FIR lodged after 25 years of Transaction

 PLJ 2024 Cr.C. 618

[Islamabad High Court]

Present: Arbab Muhammad Tahir, J.

Ms. GHAZALA ALI--Appellant

versus

SIKANDAR RAMZAN Chaudhry and another--Respondents

Crl. A. No. 172 of 2021, decided on 5.12.2023.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 249-A & 417(2A)--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Acquittal from charge--Registration of FIR--Transfer of house--Family settlement agreement--Settlement agreement was not cancelled--FIR was lodged after twenty years of transaction--Report of handwriting expert--Allegation of forgery--Non-implication of respondent--Estate of deceased was settled through an agreement--The appellant and her brother were also signatories of agreement--The said agreement, as per documents, still holds field and was not yet been cancelled by Court of competent jurisdiction despite questioned by appellant and her brother--Subject FIR was got registered by appellant in year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of first agreement wherein she had also been a signatory, challenged same subsequently after twenty years of alleged transaction--Before registration of instant FIR, appellant had already filed suit for cancellation of agreement with a delay of more than twenty years--The report reveals that signatures of late Ch. Ramzan Ali were similar in characteristics with his routine signatures--Report, authenticated and verified by Deputy Director and Director Technical Wing FIA, negated allegation of forgery, as alleged by appellant in her FIR-- Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict respondents for offence alleged, comprised of documents mentioned in recovery memo.--Neither CDA nor Investigation Agency alleged any forgery in preparation of said documents--Entire prosecution evidence did not implicate respondents for commission of alleged fraud and forgery--Appeal dismissed.

                                                      [Pp. 621, 624 & 625] A, B, C, D & E

PLD 2007 SC 386 & 2022 CLC 1064 ref.

Raja Iftikhar Ahmad, Advocate for Appellant.

Mr. Mudassar Hussain Malik, Advocate for Respondents.

Mr. Hazrat Younas for State.

Date of hearing: 8.11.2023.

Judgment

Through the listed criminal appeal in terms of Section 417 (2A) Cr.P.C., “appellant” namely Ms. Ghazala Ali (complainant) impugns order dated 12.10.2021, passed by learned Judicial Magistrate Section-30, Islamabad-West whereby respondents 1&2 namely Sikandar Ramzan Ch. and Ms. Samina Babar Ramzan (‘respondents’) were acquitted in terms of Section 249-A Cr. P.C in case FIR No. 228, dated 25.05.2018, under Sections 420, 468 & 471 PPC, Police Station Aabpara, Islamabad.

2. Precisely, subject FIR stood registered on the complaint of appellant Ms. Ghazala Ali wherein it was alleged that she is daughter of Ch. Ramzan Ali, who was owner of House No. 41, Street No. 12, Sector F-6/3 Islamabad (‘subject house’); that her father died in the year 1990; that her two brothers namely Sikander Ramzan Ch. (Respondent No. 1) and Babar Ramzan Ch. (late), by producing fake person in CDA and putting fake signatures of her father got transferred subject house in their name; that at the relevant time, other brother and sisters had been abroad, therefore, remained unaware regarding said forged transaction; that their father Ch. Ramzan Ali died on 30.10.1990 while the subject house stood transferred in the name of two brothers on 23.11.1991; that her brother Babar Ramzan Ch. died in the year 1992 and at that time their mother Ms. Anwar Sultana was alive and entitled to 1/6th share in subject house; that her mother Ms. Anwar Sultana died in the year 1997; that after the death of her mother, her legal heirs including appellant and brother Tariq Ramzan Ch. were entitled to their due share in the subject house; that in the year 2005 respondents Sikandar Ramzan. and Ms. Samina Babar Ramzan prepared forged succession certificate and fraudulently got transferred the subject house in their names and in the names of their children, thus deprived the appellant and other legal heirs of their legal share in subject house by employing fraud and forgery.

3. After due investigation, report in terms of Section 173 Cr.P.C was submitted before the Court of competent jurisdiction for trial. The said report primarily based upon documentary evidence including the application and transfer forms collected from CDA containing signatures of late Ch. Ramzan Ali and Opinion of Handwriting Expert wherein on examination, questioned signatures of the late found not similar with that of his routine signatures. Subsequently, on an application by Respondent No. 1 regarding tendering of Opinion with fake signatures of the Examiner, supplementary report under Section 173, Cr.P.C. was submitted before the Court with Opinion of Handwriting Expert of even date i.e. 19.04.2019 wherein, the signatures of the late on questioned documents and routine signatures were found similar in nature. At the trial, respondents were charge-sheeted on 31.07.2019 where after they filed an application under Section 249-A, Cr.P.C. The learned Trial Court after hearing the parties, accepted the application vide order dated 12.10.2021, being impugned through the listed appeal.

4. Learned counsel for the parties addressed lengthy arguments by referring previous litigation, both civil and criminal, launched by the appellant and one of her brother Tariq Ramzan Ch. against respondents and others. Both the sides documented the appeal to highlight their respective contentions. Respondents through separate civil misc. placed on record copies of FIRs, orders passed thereupon and copies of civil litigation and orders thereupon besides an agreement-family settlement dated 17.01.1998.

5. The circumference of the submissions advanced by learned counsel for the appellant had been to the effect that respondents by playing fraud and forgery, deprived the appellant and other legal heirs of their share in the subject house; that forgery and fraud is substantiated by the Opinion of Handwriting Expert and that in order to perpetuate illegal act just to grab the property by depriving other legal heirs, respondents subsequently got prepared succession certificate by deliberately concealing all legal heirs and then fraudulently got transferred the subject house in their names and in the names of their children. Learned counsel in support of his submissions referred various documents, tendered before the CDA for the purpose of transfer of allotment of subject house by the respondents. According to learned counsel, the subject transfer of allotment in the name of respondents, on the face of it, is bogus as it was made after the death of Ch. Ramzan Ali, who died on 30.10.1990 while alleged transfer of allotment in the name of respondents was made much later on 23.11.1991, therefore, under the circumstances, proper course for the Trial Court was to record evidence and then decide the case on merits instead to knockout the appellant without affording her due opportunity to produce evidence, thus impugned order being against the spirit of natural justice, contrary to incriminating material made basis to indict the respondents for the alleged offence and offensive to right of fair trial envisaged in Article 10-A of the Constitution is liable to be set aside.

6. On the other hand, learned counsel for respondents vehemently repelled the submissions advanced by learned counsel for the appellant by contending that respondents had been/are facing dense litigation, both civil and criminal, initiated by the appellant and the other brother Tariq Ramzan Ch. while none of the other two sisters came forward to support the appellant; that the matter inter se the parties had already been settled regarding estate of their predecessor through family settlement in the year 1998 where after, appellant and her brother Tariq Ramzan Ch. launched criminal and civil actions, one after the other out of personal grudge and vendetta against widow of their late brother and the other brother with whom they had already settled the family issue; that in an identical case lodged by Tariq Ramzan Ch, respondents were acquitted in terms of Section 249-A, Cr.P.C. and appeal against the said order was also dismissed by this Court with costs, therefore, instant appeal being frivolous, vexatious and offshoot of malicious prosecution launched by appellant, deserves the same treatment.

