The applicant above-named, has filed the above petition under sec--tion 561-A, Cr. P. C. For quashment of proceedings pending against him under section 307, P. P. C. Read with section 120-B, P. P. C. In the Court of, Ilnd Additional Sessions Judge, Nawabshah, as a result of private complaint, on the following facts and grounds:-
2. That on 15-7-1--71 an incident took place near the office of Sub---Registrar Nawabshab, in the course of which two persons namely Choudhry Muhammad Anwar (respondent No. 2) and his brother Choudhry Muhammad Latif sustained firearm injuries. F. I. R. Relating to the incident was lodged at 11-30 a. m. The same day by one Ghulam Ali brother-in-law of the two injured persons who claimed to be an eye-witness of the occurrence, at Town Police Station Nawabshah wherein 6 persons namely Rahim Ali, Bahadur, Ikhtar, Mukhtiar Ali, Immuddin and Usman were implicated as accused persons. The name of the applicant was not mentioned in this F. I. R.
3. That on 12-10-1971 the police challaned 3 of the accused named in the F. I. R. But the names of the remaining 3 were shown in column 2.
4. That on 4-11-1971 the complainant Muhammad Anwar, thereafter filed a direct complaint before the Additional District Magistrate Nawabshab, wherein besides the 6 persons named in the F. I. R. As many as 12 others, including the applicant, were involved as accused persons.
5. That the learned A. D. M. Recorded the statement of complainant under section 200, Cr. P. C. And in the course of the Preliminary Enquiry, he also examined 14 other witnesses namely Muhammad Bashir, Muhammad Ismail, Muhammad Latif, Ghulam Ali, Khurshid Ahmed, Muhammad Anwar, Nazir Ahmad, Gulshan, Jaro Khan, Muhammad Hassan Meena, Muhammad Ashraf, Dr. Muhammad Sharif and Dr. Abdul Ghani.
6. That on 11-3-1974 the learned S. D. M. Nawabshah issued process against 14 out of 18 accused named in the complaint.
7. That as the case against the applicant was obviously false and even the allegations in the belated complaint as well as depositions of witnesses did not amount to any offence, the Government of Sind decided to withdraw the proceedings against him. Such application under section 494, Cr. P. C. Was allowed by the learned S. D. M. By his order dated 9-7-1974.
8. That against this order complainant Muhammad Anwar filed a Revision Application before the learned IInd Additional Sessions Judge, Nawabshah, who allowed the same by his order dated 24- 7-1980 and as such applicant was again arrayed as co-accused in the said private complaint and consequently applicant has filed the above petition for quashment of the said proceedings, on the grounds mentioned in above petition.
9. In support of the above petition the learned Advocate for the applicant submitted as under:-
(a) That the name of the applicant does not appear in the F. I. R. Which was lodged by an alleged eye-witness, namely Ghulam Ali, brother-in-law of the complainant.
(b) That the applicant was for the first time named as an accused persons in the direct complaint filed after 4 months.
(c) That even in this complaint no overt act is attributed to the applicant.
(d) That without prejudice to what is stated above, even this belated complaint does not make out any offence against the applicant, nor is there anything in the depositions of witnesses which could justify the. Court in issuing process against the applicant.
(e)That the case against the applicant is one of no evidence, and the proceedings against him are sheer harassm ent of an innocent person and consequently amount to an abuse of the process of the Court.
10. In support of the above grounds, learned Advocate for the applicant relied upon cases reported in 1979 P Cr. L J 279, 1975 P Cr. L. J 647 and 1977 SCMR 54 and submitted, that since the learned trial Court after recording evidence of 14 P. Ws. Has issued process against the applicant, moving of application under section 249-A, Cr. P. C. Would be futile exercise, as private complaint in question against the applicant has been filed malafidely in order to harass the applicant, as even presence of the applicant at the time of the incident is not mentioned and even in the private complaint no overt act is attributed to the applicant.
11. The complainant (respondent No. 2) who appeared in person, on the other hand submitted, that since no evidence at all has been recorded by the learned trial Court after issuance of process there can be no quashment of such proceedings, as complaint in question and statements of P.
Ws. Examined in inquiry disclose prima facie case of conspiracy against the applicant, as well.
The learned Advocate for respondent No.. 2 further submitted, that name of the applicant was not deliberately mentioned by police in F. I. R. Due to influence of S. P. Father of the applicant; who is now dead.
12. The learned Advocate for respondent No. 8 submitted that the case of this respondent is on all fours with the applicant and as such proceedings against this respondent may also be quashed.
13. Rest of the respondents and their Advocates Mr. Sherali was called absent.
14. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the private complaint in question as well as statements of P. Ws. Recorded in course of preliminary inquiry by the learned trial Court.
