1. ' SYED ZAWWAR HUSSAIN, JAFFERY, J.-This criminal miscellaneous application under section 561-A, Cr.P.C. Has been preferred by the applicants with the prayer that the order dated 13-10-2005 passed by the learned Ilnd Judical Magistrate, Malir may be set aside and further proceedings initiated against the applicants may also be quashed.
2. ' Brief facts of the case are that on 1-5-2005 complainant Peer Abdul Rasool Sarhandi lodged F.I.R.
3. No,95 of 2005 under sections 506-11 and 34, P.P.C. At Police Station Shah A. Latif Town, Karachi. The contents of the F.I.R. Are reproduced as under:- ' "The complainant stated in verbatim. I reside at above given address along with my children and do farming. On 23-4-2005 at about 1200 hours I was present in a quarter on my land/farm, three persons namely (1) Peer Ghulam Dastagir s/o Muhammad Ayub, (2) Peer Farukh Shah s/o Muhammad Ayub (3) Muhammad Ayub s/o Ghulam Dastagir came there and ' started beating at that time village people namely (1) Peer Ehsanullah (2) Peer Abdul Rauf were present and in their presence they threatened me to leave the land or else they will kill me. Upon this I asked them, that the case" is pending in the High Court and I will accept the decision of the Court. On saying this they continued to threaten me and still they are moving around my house and in my way duly armed. I and my family have apprehension for our life from them. Legal action may be taken. The reason of this enmity is a dispute of land. Report heard and found correct. "
4. ' During the investigation, the Investigating Officer disposed of the case in B-Class and submitted Final Report No,47 of 2005 under section 173, Cr.P.C. Dated 11-5-2005, whereby the learned Judicial Magistrate disapproved the final report and* directed the I.O. To submit challan against the applicants vide order dated 13-10-2005. As per direction of the trial Court, Charge- sheet was filed.
5. The applicant being dissatisfied with the impugned order have filed this criminal miscellaneous application.
6. ' Mr. Mehmood A. Qureslii, learned counsel for the applicants has contended. That the impugned order is illegal, improper and liable to be set aside. The learned trial Magistrate without examining the report under section 173, Cr.P.C. Did not peruse the record and passed the impugned order, whereby directing the I.O. To submit challan which is beyond the scope of section 173,(3), Cr.P.C. It is further urged that the learned Magistrate has not assigned any cogent, legal and convincing reason and misread the legal provisions as envisaged under section 173, Cr.P.C. The complainant has involved the applicants in false case with mala fide intention and ulterior motives in order to pressurize the applicants to settle civil dispute in Civil Suit No, 1480 of 2004 pending in the High Court. It is further prayed that Mrs. Nafees-un-Nisa daughter of the complainant through her lawful constituted attorney namely Peer Ghulam Dastagir Khan (applicant No,l) had filed civil suit for declaration, possession and permanent injunction against the complainant party. In connection 'with civil proceedings, Mukhtiarkar Bin Qasim Town, Karachi had issued Letter No, Mukhtiarkar/BQ/T/ 336/2005, Karachi dated 16-4-2005 addressed to Mst. Nafeesun Nisa. As per direction of the Mukhtiarkar and concerned Tepedar applicants reached at the land in question and as soon as they reached, M/s Abdul Rasool (complainant) Ahsanullah and Abdul Rauf also reached there and they started beating the applicants and caused them injuries. The applicants were rescued by the area people. The applicants reported the incident to the concerned police vide Entry No,22 dated 23-4r2005. For the sake, of convenience said entry is reproduced as under:- ' "At present, Ghulam Dastagir son of Muhammad Ayoob Cast Serhandi Peer aged 65 years resident of Peer Serhandi Goth, Bin Qasim Town, Karachi appeared at Police Station and reported in verbatim. That I reside at the above said address along with my family. I was present at my house, at about 12 noon. Tapadar Abdul Rehman phoned me that I should reach at the land as demarcation of the land should be completed. If reached there. The Tapadar was present there before me. Meanwhile, M/s Abdul Rasool, Ahsanullah, Abdul Rauf also came there. As soon as they reached there, they started abusing me. I stopped them and told them that they should talk with some distance. Thereupon, they started beating me with fists and kicks. I* raised cry. Therefore, people came there and rescued me. During quarrel I received injuries on my head and mouth. My documents and glasses were fell down. I complained against above said persons who abused and beaten me and caused me injuries. Action be taken. Report heard and found correct. Signature in Urdu Ghulam Dastagir."
7. "Action of Police.-I, S.I. Ghulam Murtaza Abbasi certified that report of complainant was written word by word and read over to him who found it correct and signed it. From the contents of report for offence under sections 504/337(i)A, P.P.C. Is made out. The body of the complainant was examined and 'found marks of injuries on his head and month, who wanted to go Hospital.
8. Therefore, he was referred to Jinnah Hospital after issuance of letter for his treatment. On the direction of Court action be taken. After receiving medical report, further action be taken. Signature in English, S.I. Ghulam Murtaza Abbasi."