7. Heard the learned counsel for the parties and consulted the documents made available on file with their able assistance.

8. The parties-to-lis hail from common pedigree. The subject house was owned by Ch. Ramzan Ali (predecessor in interest of the parties) who died on 30.10.1990. the appellant and respondents are closely related with each other. The appellant and Respondent No. 1 Sikander Ramzan Chaudhry are real brother and sister while Respondent No. 2 Ms. Samina Babar Ramzan Ch. is widow of Babar Ramzan Chaudhry, late brother of appellant and sister-in-law (bhabi) of appellant. Late Ch. Ramzan Ali (died in 1990) was survived by Ms. Anwar Sultana (died in 1997) widow, three sons Tariq Ramzan Ch., Sikander Ramzan Ch. (Respondent No. 1), Babar Ramzan Ch. (died in 1992) and three daughters Bushra Bibi, Zahida Parveen and Ms. Ghazala Ali (appellant).

9. As per the documents made available on file, before the rift cropped up between the parties, dispute with regard to estate of the deceased was settled through an agreement dated 17.01.1998. The appellant and her brother Tariq Ramzan Ch. were also signatories of the said agreement. The said agreement, as per documents, still holds the field and has not yet been cancelled/revoked by the Court of competent jurisdiction despite questioned by the appellant and her brother Tariq Ramzan Ch through a civil suit.

10. Record further reveals that appellant and her brother Tariq Ramzan Ch commenced the litigation, both civil and criminal, against respondents and others in the year 2018, then in 2019 and 2020 as well.

The first action was initiated on 09.01.2018 by appellant and her brother Tariq Ramzan Ch by filing suit against respondents and others seeking decree for declaration, partition, cancellation of agreement dated 17.01.1998, permanent and mandatory injunction.

After about five months of filing of said suit on 25.05.2018 appellant got registered FIR, subject matter of instant appeal wherein respondents were acquitted vide impugned order.

Thereafter, on 11.12.2018, Tariq Ramzan Chaudhry got registered FIR No. 432, under Section 420 PPC, at same Police Station i.e. Aabpara Islamabad, regarding preparation of forged agreement dated 13.02.2007 (after more than ten years of said agreement) against respondents. In the said case, respondents were acquitted in terms of Section 249-A Cr.P.C by learned Judicial Magistrate Section-30 Islamabad-West vide Judgment dated 12.10.2021. Tariq Ramzan Chaudhry assailed the said order before this Court through Crl. Appeal No. 199 of 2021 which was dismissed with costs of Rs. 200,000/-. Paragraph 7, 8 and 9 being significant are reproduced:

          “07. Father of the appellant namely Ch. Ramzan Ali, got transferred House No. 41, Street No. 12, Sector F-6/3, Islamabad in the names of his sons Sikandar Ramzan and Babar Ramzan on 11.08.1990, in his life time, by adopting legal procedure in the office of Capital Development Authority, Islamabad.

          08. The deceased father affixed his signatures and thumb impression himself on the transfer application form, consequently transfer letter was issued by the office of C.D.A on 23.11.1991, after the death of Ch. Ramzan Ali but all the legal and codal formalities of transfer of the property were completed on 11.08.1990, during life time of Ch. Ramzan Ali.

          09. When confronted, learned counsel for the appellant has admitted that there is no expert report that the thumb impressions and the signatures of deceased father are fake or forged.” {Emphasis added}

On 20.02.2019, Tariq Ramzan Chaudhry again got registered another FIR Bearing No. 131, under Section 420, 468, 471 PPC, this time at Police Station Civil Lines Rawalpindi, against the respondents on the same allegation of preparing forged agreement dated 13.02.2007. It this juncture, it is necessary to mention that as per stance of respondents said agreement had been made pursuant to original agreement/ settlement of 1998 in order to protect rights of legal heirs.

On 09.05.2019 Tariq Ramzann Chaudhry filed an application against his sister-in-law/Respondent No. 2 Ms. Samina Babar Ramzan for cancellation of guardianship certificate dated 25.07.1995 but the same was dismissed by learned Guardian Judge vide order dated 02.12.2021.

On 11.09.2019 Tariq Ramzan Chaudhry fled suit for declaration, possession, mesne profits and permanent injunction against respondents and others.

On 23.12.2019, one Tariq Masood, employee of Hammad son of Tariq Ramzan Chaudhry got registered FIR No. 435, under Sections 324, 34 and 109 PPC, at Police Station Shalimar Islamabad against respondents and others wherein the latter were acquitted in terms of Section 249-A Cr.P.C by the learned Judicial Magistrate Section 30 Islamabad-West vide order dated 02.11.2021.

On 01.05.2020, Tariq Ramzanan Chaudhry got registered FIR No. 122, under Section 420, 468, 471, 201, 498-A and 466 PC, at Police Station Shahzad Town Islamabad, on the allegation of fraudulent transfer of property of her in laws by excluding other legal heirs wherein Respondent No. 2 Samina Babar Ramzan was allowed pre-arrest bail by learned ASJ-II Islamabad East vide order dated 30.07.2021.

11. Perusal of documents regarding above litigation, launched by appellant and her brother Tariq Ramzan Chaudhry reveals that respondents were subjected to face criminal and civil litigation primarily on the same subject matter. Besides present FIR, four FIRs were got registered against them besides two civil suits, filed by appellant and her brother Tariq Ramzan Chaudhry against respondents and an application for cancellation of guardianship certificate which was dismissed. It appears that the appellant and her brother Tariq Ramzan Chaudhry had been/are keeping the respondents on their target. The above mentioned proceedings though no directly related to subject FIR yet their relevance and significance cannot be ignored, primarily for the reason of having one and the same original cause of action, made basis by appellant and her brother Tariq Ramzan Ch. to launch proceedings against respondents and the aspect that same do form part of judicial record, having direct nexus with the subject matter of instant appeal. Under the principle, documents that retain such like qualifications can be made basis to take judicial notice of the same. Ordinarily, documents are produced through a witness who testifies on oath and who may be cross-examined by the other side. However, there are exceptions with regard to facts which need not be proved; these are those which the Court can take judicial notice of under Article 111 of the Qanun-e-Shahdat Order, 1984 and are mentioned in Article 112, and facts which are admitted (Article 113, Qanun-e-Shahdat Order, 1984), pertaining to part of judicial record, having direct nexus with subject matter of instant appeal. Reliance is placed upon recent pronouncement of the Supreme Court of Pakistan in the case of Manzoor Hussain (deceased) through LRs v. Misri Khan (CA No. 1698 of 2014).

