuant to filing of a Private Complaint (No. 28/2014) by Mst. Imtiaz Bibi, the respondent.
2. The applicants, precisely , are aggrieved of the aforesaid order and as such through instant applications they seek quashment of the proceedings pend ing against them in aforesaid Special Case No.20/2016, pending before the learned trial court. The applicant in Criminal Misc. Application No. 177/2016 is a private person and has a chequered history of civil litigation with the complainant over a property bearing No. 111-M, Block-2, Khalid Bin Waleed Road PECHS, Karachi, whereas, the applicant in Criminal Misc. Application No. 49/2017, is Deputy Controller Building, Sindh Building Control Authority , Karachi. Paragraphs Nos. 9, 10 and 11 of the complaint are essence and threshold of the complaint and thus relevant to dilate upon and thresh out the controversies, dispute and questions involved in the instants applications the same are reproduced hereunder:- "9. That the Respondents Nos. 1 to 4, not only they deliberately and intentionally executed declaration of Gift dated 20.12.2008 collusively with each other's and further executed General Power of Attorney in favour of respondent No. 4 despite having knowledge of the stay order , with mala fide and ulterior motive just to deprive the complainant.
10. That the respondent No. 5, despite having knowledge of the stay order , approved the Building Plan of the subject property in favour of respondent No. 4.
11. That in view of the above it is established that the execution of the transfer of the subject property has been effected in collusion of the respondents 1 to 4 despite knowledge of fact that the stay order is operating against the subject property ,, and as such the respondents Nos. 1 to 4 have committed wilful Offences, are liable to be Penalized/prosecuted under the law ."
3. On receipt and registration of Direct Private Complaint of the respondent (Mst. Imtiaz Bibi), the learned trial court forwarded it to the Directorate of Anti-Corruption Establishment for enquiry and report which was submitted by Saeed Ahmed Rind, DSP/Assistant Director , ACE, Sindh, Karachi, with conclusion and comments as under:- "1. From the facts and evidence (either documentary and oral) brought on record it appear that property No. 111-M, Block-2, PECHS was subject property of Civil Suits for (which) Decree was passed by the honourable High Court of Sindh and execution of such Decree is still pending. So subject property can not be transferred. On the contrary Mrs. Bumra Qureshi got executed Gift Deed in the name of Dr. Waqar Saeed. Moreover , the suit 245/2007 filed by Saeeduddin Qureshi during his life time for seeking declaration that Respondent No. 3 (Dr. Waqar Saeed) is not his real son is still not decided, so gift in his name (without blood relation) could not be executed.
2. That on receipt of gift deed Dr. Waqar Saud made application to the Society for transfer which was entertained and property in question was transferred in his name while Society was aware of litigations pending before the honourable High Court. Hence such transfer order is illegal for , which Administration of PECHS is responsible.
3. That on receipt of transfer Dr. Waqar Saeed entered into sale agreement of said Property with Mumtaz Ahmed for sale consideration of Rs. 13900,000.0 0, so they had to execute sale Deed and they have to pay 4% as stamp duty, registration fees and Town tax Rs. 5,56,000.00, but with mala fide intention they executed General Power of Attorney to usurp such taxes. Further application regarding collection of documents from Bank Submitted earlier which is pending before this Honourable Court."
4. Heard the learned counsel for the applicants, respondent Mst. Imtiaz Bibi in person and learned DPG for state and also perused the record annexed with applications. The objections and statement filed by respondent Mst.
Imtiaz Bibi were also taken into consideration.
5. Mr. Nisar Ahmed Tarar, Advocate for applicant in Criminal Misc. Application No. 49/2017 has argued that registration of case pursuant to a direct private complaint without compliance of section 200, Cr.P.C, which makes it obligatory for the court, taking cognizance of the alleged offence, shall at once examine the complainant on oath, is perverse, bad in law and illegal and as such the pending proceedings before learned trial court are void ,ab initio necessitating to be quashed by exercisin g inherent jurisdiction vested in this court to prevent abuse of process of law. He further argued that in view of the averments made in the complaint and the conclusions of the enquiry report the matter at the face of it is a civil dispute between private parties admittedly subjudice before this court.
