2004 P Cr (PLP)

2. This case is registered on behalf of State under the orders of competent authority, vide letter No.ADH/2000/R/5578-79, dated 9-5-2003, as per approval granted by ACC-II, Mirpurkhas, held in its meeting dated 26-4-2000, as a result of enquiry, conducted into Complaint No. 141 of 1995 of ACE, Sanghar. The matter was taken up on the applications of Hussain son of Magraj resident of Deh Khori Taluka Khipro and Muhammad Arab son of Allah Obhayo Rajar resident of Goth Sirawana Taluka Khipro, District Sanghar. The applicants alleged that there is area of Forest Officer, Sanghar at Khipro and one Mubeen son of Abdul Karim Mangrio in collusion with the Tapedar of the beat and Mukhtiarkar, Khipro prepared false documents for the grant of area 52-0 acres in the name of Abdul Karim son of Sanjar Khan Mangrio and got the same disposed of fraudulently and caused loss to the Government.

3. During the course of verification and enquiry applicant Hussain was examined, who has produced the photo copies of relevant documents, alongwith photo copy of certificate of the Divisional Forest Officer, Afforestation Division, Sanghar @ Khipro; that the disputed land in Survey Nos.343, 341, 342, Cr.P.C., 344, 353, 345 and 355 Deh Khori Taluka Khipro are that Government reserved forest land declared vide Government Sindh Notification No.R-10456-H(b)/44, dated 27-11-1947. Examined Khamiso Khan, son of Abdullah Mangrio present Tapedar Tape Khori Taluka Khipro, who produced the photo copies of record of rights and made inquiries from one Abdul Sattar son of Muhammad Hassan Chandio, Head Clerk office of the D.F.O. Sanghar @ Khipro who has stated that the disputed land is a reserved forest land. Enquiry was made from Divisional Forest Officer, Afforestation Division, Sanghar @ Khipro, who under his letter No.G-II(b)/447, dated 12-9-1995 stated the disputed land in Deh Khori Taluka Khipro and other areas were declared as Government Forest reserved land and is in their possession till to date. During the course of enquiry it has been ascertained that the Government Forest land in Serial Nos.34/1, 2, 3, 4, 5, 342/2, 3, 4, 343, 2, 3, 344/1, 3, 4, 354/1, 2, 55/1, 2 and 353/1, 2 in Deh Khori Taluka Khipro measuring 52-0 acres, originally belonged to Forest Department and that alleged Tapedar Muhammad Uris Kerio the then Tapedar Deh Khori Taluka Khipro and Qadir Bux Bhatti, the then Mukhtiarkar Taluka Khipro knowingly and having reason to believe that it was a Government Forest land, they in connivance with one Abdul Karim son of Sanjar Khan kept forest Entry No.173, dated 22-11-1993, Deh Form 7-B in favour of Abdul Karim son of Sanjar Khan on the basis of forged T.O. Form No.40, dated 7-8-1993 and forged letter No.6510, dated 8-8-1993 of L.O., Sukkar Barrage.

4. Subsequently, Abdul Karim son of Sanjar Khan sold out this land to Abdul Ghafoor and Hayat son of Yousif in equal shares under registered sale-deed. The sale Entry No.178, dated 19-3-1994 was kept by Tapedar Muhammad Uris Kerio in Deh Form VII-B. the Barrage Authorities have also confirmed that no any T.O. Form No.40, dated 7-8-1993 was issued by them under the circumstances, it proved that the alleged Tapedar Muhammad Uris Kerio and Qadir Bux Bhatti the then Mukhtiarkar, Taluka Khipro to collusion with private person Abdul Karim son of Sanjar Khan made false Entries No. 173, dated 22-11-1993 in V.F. VII-B on the basis of forged T.O. Form No.40, dated 7-8-1993 and letter No.6510, dated 8-8-1993 of T.O., Sukkur Barrage and thereby caused heavy loss of 52-0 acres of land of Forest Department and caused wrongful gain to Abdul Karim. Thereby committed offences punishable under sections 420, 467, 468, 471 and 34, P.P.C. read with section 5(2), Act II of 1947. Hence this F.I.R.

5. The applicant/accused moved application before the trial Court under section 249-A, Cr.P.C. for acquittal. The same was dismissed by impugned order, dated 20-2-2003.

6. I have heard Mr. Qurban Ali H. Chohan learned counsel appearing on behalf of applicant/accused. He has relied upon unreported order in Criminal Miscellaneous Application No.224 of 2001 (Shah Nawaz Junejo v. The State and unreported order passed in Criminal Miscellaneous Application No.135 of 1998 (Muhammad Yaseen and others v. The State and another).

7. I have also heard Mr. Rasheed A. Qureshi learned Assistant Advocate-General on behalf of State. The latter has supported the impugned order.

8. The perusal of material placed on record shows that the applicant/accused being Mukhtiarkar in collusion with co-accused Muhammad Uris Tapedar changed the record of rights of agricultural land measuring 52 acres belonging to Forest Department in the name of one Abdul Karim Mangrio on the basis of forged T.O. Form bearing No.40, dated 7-8-1993 and a forged letter No.6510, dated 8-8-1993 issued by L.O. Sukkur Barrage. Subsequently, the said Abdul Karim sold out the land to one Abdul Ghafoor and Hayat. The case has not been proceeded so far. It is well-settled that the power given by section 561-A, Cr.P.C. to be exercised sparingly looking towards the peculiar facts and circumstances of each case and not as a matter of routine. It cannot be utilized to divert the ordinary course of Criminal Procedure Code. In the case of Agha Ghazanfar Ali v. Shaukat Ali and another reported in 1996 SCMR 509 it was held by Honourable Supreme Court that the mens rea and whether the offence of cheating was committed or not is to be decided by the trial Court after evaluation of evidence brought before it and the order of High Court with regard to dismissal of quashment proceedings was upheld. In the case of Habib Ahmed v. M.K.G. Scott Christian and 5 others, reported in PLD 1992 SC 353 it was held by honourable Supreme Court that if prima facie the offence had been committed, justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand if the evidence against accused disclosed prima facie case then justice clearly requires that the trial should proceed according to law. The inherent jurisdiction of the High Court is not an alternate or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C. can certainly, not to be so utilized as to interrupt or divert the ordinary course of Criminal Procedure as laid down in the procedural statutes. The High Court would not in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law. In the case of Altaf Hussain v. Abdul Samad and others reported in 2000 SCMR 1945 and in case of The State v. Asif Ali and another reported in PLD 2001 SC 536 it was observed by the apex Court that powers under section 561-A, Cr.P.C. are not meant to stifle the prosecution case, as to interrupt or divert the ordinary course of Criminal Procedure as laid down in the procedural statute, but instead prosecution is to be allowed opportunity to prove it. The citations relied by the learned counsel appearing on behalf of the applicant/accused are distinguishable to the facts and circumstances of the present case. Resultantly looking towards the peculiar facts and circumstances of present case the criminal miscellaneous application for quashment of proceedings is dismissed. H.B.T./Q-40/K Application dismissed.