' ZAHID HAMID, J.---By this order the instant Criminal Miscellaneous Application under section 561-A, Cr.P.C. Whereby quashment of the complaint and consequential proceedings in direct Complaint No,18 of 2009 pending with the 1st Additional Sessions Judge Thatta has been prayed for shall stand disposed of.
2. It has been claimed that the respondent No,2 Abdul Razzaque son of Samano in order to harass and intimidate the applicants filed a false and vexatious direct Complaint No,18 of 2009 alleging that the applicants had committed the offences punishable under sections 324, 365, 344, 506/2, 147, 148, 149 and 337-H(2) of P.P.C. According to the applicants the respondent No,2 alleged that he was a respectable Zamindar and law abiding citizen and residing at Jhoke Sharif, Taluka Mirpur Bathoro, District Thatta. On 12-11-2009 at 6-30 a.m. He and his father Samano Jatoi when they were available at their land bearing Survey No,432, Deh. Jhoke Sharif, noticed that three vehicles i.e, a big Jeep bearing No,8684, one green coloured Car bearing No,110 and one black Car number whereof had allegedly been forgotten by the complainant came there; that from those vehicles 10 persons including the accused persons alighted. They were identified by the complainant and his father and the accused persons arrayed in the complaint at Serial Nos.1 to 3 were empty handed while the accused at Serials Nos.4 to 7 were armed with weapons, whereas three could not be identified but they could identify them if shown; that as soon as the above named accused persons came, they resorted to firing and thereafter Zia Kathiawari instigated others not to spare the complainant and his father and to kidnap them unless they agreed to sell their land to the accused persons; that on the instigation of accused Zia Kathiawari other accused persons "captured" Samano, father of the complainant, put him in the vehicle wherein he raised cries upon which Chandio Maachi, Sain Bux Jatoi and number of other persons were attracted to the spot but the accused persons fled away after having kidnapped Samano Jatoi, towards their adjacent sugar mill extending threats that if the complainant and Samano Jatoi did not sell their land adjacent to the Sugar Mill, the complainant's father Samano Jatoi would be killed; that the complainant rushed to the Police Station Jhoke Sharif and requested for registration of the F.I.R. Which was turned down. However, one Police Constable advised the complainant to process the application through D.P.O. Thatta in the name of S.H.O. Jhoke Sharif; that the complainant then moved an application to D.P.O. Thatta who forwarded it to S.H.O. Jhoke Sharif but the S.H.O. Did not register the F.I.R. Although the incident had also been published in several newspapers about abduction of Samano, the father of the complainant; that the complainant then moved application under section 22-A(6) Cr.P.C. On 18-11- 2009 before the learned Sessions Court Thatta who referred the same to D.P.O. Thatta for inquiry and taking legal action and such order was delivered in the office of D.P.O. Thatta on 20-11-2009; that on 30-11-2009 abductee Samano Jatoi returned back to his house and informed the complainant that after his abduction the accused put him in a quarter of the Sugar Mill for 14 days and then he was taken in a Hi-Roof vehicle to Karachi and was kept under wrongful confinement in a Bungalow when on the Eid day i.e, on 28-11-2009 a lady came to his room with food and to whom he requested to bring him water and when she went outside the room for fetching the water, she left the door opened which opportunity was seized by Samano Jatoi and he left the Bungalow. He was seen by the Chowkidar who fired upon him with intention to kill him but he could not succeed in his attempt and escaped and on 30-11-2009 he got a taxi which dropped at his residence and the said taxi was driven by one Misri Rind an acquaintance and resident of Shah Karim; that on 1- 12-2009 the complainant produced his father and other witnesses at Jhoke Sharif Police Station where their statements were recorded but on account of influence wielded by the Mill management, no action was taken; that the D.P.O. Thatta did not take any action as such another application was presented before the learned Sessions Court where after on 2-12-2009 the D.P.O.
Thatta requested the learned Sessions Court to "allow him time for the purpose;" that seeing the attitude of D.P.O. Thatta and S.H.O. Jhoke Sharif, the complainant felt, that he would not get justice and as such on 3-12-2009 the complainant withdrew the application preferred by him under section 22A(6), Cr.P.C. Which was not pressed and disposed of on 3-12-2009.
3. It is stated that from the record seized with the learned respondent No,1, it appeared that by order dated 2-1-2010 the complaint had been forwarded to the learned IIIrd Judicial Magistrate, Thatta to hold a preliminary inquiry who recorded statements under sections 200 and 202, Cr.P.C.