12. Adverting to the merits of the case, it is noticed that the alleged transaction of transfer of allotment in the name of two brothers i.e. Respondent No. 1 Sikandar Ramzan Chaudhry and Babar Ramzan Chaudhry (late), husband of Respondent No. 2 was made in the year 1991 while subject FIR was got registered by the appellant in the year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of the first agreement wherein she had also been a signatory, challenged the same subsequently after twenty years of alleged transaction. Before the registration of instant FIR, the appellant had already filed suit on 09.01.2018 for cancellation of agreement dated 17.01.1998 with a delay of more than twenty years.

13. As there were two reports of Handwriting Expert of even date, filed before the Trial Court along with reports under Section 173 Cr.P.C, one allegedly contained fake signatures of the Official concerned while the other, filed with supplementary report under Section 173 Cr.P.C, testified as genuine. In order to verify the veracity of the report, on the direction of this Court, FIA filed comprehensive report on 24.10.2022 highlighting the procedure and SOPs, being followed for examination of questioned documents. As per said report, made part of file, after careful examination and adopting due process, report was prepared by the concerned official, then examined and approved by Deputy Director Technical and thereafter Director Technical Wing FIA. The report dated 19.04.2019 reveals that signatures of late Ch. Ramzan Ali are similar in characteristics with his routine signatures. Thus, report, authenticated and verified by the Deputy Director and Director Technical Wing FIA, negates allegation of forgery, as alleged by the appellant in her FIR and pressed to seek full-length inquiry on the basis of reports containing fake signatures of the official concerned, which of course, deserves stern departmental action against the delinquent/s, after tracing them out by the FIA and the police as well.

14. Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict the respondents for the offence alleged, comprised of documents mentioned in the recovery memo. The same are allotment letter in the name of original owner pertaining to the year 1964, application form for transfer of allotment, requisition of transfer application, document containing signatures of late-predecessor in interest of the parties, transfer letter, application for transfer of share, letter of transfer of allotment in the name of Respondent No. 2, letter of division of subject house and photo copies of CNICs. None of these documents even remotely suggest that any fraud, as alleged, had been played by the respondents. It was also for the reason that neither the CDA nor the Investigation Agency alleged any forgery in preparation of said documents. Therefore, entire prosecution evidence did not implicate the respondents for commission of alleged fraud and forgery.

15. It is well settled that in terms of Section 249-A Cr.P.C, the Magistrate may acquit an accused at any stage of the case if, after hearing the prosecutors and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. The prerequisites for invoking the power in terms of Section 249 Cr.P.C are to the effect that before passing the order, Magistrate should hear the parties and consult the incriminating material and draw opinion regarding acquittal on the basis of said incriminating material only in case when the charge appears to be groundless or there is no probability of the accused being convicted of any offence. In the present case, as discussed above, charge against respondents, on examination of incriminating material, appears to be groundless and there was no probability of the respondents being convicted of any offence, in case prosecution was allowed to lead entire prosecution evidence.

16. To sum up, on careful examination of incriminating material, made basis to indict the respondents coupled with the fact of launching dense litigation, both civil and criminal highlighted above, by the appellant and her brother Tariq Ramzan Ch., whose identical appeal was earlier dismissed by this Court with costs, it can safely be held that charge against the respondents was groundless and there was no remote probability of their conviction in case the prosecution was allowed to produce entire evidence.

17. It is significant to note that instant case appears to be a classic example of frivolous litigation. It appears that there was blatant abuse of process of law to settle personal vendetta instead to agitate genuine grievance despite the fact that parties are closely related to each other. Such frivolous, vexatious and speculative litigation unduly burdens the Courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such type of litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs. The specter of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious claim or defence before the Court. These costs in an appropriate case can be over and above the nominal costs which include costs of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost, besides the amount of the process fee and lawyer’s fee paid in relation to the litigation. The imposition of costs in frivolous and vexatious cases meets the requirement of fair trial under Article 10A of the Constitution, as it not only discourages frivolous claims or defences brought to the Court but also absence of such cases allows more Court time for the adjudication of genuine claims. The imposition of costs lay foundation for expeditious justice and promotes a smart legal system that enhances access to justice by entertaining genuine claims. The purpose of awarding costs at one level is to compensate the successful party for the expenses incurred to which he has been subjected and at another level to be an effective tool to purge the legal system of frivolous, vexatious and speculative claims and defences. The imposition of costs encourages alternative dispute resolution; settlements between the parties; and reduces unnecessary burden of the Courts, so that they can attend to genuine claims. The costs are a weapon of offence for the plaintiff with a just claim to present and a shield to the defendant who has been unfairly brought into Court. Reliance is placed upon Qazi Naveed ul Islam v. District Judge, Gujrat etc. (CP 3127 of 2020), Province of Balochistan v. Murree Brewery Company (PLD 2007 SC 386 (5-MB), Vinod Seth v. Devinder Bajaj (2010) 8 SCC) and Edwin Coe LLP v. Naseem Ahmad Sarfraz Khan (2022 CLC 1064-Islamabad).

18. In view of above, impugned order, being in accordance with law and facts of the case, does not call for any interference. Consequently, by following the course adopted by learned co-equal Bench while dismissing Crl. Appeal No. 199 of 2021, titled “Tariq Ramzan Chaudhry v. Sikander Ramzan etc.” instant appeal is dismissed with costs of Rs. 200,000/-which the appellant shall pay to respondents within a period of two months from the date of this judgment. In case of non-payment of costs by the appellant within the prescribed time, same shall be recovered from her as money decree with 10% monthly increase, and the costs of the execution proceedings shall also be recovered in addition thereto. Office is directed to transmit copy of this judgment to IG, ICT and DG FIA to hold in-depth inquiry and proceed against the delinquent(s) in accordance with law in terms of Paragraph 12 above.

(Y.A.)  Appeal dismissed

Further Inquiry in case of 17(1)(2) and 22(b) Emigration Ordinance 1979

 PLJ 2019 Cr.C. (Note) 114

[Sindh High Court, Karachi]

Present: Salahuddin Panhwar, J.

