1. This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicant in offence under sections 161 and 34, P.P.C. in case of Fatulhal Khan Chandio v. S.H.O.
2. Muhammad Usman Sabhayo and others pending before the learned Special Judge, Anti- Corruption, Larkana in Special Case No.51 of 2001.
3. The brief facts of giving rise to the present application are that on 17-7-2000 the complainant and other persons were coming back from Kamber Town towards their village after purchasing diesel in a drum. His son Zahid was driving the tractor and Fatuhal Khan Chandio alongwith his other son namely Ghulam Murtaza was sitting beside the driver. It is stated in the complaint that at morning time they reached near village Sobedar Ahmed Khan Awan, they saw S.H.O. Muhammad Usman Sabhayo alongwith his subordinate staff including A.S.-I. Jan Muhammad, (2) Muhammad Uris Nagraj, (3) Wazir Kalhoro and (4) Ali Akbar Brohi. They signalled the complainant party to stop.
4. They stopped the tractor then above named accused harassed the complainant on the force of weapon and they took search from them. The police personnel took Rs.7,000 from the pocket of complainant and his two sons. The complainant's two sons were put in mobile. Their tractor was also brought at the police station. It is further stated by the respondent No.1 in the complaint that accused Jan Muhammad Samtio demanded illegal gratification of Rupees two lacs from them otherwise they were threatened that they will be challaned in a false case and their tractor will be put to fire. The complainant party refused to pay huge amount, on this the police personnel maltreated the complainant party and detained them wrongly for 4 days. It is further stated in the complaint that his other son namely Haji Orangzeb and Mushtaq Ahmed came and made talks with the above-named accused persons on which Jan Muhammad Samtio demanded rupees two lacs but on the excuses of his son the police personnel agreed to accept rupees one lac which was paid by my sons to S.H.O. Muhammad Usman Sabhayo and thereafter the complainant and his Inother son Zahid were released whereas Murtaza was challaned in a theft case. It is further stated in the, complaint that due to highhandedness extended by the police officials the respondent No.1 filed Constitutional petition before this Court praying therein that action be taken against the defalcating police officials according to law and F.I.R. be registered against them. As per direction of this Court dated 19-5-2001, the petition was disposed of. It would be advantageous to incorporate the order passed by this Court which is reproduced hereinbelow:-- "15-5-2001. Mr. Abdul Rehman Bhutto, Advocate for Petitioner.
5. Mr. Mushtaque Ahmed Kourejo, Advocate for State alongwith Inspector Muhammad Usman Sabhayo and S.I.P. Muhammad Ameen Leghari.
6. S.I.P. Muhammad Ameen Leghari of Police Station Kamber has filed statement to the effect that on 19-4-2001 while he was holding the charge of S.H.O. of Police Station Kamber, he has recorded the F.I.R. of the petitioner. He has filed the copy of F.I.R. and so also other documents. Copy of the statement alongwith Annexures have been supplied to learned counsel for the petitioner. Learned counsel for petitioner submits that his prayer is that the respondent No.6 S.S.P. Larkana be directed to record his statement. The petitioner has a grievance that his F.I.R. has not been properly recorded. The S.S.P., Larkana is directed to hear the petitioner and take action in accordance with law. The learned counsel. for petitioner is satisfied with this statement and does not press this application, which is accordingly disposed of.
7. (Sd.)