15. The contention of the complainant (respondent No. 2) that since no evidence has been recorded after issuance of process by the learned trial Court, the above application is not maintainable, has no force at all in my opinion. In this view of mine, I am fully supported by decision of this Court reported in 1975 P Cr. L J 647, with which I am in fully agreement, for the reasons given in the said judgment. In my opinion; if the statement of complainant as well as his witnesses recorded under section 20?, Cr. P. C. Does not make out any case, then this Court has jurisdiction to quash such proceedings under section 561-A, Cr. P. C.
16. The second point which requires consideration in the above petition is that applicant has not moved the learned trial Court under section 249-A, Cr. P. C. And has come to this Court directly for quashment of the proceed--ings under section 561-A, Cr. P. C. In spite of the decision of the Hon'ble Supreme Court reported in 1979 SCMR 94. In this connection, I am: of the view, that in private complaint, where the learned trial Court after preliminary inquiry has issued process, it will be exercise in futile to insist, that the applicant should first move application under section 249-A, Cr.
P. C. Specially in a case like this, when learned trial Court has not recorded statements of any prosecution witnesses, after issuance of process. In view of this, if the private complaint in question and the statement of the complainant and his witnesses recorded under section 202, Cr. P. C. Do not e disclose any offence against the applicant, this Court's powers under sec--tion 561-A, C. P. C.
Are not at all acted and/or curtailed in any manner by the above-mentioned decision of the Hon'ble Supreme Court. In this connection a reference may be made to judgment of this Court reported in 1982 P Cr. L J 1039. In view of this case, I am of the opinion, that the above petition is maintainable, in spite of the fact, that the applicant has not moved the learned trial Court under section 249-A, Cr. P. C. Before invoking the jurisdiction of this Court under section 561-A, Cr. P. C. For, the reasons hereinafter mentioned.
17. I find that respondent No. 2 besides examining himself as complai--nant under section 202, Cr.
P. C. Also produced 14 witnesses in the said inquiry and their statements are available in the above matter. I further find that the names of respondents Nos. 14, 15, 16, 17, 18 and 19 were mentioned in the F. I. R. Which was lodged on 15th July, 1971, and as such question of quashing proceedings against the said respondents, at this stage does not arise, as complainant and P. Ws. Examined in inquiry under section 202, Cr. P. C. Have also mentioned their names in respect of the incident in question and have re-asserted their presence and part assigned to them in original F. I, R,
18. In view of my above conclusion, the case of only applicant and remaining respondents require consideration in the above petition. Complainant Muhammad Anwar is not eye-witness of the alleged meetings between the respondents, as alleged by P. Ws. Khurshid Ahmed. Muhammad Anwar, Nazir Ahmad, Gulshan, Meena and Muhammad Ashraf.
19. I have carefully gone through the statements of P. Ws. In respect of alleged conspiracy between applicant and respondents, who have been cited as co-accused, in the said private complaint.
20. I find statements of P. Ws. Nazir Ahmad, Gulshan, Meena and Muhammad Ashraf even if taken on their face value, attribute certain statements to respondents Abdullah (8) Nazar Shah (4) and Abdul Hamid (6) which may prima facie support the contention of the complainant, that these respondents in one way or the other were allegedly involved in the criminal conspiracy against the complainant. However statement of P. W. Muhammad Anwar, while talking about alleged meeting in the house of S. P. Nawabshah has stated, that present applicant, told Maris, that they were cowards. However, P. W. Khurshid Ahmed: who had gone with P. W. Muhammad Anwar to the house of S. P. Nawabshah and also heard said conversation stated, that applicant told Maris, that they were cowards and have failed to kill complainant till then and as such there is material contradiction in the statements of both these witnesses and as such their statements cannot safely be relied upon. In my opinion, statements of P. Ws. Khurshid Ahmed, Muhammad Anwar, Nazir Ahmad, Gulshan, Meena and Muhammad Ashraf cannot prove alleged conspiracy between applicant and respondents No9, 10, 11, 12 and 13 as alleged by complainant i. e. Respondent No. 2 in respect of actual incident dated 15-7-1971, in which complainant and his brother Ch. Muhammad Latif were injured. Remaining 8 P. Ws. Have c said nothing about the alleged meetings mentioned by P. Ws. Khurshid Ahmad, Muhammad Ashraf, Nazir Ahmad, Gulshan, Meena and Muhammad Ashraf. In view of these conclusions of mine issuance of process by the learned trial Court against the applicant and respondents Nos. 3, 5, 7, 9, 10, 11, 12 and 13 amounted to abuse of the process of the learned trial Court and continuance of the proceedings against them would amount to their harass--ment.
21. Therefore, I allow the above application and quash the proceedings against applicant and respondents Nos. 3, 5, 7, 9, 11, 12 and 13 namely Abdul Rahim, Syed Ashraf Ali Shah, Amir Ali Hisbani, Muhammad Nawaz, Rab Nawaz, Shah Nawaz, Gharib Nawaz and Ghulam Rasool only, under D section 307, P. P. C. Read with section 120-B, P. P. C. In the Court of learned IInd. Additional Sessions Judge, Nawabshah and discharge the bail bonds executed by them. Proceedings in question shall however continue in accordance with law against the remaining respondents.