1982 P Cr (PLP)

In the civil suit filed earlier by Hasan Shahid against Mohammad Yunus issues have been framed and evidence have been recorded.

14. That in the meanwhile elections were held in the society and new Managing Committee emerged causing thereby removal of the administra tor from the helm of affairs and one Abdul Malik was elected as Honorary Secretary of the said Society as a result of elections. However this gentle man misembarked upon a chain of misdeeds and misconduct, duplication in allotments tampering of the Society's record, defalcation, etc. where upon a show‑cause notice was issued to him under rule 48 of the Co‑opera tive Societies Rules on 4th April,. 1975 and finally the Deputy Registrar once again superseded the Managing Committee on 25th April, 1975 and a new administrator Shamsuddin Bhudwani was appointed. This gentleman did not surrender the record of the Society nor handed over the charge of the administrator as required and absconded, wbereafter another show cause notice was issued to him, under section 4‑A of the Ca‑operative Societies Act on 18th June, 1975.

15. That one Shah Mohammad son of not ascertainable was and still is in Office of Karachi Police (this Shah Mohammad was a party to this quashment application as respondent ho. 2 and his name has been deleted from the application by an older passed blk Mr. Justice G. M Shah after admission of this quashment application). Once this Police Officer happened to be posted as Sub‑Inspector of Police at Liaquatabad Police Station and unfortunate]), the applicant No. 1 who happened to incur the enmity of the said Police Officer, who by abusing his official status had admitted to pressurise the applicant No. 1 to give admission to some children of‑ Police Officers in higher classes, without qualification of the lower classes, in the Schools being managed at Liaquatabad by the Education Society of which the applicant No. 1 was and still is the Honorary Secretary.

16. During the administratorship of Mr. Shamsuddin Bhudwani some complaints by the members of Roshan Bagh Co‑operative Housing Society were sent to D.

1. G. Police Crimes Branch Karachi, which were assigned to Mr. Shan Mohammad, who was then the D. S. P. in the Crime Branch. During the course of enquiries Shah Muhammad incidentally came to know about the association of the applicant No. 1 with the said Housing Society and thus be found an opportunity to avenge himself upon the applicant No. 1.

17. That is also so happened that Hasan Shahid the resent owner of the plot bearing No, 71‑B reported a criminal case under section 447, P. P. C. to Gulberg Police Station, which was investigated by Sub-Inspector Mohammad Sadiq. In this criminal case Mohammad Yunus was arrested and a case was challaned. Mohammad Yunus made an application to police authorities against Hasan Shahid and Sub‑Inspector Mohammad Sadiq. This application was also assigned to D.S.P. Shan Mohammad for purposes of enquiry. D.S.P. Shan Mohammad manipulated this application to suit his pre‑conceived designs and got a criminal case registered, vide F. I. R. No. 12 of 1977 dated 10th January. 1977, under section 420/471/120‑B, P. P. C. read with section 5 (II) of the Prevention of Corruption Act, through his subordinate Inspector Afzal Hussain allegedly on the basis of so‑called application of Mohammad Yunus.

18. That after the registration of the said criminal case D.S.P. Shan Mohammad himself took up the investigation from his subordinate Inspector Afzal Hussain and on 28th January 1977 sent a notice to the applicant No. 1 summoning him as an accused for purpose of investigation, although no grievance in the application was voiced against the applicant No.

1. The applicant No. 1 and other persons namely Hasan Shahid, Irshad Hussain, Jamil and Azizur Rehman alleged to be involved in the said criminal case appeared Wore D.S.P. Shan Mohammad and gave their statement and also supplied the relevant documents relating to the pro ceedings already pending in the Court of competent jurisdiction in con nection with the said case. In this connection it is further submitted, that immediately after the registration of the criminal case vide F.I.R. No. 12 of 1977 the applicant No. I apprehending his false and malicious arrest and humiliation at the hands of D.S.P. Shan Mohammad rushed to the learned Court of senior Special Judge Anti‑Corruption at Karachi and obtained bail before arrest. Azizur Rehman applicant No. 2 Jamil Ahmad were arrested by the police and subsequently released on bail by the Court. D.S.P. Shan Mohammad was additionally annoyed by the applicant No. 1, on his being able to obtain bail before arrest.

19. That subsequently D.S.P. Shan Mohammad was transferred from the Crimes Branch of Police to Anti‑Corruption Establishment as a D.S.P. The investigation of the criminal case, vide F.I.R. No. 12 of 1977 was resumed by his successor in office, in the crimes branch of the Police.

20. That p.S.P. Shan Mohammad was determined to take revenge from the applicant No.

1. He managed and manipulated to obtain yet another complaint, substantially based on same allegations as contained in F. I. R. 12 of 1977 from the so‑called complainant Mohammad Yunus and thereby succeeded in securing the case papers of the said criminal case which was under investigation by the Crimes Branch of Police, and thus D.S.P. Shan Mohammad started once again causing harassment to the applicant No. 1.