8. Muhammad Moosa K. Leghari, Judge."
9. The F.I.R. of respondent No.1 was already recorded and after due investigation of the said crime the F.I.R. was disposed of in B-Class as per recommendation of Investigating Officer and thereafter summery was sent to Area Magistrate for necessary orders. The concerned Magistrate after perusing whole material approved the sununary finally. After disposal of summary the son of respondent Orangzeb preferred another application for re-investigation of the case which was assigned to the incharge of P.C.A. on the recommendation of Army Monitoring Cell. The respondent No.1 thereafter preferred a Constitutional Petition No.S-384 of 2000 on 18-9-2000 and got the F.I.R. registered which was disposed of as B-Class. The respondent No.1 filed his direct complaint in the Court of Special Judge, Anti-Corruption, Larkana on 28-5-2001 and Haji Orangzeb and Mushtaq Ahmed both sons of the applicant are the proiecution witnesses. The trial Court proceeded with the direct complaint and recorded statement of prosecution witnesses and issued the process against applicant and other co-accused A.S.-I. Jan Muhammad, P.C. Wazir, P.C. Muhammad Uris Nagraj and P.C. Ali Akbar Brohi of Police Station Kanter.
10. The applicant preferred an application in the trial Court under section 249-A, Cr.P.C. for seeking acquittal' from the charge levelled against the applicant. The said application after hearing learned counsel for the respective parties was dismissed by an impugned order dated 16-5-2000 passed by the learned Special Judge, Anti-Corruption, Larkana. Being aggrieved with the impugned order the present application has been moved for the quashment of the above proceedings.
11. It is inter alia contended by the learned counsel for the applicant that in compliance of direction of this Court, the S.S.P., Larkana had issued notice to the respondent No.1 but the did not turn up therefore, S.S.P., Larkana intimated this Court regarding the non-appearance of respondent No.1 before him for recording his statement. In response to direction of this Court, the S.S.P., Larkana has intimated this Court vide his letter dated 17-7-2001 and the copies of the notice served upon the respondent No.1 has also been communicated on the Court's record. It is further urged by the learned counsel that two independent agencies have investigated but no substance was brought on record for submitting the charge-sheet against the applicant and other co-accused. It is further contended by the learned counsel for the applicant that the case was disposed of in B-class by the Investigating Authorities and thereafter summary was approved by the Area Magistrate having jurisdiction. It is further urged that the respondent No.1 is habitual offender and he is involved in so many criminal cases and facing trial in the Court of law, the details whereof are as under:-- (i)Crime No. 6 of 1957 under sections 324, 447, Police Station Drigh.
12. (ii)Crime No. 45 of 1964 under section 380, P.P.C. Police Station Drigh.
13. (iii)Crime No.12 of 1967 under section 13, D.A.O. of Police Station Drigh.
14. (iv)Crime No .13 of 1986 under section 325, P.P.C. of Police Station Drigh.
15. (v)Crime No.109 of 2000 under section 21, Hudood Ordinance.
16. (iv)Crime No.590 of 1997 under sections 337-A(ii), 114, 148, 149 and 504, P.P.C. of Police Station Drigh.
17. Lastly it is contended that if the trial Court proceed with the case no useful purpose would be served as there is no material to convict the applicant and other co-accused for the said charges.
18. In support of his proposition learned counsel for the applicant has relied upon the cases reported as Zaheer Ahmad and 2 others v. The State PLD 1979 Kar.
186. In this authority it is observed that for quashment of proceedings the High Court has inherent jurisdiction to quash such proceedings' in a case where harassm ent is being caused to innocent party to bring about unnecessary delay which would amount abuse of authority. It is observed in this authority-that if the prosecution have no legs to stand then it is incumbent upon the Court to end case in acquittal. Another case of Muhammad Sadiq v. Anverr Majeed and another 1989 PCr.LJ 1223. In this authority it is dilated that the trial Court in a fit case can record acquittal order even without framing the charge or recording the prosecution evidence. Another case of Muhammad Anwar and others v. The State 1976 PCr.LJ 1325. In this authority it is observed that until and unless some evidence is recorded in the trial Court then application for quashment of the proceedings can be filed but this contention has not been held incorrect and it is held that the trial Court can quash the proceedings even at initial stage. Lastly learned counsel for the applicant has relied upon the case of Mirza NaseetS Baig v.
