' MAZHAR IQBAL SIDHU, J.--- Petitioners Muhammad Feroze, .Nigah Hussain, Khuda Bakhsh and Noor Muhammad have assailed the order dated 1-7-2011 passed by learned Revisional Court whereby order of the learned trial Magistrate dated 30-7-2010 was upheld passed on an application filed under section 249-A, Cr.P.C. By the petitioners as well as order dated 29-4-2010 passed by the learned trial Court whereby petitioners were summoned in the complaint case instituted by respondent No.4 (Nazar Hussain) under sections 440/506/440/354/ 337-F(ii)/337-L(2), P.P.C. Titled Nazar Hussain v. Muhammad Feroze etc.
2. By precision, facts to file in the insurni criminal miscellaneous petition are that Ali Muhammad got reported an incident vide Rupt No.11 dated 17-6-2004 against Muhammad Feroze, Dost Muhammad, Khuda Bakhsh, Noor Muhammad and Hussain alleging that petitioner Muhammad Feroze was armed with `Kassi' came in the land owned by him, was intercepted by his brother Nazar Hussain, whereupon Muhammad Feroze gave a `Kassr blow on the right shoulder of Nazar Hussain. Womenfolk stepped forward who were also sloshed. The incident was the result of dispute over the landed property between the parties. Nazar Hussain was got medically examined on 2-6- 2004. According to his MLR doctor observed two injuries on his body, injury No.1 was declared falling within the mischief of section 337L(2), P.P.C. Caused with blunt means whereas injury No.2 was shown to have been caused with sharp-edged weapon and fell within the purview of section 337F(i), P.P.C.
' Investigation was carried out on the said Rupt, consequently, culminated in falsity.
3. On 13-1-2010 respondent No.4 filed a private complaint against the petitioners in which after completion of preliminary proceedings, petitioners were summoned under section 202, Cr.P.C. To face the trial On 29-4-2010, then they moved an applicat\ion under section 249-A, Cr.P.C. By agitating multiple grounds for their acquittal but ttheir prayer was declined by the learned trial Court vide order dated 30-7-2010 and being aggrieved of the said orders challenged it in the revisional jurisdictional of the\ Sessions Court but in vain vide order dated 1-7-2011 rendered by learned Addl. Sesskns Judge, Bhakkar. Hence, instant application.
4. Learned counsel \for the petitioners submits that Muhammad Feroze, the petitioner, is a practising lawyer; he got a case registered vide F.I.R. No.169 dated 2-6-2004 under sections 147, 149, 337-L(2) and 337-A(i), P.P.C. Against Ali Muhammad respondent along with others at Police Station Sadar, Bhakkar, the same was investigated and ultimately by preparing report under section 173, Cr.P.C. Dated 10-12-2004, submitted the same to the court, then the trial commenced and after the closure of prosecution evidence on 29-4-2010, statements of the accused under section 342, Cr.P.C.
Were recorded; at the verge of conclusion of the trial, in order to create a false defence/ cross version at: a belated stage, by inordinate delay of about five years, complaint was filed wherein no perspicuity of its being delayed filing has been mentioned; the proceedings in the complaint sparingly fall in the mischief of malicious prosecution; the injuries on the person of Nazar Hussain seem to be of minor nature and could be caused by friendly hands or manoeuvered; the Rupt was also lodged by the delay of 15 days on 17-6-2004; civil litigation over a landed property, before filing of instant criminal complaint had also been going on between the parties; the order whereby petitioners were summoned by the learned trial Court shows monotonous attitude of the learned trial Magistrate and is so slipshod and sketchy which has never been seen by him in his career passed by any learned Judicial Officer and while dismissing the application of the petitioner under section 249-A, Cr.P.C. As well. Further submitted that learned 'Magistrate has not adverted to the facts and circumstances of the case particularly the rule of laches has applied pn the proceedings of the complaint owing to its separately alleged instituting of the case; no probability exists of the conviction and sentence of the., petitioners; the respondent No.4 and his co-accused in the State case are being prosecuted by the petitioners' party while recording their statements under section 342, Cr.P.C. Have taken the instant private complaint as a shield to get benefit when they apprehended its looming large/impending danger of being convicted and sentenced in the case in which Muhammad Feroze is the complainant, otherwise the complaint might not have been instituted; no party can be permitted to initiate criminal proceedings on its own whim without looking into the time distance, particularly, when the aggrieved party had the knowledge about it between the incident and setting up the proceedings; obviously law of limitation does not apply in filing the private criminal complaint; legal precedents rendered by this court as well as by the Hon'ble Supreme Court of Pakistan have not accepted this practice on the part of the complainant party or the aggrieved party; to let the complainant loose for an unlimited period to seek remedy would be inequitable, unjust and a travesty of the justice; the Court being custodian of the life, liberty and rights of people should remain wide-awake, that nobody may prejudicially be vexed; the respondent No.4/complainant was not oblivious to the outcome of investigation of Rupt. No.11 as to its falsity lodged by him and moreso that since registration of case F.1.R. No.169 dated 2-4-2004 uptil now he has been defending case pending against him and others; it is well saying of law that law helps the vigilant and not to the indolent and whoever sleeps over his right can be extended the same and who seeks equity must show equity; the summoning order dated 29-4-2010 and the order passed on application filed under section 249-A, Cr.P.C. Dated 30-10-2010 by the learned trial Court as well as the order of the learned revisional Court dated 1-7-2011 may be set aside. Learned counsel in support of his arguments has placed reliance upon the cases reported as Muhammad Fiaz Khan v. Ajmeer Khan and another (2010 SCM R 105), Mst. Shamim and 2 others v. The State and another (2003 SCM R 1466), Maabool Rehman v. The State and others (2002 SCM R 1076) and Abdul Rashid and 2 others v. The State and another (1987 PCr.LJ 1380).