FAHAD PAREKH--Applicant

versus

STATE--Respondents

Crl. B. Appln. No. 1399 of 2018, decided on 19.12.2018.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(2)--Pakistan Penal Code, 1860, Ss. 420, 468, 471, 109--Emigration Ordinance, 1979, Ss. 17(1), 17(2)(b), 22(b) --Bail after arrest, grant of--Further inquiry--Allegation of--Fake documents including visa--Admittedly quantum of lesser punishment for offences, if appreciated for bail purpose, brings case out of prohibitory clause; co-accused has also been convicted for punishment of fine of Rs. 12000/- only, hence applicant’s case falls within scope of further enquiry, he was admitted to post arrest bail.                                                

                                                                                             [Para 5] A

Conviction and acquittal--

----It is necessary to reiterate legal position that conviction and acquittal must always be specific with reference to “offence” because it is never crime number/FIR for which one is tried but offence (s) which accused is claimed to be guilty. Every ‘offence’ legally has its own ingredients (allegation) as well consequences therefore, either charged accused is to be acquitted of every single charged offence else it shall be within competence of Court(s) to convict accused for any of offences regardless of his acquittal from some of charged offences. Even law permits conviction for offence, not specifically charged but found proved.           [Para 6] B

Legal Punishment--

---- Since issue, involved, is with regard to “legal punishment” hence confining myself to this, I would add that basic concept of punishment is not to have one “rotting behind bars” but reformation and deterrence (balance in society) too. Further, there also can be no denial to fact that every “offence” has its own characteristics; therefore, no fixed quantum of punishment for every offence can legally be accepted / approved. This has been reason that legislatures, keeping in view concepts of punishments, have themselves chosen “punishments” for every offence per their nature and seriousness.                                                               [Para 7] C

Sentences/Punishments--

----Creation of Law--Therefore, legally Court is competent to pass that sentence or sentences which offence itself provides but where offence stands proved--Normally, no exception legally can be taken to wisdom of legislature and every word and phrase must always be taken as “deliberate and purposeful”--Since, importance of purpose of providing a likely punishment for an “offence” cannot be denied which legally is to be awarded by a Court alone, therefore, I sailed through “Code” so as to see whether there has been left any ambiguity for Courts or otherwise? --I would say that such sailing through “Code” makes me of view that competence of Court in awarding “punishments” has been made clear--Such competence can well be parted in two main categories i.e “obligatory” and “discretionary”.                                                [Para 8] D

Obligatory Punishments--

---- The “obligatory” punishment is that which Court cannot avoid if accused is found guilty while discretionary punishments are those where Court has option of choosing--Legislatures themselves have deliberately detailed ways wherefrom Court can competently find as to which punishment is obligatory and which one is “discretionary” --There can be no other classic example to make things clear but a referral to Section 302, PPC as categories thereof (Section 302 itself) are sufficient to establish this.             [Para 9] E

Pakistan Penal Code 1860 (XLV of 1860)--

----S. 471--Conviction--Obligatory--Discretionary punishment-- However, since accused was also convicted for offence under Section 471, PPC too therefore, let”s see whether punishment provided therein has any such option or otherwise?. The provision of Section 471, PPC--The provision does not specify any “sentence” but makes it clear that man, charged for such offence (471 PPC) shall be punished in manner as if he himself has forged document. The relevant provision for such offence (forging of a document) is “468, PPC” --The reading of above, prima facie, leaves nothing ambiguous that said provision does not provide any such “option” because no where phrase “or with fine” is used, therefore, punishment of imprisonment for such offence is “obligatory” while that of “shall also be liable to fine” was discretionary. The record shows that learned trial Court judge though convicted co-accused for offence under Section 471, PPC but has not awarded obligatory punishment of imprisonment. If it is presumed that punishment of fine ( one fine without specification) was for two distinct offences i.e Sections 171 and 471 ibid yet such sentences cannot be taken as “legal” because punishment of imprisonment for offence under Section 471, PPC is mandatory/obligatory which, prima facie, never awarded--In view of above legal position, I am of clear view that “sentence”, so awarded by trial Court judge, cannot be stamped to be “legal” because if accused was found guilty for commission of offence under Section 471, PPC then punishment of imprisonment was mandatory / obligatory and in absence thereof a conviction for offence under Section 471, PPC cannot be said to be “legal”. Here, in absence of a “legal sentence” conviction cannot stand therefore, Court (s) while awarding sentences must be conscious of legal obligations and matters of awarding sentences / punishments should not be taken carelessly because it may not only prejudice purpose of “punishment” but shall also render conviction liable to be set-aside on this count alone.                                                                       [Para 11] F, G, H & I

Mr. Asghar Ali Khan, Advocate for Applicant.

Mr. Muhammad Aslam Bhutta, Assistant Attorney General for Respondent.

Date of hearing: 02.11.2018.

Order

Through instant application applicant seeks post arrest bail in FIR No. 262/2018, under Section 17(1), 17(2)(b), 22(b) of Emigration Ordinance, 1979 r/w Sections 420, 468, 471, 109 PPC PS FIA, ATH Circle, Karachi.

2.  Precisely, it is alleged that during enquiry at immigration re-checking counter on scrutiny, travel documents of Syed Mubashir Anwar were found fake including visa hence he was detained for further investigations; further it was revealed that he was desirous to go to South Africa for employment purpose hence he contacted with applicant; applicant alongwith co-accused Sohail Samana arranged visa after receiving Rs. 200,000/- from brother of victim, accordingly both were arraigned.

3.  At the outset learned counsel for applicant contends that relevant Sections provide alternate punishment hence trial Court is competent to pass sentence with the term of seven years or to pass sentence of fine, he further contends that lesser punishment can be considered while deciding bail application, co-accused has been acquitted by the trial Court only with the direction that he shall pay fine hence at the most applicant can be extended same conviction therefore he is entitled for bail. Relied upon 2014 PCrLJ 297, 2016 YLR 355, SBLR 2016 SINDH 1908. He has also emphasized that charge framed by the trial Court against co-accused wherein accused is charged under Section 17(1) of Immigration Ordinance, 1979 read with Section 471, PPC. Learned APG contends that referred Sections are providing alternate sentence whereas fine is not mandatory and this is discretion of the trial Court to impose any fine while awarding rigorous sentence.

4.  Heard and perused the record.

5.  Admittedly quantum of lesser punishment for the offences, if appreciated for bail purpose, brings the case out of the prohibitory clause; co-accused has also been convicted for punishment of fine of Rs. 12000/- only, hence applicant’s case falls within the scope of further enquiry, hence he was admitted to post arrest bail by short order dated 02.11.2018 which is that:

“For reasons to be recorded later on, applicant is admitted to post arrest bail in the sum of Rs. 100,000/- (Rupees One Lac) and P.R. bond in the like amount to the satisfaction of the trial Court. Besides, this Court has noticed irregularity/ illegality in the judgment dated 25.09.2018 passed by the trial Court in FIR No. 262/2018, under Sections 17(1), 17(2)(b), 22(b) of E.O. 1979 read with Sections 420, 468, 471, 109 PPC, hence, to examine further the illegality of referred judgment, office shall call R & P.”