The learned counsel referred/shown the record of chequered civil litigation between applicant in Criminal Misc.
Application No. 177/2016 and Respondent Mst. Imtiaz Bibi. According to the learned counsel, filing of criminal complaint involving officer of the Sindh Building Authority is an apparent mala fide onslaught to achieve her purposes which she has failed to concur through civil litigation. Per learned counsel, the enquiry report submitted by an officer of the Anti-corruption Establishment (ACE) does not ascribe any criminal act inasmuch involvement of the applicant in any of the offences applied for registration of case. He next contended that even otherwise, from the .averments made in the complaint and the conclusion drawn in the enquiry report, no criminal offence, within the cognizance of learned trial court, has been made out and therefore, the learned trial court has committed manifest error to order for registration of case, on hypothesis, surmises and conjectures and thus pending criminal proceedings against the applicant tantamount to abuse of process of court and as such the same are liable to be quashed. Finally the learned counsel submitted that applying the sections 161/420/468/34 and 5(2) of PCA, 1947, what has not been even alleged by the complainant is fanciful and abuse of process of law .
6. Mr. Shehzad Mehmood, Advocate, the learned counsel for applicants in Criminal Misc. Application No 177/2016, to avoid repetition mainly adopted the arguments of Mr. Tarar and to strengthen the submissions on point of dispute being civil nature and subjudice before competent court, drawn attention of this court to several documents annexed with application.
7. Mst. Imtiaz Bibi, the respondent, represented herself just reiterated the contents of objections filed to instant applications and sought support from her complaint submitted before learned trial court and agitated that she desires her due share in the property which is subject matter of the complaint.
8. The learned DPG out rightly conceded that from the averments made in the complaint and conclusion drawn in the enquiry report, no criminal offence, whatsoever , is made out. Further , the record reveals that civil dispute and litigation between the parties is pending and subjudice and in such situation registration of criminal case pursuant to filing of a private complaint seems to not defendable. Nevertheless, the learned DPG vehemently opposed to the maintainability of the instant Criminal Misc. Applications under section 561-A, Cr.P.C. for quashment of criminal proceedings before the trial court as the applicants have alternate remedy available to them by invoking the jurisdiction of trial court under section 249-A, Cr.P.C., to seek their acquittal if so advised. Learned DPG vehemently argued that jurisdiction under section 561-A, Cr.P.C. was not to be exercised in routine and or as matter of course merely because such jurisdiction was available and or could be exercised. He relied upon case law reported in PLD 2016 SC 55 .
9. Rebutting to the objection and arguments of learned DPG, Mr. Tarar, submitted that there is no cavil to the proposition that jurisdiction vested in this court under section 561-A, Cr.P.C., is to be sparingly exercised specially when the accused can first move to the trial court under section 249-A or 265-K, Cr.P.C., for seeking acquittal, if the charge against the accused is groundle ss or that there is no probability of the accused being convicted. Per learned counsel, section 561-A, Cr.P.C. lays down that nothing in the Code shall be deemed to limit or effect the inherent power of the High Court to make such orders as may be necessary to give effect to any order the Cr.P.C. or to prevent abuse of process of any Court or otherwise to secure the ends of justice and such power is not available to trial court. He has further elaborated his point of initial arguments that case of the applicants is that order of the learned trial court for registra tion of criminal case without examination 'of the complainant on oath and that without there being any allegation or averment of the applicants being involved in any criminal case; that at the face of it the matter involving patent civil dispute, is unlawful and without jurisdiction and if the same is allowed to continue it would amount to abuse of process of court and as such this court is competent to quash the proceedings pending before trial court. The learned counsel making his submis sions added that no case law completely prohibit or order to abandoned the exercise of jurisdiction under section 561-A, Cr.P.C, by High Court even in suitable matter otherwise the said provision would become redundant. He relied upon following case laws.
