' By this judgment Criminal Miscellaneous Nos.122 of 1997 and 177 of 1997 filed under sections 265-K and 561-A, Cr.P.C. Respectively in Ehtesab Reference No,17 of 1997 are being disposed of as they relate to one and same subject.
2. In the above applications applicant Dr. Tariq Ghori has sought his acquittal under section 265-K, Cr.P.C. And at the same time has urged for withdrawal of the Reference under section 561-A, Cr.P.C.
As -according to him the continuation of prosecution against the applicant would tantamount to abuse of process of this Court resulting in miscarriage of justice.
3. The facts leading to the filing of the above applications are that the applicant was Special Assistant to the then Chief Minister, Sindh, Syed Abdullah Shah accused No,1 (hereinafter to be referred to as "absconding accused") in the abovementioned Ehtesab Reference. The applicant being owner of Plot No,3-A. Sindhi Muslim Cooperative Housing Society Karachi, had applied for permission to the absconding accused on 25-6-1996 for raising additional floor in relaxation of ban as there exisied ban on construction of high-rise buildings beyond ground plus four floors. It was further mentioned in the said Reference that in similar other cases absconding accused rejected the request and did not allow additional floors, whereas allowed construction of additional floors to the applicant and showed favouritism to him The applicant as well as absconding accused were holders of public office within the meaning of Ehtesab Act, 1997 (hereinafter to be referred to as "the Act") and the applicant in addition was also a beneficiary. It was further mentioned that by the above Act absconding accused and the applicant misused the powers, ,ommitted corruption and corrupt practices being cognizible within the meaning of the Act and they were accordingly sent up for trial under section 3 read with section 4 of the Act. The relevant record, viz. List of witnesses, gist of evidence and statements of witnesses were also included.
4. I have heard Mr. Abdul Mujeeb Pirzada, the learned counsel for the applicant and Mr. Muhammad Anwar Tariq, the learned Special Prosecutor for the State at length.
5. The learned counsel for the applicant contended that the. Applicant was one of the Directors of M/s. Faiyaz Associates, which had constructed a building on the above mentioned plot main Sharea Faisal and raised ground plus four storeys with permission of K.D.A. He took the plea in the application that since other buildings with ground plus 8 and ground plus 10 storeys were allowed to have been constructed in the surrounding areas, as such he may also be allowed to raise one more floor, i,e, fifth floor over and above the said building. So far the applicant's application is concerned, a summary was prepared on 27-7-1996 and it was disclosed that there was ban on highrise buildings, therefore, the summary was not put up before the abscohding accused and was not passed. He further argued that subsequently ban on highrise buildings was lifted on 20-8- 1996 on the recommendation of 8 members committee, as such it was on 26-8-1996, Jawed Ali Ghori, brother of the applicant, moved an application to Director-General, K.D.A. It was on this application summary was prepared by Controller of Buildings and permission was accorded on 13- 9-1996 by absconding accused, as such there was no ban and the applicant is entitled to acquittal as no offence in terms of the Act has, been committed by him. In support of his contentions, the learned counsel relied upon the case law reported in 1998 M LD 118, 1993 SCM R 523 and 1994 SCMR 792.
