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IN THE COURT OF SPECIAL CENTRAL JUDGE, HYDERABAD.
Miscellaneouse Application No. --- 2025
In Re State Vs. Muhammad Ashraf Memon etc
Muhammad Javed S/o Muhammad Bashir ud Din R/o 441 Central, Baharia Orchard
Raiwind Road, Lahore- Petitioner
Versus
The State.
…………………. Respondents
APPLICATION U/S 265-K Cr.P.C FOR THE QUASHMENT OF THE PROCEEDINGS
PENDING BEFORE THE SPECIAL JUDGE HYDERABAD AND ACQUITTAL OF
THE PETITIONER IN CASE FIR NO. 7/23 DATED 22.05.2023 REGISTERED AT
POLICE STATION FIA, SUKKUR.
Respectfully Sheweth:-
1. That brief facts leading to the instant petition are that the petitioner is
a respectable citizen of Pakistan and related to profession of Government
Officer. The petitioner is presently serving as Deputy Secretary, (Vigilance),
Evacuee Trust Property Board, Government of Pakistan, 9-Court Street,
Lahore.
2. That the petitioner received a notice from Mr. Nisar Ahmed Sawan,
Assistant Director/EO, FIA, Sukkur vide No. 3912-13 dated 24.03.2023
directing the undersigned to appear before him on 04.04.2023 (Page-1).
The undersigned was performing duty as Administrator, Nankana Sahib. The
undersigned sent my interim statement/reply dated 03.04.2023 (Page 2 to
4) wherein, I had requested that Baisakhi Mela was commencing from 9 th
April 2023 and Sikh Yatrees from all over the world and Pakistan would be
visiting to Gurdwara Janamasthan, Gurdwara Sucha Sauda and other
Gurdwaras situated at Nankana Sahib. Being Administrator, it was my
responsibility to manage the affairs in the best possible manner being
international occasion, so that the soft image of Pakistan as a Minority
Friendly Country is highlighted. I had requested to fix date after Eid as per
his convenient.
3. But instead of issuing me another notice of attendance, FIR bearing No.
7/2023 dated 22.05.2023 (Page-5 to 7) was lodged against the tenants of
the Board including the petitioner, without inquiry and giving me the
opportunity of hearing to clear my position. Following charge was leveled
against the petitioner:-
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“The enquiry further revealed that the then Administrator Karachi, namely
Muhammad Javaid misused his official position and got approved the multi-
story building plan submitted by the tenant of alleged builder Muhammad
Ashraf Memon and Saif Ali Bhutto, Abdu Satrar and other jointly for which
he was not authorized, Hence, he committed the act of misconduct and
violated /misused his official position by approving the map/building plan
containing the multi-story buildings through his official letter no. 586 dated
07/08/2020 and violated the Evacuee Trust property scheme/rules/law which
he was not authorized.”
4. It is kindly submitted that the name of the petitioner has been included
in the FIR without examining the material facts/documents of the case, which
are now being brought into the kind notice of this Honorable Court, so that
justice is dispensed with and the FIR lodged against the petitioner should be
quashed.
5. The facts of this case are that the Deputy Administrator Sukkur vide his
letter bearing No. 1060 dated 21.07.2020 (Page-8 to 10) sent the matter of
reconstruction of the Evacuee Trust Property No. B-1745(P)
(Residential/Commercial), situated at Miani Road, Sukkur.
6. As per the contents of the letter, the property in question was in a
dilapidated condition and was consist of ground floor and first floor. The DA
had stated that tenants had applied for construction of additional floor and
requested to grant permission as per site plan under clause 18(A)(B) of
scheme 1977, which was not received in the Zonal Office, Karachi.
7. The petitioner being Administrator / Competent Authority approved
reconstruction of the ETP in question strictly under clause 18-A(1)(B) of
Scheme 1977 vide letter No.586 dated 07.08.2020 (Page-11 to 12) as is
evident from the contents of the said letter.
“Clause 18-A(i) (b) of Urban Scheme, 1977 is reproduced as under:-
“(i). If a residential or commercial property is required to be reconstructed
or a new construction is to be raised, the following procedure shall be
adopted:-
a. If a tenant applies for reconstruction of the building in his
occupation, without additional floor area, the permission may be
granted by the concerned Administrator subject to the conditions laid
down in sub-clause of clause 14 and enhancement of rent of the
property by fifty percent of the existing rent.
b. If a tenant applies for reconstruction of the building by adding some
more floor area already under his tenancy, the rent shall be charged
at the rate in accordance with the new assessment for the property
made under Clause-10. Provided that the additional floor area shall
not exceed more than one hundred percent of the original floor area
of the building. Provided further that the building shall be utilized by
the tenant himself and shall not be sublet and in case of default, his
tenancy rights shall be liable to be cancelled.”
8. The contents of the above approval letter would clearly reveal that the
petitioner had given approval strictly in accordance with law and no violation
was made. There is not a single word mentioned in the approval letter, which
could establish that the petitioner had given approval of a multi-story
building, as has been alleged in the FIR.
9. The Deputy Administrator (Mr. Zafar Iqbal) has issued approval letter
vide No. 1391,92 dated 03.09.2020 (pages-13 to 14) by misinterpreting the
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approval letter of the petitioner. Hence, the petitioner should not be held
responsible for the illegality committed by the then Deputy Administrator,
ETPO, Sukkur.
