1. ' In the instant application under section 561-A, Cr.P.C. Applicant Syed Muhammad Hashim Naqvi seeks quashment of proceedings initiated against him on the basis of F.I.R. 26 of 1996 of A.C.E.
2. Larkana for offence under sections 409, 471, 477-A and 34, P.P.C. Read with section 5(2) Act II of 1947 pending before the Court of learned Special Judge, Anti-Corruption, Larkana.
3. ' Succinctly, the prosecution story as enunciated in the F.I.R. Is that, in the year 1990 above case was registered against the applicant including other accused as per direction of Chief Minister's Inspection and Evaluation Team, Government of Sindh, Karachi. It is stated that Larkana Development Authority had paid an amount of Rs,2,94,51,445 as mobilization advance to eight contractors including the applicant without observing legal formalities. The work carried out by the contractors was found to be defective and substandard. The allegations against the other accused and applicant are that they carried out the work of reconditioning of Larkana Lakhi Road. After the investigation was carried out it transpired that due to lack of supervision and recording of measurements of the imperfect work Rs,190 millions were utilized by the Company of applicant and others on different schemes without lawful authority and fulfilment of conditions of contract.
4. ' After submission of the interim challan names of co-accused (1) Syed Bashir Ahmed Shah, Director, L.D.A., (2) Ghulam Mustafa Abro, XEN, L.D.A., (3) Liaquat Ali Mirani, AEN, L.D.A., (4) Asghar Ali Soomro AEN, L.D.A., (5) Abdul Latif AEN L.D.A., (6) Manzoor Ahmed Qureshi, Contractor, (7)
5. Mushtaque Ali Abbasi, Contractor, (8) Messrs Arif Builders and (9) applicant Muhammad Hashim Contractor were mentioned. After submission of final challan names of Messrs Sachal Engineering Works, Mr. Mushtaque Ali Abbasi, Messrs Arif Builders, Syed Anwar Haider, Aftab Ibrahim, Abdul Hamid and Shakil Pirzada were discharged.
6. ' Applicant Syed Muhammad Hashim Naqvi filed application under section 249-A, Cr.P.C. For quashment of proceedings pending against him in the Court of learned Special Judge, Anti- Corruption, Larkana which was dismissed by the learned trial Court vide order, dated 23-5-2001.
7. Hence he has approached this Court for relief.
8. ' I have heard Mr. Muhammad Ayaz Soomro learned counsel for the applicant as well as Mr. Muhammad Bachal Tunio, Additional Advocate-General for the State.
9. ' It is contended by the learned counsel that the applicant is a Contractor and he has been involved in the case on the allegation that raw material was used while constructing the High Court Building Circuit Court Larkana and below specification work was carried out in reconditioning of Larkana to Lakhi Road. He, while clarifying the above position, submitted that before the F.I.R. Was lodged the possession of the plot for construction of High Court was not handed over to him due to the reason, the demolition of old structure and legal formalities were to be completed. He submitted that after registration of F.I.R. The possession of plot was handed over to applicant hence no question arises regarding imperfect work. He submitted that the applicant was allowed the work of reconditioning of three reaches viz. Base course, brick edging, 2 coat of surface dressing and earth work but due to lack of funds it was not completed within due period and he approached for the release of funds to concerned authorities but all in vain. In this regard, learned counsel has placed on record Photostat copies of the letters written by the Director-General, Larkana Development Authority to the concerned quarters for the release of funds. He submitted that the sections applied in the F.I.R. Are for misappropriation, falsification of accounts and using of forged documents, while the applicant is a contractor and he has got no concern. In order to substantiate his arguments he has placed on record a certificate issued by Executive Engineer Highway Division, Shikarpur regarding no advance payment/dues outstanding against the applicant. He further submitted that Syed Anwar Haider the then Commissioner has been let off by police and the proceedings against Syed Bashir Ahmed the then Director-General, Larkana Development Authority has been quashed by the Honourable High Court of Sindh vide order, dated 26-4-2001 in Criminal Miscellaneous Application No,333 of 1999 and as per rule of consistency proceedings against the applicant are liable to be quashed.