5. Learned counsel for respondent No.4 Nazar Hussain has vehemently opposed the submissions and argued that during occurrence, Nazar Hussain was caused injuries by the petitioners' party but the police did not register an independent case; Muhammad Feroze, the petitioner is an influential person being member of local bar, however, Nazar Hussain was medically examined on the day of incident at 1-30 p.m. And the doctor observed two injuries on his body; the police being hostile to him instead of registering a case lodged Rupt No.11 dated 2-6-2004 on the complaint of Ali Muhammad and through an ex parte investigation a fabricated result as to its falsity was given, thereafter respondent No.4 being an aggrieved of the said result filed a private complaint. Further added that law of limitation does apply in criminal prosecution; the preliminary evidence of the respondent was recorded on oath has gone unchallenged so far; without any new evidence how the same can be said to be false; the learned trial Court has observed in its summoning order that sufficient grounds for proceeding exist to summon the petitioners, accordingly they were summoned, then while dismissing an application filed under section 249-A, Cr.P.C. Has taken a very jural as well as rational view that neither' the charge was groundless nor at this stage can be said that probability of the conviction and sentence of the petitioners did not exist, therefore, all the arguments by the learned counsel for the petitioners ad barram, primarily would be warrantable after full dressed rehearsal of trial and all arguments have hinged upon conjectures and surmises and also on hypothesis. Further submitted that petitioners' party never challenged medico-legal of Nazar Hussain injured-respondent and the same stands in the field like anything. Submitted that the complaint is not a lever either to damage the case being faced by respondents and others or to create a false defence but the same is based upon its true facts and circumstances; when the law does not apply any limitation on launching the criminal prosecution, then the law does not see it by askance over a delayed initiation of prosecution and has thus prayed for dismissal of instant application.
6. Learned D.P.G. Has made only submission that technicalities may not be permitted to be hampered in the safe dispensation of justice.
7. Arguments heard. Available record has been gone through with the assistance of learned counsel for the parties as well as learned D. P. G.
8. As per Rupt No.11 dated 2-6-2004, the incident alleged to have taken place on the same day at morning time and on the same day at about 1-30 p.m., Nazar Hussain respondent No.4 was medically examined. As per his MLR, two injuries were found available i.e. Injury No.1 was caused with blunt means and injury No.2 was shown to have been caused with sharp-edged weapon but none of both the injuries has been found serious or grievous in nature and at the maximum the doctor has declared the same falling under sections 337-L(2) and 337-F(i) P.P.C. On the other hand, Muhammad Feroze petitioner No.1 got a case registered vide F.I.R. No.169 dated 2-6-2004 at Police Station Bhakkar against the respondent and seven others including Nazar Hussain, the injured that they all caused injuries to Muhammad Feroze, Nigah Hussain and Khuda Bakhsh, the petitioners over a dispute of pre-emption suit on landed property. Rupt as well as F.LR. Both were investigated.
Version put forth in Rupt was found false whereas in F.I.R's. Case report under section 173, Cr.P.C.
Was prepared on 15-1-2005, the same was submitted to the court, accused of the F.I.R. Were indicted on 26-6-2006, then the prosecution closed its evidence, thereafter statements of the accused under section 342, Cr.P.C. Were recorded on 29-4-2010 whereas respondent No.4 Nazar Hussain filed a private complaint on 13-3-2010. The alleged incident reported to have taken place on 2-6-2004, more than five years A were taken by the complainant in filing the private complaint.