(1) 1985 SCMR 257 (2) PLD 1994 SC 486 (3) 1994 SCMR 798 (4) 1995 SCMR 1679 and (5) 1997 SCMR 1503 .
10. For me there seems to be no dispute or cavil on factual aspects of the case as the learned DPG has conceded that from the averments made in the complaint and the conclusion drawn as consequence of enquiry , conducted on the orders of the learned trial court, no criminal offence, whatever , inasmuc h the offences under sections 161/420/469 and 5(2) of PCA, 1947 is made out. Moreover , the contents of the complaint demonstrate that the complainant (the respondent) intends to concur all which she has been unable to fetch so far in the civil litigation. At the face of the matter the use of mechanism of a criminal court is mala fide and mischief and order of the learned trial court for registration of criminal case looks patently in violation of section 200, Cr.P.C., as statement of the complainant on oath was not recorded before taking cognizance of the case and as such the proceedings of the case are unlawful.
11. In the above scenario of the case, this court is left only with the point that whether it would be lawful and appropriate to exercise jurisdiction under section 561-A, Cr.P.C., to quash proceed ings pending before the learned trial court i.e Court of the Special Judge, Anti-Corruption (Provincial), Sindh, Karachi or the matter be disposed of, simply directing the applicants to approach the trial court to exhaust remedy under relevant provision of law i.e section 249-A or 265-K, Cr.P.C., if so desired and advised. To deal with and to dilate upon such proposition there is a bunch of case law for and against on the point few relied upon by the learned counsel and several others to which I was able to lay hands. I have complete respect to all the case law either way. It was though hard to find out consistent view on the point yet exercise of jurisdiction under section 561-A, Cr.P.C., to quash proceedings is not completely prohibited and it has always been left open to exercise such jurisdiction lets in appropriate cases and sparingly .
12. While demonstrating utmost respect to the available case law (precedents) on the point, I am of the view that court is expected and supposed to adopt a dynamic approach which leads to ultimate fostering of pragmatic and natural justice in accordance with law. According to the scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused person is a serious business-which commences with a pre-trial exercise to be judicially carried out by a competent Magistrate under section 190 of the Cr.P.C. If the allegations levelled and the evidence collected are found worth a trial, then cognizance is taken of the case and the accused is summoned to face the trial Chapters XX and XXII-A of the Cr.P.C. Then prescribe a detailed inquiry and a thorough probe into the matter where the prosecution has full right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution; accused then has the right to explain different pieces of evidence offered against him by the prosecution; where the accused can make a statement on oath in disproof of the allegations levelled against him and finally where he can produce his own evidence to discredit the prosecution case against him. What could, therefore, be at stake at criminal trial are, on the one hand the invaluable rights of life, liberty , freedom and even of property of an accused person and on the other hand the demand of the society to get rid, permanently or temporarily , of a person who is a threat and a menace to it. The law commands a detailed inquiry as envisaged by the above mentioned Chapters XX and XXII-A of the Cr.P.C. so that a correct decision is reached by the trial Court after due consideration of the totality of facts and circumstances brought out before it. This is then the normal procedure prescribed by law for the purposes of finding out whether the person accused of commission of a crime was or was not guilty of the same.
13. As against above, however , if quashm ent of criminal proceedings is sought under section 561-A, Cr.P.C., which is different to the jurisdiction of the trial Court bestowed on it under sections 249-A and 265-K, Cr.P.C., on the ground that the proceedings are ex facie without jurisdiction and continuation of the same will constitute abuse of the process of the Court, the High Court will entertain proceedings without insisting upon that a party should first approach the trial Court. Both sections 249-A, 265-K and 561-A, Cr.P.C. are couched in different language and their scopes appear to be different. Sections 249A and 265-K, Cr.P.C., empowers a Magistrate/Sessions Judge to acquit an accused at any stage of the case if after hearing the prosecutor and the accused for the reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. Whereas section 561-A, Cr.P.C. lays down that nothing in the Code shall be deemed to limit or effect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This kind of power is not available with Magistrate/Sessions Judge under section 249-A or 265-K, Cr.P.C. inasmuch as under the latter provision, he can acquit an accused after he considers either that the charge is groundless or that there is no probability of the accused being convicted in any offence. On the other hand, the High Court can quash a criminal proceeding in order to prevent abuse of process of any Court or otherwise to secure the ends of justice.