Of the complainant and that of the two witnesses who were false and further vide order dated 21-1- 2010 it was observed as follows:-- "The learned Judicial Magistrate examined the complainant's witnesses Samano, Sain Bux, Chando and Misri under section 202 Cr.P.C. All these witnesses had supported the contentions of the complainant in complaint and his statement under section 200, Cr.P.C."
4. Having stated as above it was observed that prima-facie it was found that a case cognizable under sections 324, 365, 344, 506(2), 147, 148 and 149, P.P.C. Was made out and bailable warrants were issued against the accused/applicants herein in the sum of Rs,10,000 each.
5. It has been stated in the main petition that the applicants Nos.1 to 3 are the Directors of Shahmurad Sugar Mills which is situated at Jhoke Sharif, Thatta and it is at a distance of 2 K.M.
From the place of incident; that the applicant No,1 is the Honorary Consul General of Hungary and the applicant No,3 is the Honorary Consul General of Mauritius whereas the applicants Nos.4 to 7 are the employees of the Sugar Mills; that the respondents Nos.2 and 3 i.e, father and son being the complainant and the abductee in the direct complaint are extortionists having history of causing intimidation and harassm ent to the employees, officers and Directors of the Sugar Mill in order to extort money from them intermittently and in order to fulfil their illegal agenda, the said respondents involved themselves in rioting, theft, criminal intimidations, wrongful confinements and acts of extortions directed against the employees of the Sugar Company which were brought to the knowledge of the Police and F.I.Rs were registered against them and criminal proceedings were also pending before the competent court of law against the said respondents; that the applicants Nos.2, 4 to 7 gave their statement on 3-12-2009 to the S.P.O. Concerned in respect of the alleged incident where after an inquiry was conducted and statements of independent witnesses were recorded who denied that any such incident had taken place and the S.P.O. Then submitted a report against the respondents; that the respondents Nos.2 to 3 are also the land grabbers and had illegally dispossessed the Sugar Mill Company from the land situated within the area of the Sugar Mill as a result of which the latter was constrained to institute a Suit bearing No, 4 of 2004 before the learned Senior Civil Judge Thatta for declaration and permanent injunction and the said suit was decreed on 24-11-2007 in favour of the Sugar Mill Company; that the respondents Nos.2 and 3 having failed to secure any monitory gain through their aforesaid tactics, intimidation and harassm ent finally resorted to institution of false and vexatious direct complaint against the applicants and if such complaint is not quashed the applicants would suffer irreparable loss.
6. It was claimed that the complaint had been filed only to embarrass and defame the applicants and to extort money and that there was unexplained inordinate delay in lodging of the F.I.R. And further the prosecution story was hardly credible enough to sustain the criminal proceedings and as such it was prayed that the complaint and consequential criminal proceedings be quashed.
7. I have heard the learned counsel for the applicants, the respondents No,2 and 3 and'learned A.P.G. For the State.
8. Learned counsel for the applicants has relied on the case of Khurshid Ahmed v. The State and 3 others (PLD 1994 Karachi 363) to emphasise that where criminal proceedings were intended to be employed as pressure tactics to coerce the accused person to meet the legal demand of the complainant continuance of such proceedings if allowed would tantamount to perpetuation of the abuse of the process of court and the same were quashed under section 561-A Cr.P.C. And that in appropriate cases direct application can be made to the High Court without preferring any application under section 249-A or 265-K Cr.P.C. He also referred to the case of Meraj Khan v. Gul Ahmed and 3 others (2000 SCMR 122) to stress upon his view-point that there was no absolute bar on the powers of the High Court to quash F.I.R. Or proceedings and nip them in the bud even if recourse to proceedings under section 249-A, Cr.P.C. Had not been taken as the main consideration would be whether the proceedings would be a wastage and abuse of the process of Court.
9. The learned counsel for the applicant has also referred to the case of The State v. Asif Ali Zardari (1994 SCMR 798) wherein it was observed that the High Court had inherent powers to pass such orders as would be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice and in exceptional cases this court could exercise such jurisdiction without waiting for the trial Court to pass orders under section 249-A or 265-K, Cr.P.C. When there was no probability of the accused being convicted. He also referred to the case of Mian Faiz Muhammad v.
