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Criminal Miscellaneous Nos. 192‑Q and 213/Q of 1985, decided on 2^nd February, 1986.

‑‑‑---S. 561‑A‑‑Penal Code (XLV of 1860), S.468/467/471/379/109‑ Prevention of Corruption Act (II of 1947), S. 5(2)‑‑Quashing of proceedings‑‑Challan sent by Government to Special Judge against public servant and private persons‑‑Special Judge, finding that no case was made out against public servant and prima facie case was made out against private persons, sending case of ‑private persons to Sessions Judge for their trial by Court of competent Magistrate‑‑‑ Challan with accompanying papers against accused sent by Government after due scrutiny for trial‑‑Special Judge making no error in sending case to Sessions Judge and his orders suffering from no illegality‑‑Petition for quashment of case against private accused, held, was without merit and dismissed.

Bashir Baig v. The State 1984 P Cr. L J 816 rel.

Muhammad Ashraf Azeem for Petitioners.

Rehmat Ali Malik for A.‑G. for the State.

Date of hearing: 20th January, 1986.

This judgment will dispose of quashment petition Criminal Miscellaneous 180‑Q of 1985 filed by Nazir Ahmad, petitioner, quashment petition Criminal Miscellaneous 192‑Q of 1985 filed by Muhammad Siddique, petitioner, and quashment petitions Criminal Miscellaneous 193‑Q of 1985 and Criminal Miscellaneous 213‑Q of 1985 filed by Nazir Ahmad, petitioner, for the quashment of criminal proceedings pending against them in four different cases before Mr. Muhammad Rafiq, Magistrate Section 30, Faisalabad.

2. The brief facts of the case are that an F.I.R. No. 4 was registered at Police Station Directorate, A. C. E., Lahore, on 21‑1‑1981 with regard to certain irregularities, fraud and embezzlement committed concerning allotments of plots and engineering works in respect of the Area Development Scheme of Chak No. 213‑R.B., Faisalabad. Out of the said F.I.R., a number of cases were instituted in the Court of the Special Judge Anti‑Corruption against public servants and private persons. Out of these cases were the present four cases, in which a number of Government servants and private persons, including the present petitioners, were involved under section 468/467/471/379/109, P.P.C. and section 5(2) of the Prevention of Corruption Act. The learned Special Judge, A.C.E., by his separate judgments, dated 19‑2‑1985, 7‑5‑1984, 29‑4‑1984 and 28‑4‑1985, respectively, found no case made out against the public servants, but as regards the private persons, held that they had committed offences which were not triable by him, but by the ordinary Magistrate. He, therefore, acquitted the public servants, but sent the cases to the Sessions for entrustment to a competent Magistrate for trial against the private persons. In holding this view, the learned Judge relied upon Bashir Baig v. The State 1984 P Cr. L J 816. Pursuant to the said judgments, the files were sent to the Court of Sessions and the learned Sessions Judge entrusted the said four cases to a Section 30 Magistrate at Lahore, where the same are pending. Being aggrieved by the said judgments of the learned Special Judge, A.C.E., the present petitioners filed four quashment petitions before the High Court, which are now before me for disposal. In one of these cases (covered by quashment Petition 180‑Q of 1986), Wahid‑ur‑Rehman preferred an appeal (Criminal Appeal No. 250 of 1985) before the High Court, which was partly accepted by a learned Single Judge of this Court, on 20‑11‑1985, to the extent that he set aside the direction of the learned Judge for retrial of the private persons who were accused, with the direction that the matter should be left to the discretion of the State.

3. I now take up quashment petition Criminal Miscellaneous 180‑Q of 1985. In the judgment of this Court passed in Criminal Appeal (Criminal Appeal No. 250 of 1985) preferred, by Wahid‑ur‑Rehman, co‑accused, a learned Single Judge of this Court set aide the direction of the learned Special Judge, A. C. E. for retrial of the said appellant and Nazir Ahmed, the present petitioner, with the observation that the matter should be left to the discretion of the State whether to prosecute the said two persons or not. This judgment applies to Nazir Ahmed, the present petitioner. In these circumstances, for the purposes of maintaining consistency, I would dismiss this petition, but would add that the observation contained in Criminal Appeal No. 250 of 1985 may be treated as also applicable to Nazir Ahmed, the present petitioner.