21. That in the meanwhile the Crimes Branch had completed in vestigation in the case and submitted a report under section 169, Cr. P. C. to the Court of Special Judge Anti‑Corruption at Karachi.

22. That anticipating the result of investigation and the course being taken by the Crimes Branch its connection with F.I.R. 12 of 1977, D.S.P. Shan Mohammad hurriedly got, another case substantially on the same allegations registered at Anti‑Corruption Establishment, vide F.I.R. 44 of 1979 dated 14th November, 1979 and himself became the complainant. The allegations made in F I R 44 of 1979 are substantially the same as levelled in F.I.R. 12 of 1977.

23. That under the circumstances the applicant No. 1 once again rushed to the Court of Senior Special Judge Anti‑Corruption Karachi and obtained interim bail before arrest and thereafter the interim bail was confirmed by the Court of Special Judge Anti‑Corruption at Karachi. So also Azizur Rehman.

24. That the Crimes Branch Police submitted a final report under section 169, Cr. P. C. to the Court of learned Special Judge Anti -Corruption at Karachi in connection with F.I.R. 12 of 1977, which report was considered and approval by the learned Special Judge and the applicant No. 1 and other persons were discharged and their surety bonds concelled and documents returned to their sureties in connection with F.I.R. 12 of 1977.

25. That the applicants were being harassed under the false colour of so‑called investigation in connection with F.I.R. 44 of 1979, although the allegations contained in this F.I.R. were found baseless by the Crimes Branch Police, who had submitted a final report in the Court of Special Judge, who has approved the same. Under the circumstances the appli cants have filed the above quashment application against the mala fides of police investigation, which was admitted on, 8th April, 1980.

26. The applicants above named have challenged the maintainability of the present proceedings against them, in the Court of Special Judge, Anti‑Corruption (Provincial) Karachi, on the basis of F.I.R. No. 44 of 1979 dated 14th November, 1979, on the grounds mentioned in the memo of above petition.

27. The learned Advocate for the applicants in support of the above petition submitted as under :‑ (a) That no proper and legal sanction in respect of applicant No. 1 has been obtained by the prosecution, in the proceedings which are pending at present and as such on this ground alone the said pro ceedings are liable to be quashed. (b) That F.I.R. No. 44/79 was filed mala fidely, simply to harass the applicants, and as such the above application is maintainable and the case reported in P L D 1979 S C 94 is not applicable to the present proceedings. (c) That basically dispute between the parties is a civil dispute and civil litigation in this connection is pending between the parties and as such the initiating of the proceedings in question, amounts to abuse of the process of the learned trial Court.

28. The above petition was taken up today when I heard the learned Advocate for the applicants. No one was present on behalf of the State. I have gone through the F.I.R. in question as well as through the other annexures filed with the above petition and have taken into consideration the various submissions made by the learned Advocate for the applicant.

29. I find F.I.R. 12 of 1977 dated 10th January 1977 and F.I.R. 44/79 dated 11th November, 1979 basically contain the same facts. I further find, that the proceedings initiated under F.I.R. 12/77 on the basis of report under section 169, Cr. P. C. were filed, vide order dated 9th February, 1980 of the Special Judge Anti‑Corruption, Karachi. Copy of the said report and orders thereon are available on the file of the above petition at pages 117 and

119. The appraisal of both the F.I.Rs. and copy of the report under section 169, Cr. P. C. clearly shows mala fide intention on the part of the complainant to harass the applicants and coerce them for settlement in respect of civil dispute over immovable property in which Suits Nos, 923/76, 1502/76 and 2208/76 are pending between the parties in competent civil Court. Therefore I am of the opinion that the above petition is maintainable and the case reported in P L D 1970 S C 94 as well as P L D 1982 S C 101. do not bar maintainability of the above petition.

30. In view of my above conclusions, that F.I.R. No. 44/79 is basically the same as F.I.R. 12/77, the proceedings under the latter were dropped, with the approval of the Special Judge Anti‑Corruption Karachi, as hereinabove mentioned, the initiating of the present proceedings pending against the applicants, in my opinion amounts to abuse of the process of the learned trial Court and were filed simply to put pressure on the applicants, to settle civil litigation pending between the parties in compe tent civil Court and with mala fide intention to harass the applicants, A specially applicant No. 1, prima facie, by D.S. P. Shan Mohammad, the complainant in F.I. R. 44/79.

31. Therefore I allow the above petition and quash the proceeding pending against the applicants, in the Court of Special Judge, Anti‑Cor ruption (Provincial) Karachi, under F.I.R. 44/79 dated 14th November, 1979, as initiating of the said proceedings in my opinion, amounts to abuse of the process of the said learned trial Court and consequently I discharge the bail bonds executed by the applicants. Proceedings quashed.