1. ' SALMAN TALIBUDDIN, J.--- This matter was fixed in Court on 1-6-2009 for orders on M.A. No,1185 of 2009 (exemption from requirement of filing certified copies of certain annexures and other documents); katcha peshi of the main application under section 561-A, Cr.P.C; and order on M.A.
2. No, 1186 of 2009 (stay application).
3. ' The matter was first called before the break at which time Mr. Sipio stated that he had not have a copy of the above applications. Mr. Shah stated that copies had already been provided. In order to avoid a delay in the hearing, Mr. Shah very kindly provided a complete set of the applications to Mr. Sipio who was given time to go through them.
4. ' The case was taken up again after the tea break. M.A. No,1185 of 2009 was granted and orders on the main application and on M.A. 1186 of 2009 were reserved after hearing the learned counsel.
5. ' This main application under section 561-A, Cr.P.C. Was filed on 24-4-2009 by accused Abdul Khaliq son of Abdul Qadir and Kirshan son of Kabeero praying that the order dated 13-4-2009 passed by the learned Civil Judge & Judicial Magistrate-1 Shandadpur in Crime No,149 of 2008 P.S. Shandadpur be set ,aside and that the resulting criminal proceedings be quashed.
6. ' The brief facts of this matter are that about four years ago one Mandroop and his family, including his 60 years old father Mooto Bheel, were haris of the applicant Abdul Khalid. Over time they became indebted to Abdul Khaliq in the sum of Rupees 175,000. At some point in time thereafter Mandroop and his family left the hariship and started working elsewhere as labourers. According to Mandroop, Abdul Khaliq did not demand payment of the loan until 11-11-2008 when Abdul Khaliq, Kirshan (who is said to be in Abdul Khaliq's employment as his manager) came to Mandroop's home at about 8-00 p.m. Along with two other persons who were not known to Mandroop but can be identified by him. Abdul Khaliq was armed with a rifle, Kirshan with a shotgun, and the two other persons with hatchets.
7. ' Following some verbal altercation Abdul Khaliq and his three colleagues took Mooto Bheel (Mandroop's father) away with them at gun point. Before departing they told Mandroop and his family that they could get Mooto Bheel back after payment of the loan due to Abdul Khaliq.
8. ' After failing to secure the release of his father through complaints lodged with local elders, Mandroop lodged an application with the learned Sessions Judge, Sanghar who was pleased to order the registration of an F.I.R. Against Abdul Khaliq, Kirshan and two unknown accused persons.
9. ' The F.I.R. Was lodged at P.S. Shandadpur and a copy was handed to SIP Abdul Majeed Nizamani for further investigation. According to the summary of the case sent thereafter to the learned Civil Judge & Judicial Magistrate, Shahadpur by the SIO Shandadpur, SIP Nizamani inspected the place of the incident and also recorded the statements of witnesses under section 161, Cr.P.C.
10. During the inspection SIP Nizamani noted that the bridge leading away from Mandroop's home was not large enough to permit the abduction of one man by four others. SIP Nizamani noted that the bridge was difficult enough to cross during the day and that it was not possible for five men to cross it at night. On the basis of his finding SIP Nizamani concluded that the crime was not possible.
11. ' According to the summary prepared by SIP Nizamani, further investigation revealed that the crime did not take place at all that the abduction story was made up by Mandroop in order to avoid payment of the outstanding loan which was being demanded by Abdul Khaliq through Kirshan.
12. ' While the investigation was still going on, two persons, namely Bahadur Khan son of Muhammad Saleh and Tariq Iqbal son of Nazir Ahmed (described in the report as impartial witnesses), voluntarily appeared and produced their affidavits before SIP Nizamani on 5-12-2008. These affidavits had been sworn before the Civil Judge and Judicial Magistrate-I, Shandadpur and repeated that the money owed to Abdul Khaliq was not being repaid despite several visits by Kirshan. According to these sworn statements Mandroop and his family had concocted the story of Mooto Bheel's abduction and lodged a false F.I.R. Against Abdul Khaliq and Kirshan simply in an endeavor to avoid having to pay back the loan.