6. On the other side, the learned Special Prosecutor vehemently opposed the contentions of the learned counsel for the applicant and argued that the applicant has approached this Court under the above provisions at a premature stage. According to him the charge has been framed against the applicant in which a prima facie case has been made out against him, as such the above applications are not maintainable. He further argued that the applicant had already raised structure of fifth floor and R.C.C. Columns of sixth floor over the existing building of ground plus four floors, as such had constructed the above floors in violation of the ban. First notice was issued to him by Karachi Buildings Control Authority on 6-7-1996, whereby it is said that R.C.C. Columns have been raised on fifth floor without approval over existing ground plus four occupied building on the above mentioned plot by the owner/occupant. Another show-cause notice was issued by Karachi Buildings Control Authority on 25-8-1996 with regard to the same building mentioning that entire construction over fifth floor was completed, whereas R.C.C. Columns were raised on sixth floor without approval. 'The applicant or anyone else on his behalf admittedly did not reply to the above show-cause notices. According to' him the summary was floated by Controller of Buildings on the application of the applicant and its paragraph 3 shows that the applicant has raised structure of fifth floor and R.C.C. Columns of sixth floor over the existing building of ground plus tour floors and it was on this summary that absconding accused allowed the request in the light of the precedents on 13-9-1996. This act on the part 'of the applicant and the absconding accused clearly shows favouritism and illegal construction and as such the above applications merit dismissal. He lastly submitted that none of the documents referred by the applicant's counsel have yet been produced in the evidence as such the same cannot be 'relied unless produced by the concerned officials at the time of trial, therefore, it is a primary stage of the case and as such its appraisal at this stage would highly prejudice the case of prosecution. In support he relied upon the case law reported in 199.9 PCr. LI 166, PLD 1967 Dacca 484 and 1972 SCM R 229.
7. This Reference was sent up for trial against the applicant and the absconding accused. The applicant is facing trial whereas the absconding accused has gone underground. After receipt of the Reference, it was on 2775-1997 charge was framed against the applicant, which reads as under:-- 'CHARGE ' We, Wajihuddin Ahmed,
2. Syed Saeed Ashhad and Mushtaque A. Memon Judges of the Ehtesab Bench of the High Court of Sindh, do hereby charge you accused.
' Dr. Tarique, ex-Special Assistant to Chief Minister Sindh Karachi as under:-- ' That you accused Dr. Tarique being holder of public office within the meaning of Ehtesab Ordinance, 1977 as ex-Special Assistant to Chief Minister Sindh and in addition you were beneficiary also and you in the capacity of owner of Plot No,3-A, Sindhi Muslim. Housing Society, Sharah-e- Faisal applied for permission to absconding accused namely Syed Abdullah Shah, Ex-Chief Minister Sindh for raising additional floor, knowingly that construction of the additional floors over and above fourth floor was banned and. Was also against the buildings control Laws, by abuse of your official position with mala tide and dishonest intention and with a view to make illegal and fraudulent gain and profit for yourself and absconding accused Syed Abdullah Shah, exercised influence in collusion and connivance with the absconding accused Syed Abdullah Shah and got permission from the latter of additional floors vide order dated 13-9-1996.
' That further you accused Dr. Tarique violated the ban and Buildings Control Laws relating to high rising Buildings and raised illegal construction over and above four floors in the said Building and, thereafter, with mala fide and dishonest intention for making illegal, wrongful and fraudulent gains and profits for yourself and absconding accused Syed Abdullah Shah and as such you instigated and persuaded absconding accused Syed Abdullah Shah for the permission for raising additional floors.
' And that you along with absconding accused Syed Abdullah Shah acting in collusion and connivance with each other with mala fide and dishonest intentions to make illegal and fraudulent gains and profits conjointly committed the offence/ offences punishable under sections 3 and 4 of the Ehtesab Ordinance within the cognizance of this Court, and we hereby direct that you be tried by us for the aforesaid offence(s)."
8. In reply to the charge the applicant did not plead guilty and claimed to be tried.
9. Thereafter_ on 31-7-1997, the applicant preferred the above referred application under section 265-K, Cr.P.C. Wherein he has pleaded that the charge is groundless and there is no probability of his being convicted for any offence. Again on 27-11-1997 he preferred another application under section 561-A, Cr.P.C., wherein simply urged for withdrawal of the reference as its continuation would tantamount to abuse of process of this Court.
10. No doubt the Courts are empowered to acquit accused under section 265-K, Cr.P.C. At any stage of the case if it considers that there is no probability of his being convicted of any of the offences. The essential ingredients to exercise such powers are limited only to the cases where there is absolutely no evidence produced by the prosecution at trial and that there would be no possibility of accused being convicted for any of the offence. Irrespective of this, the accused will have to show even from the charge that no prima facie case of any nature has been made out against him. In this particular case the appellant has been charged on three counts. The truthfulness or falsity of such charges can only be determined after the relevant evidence is brought on record.