6.  While parting, I feel it quite necessary to attend the plea, so raised by the learned counsel for the applicant, to effect of entitlement of present applicant / accused to punishment of fine only as was done with co-accused Syed Mubashir Anwaar. Before going to attend this plea, a direct referral to acquittal order, being relevant, is made hereunder:

          The accused Syed Mubashir Anwaar s/o Syed Anwaar Hussain alongwith absconding accused Fahad Parekh s/o Muhammad lqbal and Sohail Samana s/o Wali Muhammad were chaIlaned by FIA AHTC Karachi to face trial before this Court.

          As per prosecution case, the allegations against the accused are that he on 10-05-2018, with the assistance of absconding accused Fahad Larokh s/o Muhammad lqbal and Sohail Samana s/o Wali Muhammad, departed for Dubai for onward journey to South Africa for employment against Rs. 600,000/- to be paid on reaching at the destination, on the basis of his passport No. AD-1797623 and Tourist visa for Dubai arranged by them, and after reaching at Dubai, associates of absconding accused arranged/got affixed fake/forged visa sticker No. LMTZNFP on Page No. 13 of his passport, wherefrom he proceeded to Mozambique and then entered in South Africa illegally by crossing the borders of Swaziland and South Africa and started the work but after two months he decided to return Pakistan, therefore, his elder brother Syed Ashraf paid Rs. 200.000/- to absconding accused Fahad and then he came back to Pakistan on 17.09.2018 on the basis of aforesaid travel documents but on arrival the immigration authorities at JIAP Karachi apprehended and detained due to fake forged visa sticker affixed on his passport and referred to FIA AHT Circle Karachi whereafter preliminary enquiry, a crime was registered against him and the absconding accused and afer usual investigation complaint in terms of Section 24(6) of E.O. 1979 was filed charging the present accused U/S. 17(1) of E.O. 1979 r/w Sec. 471, PPC and the absconding accused named above for the offences punishable U/S. 17(2)(b), 22(b) of E. O. 1979 R/w Sec. 420, 468, 471, 109, PPC.

          To a formal charge the present accused pleaded guilty and prayed for mercy.

          The accused on further questioning as to why conviction should not be recorded on his plea of guilt, replied that he has no explanation and that he is ashamed for the said offence and undertook not to repeat such an offence in future and prayed for taking of lenient view.

          In the light of above I am satisfied that his plea of guilt is voluntary without any external pressure. Since the accused has placed himself at the mercy of the Court and that he is in jail since the date of his arrest, I am inclined to take lenient view, hence, the accused named above is convicted under Section 17(1) of E. O. 1979 R/w Sec.471, PPC and sentenced him to pay fine of Rs. 12,000/- or in default thereof to suffer S. I. for three months. Accused is produced in custody and has paid the fine, thus he is remanded back to Jail with the directions to release him forthwith, if he is not required in any other case/FIR.

          The case against the absconding accused Fahad Parekh s/o Muhammad lqbal and Sohail Samana s/o Wali Muhammad be kept on Dormant File to be recalled as and when they are arrested.”

From above, it is prima facie undisputed fact that the co-accused Syed Mubashir Anwaar was charged for committing two different offences i.e Section “17(1) of E.O, 1979 and Section 471, PPC and even trial Court judge convicted and sentenced him for both the offence (s) while observing as:

“the accused named above is convicted under Section 17(1) of E. O. 1979 R/w Sec.471 PPC.”

\but punishment awarded was:

“and sentenced him to pay fine of Rs. 12,000/- or in default thereof to suffer S. I. for three months”

At this point, it is necessary to reiterate the legal position that the conviction and acquittal must always be specific with reference to “offence” because it is never the crime number/FIR for which one is tried but the offence (s) which the accused is claimed to be guilty. Every ‘offence’ legally has its own ingredients (allegation) as well consequences therefore, either the charged accused is to be acquitted of every single charged offence else it shall be within competence of the Court(s) to convict accused for any of the offences regardless of his acquittal from some of the charged offences. Even the law permits conviction for the offence, not specifically charged but found proved.

The above has been the reason because of which it has been made a mandatory requirement of a valid judgment (within meaning of Section 367 of the Code) that acquittal must be with reference to offences while conviction must not only be with reference to offence but must specify the Section thereof. The relevant sub-sections are referred hereunder:--

“(2)     It shall specify, the offence (if any) of which, and the Section of the Pakistan Penal Code or other law under which, the accused is convicted, and the punishment to which he is sentenced.”

“(4)     If it be a judgment of acquittal it shall state the offence of which the accused is acquitted, and direct that he be set at liberty.”

The manner the learned trial Court judge has awarded sentence (s), prima facie, show that said principle has entirely been ignored because though trial Court judge convicted the accused for two different offences yet awarded a single sentence which, too, without specification. I would add that conviction in the manner, as referred, cannot be said to be within mandatory requirement of Section 367(2) of Code. Any departure thereto would render the judgment as “not legal”. Reference, if any, may well be made to the case of Irfan & another v. Muhammad Yousaf & another (2016 SCMR 1190) wherein it is held as:

“6.  Under the provisions of Section 367(2) and (3), Cr.P.C. it is mandatory for the Court that after finding the accused guilty of one or more offences, upon recording conviction, separate sentence must be clearly awarded to the accused so convicted otherwise it would be illegal being in violation of the mandatory provisions cited above. In this case, no separate sentence was awarded to the appellants under Section 7(a), A.T.A. by the Trial Court or the High Court, as explained above. This legal aspect of vital importance, conveniently escaped from the notice of the Trial Court and the learned High Court in the second round when the appellants were seeking acquittal on the basis of compromise under Section 302(b), P.P.C alone, because it cannot be compromised…. The provision of Section 367, Cr.P.C. provides that the Court determine first the guilt of the accused and then to pass judgment of conviction whereafter the sentence shall follow.

Being inseparable and integral part of conviction, unless specifically awarded, it cannot be assumed to the prejudice of the accused that he / they were also sentenced under Section 7(a), A.T.A, by applying the rule of implication because the law provides the passing of specific sentence for a distinct offence and if it is not awarded, it cannot be construed that same was impliedly awarded as the very judgment to that extent becomes illegal and violative of the mandatory provisions of sub-sections (2) and (3) of Section 367, Cr.P.C.”

7.  Be that as it may, to make things a little more clear, it would be conducive to reproduce Sections wherein the accused was convicted.

17(1) of Emmigration Ordinance, 1979

“17. Unlawful emigration, etc.

(1)  Whenever, except in conformity with the provisions of this Ordinance and the rules, emigrates or departs or attempts to emigrate or depart shall be punishable with imprisonment for a term which may be extended to five years, or with fine, or with both.

(2) ………

(a) ………

(b) ……...

(c) ……..”