S.H.O. Police Station and 5 others (2005 YLR 1259) to advance the plea that in exceptional cases a citizen who is a victim of undue harassment can invoke power of High Court under section 561-A, Cr.P.C. He has also referred to the case of Muhammad Yaqub v. S.H.O. And others (1997 MLD 2097) wherein it was observed that with passage of time now it was well settled principle of law that the High Court was not denuded of its powers to quash the proceedings if it was satisfied from the material placed before it that prosecution had been lodged for improper motives, merely to harass the accused or that its continuance would tantamount to the abuse of the process of the court or other reasons which impelled the court to conclude that it would not be in the ends of justice to allow the prosecution to continue.
10. The learned counsel for applicants has also relied on the case Agha Nadeem and others v.
Province of Punjab and others (2005 MLD 1366) and Imtiaz Hussain v. The State and 2 others (1999 MLD 2987) and Allah Rakhio and others v. The State (2001 PCr.LJ 551 Karachi) and the case of Haji Abdul Aziz v. Muhammad Yunus (1991 PCr.LJ 1502 Lahore) on more or less the same point canvassed above except the last one wherein it was observed that where the eye-witnesses had involved as many as 10 persons as accused in a case and one of the accused namely Muhammad Yousuf was in Saudi Arabia on the date of occurrence as he had gone to perform Hajj and returned to Pakistan on 10-8-2008 i.e, 2 days after the occurrence and that was proved from the documents and therefore, from the facts and circumstances of the case with numbers of the offenders was exaggerated and if the eye witnesses could be found capable by involving one innocent person, no judicial certainty or circumstantial guarantee existed that they would refrain from not falsely implicating others.
11. Having considered the record and the submissions of the learned counsel and the case law it is found that the story narrated in the direct complaint is totally unbelievable. Firstly no F.I.R. Was lodged at all and though recourse to proceedings under sections 22A and could be taken, the same were not pursued to their logical end resulting in seeking direction from the learned Sessions Judge concerned or the High Court for registration of F.I.R. The incident admittedly relates to 12th November, 2009 whereas the direct complaint was filed on or about 14-12-2009 while the statements of the complainant and his father are stated to have been recorded on 1-12-2009 at Police Station Jhoke Sharif. The applicants Nos.1 to 3 had allegedly come with other applicants who were armed, yet no resistance was stated to have been offered by the complainant when his father was being forcibly abducted, at gunpoint as, alleged amid firing, not a single bullet hit anyone nor any damage was caused to any property. The applicant No,1 was stated to be in Saudi Arabia on the alleged date of incident according to the dates of entry and exit made by the Immigration Authorities at Karachi Airport on his Passport.
12. The most shocking part of the prosecution story is that the alleged abductee was taken away from the far flung area of interior Sindh in a Hi-Roof to Karachi after 14 days where he was allegedly confined at some Bungalow and provided with food. It is apparent that during the long journey from Deh Jhoke Sharif, Thatta to Karachi, the abductee did not make any noise or raised cries. The complainant is also silent, if abductee during his journey was somehow forced to remain mum and it is also surprising as to why so easily he was allowed to slip away from the alleged place of confinement at Karachi and it is also not believable that at such point of time he was fired at by the Chowkidar with intention to kill him but simultaneously he was permitted to escape unhurt without any resistance or scuffle and why he did not immediately rush to the Police Station to register the F.I.R. After pointing out the place where he was wrongfully confined allegedly by the applicants. It is beyond imagination that after the alleged abductee escaped, he preferred to remain silent, did not contact his son and further it is also not satisfactorily disclosed as to what really happened after the day he escaped on 28-11-2009 upto 30-11-2009 when he found a taxi being driven by Misri Rind, a known person to him who was resident of his native place and he dropped him at Jhoke Sharif. It appears that the then learned Sessions Judge Thatta, who has been elevated to this Court, rightly did not find any merit in the complaint made before him and therefore, ordered the D.P.O. To hold the inquiry and submit his report vide order dated 18-11-2009. It would therefore, follow that before a direct complaint was filed or proceedings in any manner were initiated for lodging the F.I.R. By or on behalf of the complainant lot of room for deliberations was left to retaliate to F.I.R./Crime No, 32 of 2008 Police Station Jhoke Sharif dated 13-8-2008 lodged by one of the respondents nominating Samano Jatoi and his son.