13. ' The affidavits further disclosed that Abdul Khaliq became ill on 6-11-2008 and was taken to a private hospital in Saddar Hayderabad by. Kirshan and the deponents of the affidavits, Bahadur Khan and Tariq Iqbal. Abdul Khaliq was said to be under treatment at the hospital from 6-11-2008 until 18-11-2008 on which date he returned home. The affidavits conclude with the statement that Kirshan and the deponents remained busy in taking care of Abdul Khaliq from 6-11-2008 to 18-11- 2008 and that the F.I.R. Is false. Separate statements of Bahadur Khan and Tariq Iqbal were also recorded by SIP Nizamani under section 161 Cr.P.C.
14. ' The statements of the accused Abdul Khaliq and Kirhsan were also recorded separately under section 161, Cr.P.C. In his statement Abdul Khaliq reiterates that Mandroop and his family are indebted to him in the sum of Rupees 175,000 and have concocted the story about abduction in order to avoid having to pay back the loan. He states that on 6-11-2008 he became ill and that he was taken to a private hospital in Saddar, Hyderabad by Kirshan and by Bahadur Khan and Tariq Iqbal. In his statement Abdul Khaliq identified Bahadur Khan and Tariq Iqbal as his relatives. Abdul Khaliq further states that he came to know of the F.I.R. Lodged against him only after he returned home from the hospital in Hyderabad where he remained under treatment during the period 6-11- 2008 to 18-11-2008.
15. After making further enquiries from Misri Khan and Muhammad Bachal (who corroborated the version narrated by Bahadur Khan, Tariq Iqbal, and Kirshan), B SIP Nizamani considered the investigation complete. He concluded that the case against Abdul Khaliq and Kirshan was false and recommended its disposal under false "B" class.
16. ' The learned District Public. Prosecutor to whom SIP Nizamani's report had been submitted for his recommendations was of the view that a prima facie case had been made out against Abdul Khaliq and Kirshan under sections 365, 344, 504, and 34 P.P.C. Accordingly, the learned District Public Prosecutor recommended that SIP Nizamani's report be treated as charge sheet against the accused and they be directed to fact trial.
17. ' Having regard to the foregoing and all other material on record, including the statements of Ramzo and Jio (witnesses named in the F.I.R.) and the section 164 Cr.P.C, statement of the abductee Mooto Bheel, the learned Civil Judge and Judicial Magistrate-1 Shandadpur rejected SIP Nizamani's report vide order dated 13-4-2009. By this order SIP Nizamani was directed to submit challan within three days and non-bailable warrants for Abdul Khaliq were issued.
18. ' By his order of 13-4-2009 the learned Civil Judge and Judicial Magistrate-1 Shahadpur held as follows:-- ' Having heard both the parties, I have carefully perused the papers. Admittedly complainant in F.I.R.
19. And P.Ws. Shown in the F.I.R. Have fully implicated the above accused. Their version further finds support by the statements of abductee Mooto, which prima facie made the case fit for taking cognizance. But the Investigation. Officer without giving any weight to above piece of evidence, only relying on the defence witnesses had recommended for the disposal of case under "B" false class, which is not justified.
20. ' Under the above circumstances, it will be in the better interest of justice, that parties should be given proper chance, to prove case by adducing evidence, rather to decide the matter summarily.
21. I agree with the recommendation of learned District Public Prosecutor Sanghar, and am of the humble view that there is sufficient material available on record for taking cognizance. I therefore hereby take cognizance of offence. Accused Kirshan is present on pre arrest bail, he is directed to attend the Court on next date of hearing. SIO is directed to submit Charge sheet on proper pro forma, clearly showing the names and full addresses of complainant, P.Ws. And accused persons, within three days. Issue N.B.W. Against accused Abdul Khalique Sanjrani.
22. ' In his submissions learned counsel for the applicants asserted that the real dispute between the parties is civil in nature (the loan outstanding against Mandroop and his family and that the complaint is false and concocted simply in order to harass Abdul Khaliq into foregoing repayment.