19. Muhammad Iqbal and others 1981 SCM R 315. In this authority it is held that the Honourable apex Court that the trial Court and this Court having its power to quash proceedings if it is satisfied from the cogent material that the prosecution was launched for improper motives merely to harass the accused or that it is continuous would be an abuse of the process of the Court and it will not be in the interest of justice to allow the prosecution to continue. In view of the case-law authorities and the facts available on the record the learned counsel for applicant has prayed for quashment of the proceedings.
20. Conversely Mr. Roshan Ali Solangi, learned counsel for the respondent No.1 has vehemently opposed the application and states that the applicant alongwith his subordinate staff have caused highhandedness and maltreated the complainant party and snatched an amount of Rs.7,000 from the pocket of complainant and then sons of the complainant were taken to the police station and they were confined for 4 days and thereafter a negotiation was made between the police officials and the sons of the complainant for their release. Then after making illegal gratification of Rs.1,00,000 to the S.H.O. Muhammad Usman Sabhayo by sons of the complainant and the complainant and his son Zahid were released but other son Ghulam Murtaza was challaned in a theft case. It is further urged by the learned counsel that the trial Court had issued the process against the applicant and other co-accused after examining the material witnesses brought on record and prima facie case was made out against the applicant and other co- accused. It is further argued that some old, cases have been cited against the respondent No.1 and the respondent Fatuhal Chandio is a respectable person and. Zamindar of the area. Learned counsel for the respondent No.1 has supported the impugned order and submiti that direction be issued to the trial Court to proceed with the case and then it can be determined by the said Court that the charge against the applicant and other accused is groundleis or there is no probability of conviction of the case. In support of Mr. Roshan Ali Solangi learned counsel for the respondent No.1 has relied upon the case of Sanaullah Barni and others v. The State 1980 PCr.LJ 728 and another case of Mehmood. Ahmed v. The State 1996 PCr.LJ 72.
21. Learned Assistant Advocate-General has raised the following points in support of application: --
(1) That Zahid and Ghulam Murtaza are the eye-witnesses they were maltreated by the police officials and they were confined for 4 days but none of them have been city(' as a prosecution witness in the direct complaint.
(2) That Haji Orangzeb and Mushtaq Ahmed are also sons of the complainant/respondent No.1 but they are not eye-witnesses of the arrest Of the complainant and his two sons Zahid and Ghulam Murtaza and they were brought at police station and confined for 4 days and maltreatment was made to them by the police officials.
(3) It is stated that there are so many contradictions between the direct complainant and Constitutional petition filed by the complainant/respondent No.1 on the ground that in direct complaint the complainant has stated that the accused S.H.O. Muhammad Usman Sadhayo, Muhammad Uris Nagraj, Wazir. Kalhoro and Ali Akbar Brohi have forcibly taken Rs.7,000 from the pocket of complainant but in the Constitutional petition it is stated that A.S.-I. Jan Muhammad'
22. Samtio forcibly robbed Rs.7,000 from the petitioner. It is stated by the complainant in the Constitutional petition that respondent No.1 S.H.O. Muhammad Usman Sabhayo demanded rupees two lacs from him but in the direct complaint it is stated that accused Jam Muhammad Satntio demanded rupees two lacs.
(4) That in petition it is stated that the petitioner sent message to his other sons namely Haji Orangzeb and Mushtaq Ahmad for arrangement of rupees one lac and after 2/3 days both sons of the petitioner brought Rupees one lad. Said amount was given to the respondent which was handed over to the applicant S.H.O. Muhammad Usman Sabhayo. Thereafter the petitioner and his son Zahid were released and tractor was also released.
(5) That the F.I.R. lodged as per direction by this Court was investigated by two agencies and because of non-availability of any substance the said F.I.R. was disposed as cancelled in B-Class.
23. Lastly it is contended by the learned Assistant Advocate-General that the trial Court has not applied its mind while passing the impugned order as it has been observed that the material brought by the applicant will be considered during the trial and by observing this, the material brought before the trial Court was not considered while deciding the application under section 249-A, Cr. P . C . Learned Assistant Advocate-General in support of his contentions has relied upon the case of Syed Muhammad Haseenuddin and 2 others v. The State and 2 others 1987 PCr.L.I 2096.