Petitioners were summoned on 29-4-2010, then their application under section 249-A. Cr.P.C. Was dismissed on 30-7-2010 and the revision was also dismissed vide order dated 1-7-2011. Inordinate delay in filing the private complaint has not even been elucidated even by a single line. Statement of Nazar Hussain respondent No.4 and Atta Muhammad examined as cursory witnesses were recorded on 13-3-2010 and 15-3-2010 respectively, have also been gone through. Both have not explained/made perspicuity of inordinate delay before court as cursory witnesses and on 15-3- 2010, the cursory evidence was closed by respondent by producing certified copies of MLR of Nazar Hussain Exh.Pl, Rupt Noll dated 2-6-2004 Exh.P2 along with certified copy of an appeal and its order Exh.P3, then learned trial Court after pondering over the matter and hearing arguments of learned counsel for respondent passed an order under section 204, Cr.P.C., the same is reproduced as follows:-- "Perusal of the record reveals that the contention of the complainant is that the petitioner has mentioned in the complaint that the accused persons have constituted unlawful assembly while armed with deadly weapon and committed criminal trespass, outrage the modesty of the female and caused the injuries under sections 337F(ii),L(2), P.P.C. And also threatened with dire consequences.
' In cursory evidence, the complainant has examined himself along with Ghulam Muhammad son of Adhu whom have fully supported the ,contents of complaint. He has also produced a copy of MLR and copy of Jammabandi regarding Khasra Nos.128/6,7, 129/5/1, 172/1, 173/1,10, 192/6/2/1. The accumulative effect of the complaint as well as statement of witnesses is that the offence under section 337 F(ii), 337L(2), 440 and 506, P.P.C. Is made out whereas section 354 P. P. C. Is concerned, he has not disclosed the name of the female whose modesty have been outraged by accused persons so the accused person is hereby summoned through bailable warrant amount of Rs.30,000 each to face the trial for 10-6-2010"..
The same order does not explain delay in filing of complaint and moreso the ladies allegedly were sloshed at the time of occurrence, none of them has been produced by the respondent before court.
9. Petitioners appearing in compliance of, the summoning order moved an application under section 249-A, Cr.P.C. For their acquittal on multiple grounds, consequently, the application was dismissed by the learned trial Court vide its order dated 30-7-2010. Relevant part of the orders are taken down as under:-- "Perusal of the record provides that there are no obstacles for a complainant to file a complaint or to submit for registration of the case after some specified time frame. The copy of the conciliation proceedings and arbitration award submitted by the complainant provides that since the occurrence; the complainant and accused persons have remained involved in conciliation proceedings but in vain. For disposal of petition under section 249-A, Cr.P.C. Court is bound to consider two ingredients which are as under:
(1) The charge is groundless.
(2) There is no probability oft conviction of the accused persons.
' While considering the said circumstances and the criteria laid down in under section 249-A Cr.P.C., it appears that at this stage of proceeding, it is difficult to determine about the final projection of the complaint. Final verdict regarding complaint in hand may only be taken after recordity evidence of the proseaition. In this context at this stage of hearing application in hand appears to be meritless, hence the same is hereby dismissed.
' Then the petitioners challenged the said order in revisional jurisdiction of learned Sessi ons Court, Bhakkar but the revision was also dismissed by the learned Addl. Sessions Judge, Bhakkar vide its order dated 1-7-2011, mainly, on the ground that at this stage charge neither can be said groundless nor the probability of petitioners being convicted can be ascertained, then petitioners opted to file, instant criminal miscellaneous petition under sect ion 561-A, Cr.F.C. Against the said order.
10. It has been noticed that private complaint, was filed by the delay of more than five years. Of course, law of limitation does not apply to the initiation of criminal prosecution but rule of laches cannot be ignored, the same is hereby interpreted as "remissness; slackness, "
(1) Unreasonable delay in pursuing a right or claim---almost always an equitable one---in a way that prejudices the party against whom relief is sought---Also termed sleeping on rights.
"Early in its history, Chancery developed the doctrine that where the plaint in equity delayed beyond the period of the statute applicable at law, relief would be refused on the ground of laches even through no specific prejudice to the defendant was shown, Today, in most state J, there are statutes of limitations applying to suits in equity. Despite these, however, the doctrine still holds that even if the delay is for a shorter period of time than that of the statute, it may still bar equitable relief if it is unreasonable and prejudicial to the defendant."