Ordinarily the word “or” is a disjunctive that makes an alternative which generally corresponds to the word “either” which, however, is often used as interchangeable to word “and”, as in the instant case without appreciating the fact context is always to be examined before taking the word ‘or’ as interchangeable to the word ‘and’. Reference is made to the case of Muhammad Sanaullah v. Allah Din 1993 MLD 399 wherein it is observed as:

“9.  The use of word “or” signifies a disjunctive sense and it cannot be read as “and”, unless of course the context provides so…

Since the issue, involved, is with regard to “legal punishment” hence confining myself to this, I would add that basic concept of punishment is not to have one “rotting behind the bars” but reformation and deterrence (balance in society) too. Further, there also can be no denial to the fact that the every “offence” has its own characteristics; therefore, no fixed quantum of punishment for every offence can legally be accepted / approved. This has been the reason that legislatures, keeping in view concepts of punishments, have themselves chosen “punishments” for every offence per their nature and seriousness.

8.  The provision of Section 53 of the PPC itself has categorized the “punishments” into ten (10) different categories which a person, if found guilty, may be awarded as:

Section 53: Punishments:

          The punishments to which offenders are liable under the provisions of this Code are:

Firstly:-       Qisas;

Secondly:-    Diyat;

Thirdly:-      Arsh

Fourthly:-    Daman

Fifthly:-       Ta’zir

Sixthly:-       Death

Seventhly:- Imprisonment for life;

Eighthly:-    Imprisonment which is of two descriptions, namely:--

i)        Rigorous, i.e, with hard labour;

ii)       simple;

Ninthly:-      Forfeiture of property;

Tenthly:-     Fine

All the above sentences, being creation of the law itself, therefore, legally the Court is competent to pass that sentence or sentences which the offence itself provides but where the offence stands proved. Normally, no exception legally can be taken to the wisdom of the legislature and every word and phrase must always be taken as “deliberate and purposeful”. Since, the importance of purpose of providing a likely punishment for an “offence” cannot be denied which legally is to be awarded by a Court alone, therefore, I sailed through the “Code” so as to see whether there has been left any ambiguity for Courts or otherwise?. I would say that such sailing through the “Code” makes me of the view that competence of the Court in awarding “punishments” has been made clear. Such competence can well be parted in two main categories i.e “obligatory” and “discretionary”.

9.  The “obligatory” punishment is that which the Court cannot avoid if the accused is found guilty while the discretionary punishments are those where the Court has option of choosing. The legislatures themselves have deliberately detailed the ways wherefrom the Court can competently find as to which punishment is obligatory and which one is “discretionary”. There can be no other classic example to make things clear but a referral to Section 302, PPC as the categories thereof (Section 302 itself) are sufficient to establish this:

“Punishment of qatl-i-amd:

Whoever commits qatl-e-amd shall, subject to the provisions of this Chapter be:

a)       Punished with death as qisas;

b)       punished with death or imprisonment for life as ta’zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or

c)       punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable;”

For offence under Section 302(a), PPC the Court has no discretion to award any other punishment except that of “death as qisas”; while for offence under Section 302(b), PPC the Court has discretion to award any of two specific punishments i.e “death” or “imprisonment for life”. Any o f two “punishments” , if awarded by a Court, shall be legal and valid. In the case of Iftikharul Hassan v. Israr Bashir and another (PLD 2007 SC 111) at rel. P-119, it was held as:

“….. The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under Sections 302(a) and 302(b), P.P.C. respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under Section 302(b), P.P.C. and exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is no cavil to the proposition that an offender is absolved from sentence of death by way of Qisas if he is minor at the time of occurrence but in a case in which Qisas is not enforceable, the Court in a case of Qatl-e-amd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Murtaza v. State 2004 SCMR 4; Faqirullah v. Khalil-uz- Zaman 1999 SCMR 2203; Muhammad Akram v. State 2003 SCMR 885; and Abdus Salam v. State 2000 SCMR 338”.

If the offence, appears to the Court to be one falling within meaning of Section 302(c), PPC then legally the punishment of “life imprisonment” cannot be awarded because such classified punishment has its own definition and legislatures have deliberately used the phrase imprisonment of either description (i.e rigorous and simple) upto “twenty five years” hence the Court, per circumstances, can award any punishment between sketched line i.e “twenty five years” which shall be legal and binding unless found otherwise by superior Court of law.

11.  From above referral it becomes quite clear that such discretion is provided by use of the phrase “or with ….” hence I would be quite safe in concluding that the word “or” , used in detailing the punishments in PPC, legally cannot be taken as interchangeable to word “and”. Thing would further stand clear from referral to another way whereby legislature detailed the most of the punishments as:--

“imprisonment may extend to….., or with fine, or with both;

Here by use of phrase “or with fine” and “or with both”, it has been made quite clear that first, provided punishment of imprisonment, is not obligatory rather things have been left open at the discretion of the Court to choose the alternative punishment of “fine” and even can award both punishments of imprisonment as well as fine. Such discretion, however, shall always be subject to sketched guidelines, provided by the law itself or enunciated principles. I would add that if there would have been any other interpretation for word “or with” then there was no need for adding phrase “or with both” in the end. In the case of Ebrahim Brothers Ltd. v. Wealth Tax Officer & another (PLD 1985 Karachi 407) it was observed as:

“… The above words and the term are to be read disjunctively as the use of a “coma” and the word “or” between the above words and term is not without significance but are employed to manifest that the same are to be read disjunctively. ….”

The ambiguity, if any, shall stand clear from referral to another way of detailing punishment whereby the likely punishment of imprisonment was added with phrase “, shall also be liable to fine”. This phrase be not taken as integral and inseparable part of punishment of imprisonment which otherwise was / is obligatory / mandatory. To this view, I would take guidance from the case of Karo v. State (PLD 1963 (W.P) Karachi 256) wherein the proposition was framed as:

“Whether the expression in the Penal Code “and shall also be liable to fine, makes the imposition of fine obligatory or discretional?

and after thorough discussion and referring to different view was answered as:

“23. From what has been said above, we are clearly of the view that the expression “and shall also be liable to fine” appearing in the Pakistan Penal Code makes the imposition of fine discretional and not obligatory. We, therefore, while answering the reference hold that “and shall also be liable to fine” means that is within the discretion of the Court to impose a fine or not.”

Said view was affirmed in the case of Shamroz Khan and another v. Muhammad Amin and another (PLD 1978 SC189).

10.  Having said so, I would conclude that the word “Or” in the Code, while detailing punishments, would always be taken as “disjunctive” corresponding to the word “either” and legally cannot be taken as interchangeable to word “and”. The use of word “OR” legally speaks about choosing one out of two or more options which (act of choosing) shall be “legal”. Therefore, conviction of “fine” alone in existence of such ‘options’ for offence under Section 171 ibid is “legal”.

