SHAHNAWAZ TARIQ, J.---Through captioned criminal miscellaneous application, applicant Syed Kousar Abbas Shah and two others have impugned the order dated 18.03.2014, passed by the Court of learned I-Civil Judge and Judicial Magistrate, Rohri, whereby the summary report under "C"- Class submitted by the Investigating Officer was declined.
2. Relevant facts as spelt out from instant criminal miscellaneous application are that respondent Mst. Jamila Bibi lodged FIR No.95 of 2013, under sections 452, 502, 506/2, 147, 148 and 149, P.P.C. at Police Station Rohri, stating therein that on 23.04.2012, she was carrying on construction work of her house and at about 5.00 p.m., there was knock at the door of her house. On opening the door, 11 persons entered into her house namely Kousar Shah, TMA employee, Mumtaz Hussain Shah, Imdad Hussain Shah, all sons of Gada Hussain Shah and 8 unknown armed persons. She objected Kousar Shah but in the meanwhile her relatives Ghulam Mustafa Shah and Syed Mehboob Ali Shah reached there. Accused Kousar Shah issued serious threats to her and asked to stop the construction work otherwise they will be murdered. Accused persons also maltreated the labourers working on the spot and forcibly stopped construction work of her house. She filed petition before the Sessions Court and obtained such order, hence instant FIR.
3. Learned counsel for the applicants contended that applicants are innocent and have been falsely implicated by the complainant due to ulterior motives; that parties are close relatives and disputed over the plot which is allocated for Imam bargah; that respondent did not approach the area police for lodging FIR but she directly filed application before the Justice of Peace which shows her mala fide; that matter was investigated twice by different Investigating Officers and they have concluded the investigation by recommending disposal of the case being false; that applicant No.1 Syed Kousar Ali Shah also filed F.C. Suit No. Nil of 2012 against close relatives of the complainant and official respondents before the Court of II-Senior Civil Judge, Sukkur, for declaration and permanent injunction, however, plaint of said suit was rejected, against which applicant has filed Civil appeal under Section 96, C.P.C. before the Court of learned District Judge, Sukkur, which was transferred to the Court of I-Additional Sessions Judge, Sukkur; that learned Magistrate without properly examining the material, has declined such report and directed the Investigating Officer to submit challan within 14 days.
4.While controverting the above submissions, learned counsel for the respondent contended that Investigating Officers have not properly investigated the case and learned Magistrate has taken cognizance and rejected the summary report with direction to file challan along with list of witnesses; that complainant and her witnesses have fully supported the averments of FIR; that it is for the learned trial Court to decide the controversy by recording evidence of complainant and her, witnesses, hence instant criminal miscellaneous application is liable to be dismissed.
5.Learned APG supported the arguments advanced by the learned counsel for the applicants and agitated the point of maintainability of impugned order dated 18.03.2014; that alleged threats were issued about three years ago and during such period no harassment has been caused by the applicants, hence the allegations of issuance of threats are not proved; that per averments of FIR the alleged incident occurred outside the entrance door of the house of complainant, hence offence under Section 452, P.P.C. regarding house trespass is not made out; that respondent in her application under section 22-A, Cr.P.C., had nominated Syed Kousar Abbas Shah, 2 unknown persons including DSP and other police officials, but in FIR she has not nominated said DSP and other police officials regarding commission of the alleged offence; that in FIR complainant has implicated three real brothers, while parties are close relatives, hence question of identification could not be agitated by the respondent as they are well known to each other; that no injury was caused to any person available on the spot nor any injured was examined by the doctor nor medical certificate was produced during the investigation; that no direct evidence is available on record regarding issuance of serious threats.
6. Heard learned counsel for the parties and perused the material available on record, which emanates that parties are disputed over a plot which apparently has been allocated for Imam bargah. Respondent did not approach the concerned police for judgment of FIR but directly filed application before Justice of Peace. Perusal of averments of Criminal Miscellaneous Application No. 383 of 2013 filed by the respondent reflects that she had nominated applicant No.1 Syed Kousar Abbas Shah, 2 unknown persons and DSP Rohri along with other police officials as accused.
Conversely, respondent in FIR has nominated 3 real brothers namely Syed Kousar Abbas Shah, Mumtaz Hussain Shah and Imdad Hussain Shah, but she did not implicate DSP Rohri and other police officials as accused. Indeed, parties are close relatives and well known to each other, hence the stance taken by respondent in her miscellaneous application that Syed Kousar Abbas Shah along with 2 unknown persons supported with DSP Rohri and other police officials has invalidated the occurrence as co-accused Mumtaz Hussain Shah and Imdad Hussain Shah are real brothers of main accused Syed Kousar Abbas Shah, all accused are close relatives of the applicant and residing in neighbourhood and parties are well known to each other, thus applicant could not claim them as unknown persons in her miscellaneous application filed before the Justice of Peace which otherwise reflects that applicant deliberately mentioned two unknown persons in criminal miscellaneous application with sole object to implicate the innocent persons of the rival group to settle her account of animosity.
7.Admittedly, applicant filed civil Suit No. Nil of 2012 before the Court of learned II- Senior Civil Judge, Sukkur for declaration and permanent Injunction against close relatives of applicant but plaint of said suit was rejected vide order dated 14.11.2012 under Order VII Rule 11, C.P.C. by the learned trial Court, against which civil appeal was also filed on 26.11.2012 by the applicant, which is still subjudice before the Court of learned I-Additional District Judge, Sukkur. The phase of civil ligation was started in the year 2012 which is controverting the lodgment of criminal cases in the year 2014.
8. Perusal of record further emanates that there is no evidence available on record that incident occurred within the house of the respondent, hence offence under section 452, P.P.C. is not made out. Furthermore, complainant has also failed to produce labourers before both the Investigating Officers for recording their statements under section 161, Cr.P.C. to support the allegations leveled in FIR, nor their medical certificates were produced by them to prove the allegations of causing maltreatment to them as well as raising of construction at the spot. Neither respondent nor her witnesses sustained any injury at the hands of accused persons though they were duly armed and respondent party was at the mercy of accused. Conversely, respondent has been changing her stances before different forums which are self-contradictory and controverting to each other and are also fatal to the truthfulness of the occurrence of the incident. The deliberate improvements reflect that entire story is tainted with malice which has not only invalidated the authenticity of the allegations of issuance of serious threats for dire consequences but also indicates ulterior motives on the part of respondent. There is no probability of accused being convicted on the basis of material available on the record and further proceeding of the case would be a futile exercise and wastage of time of the Court.
9. Bare perusal of impugned order emanates that learned Magistrate has not properly examined the material nor has furnished any solid grounds for declining the summary report for disposal of the case under cancel class submitted by two Investigating Officers, which calls for interference of this Court. Consequently, order dated 18.03.2014, passed by the Court of I-Civil Judge and Judicial Magistrate, Rohri, is set aside and summary filed by Investigating Officer under "C"-Class stands approved.
Instant criminal miscellaneous application stands disposed of in the above terms.