This is a petition filed under section 561-A read with section 439, Cr. P. C. Filed by one Syed Ziaul Hassan Zaidi, which seeks to quash pending proceedings under sections 420/46 (g), and 161, P. P. C.
Read with section 5(2) of the Act II of 1947, in Case No. 62 of 1965 (State v. Dilawar 9han and another) in the Court of Special Judge-cum-Enquiry Officer, Hyderabad, Sind Camp at Karachi.
2. Briefly the facts are that on 22-2-1965 one Hassan Abbas filed a written report before the Police at Karachi against Tabarukullah, Badrul Hassan Zaidi and Dilawar Khan, alleging that they in conspiracy with each other cheated him of Rs. 1,000 by making bogus allotment of to quarters of K.
D. A, from which later on he was evicted by K. D. A. As allotment orders were forged by Badrul Hassan Zaidi and he requested that "thorough probe be conducted and appropriate action taken against all the three persons for obtaining Rs. 1,000 fraudulently and for taking action against Badrul Hassan Zaidi, for posing as a high official and issuing forged allotment with his forged signature and for issuing a forged receipt with a forged signature thereon. "Upon this an F. I. R. No. 23 of 1965 was, registered at 'Manghopir Police Station against Dilawar Khan and another, the offences are shown to have been committed in December 1964.
3. A complete challan was submitted on the 23rd of February 1967 in the. Court of Anti-Corruption Judge, Hyderabad by Anti-Corruption Police Establishment. Anti-Corruption seems present petitioner. After registration of F.I. R. Against him, was suspended from service as a Senior Clerk by K. D. A. Authorities on 17-3-1965, this fact is disclosed from a letter written by his Advocate dated 12- 4-1967 to Chairman, K. D. A. Which is Annexure "B", wherein it is mentioned that due to enmity of certain colleagues with conspiracy to certain police officers, whose names are mentioned in revision petition as well as in this letter, petitioner Ziaul Hassan Zaidi is being hooked tip lay the Anti-Corruption Police in the garb of one Badrul Hassan Zaidi, the K. D. A. Was requested not to give illegal sanction for prosecution of petitioner. By a letter dated 20-4-1967 No. LO/677 (Annexure "C") the K. D. A. Replied as follows: "This Department fully appreciates that K. D. A. Has got no concern whatsoever with one Badrui Hassan Zaidi who is neither the employee nor a servant of this Authority, but your client is on strength of the Establishment of this Authority; and for these reasons the request of the Anti- Corruption Department for granting prosecution sanction in respect of Badrul Hassan Zaidi was refused previously. Because this Department cannot take responsibility of granting the prosecu-- tion sanction in respect of stranger like Badrul Hassan Zaidi who is not on the strength of this Authority and as such your client who is shown as the employee of this Department cannot be prosecuted in the colour of Badrul Hassan Zaidi by granting illegal sanction."
4. It appears; that later on Anti-Corruption Police, succeeded to get sanction for prosecution of the petitioner, in the name of Badrul Hassan Zaidi from Director-General, K. D. A.. Karachi. Application was moved before the trial Judge on behalf of the petitioner that sanction of prosecution once refused cannot be validated by subsequent order of the same authority and request was made to quash proceedings, but learned trial Judge dismissed the petitioner's application vide order dated 7-1-67 Annexure "E". The legal objections on behalf of the petitioner that he at the the of the alleged offence i.e. In December 1964 was not a public servant, being a K. D. A. Employee because of the laws as then stood, this did not find favour with the trial Judge.
5. The petitioner filed this revision petition and obtained a stay of proceeding before lower Court by an order of this Court dated 12-8-1968.
6: Mr. Abdul Latif Channa, Advocate appeared for the petitioner while State was represented by Mr. Manzoor Hussain, Advocate. It was vehemently argued on behalf of the petitioner that the petitioner's name is Syed Ziaul Hassan Zaidi while F. I. R. Or the written report filed by Hassan Abbas on 22-3-1965 referred above, accuses one Badrul Hassan Zaidi, therefore, petitioner's trial in the place of accused Badrul Hassan Zaidi is illegal, and that prosecution has failed to produce any tangible evidence to prove that the present petitioner, in fact is Badrul Hassan Zaidi or for that mattes he has this or any other alias except his proper name. This argument has force, as from the record throughout the accusation is made against Badrul Hassan Zaidi and not against Syed Ziaul Hassan Zaidi nor it' appears that police even held any identification parade before submitting the final challan to the trial Court.
7. The counsel for State when asked had no proper reply to this objection of the petitioner. The next point raised for the petitioner was that assuming he is the person accused, still no prosecution could be launched by the Anti-Corruption Police against him, as offence is alleged to have been committed in December 1964 and at that the, he as a Senior Clerk of K. D. A. Was not a `public servant' for the purpose of the then existing Anti-Corruption Laws, as these laws were made firs applicable to public corporations and organisations by virtue o Anti-Corruption Laws Amendment Act, 1965 Act XII of 1965 and this law was promulgated on 3-8-1965 and no retrospective effect can be given to these laws for an offence committed in December 1964, because his substantive legal rights, in that case would be in jeopardy, had he been tried under ordinary law for the offences alleged he could be awarded a maximum punishment of 2 years, while under such laws for these offences petitioner can be sent to prison for seven years' imprisonment and this he argues could not be the intention of the Legislature and Act XII of 1965 does not specifically makes applicable these laws with retrospective effect. No satisfactory reply was given by the learned counsel for the opponent. The third objection by counsel for petitioner was that once a sanction for prosecution is refused by competent authority, it is divested of any power to grant sanction for the second the, as in this case he submits sanction was refused first, the K. D. A. Is debarred to change its mind and grant sanction subsequently. In this circumstance he cited Supreme Court ruling in the case of the State v. Mohammad Ismail (1968 SCMR 367) where Special Leave to Appeal was granted to consider the. Question `whether delegatee of Government having refused sanction.' Governor of Province himself has any legal authority to accord sanction. These appeals were filed against judgment of High Court Bench, Karachi, wherein it was held that sanction once refused cannot be reviewed subsequently. It was further argued that Act III of 1967, regarding its applicability to public Corporation or Semi Government Organisation was radically changed by Amending Act XLV of 1967 but no such amendment is brought in West Pakistani, therefore, the petitioner was not a public servant at the the of offence in December 1964, if so, no prosecution could be brought against him, consequently entire proceedings at its initial stages is illegal and must be quashed. There is weight in these objections as no worthwhile reply was given by the other side.