However, since the accused was also convicted for offence under Section 471, PPC too therefore, let”s see whether the punishment provided therein has any such option or otherwise?. The provision of Section 471, PPC reads as:-

“471. Using as genuine a forged document: Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document”

The provision does not specify any “sentence” but makes it clear that man, charged for such offence (471 PPC) shall be punished in the manner as if he himself has forged the document. The relevant provision for such offence (forging of a document) is “468, PPC” which reads as:--

“468 PPC. Forgery for purpose of cheating: Whoever commits forgery, intending that, the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine”

The reading of above, prima facie, leaves nothing ambiguous that said provision does not provide any such “option” because no where the phrase “or with fine” is used, therefore, the punishment of imprisonment for such offence is “obligatory” while that of “shall also be liable to fine” was discretionary. The record shows that the learned trial Court judge though convicted the co-accused for offence under Section 471, PPC but has not awarded obligatory punishment of imprisonment. If it is presumed that punishment of fine ( one fine without specification) was for two distinct offences i.e Sections 171 and 471 ibid yet such sentences cannot be taken as “legal” because the punishment of imprisonment for offence under Section 471, PPC is mandatory/obligatory which, prima facie, never awarded.

11.  In view of above legal position, I am of the clear view that “sentence”, so awarded by the trial Court judge, cannot be stamped to be “legal” because if the accused was found guilty for commission of the offence under Section 471, PPC then punishment of imprisonment was mandatory / obligatory and in absence thereof a conviction for offence under Section 471, PPC cannot be said to be “legal”. Here, I would also add that in absence of a “legal sentence” the conviction cannot stand therefore, the Court (s) while awarding sentences must be conscious of legal obligations and matters of awarding sentences / punishments should not be taken carelessly because it may not only prejudice the purpose of “punishment” but shall also render the conviction liable to be set-aside on this count alone.

12.  Since, I am conscious of the legal position that this Court within meaning of Section 435 of the Code is always competent to call for and examine the record of any proceeding before any inferior Court for purpose of satisfying itself as to correctness of legality of sentence even. Such jurisdiction is not dependant to an application by one but an information / knowledge of this Court (revisional Court) is sufficient, therefore, I find it appropriate to exercise suo moto revisional powers of this Court. Office is directed to assign number as per relevant register. R&P is already called. Issue show-cause to co-accused Syed Mubashir Anwaar that why impugned judgment of conviction be not set aside and case be not remanded back to the trial Court for re-writing of judgment if he sticks with his plea of “being guilty”. Office shall communicate this order to all criminal Courts under the supervisory jurisdiction of this Court, including Special Courts.

(A.A.K.)          Bail allowed

Creation of Plots by CDA

 PLJ 2014 Islamabad 160

Present: Shaukat Aziz Siddiqui, J.

Syed WAQAR HUSSAIN GILLANI--Petitioner

versus

CAPITAL DEVELOPMENT AUTHORITY, etc.--Respondents

W.P. No. 2222 of 2008, decided on 13.3.2013.

Constitution of Pakistan, 1973--

----Arts. 9 & 199--Constitutional jurisdiction--Act of CDA in carving out plots through conversion of open space for a playground--Plot was uneven and was left out carving out plots by CDA was not fit for human inhabitation being close to WAPDA grid station and passing of high tension electric wires--Petitioner sought permission from CDA for beautification by making it planting grass, trees and flowers so that residents could enjoy its beautification--CDA instead of granting permission replied that place was meant for a playground--If plot allotted were against law, CDA may be directed to allot alternate plots--Validity--CDA without caring about master plans conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination can be described as bona fide act and lawful device--Ground of any sport, more particularly cricket was not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis Court were essential--CDA was bound to add such facilities instead of shrinking areas of playground by carving out plots in it--Places belonging to public-at-large were like trust which cast upon delicate duty upon civic body to protect and preserve such properties--Act of CDA officials was not less than offence like criminal breach of trust, cheating and fraud--It is for the civic body to initiate criminal proceedings and fake disciplinary action against culprits who for personal benefit, gain and interests sold assets of nation--It has been held time and again that places like parks and playgrounds were necessary for healthy like and to convert such places to commercial use and residential purpose is an infringement to fundamental rights--Act of carving out of plots in playground was unconstitutional, illegal, arbitrary result of colorable exercise of authority tainted with mala fide--Allotment made were hereby cancelled and set aside. [Pp. 164 & 165] A, B, C, D, E & F

Mr. Zulfiqar Khalid Maluka, ASC for Petitioner.

Mian M. Hanif, ASC along with Mr. Umar Hanif Khichi, Advocate for CDA.

Ch. Haseeb Ijaz Butt, Advocate for Respondent No. 5-A (Allottee of Plot No. 200-A).

Malik Muzaffar Khan, Advocate for Respondent No. 5-C (Allott of Plot No. 200-C).

Date of hearing: 13.3.2013.

Judgment

Through this single judgment both the connected W.P.Nos. 2222/2008 & 2401/2009 are being disposed of as common questions of law and facts are involved.

2.  Petitioner invoked the Constitutional Jurisdiction of this Court by way of filing instant petition, with the following Prayer:--

"In the circumstances, it is, therefore, humbly prayed that the Hon'ble Court may graciously be pleased to accept the writ petition to the following effect;--

(a)        The act of the Respondent No. 1 in carving out Plots No. 200-A, 200-B & 200-C through conversion of the open space (kept admittedly for a playground) adjacent to the house of the petitioner may graciously be declared as illegal, without lawful authority and void ab initio.

(b)        The respondent CDA be directed to refrain from illegally changing the nature of the open spaces into residential plots and to further refrain allotting the same to any person.

(c)        The respondent CDA may kindly be directed to refrain from handing the possession of Plots No. 200-A, 200-B & 200-C to purported allottees and status quo is prayed as to any intended construction work on the suit plots.

(d)        The Respondent No. 1 be directed to fulfill its assertive intent and purpose of developing a play ground on the open space adjacent to the house of the petitioner.

(e)        Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case may graciously be granted to the petitioner along with cost of these proceedings.".

And presented the facts as under:--

3.  That petitioner is owner-in-possession of House No. 200 (measuring 800 Sq.Yards), St. No. 25, F-11/2, Islamabad, constructed over a corner plot, which he purchased in the year 1996. Adjacent area to the said plot was uneven and was left out from the purview of carving out plots by the CDA as was not fit for human inhabitation being close to WAPDA grid station and passing of high tension electric wires, converged and originated for supply of electricity to different developed Sectors of ICT. As the said area was full of security hazards, had wild growth, therefore, petitioner sought permission from the CDA for its beautification by making it even, planting grass, trees and flowers so that not only petitioner and his family but the nearby residents could also enjoy its beautification and avoid dreadful consequences from the wilderness but CDA instead of granting permission, vide letter dated 18.06.1996, replied that place was meant for a playground and issued directions to the Respondent No. 2 for taking appropriate measures in this regard. Since, development of playground for children was not in sight at all, therefore, petitioner at its own made it even, removed all the shrubs, bushes, etc and planted grass, flowers and little trees which brought beauty to the vicinity. Later, petitioner witnessed some real estate agents, frequently visiting the said open space along with ladies and gents, on query it revealed that three plots numbering 200-A, 200-B & 200-C, carved out for the purported allottees, who were in hurry to dispose of the same to intended purchasers at hefty considerations. The petitioner visited the CDA office for seeking relevant information which was refused to him, thus petitioner could not ascertain the name, parentage and addresses of the purported allottees.