23. Counsel stressed the fact that there were inconsistencies in the statement of the abductee who was not even recovered from the possession of the accused, and laid great emphasis on the medical record filed along with the application which, according to him, established that the accused Abdul Khaliq was hospitalized during the period 6-11-2008 to 18-11-2008 and could not, therefore, conceivably be engaged in abducting Mooto Bheel on 11-11-2008. Since Abdul Khaliq's manager Kirshan was busy attending to Abdul Khaliq during that period, he too could not have been involved in the alleged abduction.
24. ' Submitting that the order dated 13-4-2009 is illegal, learned counsel relied on the following cases in support of his contention that it is liable to be set aside and the application liable to be granted as prayed: Sh. Muhammad Shafique v. Abdul Hamid 1992 PCr.LJ 229; Asif Ali Zardari v. The State 1992 P.Cr.LJ 58; Fatuhal Khan Chandio v. The State, 2003 M LD 980; Muhammad Ramzan Baloch v. The State 2001 PCr.LJ 1538; and Ch. Muhammad Ashraf v. The State 2006 PCr.LJ 518.
25. ' In Sh. Muhammad Shafiq's case the respondent (Abdul Hamid) had filed a criminal complaint against Sh. Muhammad Shafique as a counter blast to an earlier. Criminal complaint lodged against him by Sh. Muhammad Shafique. After considering the facts of that case the Court found that the respondent Abdul Hamid had filed the criminal complaint simply to exert pressure on the petitioner in order to achieve an improper end. The Court held that this amounted to abuse of process in circumstances where the dispute was essentially civil in nature and quashed the criminal proceedings in exercise of the power contained in section 561-A, Cr.P.C.
26. ' In Asif Ali Zardari v. The State, the Court recognized that the High Court's power to quash judicial proceedings in order to prevent harassment of an accused by invoking the provisions of section 561-A Cr.P.C. Is unfettered. If the Court concluded that continuance of such proceedings against the accused would defeat rather than secure the ends of justice, or that no result in furtherance of justice would come out of such proceedings, they can no doubt be quashed.
27. ' In Fatuhal Khan Chandio's case the Court reviewed the material before it and arrived at a finding that mala fides and ulterior motive were clear on the part of the complainant who had instituted a false complaint against the police and the applicant. The Court also found that proceedings pending before the trial Court against the applicant had no legs to stand on. If the trial Court were to proceed with the case of the applicant, it would end in his acquittal since the evidence of complainant was in conflict with documentary evidence on the record. These contradictions were held to be fatal to the prosecution's case and the proceedings against the applicant were ordered to be quashed.
28. ' The case of Muhammad Ramzan Baloch v. The State cited by learned counsel for the applicants recognized that the inherent power of the High Court can be exercised in exceptional cases without waiting for the trial Court to pass orders but cautioned that this power should only be exercised in the interest of justice and to prevent the abuse of process. The litmus test set out in this judgment for determining whether or not there is abuse of process of law is whether or not the prosecution has a prima facie case against the accused or not. If it does not, resort may be had to section 561- A Cr.P.C. And the offending proceedings quashed.
29. ' Ch. Muhammad Ashraf v. The State was a case in which the Court had occasion to consider the circumstances in which a Magistrate may disagree with the report of an Investigating Officer submitted under section 173, Cr.P.C. In this case the Investigating Officer had submitted a report under section 173, Cr.P.C, to the Vth Judicial Magistrate Karachi (East) recommending disposal of the case in false "B" class on which the following order was passed by the learned Magistrate: ' The report submitted by the Investigating Officer in B Class is rejected in the interest of justice.
30. Issue the direction to the Investigating Officer to submit challan according to law.
31. ' As in the present case, this order was challenged by way of a section 561 Cr.P.C, application to the High Court on the ground that while the Magistrate was empowered to pass any order on a section 173 report, that power cannot be exercised arbitrarily and the order must be passed after a consideration of the material before the Magistrate.