Prosecution Laches. Patents. In a claim for patent infringement, the equitable defense that the patentee did not timely enforce the patent right.
2. The equitable doctrine by which a court denies relief to a claimant who has unreasonably delayed in asserting the claim, when that delay has prejudiced the party against whom relief is sought.
"The doctrine of laches... Is an instance of the exercise of the reserved power of equity to withhold relief otherwise regularly given where in the particular case the granting of such relief would be unfair or unjust,"
11. As discussed above, nowhere the respondent has explained as to why the delay was caused by him in filing the private complaint, at the same time, it has been noticed that he along with his partirios criminis continued defending crimind case and the same is still pending. In these circumstances, it cannot be said or even ilapliedly it cannot be gathered that respondent had no knowledge about the findings of the police of falsity of Rupt got entered Another notable aspect is that Nazar Hussain, the injured of his own never agitated this matter anywhere earlier to the filing of private complaint that he had been prejudiced by the police findings and hi., too, has been appearing in the case pending against him and others wherein the statements under section 342, Cr.P.C. Have been recorded on 29-4-2010. In all circumstances, it is obvious that the respondent has created a false defence in the said case being faced by him and, others. Injuries on the person of Nazar Hussain are of manual nature, of course, MLR of him was not challenged through re- medical, examination but again the fact remains that police declared the incident incorporated in Rupt absolutely false, then there was no necessity with the petitioners' party to challenge the injuries. Law of the land prevents unnecessary dragging of the innocent people to the criminal prosecution and courts remain wide-awake for the enforcement of rights of the people of the country. Under the law, bar does not exist that after summoning an accused under section 204, Cr.P.C., to acquit them under section 249-A, Cr.P.C. Or under section 265-K, Cr.P.C. It should remain in the judicious mind of arbiter to visualize whether the intended prosecution is based upon bona fide or mala fide along with other circumstances and false, frivolous or vexatious accusations should be made to bury in its initial stage as in the law, it is considered not warranted that since the charge has .Been framed by the learned court, proceedings could not be buried by way of quashment. The Hon'ble Supreme Court of Pakistan has taken a very serious notice of delay in criminal prosecution in the case of Muhammad Faiz Khan v. Aimee, Khan and another (2010 SCM R 105) and its head notes (b)(c)(d)(1)(g) are reproduced as under:-
(b) Criminal Procedure Code (V of 1898)--- ----S. 154-Registration of case--Limitation---Effect---No limitation is provided in criminal law for lodging a complaint---When complaint is filed after a considerable delay, which was not explained by complaint then in such situation it raises suspicion as to its truthfulness---Delay in filing complaint is not by itself fatal except under very special circumstances---Complaint looses its truthfulness with length of delay more particularly when it is based on oral evidence.
' Queen Empress v. Ajudhia Singh and others 10 all. 350 and Mst. Shamim's case 2003 SCMR 1466.
(c) Criminal Procedure Code (V of 1898)- ---Ss. 202 & 204---Private complaint---Preliminary, inquiry---Appreciation of evidence--- Issuance of process-Principle-Appreciation of evidence at preliminary inquiry with the yardstick of Trial Court is not the purpose under 5.202, Cr.P.C.---Trial Court has only to .See if prima facie .Case is 'made out or not that is why full dress rehearsal of trial is not possible---such is general principle with regard to examining evidence on record before issuing process under S. 204 Cr. P.C.
(d Criminal Procedure Code (V of 1898)--- ---S. 202-Preliminary proceedings-Object and scope of 5.202, Cr. P. C. Is two fold to allow free and fair opportunity to complainant to produce some evidence to make out grounds for issuing process against accused. It is the duty of Magistrate to scrutinize contents of complaint, nature of allegations made therein, material in support of accusation and object intended to be achieved, possibility of victimization and harassment, if any, to ensure himself that no innocent person against whom all allegations are levelled should suffer ordeal of protracted, time consuming and cumbersome process of law.
' Sheikh Meeran's case AIR 1915 Mad. 128 and Muhammad Nawaz's case 2000 SCMR 1904.
(f) Administration of Justice--- ---He who seeks equity must come with clean hands and must be vigilant qua his right to approach Court well in time.