24. Learned Assistant Advocate-General has conceded that there was no material before trial Court for issuance of the process as different versions have been taken while filing the Constitutional petition F.I.R. and the direct complaint and the case was disposed of by the area Magistrate as false and no offence as alleged in the complaint was made out before the trial Court for issuance of the process.
25. I have considered the contentions of the learned counsel appearing for the parties and has gone through the documents produced on behalf of the parties. While hearing this application a question was raised by the Court that other co-accused have not been made party in the present proceeding while the applicant and the respondent No.1 had not raised any objection about the impleading them as proper parties, therefore, I have examined whole material whether the proceedings should be quashed only against the applicant or the entire proceedings should be quashed. According to the complaint filed by the respondent No.1 there are allegations against all the accused that they extended highhandedness, maltreatment, robbed the complainant and thereafter confined them for 4 days and offer bargaining an amount of Rupees one lac was brought by the sons of complainant/respondentnamelyHaj Orangzeb and Mushtaq Ahmed which was handed over to the respondent No.1 to extend the same to the S.H.O. for their release.
26. Therefore, the case of the applicant cannot be separated from the case of other co-accused. The fact that the other co-accused have not been impleaded nor any notice of present proceedings has been taken by them inasmuch as an order of this Court can hardly be to their prejudice. There is very limited scope to see whether issuance of the process has caused any harassment to innocent party to bring about unnecessary and undue mental torture and it will be felt by the applicant/accused . The contradictions disclosed by the learned Assistant Advocate-General in direct complaint Constitutional petition and the F.I.R. lodged by the respondent No.1 are fatal to the prosecution to show that any prima facie case is made out against the applicant and other co- accused. The pendency of this case against the applicant/accused reveals that complainant is a habitual offender and it is not denied by the respondent No.1 that no such cases are pending against him in any Court of law but learned counsel for the respondent has admitted that some old cases were instituted on mala fides. It is also admitted by the learned Advocate that in all 6 cases, the applicant and other co-accused are not the witnesses. The S.S.P., Larkana was directed by this Court to record the statement of respondent but respondent No.1 did not turn up and it was intimated by the S.S.P., Larkana on 17-7-2001 that the respondent No.1 has not appeared in spite of several notices. It is manifest that the respondent No.1 deliberately avoided to appear before S.S.P., Larkana for the purpose of recording of his statement as he was aware that the actual fact will come out and preferred a A direct complaint in the Court of Special Judge, Anti-Corruption, Larkana, In view of this fact the mala fide and ulterior motives are clear on the part of respondent No.1 that a false implication has been made against the police officials. Because the son of applicant was challaned in a criminal case and after registration of the F.I.R. as per direction of this Court same was disposed of as cancelled in B-Class and the same crime was investigated by two independent agencies. It is fact that after disposal of case in B-Class and summary was approved by the concerned Magistrate. The complainant did not file direct complaint in respect of commission of Harabah by the police officials.
27. The proceedings pending before trial Court having no legs to stand and ultimately if the trial Court proceed with the case it will end in acquittal as evidence of the complainant and his witnesses are in conflict with the documentary evidence brought on the record in the shape of Constitutional petition, F.I.R. and the direct complaint. In view of the above discussion and the case-law cited by the learned counsel and learned Assistant Advocate-General I have no option but to allow this petition and quash the proceedings pending against the applicant and the other co-accused namely A.S.-I. Jan Muhammad Samtio, P.C. Wazir Kalhoro, P.C. Muhammad Uris Nagraj and P.C. Ali Akbar Brohi as the allegations as contained in the complaint are similar as against the applicant.
28. Proceedings are quashed.
29. The Criminal Miscellaneous Application No.104 of 2002 stands disposed of.