8. Lastly it was submitted that proceeding brought against petitioner was mala fide, but due to a conspiracy hatched by his enemies, who are his colleagues in K. D. A. With active assistance of investigating agency. In this circumstance, it was urged that no less than six F. I. Rs. Were filed against petitioner, by the police in 1965 at different police stations, the details of these F. I. Rs. Are:-
(1) F. I. R. 23 of 1965 (the present case).
(2) F. I. R. 56 of 1965, under section 380, P. P. C. On 2-4-1965 with Artillary Police Station.
(3) F. I. R. 30 of 1965, under section 344, P. P. C: on 3-4-1965 Manghopir Police Station.
(4) F. I. R. 79 of 1965 under section 4211/468, P. P. C. On 27-6-1965.
(5) F. I. R. 83 of 1965 under section 420/468, P. P. C. On 27-6-1965.
(6) F. I. R. 114 of 1965 under section 420/468, P. P. C. On 19-8-1965.
9. On the point of male fide, on point of prosecution in addition to the above-stated facts, counsel for petitioner invited the attention of this Court to a recent order of Assistant Commis--sioner, Civil Lines, Karachi dated 30-10-1970, a certified copy of which he placed on record, along with an application for consideration the same at the the of hearing. As this order of learned Assistant Commissioner, Karachi has a direct bearing on this case before me, I will make a passing reference to that.
10. While investigating the case i.e. F. I. R. 23 of 1965, against the petitioner (i.e. The case before me in revision) the Anti-Corruption Police allegedly received a report from the Assistant Administrative Officer, K. D. A. (Accounts) that the name of the present petitioner is Badrul Hasan while seeking job of clerk with K. D. A. In 1954 he adopted name of Syed Ziaul Hassan Zaidi which is the name of his elder brother and he forged the Matriculation Certificate of his elder brother, therefore, a case under section 41.9, P. P. C. Was set up against him, he was arrested and tried. In all 13 witnesses were produced against him of which 7 were from Police Department.
11. The prosecution failed to make out a prima facie case, against the present petitioner and learned trial Court had to discharge him under section 253(i), Cr. P. C. Vide its order dated 30-10- 1970. To appreciate the arguments of counsel for the petitioner that the petitioner has been made x pray of vindictiveness and deliberate enmity by police and K. D. A. Officials by bringing fictitious cases against him, I am constructed to quote the relevant para. Of the order of trial Court stated above: "According to prosecution the impersonated elder brother as alive and available. A Police witness even went to examine this witness under section 161, Cr. P. C. On Government expenses but strangely enough the alleged elder brother was neither cited in the charge-sheet nor subsequently. Produced before the Court. The only inference that can be 'drawn is that the person set up to pose as elder brother refused to the fabrications of police."
After all this, it does not require much imagination to see the apparent machnization of prosecution to implicate the present petitioner at any cost in criminal proceedings and to fill up the lacuna left in the F. I. R. Dated 16-3-1965. The prosecution went to the length of setting up the above false case and attempted to prove the same by negative approach and evidence that the petitioner in fact is Badrul Hasan not Syed Ziaul Hassan Zaidi. It may be observed that, had the prosecution succeeded in obtain--ing conviction against the petitioner, they surely Would have pursued the pending case before the Anti-Corruption Judge, Hyderabad on the strength of conviction in case under section 419, P. P: C. I am constrained to say that it is very unfortunate for the investigating agency of the Police where must be many responsible and conscientious officers to permit without check and supervision, the investigating staff to play so recklessly with honour, and freedom bf the citizens:
12. The learned counsel for the State in view of the way this case was conducted by prosecution.
Had nothing much to say, he did not refer me to any reported case, all he said is that there was a mistaken identity of names of Badrul Hasan Zaidi and Syed Ziaul Hassan Zaidi which to him was not material, and, lastly he submitted that in case the proceedings before the Anti., Corruption Court are quashed, the petitioner may be tried under the ordinary law of the land. I am afraid, I cannot accede to this request of the counsel for the prosecution particularly when false and fictitious half a dozen F. I. Rs. Are filed against a citizen and every attempt using all the resources of the prosecuting agency are resorted to obtain a conviction ultimately failed.
13. In view of the above legal position and background, of this use I have no other alternative but to quash the proceeding in case No. 62 of 1965 before the Anti-Corruption 'Judge, Hyderabad, Camp at Karachi. The result is I accept this petition and hold that the pending proceedings are illegal, and hereby quash the same. The bail bond if any given by the petitioner shall stand therefore, cancelled.