4. I now take up quashment petition Criminal Miscellaneous 192‑Q of 1985. In this case the learned Special Judge found that the accused, who were public servants, were not at all liable for any of the offences imputed to them. However, as regards Muhammad Siddique, petitioner, he found that prima facie the evidence of Muhammad Hanif P.W. showed that he (the petitioner) was the Estate Agent who had duped the said witness of Rupees Fifty‑five Hundred (Rs.5,500) and delivered to him the forged allotment letter Exh. P.A. and the forged possession slip Exh.P.C./2 purporting to show that Plot No. 28‑X‑26 had begin allotted and delivered to the said witness, whereas in reality it was not so. Since in the said offences of cheating, forgery etc., the public servants were not involved, Muhammad Siddique, petitioner, was held liable for trial by the Court of a competent Magistrate. Since the challan with the accompanying papers against both the public servants and the private person (i.e. the petitioner) had been sent by the Government, after due scrutiny, for trial, the Special Judge was not in error in sending this case to the Sessions for entrustment to the competent Court for the trial of the petitioner. The order of the learned Special Judge, A.C.E. suffers from no illegality. There is, therefore, no merit in this petition.

5. I now turn to quashment petition Criminal Miscellaneous 193‑Q of 1985. 1n this case, the learned Special Judge, A.C.E. found that the accused, who were public servants, were not at all liable for any of the offences imputed to them. However, as regards the five persons, including Nazir Ahmed, petitioner, he found that prima facie the evidence against the petitioner disclosed that he was the person who had forged certain papers and secured the allotment of Plot No. 18‑Y‑12 in the Development Scheme of Chak No. 213‑R. B. Faisalabad, which originally had been allotted to one Abdul Rashid, and by introducing some fake person to impersonate the allottee; had also secured the possession of B the plot. Since in the said offences of cheating, forgery etc., the public servants were not involved, Nazir Ahmed, petitioner, was held liable for trial by the Court of a competent Magistrate. Since the challan with the accompanying papers against both the public servants and the private persons (including Nazir, petitioner) had been sent by the Government, after due scrutiny, for trial the Special Judge was not in error in sending this case to the Sessions for entrustment to the competent Court for trial of the offenders. The order of the learned Special Judge suffers from no illegality. In this view of the matter. there is no merit in this petition.

6. I now turn to quashment petition Criminal Miscellaneous 213‑Q of 1985. In this case, the learned Special Judge, A.C.E. found that the accused, who were public servants, were not liable at all for any of the offences imputed to them. However, as regards Nazir Ahmed petitioner, he found that prima facie the evidence against him disclosed that he had substituted some other person for one Ghulam Nabi, who was allotted Plot No. 20‑Y‑104 in Chak No. 213‑R. B Scheme, prepared a general power of attorney purportedly in the name of the allottee, got a false identity card by submitting an application form and thus, facilitated the delivery of the allotment order and the possession of the plot to some other person impersonating as the original allottee. Since in the said offences of cheating, forgery etc., the public servants were not involved, Nazir Ahmed, petitioner, was held liable for trial c by the Court of a competent Magistrate. Since the challan with the accompanying papers against the public servants and the private person (i.e. the petitioner) had been sent by the Government, after due scrutiny, for trial, the Special Judge was not in error in sending the case to the Sessions for entrustment to the competent Magistrate for trial. The order of the learned Special Judge, A.C.E. suffers from no illegality. In this view of the matter, there is no merit in this petition.

7. For the forgoing reasons, quashment petition Criminal Miscellaneous 180‑Q of 1985 is dismissed in limine, with the observation, as stated above and quashment petitions Criminal Miscellaneous 192‑Q of 1985, Criminal Miscellaneous 193‑Q of 1985 and Criminal Miscellaneous 213‑Q of 1985 are dismissed in limine, without any such observation, but with the remark that in case, the Public Prosecutor or the petitioners desire to move Government for the withdrawal of the cases, nothing herein contained shall prevent them from doing so.

M.Y.H. Petition dismissed.

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