(g) Criminal Procedure Code (V of 1898)--- ---Ss. 202, 203 & 439-A--- Constitution of Pakistan (1973), Art. 199---Private complaint-- Dismissal-Unexplained delay in filing of complaint-EffectConstitutional jurisdiction of High Court against order passed in revisional jurisdiction---Scope--Complainant remained unsuccessful in getting registration of F.I.R., therefore, he filed private complaint but the same was dismissed by Trial Court and also by Lower Appellate Court in exercise of revisional jurisdiction---High Court in exercise of Constitutional jurisdiction set aside the order passed by two courts below---Validity--- Unexplained delay was undoubtedly' fatal to the case of complainant-Court was obliged to examine such aspect of case even if counsel of parties had failed to raise such plea on the well known principle that a Judge must wear all laws of country on the sleeve of his robes and failure of counsel to properly advise was not complete excuse in the matter. Constitutional petition was not maintainable in High Court against order passed by the Lower Appellate Court in Criminal revision---Petition for leave to appeal was converted into appeal and judgment passed by High Court was set aside---Appeal was allowed.
' Abdul Rehman Bajwah's case PLD 1981 SC 522; Noor Muhammad 's case PLD 2007 SC 9; Anwar Ali Khan's case 1991 SCMR 1608; Muhammad Sarwar's case .PLD 1969 SC 278; Khawaja Muhammad Sharif's case PLD 1988 Lah. 725; Haji Muhammad Saifullah Khan's case PLD 1989 SC 166; Nawab Syed Raunaq Ali's case PLD 1973 SC 236 and Badaruddi's case PLD 1993 SC 399.
' Hon'ble Supreme Court of Pakistan has held in case Maqbool Rehman v. The State and others (2002 SCM R 1076) in its head-note (c) and in the judgment through its chronological paragraphs No.9 which are reproduced infra:-
(c) Criminal Procedure Code (V of 1898)--- S. 561-A---Quashing of proceedings-Scope---proceedings can be quashed even after framing of charge in the case---Not incumbent upon Court to record evidence in all cases, wherein accused are summoned-question as to whether to allow the prosecution to continue or to nip in the bud depends on the facts of each case.
(9) In law, there is no warrant for the argument that since the charge had been framed by the trial Court, proceedings could not be buried by way of quashment. The petitioner appears to be labouring under a misconception of ilia, in all cases where the accused persons are summoned by a Court of law, it is incumbent upon the Court to record the evidence. There is no invariable rule of law and it will depend on the facts of each case whether to allow the prosecution to continue or to nip in the bud. In the case in hand, we think that the course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice. The grounds, which prevailed with the High Court for exercise of its inherent jurisdiction, are neither artificial nor perverse or shocking. Indeed in the circumstances of the case High Court was under a duty to ensure that the process of law was not allowed to be misused and indeed by passing the impugned judgment, it has prevented the mischief and advanced the cause of justice.
' Hon'ble Karachi High Court in of Abdul Rashid and 2 others v. TheState and another (1987 PCr.LJ 1380) has observed as follows:-- Criminal Procedure Code (V of 1898)--- ---S. 561-A-Penal Code (XLV of 1860), Ss. 420, 406 & 34---Quashing of Proceedings---Private complaint---Allegations set out in complaint smacking of mala fides---No first Information Report was lodged against accused and complaint was filed with delay of one and a half months which was not explained--- transaction appearing to be purely of civil nature---Proceedings quashed.
' 1977 PCr.LJ 135; Muhammad Usman and others v. The State and others 1976 PCr.LJ 153; 1983 PCr.LJ 1585 and Aba Umar Shah v. Abdul Rehman Shah and others 1981 PCr.LJ 455.
12. The attitude of the respondent No.4 to remain dormant for a long long five years shows remissness and hibernation on his part for detaining his rights without any lawful justification is depreciatory. The order dated 30-7-2010 passed by learned trial Court on application under section 249-A, Cr.P.C. Shows that all the facts, circumstances, material and the law applicable thereto have not been appreciated and the learned Revisional Court has also erred in law in dismissing the revision petition of the petitioners. It is expected that . The Courts may remain abreast of the latest legal precedents rendered by Hon'ble 'Supreme Court of Pakistan. With such a procrastination to allow incessant proceedings in the instant complaint case would necessarily be a travesty of justice, abuse of process of law and wastage of precious time of the Court.
Circumstances of the case do not warrant accepting the bona fide of the respondent. No.4 in tiling a private complaint and probability of being convicted of the petitioners in the case does not exists in the circumstances of the case, therefore, instant petition is accepted. Resultantly, impugned order dated 30-7-2010 rendered by learned trial Court on an application filed under section 249-A, Cr.P.C. And order dated 1-7-2011 handed down by the Revisional Court as well as the summoning order dated 29-4-2010 passed by the learned trial Court are hereby set aside, consequently, proceedings before learned Trial Court in complaint case are ordered to be terminated and quashed.