10. The then District Officer Mr. Nadeem Dareejo, cancelled the tenancy
rights of the property in question vide order dated 29.12.2022 (Page-15), as
the tenants had violated the terms and condition of the approval letter of the
Administrator.
11. In appeal, the then Administrator (SZ), Karachi vide order dated
22.03.2023 (Page-16 to 17) upheld the order passed by the Deputy
Administrator, ETP Office Sukkur. The Administrator has clearly mentioned in
his order that tenants had committed violations of the terms and conditions
of the approval letter issued by the petitioner / Administrator (SZ), Karachi.
12. Being aggrieved, the tenants filed a Revision Petition before the
Federal Government. The Senior Joint Secretary/Revisional Authority, MoRA
decided the case vide order dated 08.12.2023 (Page-18 to 24). The perusal
of the order would clearly establish that the approval of reconstruction as
conveyed by the petitioner being Administrator (SZ), Karachi was strictly in
accordance with law and violations were made by the tenants. He
reproduced complete order of the petitioner in his order and dismissed the
Revision due to the fact that the tenants had violated the terms & conditions
of the approval letter. In nutshell, the Senior Joint Secretary/Revisional
Authority held as under:-
“(a). It is evident from record that the petitioners had been allowed
reconstruction of the property by the Administrator vide letter No. 586 dated
07.8.2020, under Clause 18(A)(i)(b) of the Scheme for the Management and
Disposal of Urban Evacuee Trust Properties, 1977.
(b). The petitioners, however, did not comply with the above said formalities
particularly the stipulation with regard to approval of the building plan by Sindh
Building Control Authority (SBCA) and restricting the floor area to a limit of 100%
of the original area of the building.
(c). Permission of the Administrator was valid for six (6) months from the date
of the issue i.e., 07.08, 2020. The petitioners could not complete the construction
as per requisite legal parameters within the prescribed time limit. Accordingly,
the permission for reconstruction issued on 07.08.2020 lapsed after the period of
six months.
(d). The tenants (co-accused) admitted that they could not complete the
formalities pertaining to approval of plan from S.B.C.A and restricting the
additional floor by 100% of original area, as Prescribed in the letter of approval
by the then Administrator (Southern Zone), ETP, Karachi.
13. Afterwards, the tenants / co-accused applied to the Chairman, ETP
Board for reconstruction / 30 years lease of the impugned property under
clause 18(b) of Scheme, 1977 and the Chairman, ETP Board vide letter
No.1065 dated 13.02.2025 (Page-25) has approved their request regarding
development of the property. Resultantly the matter sands finalized (Copy of
Clause 18(b) of Scheme, 1977 is enclosed as Page-26 to 27).
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14. That the petitioner who has been wrongfully involved as an accused,
seeks acceptance of the instant petition and acquittal from of the charges
leveled against him inter-alia on the following grounds;
GROUNDS:
a. Approval letter of the petitioner was issued strictly in accordance with
law and it was mentioned that the approval was being granted under
clause 18(A) (1)(B) of Urban Scheme, 1977.
b. It was categorically mentioned that additional floor area shall not
exceed by 100% from the original floor area of the building.
c. The District Officer and the Administrator vide judicial orders dated
29.12.2022 and 22.03.2023 clearly mentioned that the tenants have
violated the approval granted by the petitioner, therefore, cancelled
the tenancy rights.
d. The Senior Joint Secretary/Revisional Authority of MoRA, Islamabad
vide order dated 08.12.2023 has clearly mentioned that order of the
Administrator (SZ), ETP, Karachi/Petitioner was issued strictly as per
law and no violation was made as thoroughly discussed above.
e. That the petitioner is absolutely innocent having no concern
whatsoever with the alleged commission of offence and he has been
falsely involved.
f. That the allegation against the accused/petitioner is false, frivolous,
baseless, concocted in nature and there is no truth in prosecution
story.
g. That the petitioner is a Government Officer, and the FIR has been
registered with a malafide intention.
h. That the basic ingredient of a crime/an offence is mens-rea, which is
completely missing in the instant case.
i. That no recovery of whatsoever nature has been affected from the
petitioner.
r. That keeping in view the provisions of Sections 420, 468, 471, 34, 109-
PPC, PCA-II, 1947, there is no incriminating evidence available against
the petitioner, keeping in view the necessary ingredients of the above
sections of law.
s. That by involving the petitioner in the present case, the process of law
and dispensation of justice has been severely obstructed.
t. That there is no probability of the conviction of the petitioner as
charges are baseless and continuing of these proceedings are
tantamount to the abuse of the process of judicial proceedings.
PRAYER
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IN VIEW OF THE ABOVE, it is respectfully prayed that the instant application may
kindly be accepted in the extreme interest of justice, proceedings of the instant
case may be quashed and the petitioner may kindly be acquitted from FIR
NO.7/2023 dated 20.09.2023 registered U/Sections 420, 468, 471, 34, 109-PPC r/w
5(2) PCA-II, 1947 involving him as an accused, illegally and without lawful authority
Any other relief which is deemed just and proper, keeping in view the facts
and circumstances of the case, be also awarded in the interest of justice.
PETITIONER
MUHAMMAD JAVED SHEIKH
Deputy Secretary (Vigilance)
Evacuee Trust Property Board
ID Card No.35202-9483542-3
Through :
Irfan Ali Bughio, Advocate
Supreme Court of Pakistan.
Rajab Ali Advocate
High Court, Hyderabad