13 The learned counsel for the applicant has placed on record the above F.I.R. Registered under sections 504, 427, 342, 149 and 147, P.P.C. In his statement the taxi driver Misri son of Darya Khan, caste Rind, which was recorded before the learned IIIrd Judicial Magistrate Thatta, deposed that on 30-11-2009 at about evening when he had taken some ladies to Karachi in Lea Market area and after they disembarked from his taxi he saw Samano Jatoi there whom he took all the way to Thatta and left him at Jhoke Sharif. He was informed by persons that he was kidnapped and also that he had no money to pay him. The second witness namely Chandoo son of Ramzan, caste Maachi in his statement disclosed that he along with Sain Bux were present at the land when he heard the gunshots and saw three vehicles when Samano Jatoi was taken away towards the Mill side and then on 1-12-2009 he along with Samano Jatoi went to Police Station for recording his statement but no fruitful result could be achieved and therefore, they went away. The statement of another witness namely Sain Bux son of Qasim, caste Jatoi is also recorded but he gave the same alleged ocular account of the incident. On the other hand Samano Jatoi in his statement disclosed that he was confined in Sugar Mill Bungalow for 14 days where after his face was muffled and taken away. He did not disclose as to who muffled his face. He went on to state that it was on Eid day when he asked the woman for providing him water for drinking and made his escape good as if he was purposely let off and while he was doing so, Chowkidar fired upon him obviously to prevent him from running away but he escaped and came to bazaar and saw vehicles and remained there for two days without disclosing where and finally stopped a vehicle and its driver turned out to be a person known to him who brought him to Jhoke Sharif. On 21-1-2010 an order was passed by the learned 1st Additional Session Judge Thatta and on the basis of the above statements and on perusal of the complaint without notice to the accused persons/respondents for the purpose of preliminary inquiry it was found that prima-facie case had been made out against the applicants and therefore BWs were issued mechanically. No critical examination of the complaint and that of the ocular accounts of the witnesses was made.
14. It is very strange that abductee was allegedly kept at the Mill for 14 days, yet no effort was made to recover him from there by his son having adjacent lands by instituting appropriate proceedings for conduct of raid and recovery under section 491, Cr.P.C. The taxi driver was a chance and an interested witness who did not take any fare from Samano and took him from Lea Market to Thatta and though known to Samano he did not help him in lodging of F.I.R. And in identifying or pointation of the place of confinement. All the accused persons who are applicants Nos.1 to 3 were admittedly known to the complainant who is stated to be a respectable Zamindar. Yet the failure on the part of his son to recover his father from the alleged unlawful confinement makes the complaint an extremely doubtful paper.
15. Indeed the doubts from the, very beginning of the prosecution and culminating in institution of the direct complaint are so many that the whole story to implicate the applicants can hardly be believed. Further the plea of alibi reflected by the entries made by the Immigration Authorities on the passport of the applicant No,1 namely Zakaria son of Zia was not disputed in arguments by the learned counsel for the respondents Nos.2 and 3 who simply argued that appropriate application under section 265-K could have been preferred before the learned Session Judge by the applicants in the first place and if fruitful results were not achieved then recourse to instant proceedings under section 561-A, Cr.P.C. Could have been taken. The cumulative effect of the allegations made in the complaint and statement of the witnesses I E recorded under sections 200 and 202, Cr.P.C, the attending circumstances, the absence of injury, the fatal delay in filing of Direct Complaint, the failure to pursue the proceedings under sections 22-A and 22-B, Cr.P.C. To their logical end culminating in registration of F.I.R., the absolute silence maintained by the alleged abductee throughout during the alleged confinement for 14 days in the Mills premises, and when a long journey was undertaken allegedly to shift him to some abode in Karachi, the fortunate chances coming unto the way of Samano Jatoi to liberate himself from his wrongful confinement, and escaping from injury when gunshot was fired at him by the chowkidar while he was fleeing and of his having suddenly found himself in Lea Market, coaxed by his old acquaintance Misri Rind Driver, coming all the way from the native place of Samano Jatoi to Karachi and then taking him along to his residence in Jokh Sharif cannot impress any prudent mind to conclude that a prima facie case under the sections as alleged had been made out as a result of which B.Ws were issued against the applicants. From beginning to the end the prosecution story on its face appears to be nothing short than, proverbially speaking, a cock and bull story. It is not consistent with the ordinary human conduct and measured by whatever yardstick one may conceive it to be totally unbelievable and falsus in omnibus. It has also been irreversibly damaged by the fact that one of the applicants/accused was not in Pakistan according to the Passport entries made by the immigration authorities on his Passport which were not controverted in arguments. In this context the term proved as contained in Article 2(0(4) of Qanun-e-Shahadat Order, 1984 may be referred as follows:-- "A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent mind ought, under the circumstances of the particular case, to act upon the supposition that it exists."