14. The precise upshot of the above discussion is that no hard and fast rule could be laid for exercising jurisdiction by this Court as bestowed on it under section 561-A, Cr.P.C. Even no prece dent imposes a complete bar, prohibition or restriction on exercise of such jurisdiction by the High Court. In such situation a dynamic approach needs to be adopted after careful appraisal of the material before this Court in juxtaposition with the submissions made by the respective parties and their counsels. While opposing to the instant criminal miscellaneous applications the learned DPG objected to the maintainability on the ground that since the applicants have alternative remedy to invoke jurisdiction of the trial Court under section 249-A, Cr.P.C. and as such this Court has no jurisdiction to entertain the applications for quashment of proceedings. On facts of the case the learned state counsel has rather conceded that the matter between the parties is a civil nature and too pending sub-judice and further the averments made in the complaint and conclusion drawn in the inquiry report does not constitute any criminal offence. The learned state counsel has also conceded that registration of the case against the applicants in a complaint case without examining the complainant under section 200, Cr .P.C. is also unlawful.
15. The respondent Mst. Imtiaz Bibi who represented herself for hearing of the instant applications just reiterated the averments made in the complaint and insisted for a direction to the applicant in Criminal Miscellaneous No.177/2016 to give her due share in the property which is the subject matter of the complaint. The complaint and so also the conclusion of the inquiry report does not find any culpable allegations against the holder of the public offices as arrayed accused in the complaint and implicated in the order of the learned trial court for registration of the case. Prom the appraisal of the mate rial available before this Court, it is manifest that while entertaining the complaint and passing an order for registration of the case for the criminal offence , the learned trial Court has not applied judicial mind to determine that whether the accused persons have committed any cognizable offence or otherwise. I am surprised of the facts that without there being any allegation for payment or receipt of the bribe within the ambit of section 161, P.P.C. and 5(A), P.C.A., 1947 the learned judge has herself created a charge against accused persons for the said offences. Even there is no allegation levelled in the complaint for any cheating and falsification of the documents within the mischief of sections 420 and 468, P.P.C., yet the learned trial court has applied the said sections against the accused persons, The record reveals that no cognizable offence was even alleged against the accused persons, on the other hand the subject matter of the complaint is completely a dispute of civil nature between the private parties and the names of public servants have been included in the list of the accused persons just to create a false jurisdiction of the Court of Special Judge Anti-Corruption purposely which is if allowed to continue it may jeopardize the fundamental rights of the persons as guaranteed under the Constitution of Islamic Republic of Pakistan. Such nefarious practice can only be curbed by exercise of jurisdiction under section 561-A, Cr.P.C. in appropria te cases. The present matter is one of the bad examples in which the learned trial Court seized the jurisdiction of the matter although nothing was alleged which could constitute the offences which were applied against the applicants and the other innocent persons. In this situation if the applicants are directed to approach to the trial Court to avail the remedy under section 249-A, Cr.P.C. it would add to the injustice already suffered by them by registration of the case under the provisions of criminal law although nothing was so alleged.
16. In my view in fitness of all fairness and the legislative intention behind sectio n 561-A, Cr.P.C., if the criminal proceedings registered against the applicant and other accused persons are allowed to continue it would amount to abuse of process of Court. As such the criminal proceedings pending against the applicants before the Special Judge Anti-Corruption (Provincial) vide SC No.26/2016 consequent upon direct complaint No.28/2014 are hereby quashed.
17. Before parting with the judgment it seems to be appropriate to mention for the guidance of the Court of Special Judge Anti-Corruption (Provincial) to be more cautious in entertaining frequent mala fide private complaints involving civil matters between the privat e parties at the cost and under the garb of implication of public servants without there being any allegation or iota of evidence for any criminal of fence within the jurisdiction of such Courts.