9. ' The applicants were examined by ' M.L.O. Dr. Razacp of Jinnah Hospital, Karachi and issued Medical Certificate No,2795 of 2005 dated 23-4-2005 and thereafter supplementary report was also sent on 25-5-2005. The complainant in ' order to save himself from such incident made false application to the S.H.O., Shah A. Latif on 26-4-2005. The letter is reproduced as under:- ' S.H.O., Sahib, ' Shah Latif Town Police Station, ' Sir, ' It is requested that on 23-4-2005 at about 12 noon I was sitting in a room situated at my land. M/s Peer Ghulam Dastagir, Peer Farrukh Shah and Peer Muhammad Ayoob came there and they started beating me. The people present there rescued me from them while they went away. They gave me a threat to kill me. Therefore, they are continuously, abusing and insulting me and also issuing a threat to kill' me. They are moving around my house and my way by showing weapons.
10. The reason of this enmity is a dispute of land.
11. ' I request you to save my life from dangerous persons. Action be taken against them. I have apprehension for my life at the hand of them. "
12. ' Complainant Peer Abdul Rasool Sarhandi instead of appearing at the Police Station for lodging F.I.R. Had chosen to file Criminal Miscellaneous Application No,84 of 2005 under section 22-A, Cr.P,C.
13. Before the learned Sessions Judge on 30-4-2005. Consequently the learned Sessions Judge issued direction for registration of F.I.R. Against the accused/applicants, as such F.I.R. No,95 of 2005 under section 506-11 and 34, P.P.C.. Was registered. It is further urged that as per the contents of the application moved by the complainant no offence was made' out and during the investigation the I.O. Found the case as false and rejected the cognizance of F.I.R. In B-Class. The Area Magistrate without examining the material collected during course of the investigation passed the impugned order which is liable to be set aside. It is further pointed out that in the impugned order the learned Judicial Magistrate has observed that report submitted by the Police Officer reflects that no evidence has come on record against the applicants during the course of investigation for the alleged offence but it was confirmed about quarrel had taken place on the. Same day between the complainant and the accused party. It is further urged that the learned Magistrate .Has only considered the site inspection report carried out on 11-5-2005. The proceedings pending against the applicants may be quashed.
14. ' Mr. Qureshi in support of his contention has relied upon the following cases:-
(i) Hussain Ahmed v. Mst. Irshad Bibi and Others (1997 SCM R 1503),
(ii) Sufi Abdul Qadir v. The State and others (2000 PCr.LJ 520),
(iii) Farooq Sumor and others v. The State and others (2005 PCr.LJ 1023).
15. ' Mr. Rizwan H. Nadeem, learned counsel for the respondent No, 2 has contended that the dispute between the complainant and the applicants is already admitted and civil proceedings are pending in the Court of law. Applicants/accused had caused injury to the complainant and issued threats of dire consequences and there was apprehension of loss of life of the complainant at the hands .Of the applicants/ accused. Therefore, learned Magistrate has taken cognizance and directed the Police Officer to' submit charge-sheet. The impugned order do not suffer any illegality or infirmity.
16. ' Haji Abdul Majeed, learned counsel on behalf of the State has adopted the arguments of the learned counsel for respondent No,2.
17. ' I have heard the learned counsel for the respective parties, examined the material placed on record and the case-law cited at the bar.'
18. Admittedly the incident took place on 23-4-2005 at 12-00 hours. Complainant did not appear at the Police Station but moved an application on 26-4-2005 before the S.H.O., Shah Latif Town, which was entrusted to S.I.P. Ghulam Murtaza for necessary action in accordance with law and submit report within two days. Thereafter complainant filed an application under section 22-A, Cr.P.C. For registration of an F.I.R. Admittedly Suit No, 1480 of 2004 is pending in this Court filed by Mst.
19. Nafeesun Nisa against Peer Abdul Hafeez Sarhandi and 25 others for seeking declaration, possession and permanent injunction in aspect of agricultural land. The parties are contesting the said suit. 4t is pertinent to mention that while filing the application under section 22-A- Cr.P.C. It was contended by the complainant/respondent that on 23-4-2005 he was sitting in his Quarter at his land along with some co-villagers and suddenly Peer Ghulam Dastagir Sarhandi and his brother Farrukh Shah and Muhammad Ayub came there and abused him and beaten him.
20. Thereafter the applicants are ' contiguously abusing the petitioner and are moving around his house with weapons. Admittedly the applicants appeared at the Police Station and lodged Entry against the complainant, for causing fists and kicks. As per medical certificate Peer Ghulam Rasool Sarhandi sustained three injuries caused by a blunt substance. Said injuries were reserved and thereafter final medial certificate has been issued in which injury was described as Shujja Khafifa. If there was any quarrel between the parties the complainant should have also received some injuries. The complainant in order to save himself from the Roznamcha Entry filed a counter, case against the applicants to save their skin, it is strange that at the time of incident applicant Ghulam Dastagir sustained some injuries at the hands of the complainant party and did not report and rather he extended threats of dire consequences which is imaginary. On the contrary it reflects that the story was concocted by the complainant party. During the course of investigation the I.O.
21. Disbelieved the version of the complainant and disposed of the case in B-Class but proceedings were initiated on the basis of the challan submitted on the direction of learned Magistrate. This is abuse of the process of Court. Therefore, the impugned order dated 13-10-2005 is beyond the scope of section 173, Cr.P.C.
22. ' In view of the above reasons, this criminal miscellaneous application is allowed and the impugned order is set aside and further proceedings on the basis of the challan submitted on the direction of the learned Magistrate are also quashed.
23. ' By short order dated 20-11-2006 this Criminal Miscellaneous Application was allowed and the above are the reasons for the same.