32. ' Agreeing with the contention of the applicant Ch. Muhammad Ashraf, the High Court quashed the order of the Vth Judicial Magistrate Karachi (East) after observing as follows:- ' Undisputedly, the Magistrate is competent to pass any order on the report submitted by the Investigating Officer and take cognizance of the offence or even order further investigation into the matter. However, any order means judicious and just order and not an arbitrary order without reasons and justifications. The Magistrate is required to consider the report under section 173, Cr.P.C, in the light of the material collected during the investigation and then pass an order. It is true that sometimes the Investigating Officers do not investigate the matter properly and sincerely and submit unjustified reports even then it is not expected to disagree with it by a non-speaking order without any indication about considering the material collected during the investigation.
33. ' Although the power conferred upon the 'Magistrate is administrative in nature and the order passed by him is also an administrative order yet that has to be just and judicious one and not an arbitrary [sic]. The order impugned through present application is surely an arbitrary one as it does not indicate that the learned Magistrate did bother to consider the material collected during the investigation. Nor does it contain any reason for disagreeing with the opinion of the Investigating Officer.
34. ' In his submissions in response learned counsel for the State supported the impugned order and asserted that the report submitted by the Investigating Officer was based entirely on the statements of the defence witnesses without taking into consideration the evidence and statements of the other side. Being one sided, the recommendation of the Investigating Officer could not be accepted and was rightly rejected by the learned Civil Judge & Judicial Magistrate-1 Shahdadpur.
35. Having gone through the record and considered the submissions by learned counsel I find little reason to set aside the order passed by the learned Judicial Magistrate-1 Shahdadpur. I am mindful that section 561-A, Cr.P.C, vests very considerable powers in this Court and also that the same must only be exercised in order to prevent an abuse of the process of law. Applying the litmus test set out in Muhammad Ramzan Baloch's case I cannot say that the prosecution does not have a prima facie case against the accused.
36. ' As far as the report of the Investigating Officer is concerned, I note that it does indeed appear to be one-sided. The Investigating Officer has declared the crime as being impossible of commission on the basis of the alleged difficulty in crossing a bridge and without any meaningful consideration of the statements of the defence witnesses. His reliance on the gratuitous statements of Bahadur Khan and Tariq Iqbal, whom he has described as impartial witnesses, is not confidence inspiring particularly since these persons have been identified by the accused Abdul Khaliq himself as his relatives.
37. The Investigating Officer also does not appear to have given due consideration to the medical record on file which consists of a certificate that accused Abdul Khaliq was suffering from depression and acute stress and was under treatment from 6-11-2008 to 18-11-2008. The certificate also states that he was advised rest for the same period and was called for a follow-up visit to the doctor after 15 days. There is nothing to suggest that Abdul Khaliq was confined to a hospital in this period and the certificate itself is on the stationery of a diagnostic centre in Saddar Hyderabad which does not appear to be a hospital. In addition to this certificate, the medical record consists of prescriptions for medicines and biochemistry and hematology test reports of various dates in the month of November, 2008.
38. ' Whether or not these reports will eventually withstand the test of a trial and establish Abdul Khaliq's incapacity to have committed the crime on 11-11-2008 is not for this Court to consider. As held in Muhammad Ramzan Baloch v. The State, all that this Court has to consider today is whether or not the prosecution has a prima facie case against the accused and, in so far as the order of the learned Judicial Magistrate-1 Shahdadpur is concerned, whether or not it meets the just and judicious order standard set out in Ch. Muhammad Ashraf v. The State.
39. As already noted above, I concur with the finding of the learned Judicial Magistrate that the prosecution has a prima facie case against the accused persons. As noted in the order of the learned Judicial Magistrate itself, his determination that there is sufficient material available on record for taking cognizance of the offence is based on a hearing afforded to the parties and a careful consideration of the record. Accordingly, I also find that his order dated 13-4-2009 is a just and judicious order based on a consideration of the material before him.
40. ' In view of the foregoing I find no merit in this application and the same is dismissed in limine together M.A. No, 1186 of 2009. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.