2007 PLP 1159 (MLD)

NADEEM AZHAR SIDDIQI, J.

The applicant by this application has prayed that proceedings pending against him arising out of Crime No. 174 of 2005 of P.S. Shandadkot under sections 420, 416, 463, 464, 468, 470 and 471, P.P.C. may be quashed. The facts necessary for the disposal of the application are that National Database Registration Authority has lodged the F.I.R. against Mushtaque Ali son of Ahmed Ali Chandio for fraudulently obtaining forged double computerized National Identity Card. The allegation against the applicant is that he has attested the fake and forged information given by accused Mushtaque Ali in the prescribed CNIC Form and has committed an offence under section 30(f) of the National Database Registration Authority Ordinance, 2000 as well as the above sections. The learned counsel for the applicant has submitted that the applicant is a respectable person, doctor and is a government servant and attested the form in good faith without knowing that the accused Mushtaque Ali already possessed one CNIC. He contended that neither the person who has lodged the F.I.R. is authorized nor the police is competent to register any F.I.R. in terms of section 31 of the NADRA Ordinance, 2000. He further contended that applicant has not committed any offence in terms of section 30(1) of the NADRA Ordinance or there is no allegation against the applicant that he attested or verified any statement or information made or furnished for the purpose of this Ordinance which he knows or has reason to believe to be false. He further contended that police conscious of the fact that they cannot lodge F.I.R. of an offence provided in a special central laws has only registered the case under the provisions of the Pakistan Penal Code. He further contended that there is no possibility of conviction of the applicant and keeping the proceedings pending against the applicant amounts to abuse of process of the Court. The learned counsel relied upon the following reported cases.

1. Maqsood Ahmed Khan v. The State 2002 MLD 311.

2. Bashir Ahmed v. State 2002 MLD

746. The learned Additional Advocate-General has in his usual fairness manner frankly submitted that there is no allegation against the present applicant that he had attested the form knowingly that the particular furnished were false or that he had reason to believe that the same are false. He has further submitted that the remedy provided under section 31 is to file direct complaint and not F.I.R. and that procedure has been bye-passed. He further submits that the sections of P.P.C. under which the case was registered are not applicable to the present applicant and there is no possibility of his conviction. I have heard the learned counsel for the parties and perused the record made available before me as well as the case law cited at the bar. The High Court in exercise of jurisdiction under section 561-A can quash the proceedings where the case is of no evidence at all or where as a matter of law there could not be any possibility of conviction of the applicant/accused and that continuance of the proceedings before the Trial Court would be futile exercise, wastage of time and abuse of process of Court. If on the basis of facts admitted on record no offence can be made out then it would amount to abuse of process of Court to allow prosecution to continue with the trial. I have examined the present case on the touchstone of the above principals laid down by the superior Courts. The F.I.R. was registered under provisions of P.P.C. and not under section 30(1) of the NADRA Ordinance as such I will not dilate upon the contention of the learned counsel that the person lodged the F.I.R. has no authority and the police is not authorized to register case under section 30 in view of section 31 of the NADRA Ordinance. As far as the second contention of the learned counsel that no offence under section 30(f) has been committed by the applicant it is suffice to say that since the F.I.R. was not registered under section 30(f) of NADRA Ordinance there is no charge upon the applicant. Now I will examine the offences under which the F.I.R. was registered. From the perusal of the F.I.R. it reveals that the allegation against the applicant is general in nature and applicant was not charged with offences under Pakistan Penal Code and no allegation has been made against the applicant that he has committed cheating or prepared forged documents with the intention of cheating or personation. Since no allegation of cheating, forgery and personation were levelled against the applicant there is no possibility of his conviction. The allegation against the applicant is that he has committed offence under section 30(f) of the NADRA Ordinance, 2000. Although the F.I.R. was not registered under section 30(f) of NADRA Ordinance, 2000, even if it is presumed that F.I.R. was registered under the said Ordinance no case has been made out as the ingredients for such offence are missing from the F.I.R. Before proceeding further it would be appropriate to reproduce section 320(2)(f) of NADRA Ordinance, which reads as under:-- "(2) Any person who

??????????? (a)

???????? ??????????? (b)

??????????? (c)

????????? ??????????? (d)

??????????? (e)

? (f) who attests or verifies any statement or information made or furnished for the purpose of this Ordinance which he knows or has reason to believe to be false in any material particular or which he does not believe to be true, shall, in addition to any other penalty to which he may be liable under any other law, be punishable with rigorous imprisonment for a .term which may extend to one year, or with fine not exceeding one hundred thousand rupees, or with both:" Considering the allegation levelled in the F.I.R. against the applicant Dr. Zahid Hussain Mirani in juxtaposition with the section 30(2)(f) of the NADRA Ordinance, reproduced above, prima facie, no case is made out against the present applicant, as according to the F.I.R., there is nothing that the applicant had the knowledge about issuance of first NIC in the name of co-accused Muhstaq or to say that he had reason to believe that the statement or information made or furnished before the applicant was false in any material particular. From the contents of F.I.R. it cannot be said that the applicant had knowledge about the previous NIC of co-accused Mushtaq and it appears that the present applicant had attested the document showing magnanimity. Furthermore to establish a case under section 420, P.P.C. there should be clear allegations to the effect that applicant is a guilty mind from the very outset and knowingly committed offence, which allegations are missing in the F.I.R. in a reported case, Sadruddin A. Gangji v. The State 2005 YLR 2737 Hon'ble D.B. of this Court while dealing a case of quashment has held as under:-- "It would be seen that the principles regarding quashment of legal proceedings by the High Court are very clear viz. this can be done where the case is of no evidence at all or where as a matter of law there could not be any possibility of conviction of the Accused. To keep a case lingering on in the above circumstances would amount in fact to an abuse of the process of the Court." In another case reported as Miraj Khan v. Gul Ahmed 2000 SCMR 122, the Hon'ble Supreme Court while dealing with quashment held as under:-- "The main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out then it would amount to abuse of process of law, to allow he prosecution to continue with the trial." From the above discussion it is clear that no case has been made out against the applicant and to allow proceedings to be continued before the learned trial Court against the applicant would amount to abuse of the process of the Court. Hence the proceedings arising from crime No. 174 of 2005 of Police Station Shandadkot are quashed against the applicant. This criminal miscellaneous application is allowed in the above terms. H.B.T./Z-8/K?????????????????????????????????????????????????????????????????????????????????????? Proceeding quashed.