10. ' I have also perused the order, dated 26-4-2001 passed by Faiz Muhammad Qureshi, J. (as he then was) allowing the Criminal Miscellaneous Application No,333 of 1999 of co-accused Bashir Ahmed Shah and the proceedings were quashed. The learned Judge while allowing the application has given his findings as under:- ' I am in full agreement with the contentions of the learned counsel for the applicant that sections 409, 477-A and 471, P.P.C. Were not applicable in the instant case and it is not a case of misappropriation, falsification of accounts and using of forged documents. If the case is proceeded against the applicant on the charges as mentioned in the contents of challan copy, no offence is made out under sections 409, 477-A, and 471, P.P.C. And the proceedings before the trial Court would amount to the abuse of process of law and charge will be groundless..."
11. In this regard I am fortified with the view taken by Honourable Supreme Court in the case of Muhammad Afzal alias Bodi v. The State 1979 SCM R 9 where on the principle of rule of consistency bail was granted to co-accused. The observations made therein are as under:-- "Without going into the merits of the case and the various rulings mentioned in the petition for leave to appeal requiring our consideration and interpretation, we think that the petitioner should be released on bail on the principle of requirement of consistency in the same case and for the similar reason that the co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court. This petition is, accordingly, converted into an appeal and disposed of as such....."
12. ' In this regard, reference can be made to Aurangzeb alias Ranga v. The State 1991 PCr.LJ 1299. In this matter accused were released and acquitted by the High Court. The appellant in this case filed an appeal through jail. It was contended that the case of the appellant was identical to the other co- accused who were acquitted, hence it was held that based upon the rule of consistency and since all the facts and grounds were identical, therefore, the present appellant should also be released as there was no justification for allowing him to languish in jail.
13. In the above cited cases and scores of other citations not only of the Honourable Supreme Court but also of the various High Courts in Pakistan, it has been consistently observed that where on identical facts and grounds one person has been given the concession of bail, therefore, the denial of the concession to another should not be done. If this philosophy was to be looked at and unless it is proved otherwise it should also be followed and adopted in respect of quashment proceedings. Moreso, in those type of cases where the number of accused have been let off at various stages and this very Court has quashed the proceedings in respect of another main accused then for all practical purposes the case is finished. To allow the case to continue against a person who is allegedly supposed to have benefited from the activities of the main accused would be to my mind an exercise in futility. In fact it would amount to simple abuse of due process of law and harassm ent of an individual against whom on the face of it considering the documents on the Court file there does not seem to be any case.
14. ' It is an admitted position that accused Syed Anwar Haider the then Commissioner has been let off by police and the proceedings against Syed Bashir Ahmed Shah the then Director-General Larkana Development Authority, has been quashed by this Court. Moreso, during investigating other co- accused Messrs Sachal Engineering Works, Mr. Mushtaque Ali Abbasi, Messrs Arif Builders, Aftab Ibrahim, Abdul Hamid and Shakil Pirzada were released and co-accused Muhammad Hanif has been released by the learned Court under section 249-A, Cr.P.C. I am afraid, the main accused has been absolved from the proceedings of the case and what would be the result of proceeding against the present applicant against whom the allegations of similar nature has been levelled.
15. The case of applicant is on better footings to that of co-accused who has been released. No fruitful result would come if the applicant is confined to remain in litigation. From the bare reading of charge-sheet no offence under sections 409, 477-A and 471, P.P.C. Is made out against the applicant for misappropriation, falsification of accounts and using of forged documents.
16. ' Pursuant to the foreging discussion, I allow the application, the proceedings pending against applicant Syed Muhammad Hashim Naqvi in the Court of Special Judge, Anti-Corruption, Larkana are hereby quashed. Applicant is on bail, his bail bond and surety stand discharged.
17. ' Criminal Miscellaneous Application No,132 of 2001 stands disposed of alongwith listed application.