2005 PLP 152 (YLR)

And while granting such declaration, the Honourable Court may be pleased to restrain the defendants 1, 2 or any one representing through them or on their behalf from adopting any coercive action against the plaintiff on basis of F.I.R. No.Appg-36/ DCI of 2004, dated 13-8-2004 (Annexure "C"). And while granting such declaration and injunction, the Honourable Court may be graciously pleased to pass a decree in favour of the plaintiff and against the defendants 1, 2 and 4 jointly and/or in a sum of Rs.100 million with up to date mark-up at 14% from the date of filing of this suit, till the satisfaction of the decree. The plaintiff also prays for the costs of the suit and any other relief which this Honourable Court may deem fit and proper in the circumstances of the case. " While examining the plaint, office raised an objection regarding the maintainability of the suit being barred under sections 42 and 56 of the Specific Relief Act. In view of the request made by the learned counsel for the plaintiff, matter has been placed in Court for examining this legal aspect. It is an admitted position that a report being F.I.R. C No.Appg-36/DCI of 2004, dated 13-8-2004 has been registered at the instance of complainant Ashfaq All Khan, Intelligence Officer, Directorate General of Intelligence & Investigation (Customs & Excise), Karachi, against a number of accused out of which three have been named as (1) Farooq-e-Azam Cheema, (2) Malik Riaz (present plaintiff), and (3) Muhammad Zahid, apart from other officers of the Customs Department allegedly involved in the crime. The offences allegedly committed by the accused are shown to be under sections, 2(s), 16, 19, 91, 104, 107, 114, 116, 117 of the Customs Act, 1969, punishable under Clauses 10-A, 14-A, 51, 52, 53, 54, 58, 59, 61, 89, 90, 157(2) and 156(1) of the Customs Act, 1969, read with section 178 of the said Act. A perusal of the F.I.R. shows that the present plaintiff is shown to be involved in abatement and connivance with other accused for illegal removal of assorted brands of liquors/Alcoholic Beer and other item worth about Rs.6,98,58,560 and its supply in local market. The F.I.R., which is detailed one contains a number of allegations falling within the ambit of sections of Customs Act as defined above. I have heard Mr. Sohail Muzaffar learned counsel for the plaintiff who has argued that the plaintiff is a respectable person/businessman and he has been falsely implicated in this case by the Customs Authorities with mala fide intentions at the instigation of some interested persons. It is contended that the plaintiff has no concern with the affairs of Messrs Lakhani & Co. a Diplomatic Bond as such there is no justification for nominating him as an accused in the F.I.R. Learned counsel further argued that as a result of his nomination in the F.I.R., plaintiff has been left at the mercy of investigating agency and trial Court. He has further argued it is irony of fate that the trial Court/Special Judge (Customs and Taxation) Karachi has accepted such frivolous F.I.R. without questioning the author of such F.I.R. and without applying a little judicial mind to the contents of the F.I.R. Learned counsel has, therefore, justified the act of filing of this suit and seeking the reliefs claimed/prayed therein. Learned counsel has also placed on record a copy of C.P. No.956 of 2004 filed by co-accused Stephen Francis whose name appears as an accused at Serial No. l in the F.I.R., for a declaration that the act of respondents (present defendants) be declared to be illegal, without lawful authority and jurisdiction. When asked whether the present plaintiff has also filed any such petition or has sought quashment of the F.I.R. through an application/petition under the relevant provisions of law, Mr. Sohail Muzaffar stated that plaintiff is seeking such remedy through this civil suit. Perusal of the reliefs sought in this suit clearly show that the plaintiff in fact is seeking quashment of the F.I.R. in question through this civil suit and has further prayed for injunction against the defendants/investigating agency restraining 1 them from making any further investigation into the matter, which reliefs are not available to a plaintiff under sections 42, 54 and 56 of the Specific Relief Act and there is a clear bar under section 56(a), (b), (d) and (e) of the Act, which read as follows:-- "

56. Injunction when refused.

An injunction cannot be granted

(a) to stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of the proceedings; (b) to stay proceedings in a Court not subordinate to that from which the injunction is sought; (c) __________________________ (d) to interfere with the public duties of any department of the Central Government or any Provincial Government, or with the sovereign acts of a Foreign Government; (e) to say proceedings in any criminal matter; (f) __________________________ (g) __________________________ (h) __________________________ (i) __________________________ (j) __________________________ (k) __________________________ Section 42 of the Specific Relief Act which deals with declarations in respect of entitlement to any "legal character" or to "any right as to any property" which the defendant denies or is interested to deny cannot be pressed into service as no such entitlement to any legal character, or to any right to any property is shown to be infringed so as to justify the exercise of discretion by this Court. It is well settled that after receiving I the information regarding commission of a cognizable offence it is the duty of the concerned police to register the F.I.R. under section 154, Cr.P.C. and to investigate the allegations in accordance with the procedure as laid down in the Code of Criminal Procedure as well as the concerned Police Rules and thereafter submit a final report to the concerned Court, as to whether as a result of the said investigation the person against whom complaint was made was found innocent or sufficient material was collected to justify his trial before the competent Court of law.. It appears that by filing this suit, the plaintiff wants to circumvent and thwart the whole investigation process which is not permissible under the law. Mr. Sohail Muzaffar also argued that in fact he is not e seeking quashment of the F.I.R. through this suit but he is simply seeking declaration for vindicating his rights. I do not find any force in this contention because it is also well settled that what cannot be done directly cannot be allowed to be done indirectly. The ultimate goal to be achieved through this suit as it appears from various prayers made in the plaint can lead to no other conclusion but to hold that instead of seeking an appropriate remedy under the relevant law before a Court having jurisdiction such as referred in Shahnaz Begum's case PLD 1971 SC 677 with reference to M.M.S.T. Chidambaram Chettiar v. Shanmugham Pillai AIR 1938 Mad. 129, the plaintiff wants setting aside/ quashment of the F.I.R. and stay of the investigation, which reliefs cannot be allowed under the law in a civil suit. So far the relief of damages is concerned, it is a consequential relief which has to flow from main reliefs sought and could only be taken into consideration if main reliefs were found to be admissible in law, I find that the suit is barred under the law as discussed above and there is no cause of action for filing the same as the reliefs sought cannot be granted by this Court. Plaint is, therefore, rejected under Order VII, rule 11, C.P.C. H.B.T./M-151/K Suit dismissed.