11. So far the contention of the applicant's counsel that sufficient documentary evidence has been produced by the applicant to establish that the charge is groundless, cannot be considered at this stage of the case mainly for the reasons that such documents cannot be relied upon, firstly as being photocopies and secondly the same have not yet been produced in evidence by the prosecution. .Non-rebuttal of the accusation that the applicant had completed structure on fifth floor and R.C.C. Columns were raised on the sixth floor, in spite of ban, would be another factor which goes against him, as such allowing the applications at this stage will definitely prejudice the case of prosecution which is yet to be produced at the trial. Even otherwise for making a complete justice full opportunity is to be afforded to the parties to adduce their evidence at trial and rejecting the case at pre-trial stage would not meet the ends of justice as required under section 561-A, Cr.P.C. In this case neither the applicant has been able to show that the charge is groundless nor has shown that the proceedings in the case would be abuse of process of Court and would not end in conviction in any manner.
12. The law referred by the leaned counsel for the applicant is on different facts and circumstance and has no bearing with this case, was fleas that referred by the Special Prosecutor is in consonance with the case of prosecution. In the case of The State v. Syed Muzaffar Hussain Shah, reported in 1998 M LD 118, this Court acquitted the accused under section 265-K, Cr.P.C. On the ground that the witnesses examined by the prosecution had not in any way implicated him and the resolution for electrification of road in area in question was tabled by Chairman, District Council, which was carried out unanimously. In another referred car of the applicant, the Hon'ble Supreme Court in the case of the State v. Ashiq Ali Bhutto, reported in 1993 SCM R 523, dismissed the appeal and maintained the acquittal under section. 2654, Cr.P.C. Keeping in view that the proceedings were pending since nearly two decades of the commission of offence. In the third case The State v. Asif Ali Zardari, reported in 1994 SCM R 798, leave to appeal was refused mainly for the reasons that the case had proceeded and the evidence of six prosecution witnesses was recorded and no flaw or legal infirmity was found with the order of High Court quashing proceedings under section 561-A, Cr.P.C.
13. On the other side, a Division Bench of the Lahore High Court in the case of The State v.
Mohtarama Benazir Bhutto, reported in 1999 PCr.LJ 166, refused similar relief and dismissed applications under sections 265-K and 561-A, Cr.P.C. And maintained that prosecution was yet to discharge the onus of proving the allegation after examining the evidence at the trial. And it could not be killed, stifled and guillotined in its inception or incubation and no basis was available to conclude that the charges against accused were baseless. It was also held that the documents referred by the accused were yet to be proved in accordance with law. The questions of immunity, mala fides and selective and discriminatory treatment could not be decided at random being questions of fact and the same could be examined at the trial. In another case of Mohsin Ali and another v. The State, reported in 1972 SCM R 229, the Hon'ble Supreme Court refused to quash the proceedings that the evidence was yet to be led in support of accusation made in the complaint. A Division Bench in the case of Sheikh Mujeeb-ur-Rehman and another v. The State, reported in PLD 1967 Dacca 484, while rejecting quashment of proceedings under section 561-A, Cr.P.C., had observed that the quashment of proceedings would be justified only when allegation even if accepted would not establish offence against the petitioner or where offence even if established was not supported by evidence.
13. Irrespective of above, I am fortified by the decision of the Hon'ble Supreme Court made in the case of Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A.,' reported in 1997 PSC (Cr1.) 454, wherein it has been held that powers under section 561-A, Cr.P.C. Cannot be exercised mechanically or in every case where there is allegation of false implication .Or of the evidence being false. It was further held that exercise of such powers cannot further the ends of justice if an exercise is undertaken at pre-trial stage to determine whether the prosecution evidence likely to come on record was true or false.
14. For what has been discussed above, I am of the considered opinion that the applicant has not been able to make out a case of acquittal at this stage. Accordingly Criminal Miscellaneous Nos.122 and 177 of 1997 do not merit consideration and are dismissed.