4.  Vide Order dated 06.07.2009, petitioner was directed to implead allottees of carved out Plot Nos. 200-A, 200-B & 200-C.

5.  On 11.01.2012 writ petition was dismissed for non-prosecution and for the reason that learned Counsel for CDA, made the statement that, no change whatsoever, made in the master plan. However, vide order dated 10.04.2012 writ petition was restored to its original number. The stance of petitioner remained consistent that Planning Wing of CDA, for considerations alien to law carved out plots in the area, reserved for play ground, which is besides the Master/Sector Plan. On the contrary CDA came up with a version that plots carved out were infact on the left over land in order to accommodate the affectees. In order to have exact picture of the site and situation, this Court appointed Mr. Nauman Munir Paracha, Advocate High Court as Local Commission with the following reference:

"Whether piece of land reserved for "Play Ground" in master plan is intact and whether any encroachment has been made over it."

Learned Local Commission was directed to visit the site and to inspect the master plan and other relevant record, in order to make it part of his report. Petitioner was directed to pay fee of Rs. 20,000/-to the learned Local Commission. In terms of reference learned Local Commission submitted his comprehensive report on 29.05.2012.

6.  Interestingly, none of the parties preferred to file objections on the report of Local Commission, although an adjournment was sought by the learned Counsel for CDA for this purpose but submitted comments only, which in fact, are sort of clarification of unearthed facts. For convenience, conclusion drawn by the learned Local Commission is being reproduced herein below:

"Based on the above, I am of the opinion that the newly created residential Plots 200-A, 200-B, 200-C and 200-D were part of the playground. They are, thus, an encroachment upon the area of the playground.".

7.  In order to hear the view point of allottees, this Court ensured that they are properly served with notices, therefore, vide order dated 26.06.2012 Additional Director (Planning) was directed to place on record allotment letters, on receipt of same office issued notices. Except allottee of Plot No. 200-A, none appeared, therefore, order of substituted service, through proclamation in the daily "Jang" was passed. Respondent Nos. 5-A and 5-C put appearance through their learned Counsel and took the stance that, they have been allotted plots against their entitlement and if plot allotted to them are against the law, CDA may be directed to allot alternate plots at some other sector. Since, no one put appearance on behalf of Respondent No. 5-B, therefore, proceeded ex-parte.

8.  Learned Counsel for petitioner argued his case in line with pleadings and placed reliance on the report of learned Local Commission. Learned Counsel for CDA defended the act of carving out plots and subsequent allotment to Respondent Nos. 5-A to 5-C. Learned Counsel for allottees took the stance that after agonizing delay, plots allotted to them, however, if same are in violation of law, CDA may be directed to allot alternate plots.

9.  I have heard learned Counsel, perused the record on file and went through the provision of law.

10.  Playgrounds, Parks, Green Belts and other places of public use belong to all citizens of the country, whether belonging to urban areas or coming from rural background, more particularly residents of that vicinity and the city, where such places are located. These places come in the joint ownership and constructive possession of all citizens, which is a Constitutionally guaranteed right. It appears that Planning Department of CDA, without caring about the Master/Sector Plans, conspired to carve out plots, at the most valuable and significant places, which under no stretch of imagination can be described as bona fide act and lawful device. During the course of arguments one amazing, rather ridiculous explanation came forward from the officials of CDA that, plots carved out are not in the area of cricket ground, rather outside the playing area of it. It is a matter of common knowledge that ground of any sport, more particularly cricket is not reduced to pitch and playing area inside boundary line, rather facilities like gym, tennis/squash Courts, swimming pool, pavilion, dressing room, spectators place are essential. CDA is bound to add these facilities instead of shrinking the areas of playground by carving out plots in it. Places belonging to public-at-large are like "TRUST" which cast upon delicate duty upon the civic body to protect and preserve such properties.

11.  It is important to note that value of residential plots in all sectors is not equal, difference in prices enhances further, when comparison comes between the plots of developed and under developed sectors. One can easily understand and trace the reasons of undue favour extended to Respondent Nos. 5-A to 5-C as such type of benefits can only be extended with cryptic approach, lucrative influence and dubious dealings. I have no hesitation in observing that this act of the CDA officials is not less than offence, like criminal breach of trust, cheating and fraud. It is for the civic body to initiate criminal proceedings and take disciplinary action against the culprits, who for personal benefit, gain and interests, sold the assets of Nation. The Court of apex in the case of Pervaiz Oliver, reported as PLD 1999 SC 26 held authoritatively, about the Public Property in the following words of command:--

"Disposal of -- No. public property, big or small, tangible or intangible, can be disposed of except in accordance with law--Functionaries who transgress, expose themselves to the severest or penalties, under law, the cardinal principle being that the higher the functionary, the higher the responsibility and, for that reason, the stricter the punishment".

Superior Courts have always disapproved such type of arbitrary decisions, polluted acts and corrupt practices. It has been held time and again that places like parks and playgrounds are necessary for healthy life and to convert such places to commercial use and residential purposes is an infringement to fundamental rights guaranteed by the Constitution of the Islamic Republic of Pakistan, more particularly Article 9. There are numerous authoritative pronouncement on the issue but following judgments are lightship for times to come, "New Murree Project case (2010 SCMR 361). Moulvi Iqbal Haider Case (PLD 2006 SC 394), Ardeshir Cowasiee case (1999 SCMR 2883). Shehla Zia Case (PLD 1994 SC 693) and Manzoor Bhatti Case (PLD 2002 Lahore 412).

12.  Thus, for the foregoing reasons both the connected petitions are allowed with the declaration that act of carving out of four plots in the playground of Sector F-11/2 Islamabad is unconstitutional, illegal, arbitrary, result of colorable exercise of authority, tainted with mala fide, for ulterior motives, outcome of irrelevant consideration, rarity, sham and besides the dictums laid down by the superior Courts of the country. Allotments made in favour of Respondent Nos. 5-A to 5-C are hereby cancelled and set aside. It is directed that playground be restored to its original position, CDA may allot plots to Respondent Nos. 5-A to 5-C in any other Sector in accordance with their entitlement, which may also be verified. It is also directed that petitioner shall not change the nature of area adjacent to his house by raising any sort of structure or making part of his house.

(R.A.)  Petitions allowed