16. Looking at the allegations in the backdrop of the implications of the term proved ibid at their face value the same can never be believed and one can conclude that such malicious prosecution ought to have been terminated at the time when the cognizance was taken. If proceedings as serious as criminal proceedings which may jeopardize the parties constitutional right of liberty are allowed to sustain on the basis of such allegations then it would make the criminal justice system a mockery.
17. Accordingly the allegations contained in the complaint and those discussed above cannot hang together firmly to present an acceptable case for taking cognizance rather the same reflect a shocking picture of our Society. No F.I.R. Was registered the investigation was thwarted by the son of the complainant himself by withdrawing proceedings instituted belatedly under section 22-A-B, Cr.P.C. No recovery could be made therefore not even an entry from the daily station diary relating to the incident has been produced or referred to in the complaint and further all the P.Ws appear to be eighbours/acquaintances and interested persons. In the memo of complaint no gist of evidence was given nor any other incriminating material was shown. No allegation whatsoever has been made anywhere that during the confinement of the alleged abductee for 14 days in the sugar mill premises and or elsewhere in Karachi anyone asked him to execute any document of transfer of the alleged adjacent lands which were as claimed formed basis for the motive of the commission of the alleged offences. No arrests were made either. Accordingly all the ingredients of commission of a crime prima facie appear to be lacking. Even if there had been a conviction on the basis of above inherently lame, bald and unbelievable material the same would H have not sustained being far from reality. It could therefore be said that no probability of the accused being convicted of any of the offences ever existed.
18. In the context of the relief which is being granted to the petitioners reference may be made to the case of Dr. Ghulam Mustafa Solangi and 5 others v. The State (2005 PCr.LJ 1638). In this case F.I.R. Had been lodged under section 17(3) E.H.O. And sections 11/16 Zina Ordinance, 1979 with Police Station Moro District Naushehro Feroze by Mir Muhammad Solangi, Advocate who happened to be the brother of Dr. Amnat Solangi wife of the petitioner No,1 in that case. The petitioner No,1 in the said case was a practising doctor and his wife Amnat Solangi was a Gynecologist and both of them had married and their Nikah was registered per Nikahnama placed on the file of the court.
Since Mir Muhammad Solangi brother of Dr. Amnat Solangi who was a practising Advocate and President of Moro Bar Association was unhappy with the marriage tie, the aforesaid F.I.R. Was lodged alleging that on 12-9-2003 the house of the complainant was raided and his sister Dr. Amnat Solangi was abducted and Dacoity was also committed. A Major serving in Pakistan Army was also implicated as one of the accused in the F.I.R. As a result of investigation, it was revealed that there was a valid marriage accordingly the Investigating Officer submitted a report recommending disposal of the case in B-Class which was approved by the concerned T.P.O.
Investigation. However, a challan was submitted before the concerned Judicial Magistrate under the influence of Deputy District Attorney. The challan was caused to be submitted before the Sessions Judge and it was at that stage that proceedings for quashment were filed and after consideration of whatever the material was available as mentioned in the reported case it was observed that the proceedings could be quashed if it was found that even after recording the entire evidence, the accused would not be possibly convicted irrespective of the facts that the said accused had not approached the trial court under section 249-A or 265-K, Cr.P.C. The contention that at least the allegations of dacoity could be allowed to be proved during the trial did not find favour with his Lordship Mr. Justice Amir Hani Muslim. The circumstances of the present case are almost identical and therefore, the merits of flimsy allegations in the present case have also been discussed as such scrutiny was found to be necessary for promoting the ends of justice.
19. Sections i.e, 249-A and 265-K, Cr.P.C, empower the Courts to acquit the accused at any stage of the case. Section 561-A, Cr.P.C. Is invoked after or without recourse to twin provisions above as the case may permit. The authority to acquit the accused at any stage of the case for permitting the abuse of the process of Court and to secure the ends of justice therefore clearly falls within the ambit of inherent powers vested in this Court to quash the criminal proceedings for the promotion of justice. It would seem futile to revert the case for taking up proceedings under section 265-K Cr.P.C. As such course might add to the sufferings of the applicants and doubling of judicial exercise. Accordingly in order to prevent the abuse of the process of Court and secure the ends of justice the proceedings in Direct Complaint No,18 of 2009 pending in the Court of learned Ist Additional District Judge Thatta are quashed. As a result the accused/applicants (herein) in the direct complaint are acquitted. Their P.R. Bonds if any are discharged. This Criminal Miscellaneous Application No, 31 of 2010 stands allowed accordingly.