1. ' The petitioner has been chaIlaned to stand trial in the Court of Sub-Divisional Magistrate, Peshawar on the charge under section 419/420, P P. C. The F. I. R. Against him was lodged by P. W.
2. Jehangir Khan, Secretary to Commissioner, Afghan Refugees, Peshawar. He alleged therein that on 13th January, 1983 and 15th January, 1983 the petitioner had visited the office of Commissioner. He was a poet and was reciting good verses on Jehad. He told him that he lost one arm in Jehad. He took him to be an Afghan refugee and on the direction of Commissioner, be paid to the petitioner on each occasion R. 500 out of Zakat Fund. Later on, he came to know that he was not Afgan refugee and the above amount was taken by him fraudulently.
3. ' The petitioner feels aggrieved alleging that he has been falsely involved in the case and in this behalf he has attributed mala fides to P. W. Jehangir Khan. He has stated that he is a Pushto poet and had visited the office of Commissioner with the intention to get a foreword from the Commissioner on his book of verses entitled "Lass and Griwan". He further stated that in his application Annexure 'A' he made it clear to the Commissioner that he was coming to him for the purpose of interview only and not for the purpose of getting any amount from him and that the amount was given to him on the first occasion against his option and discretion. His plea is that P.
4. W. Jehangir Khan was not reconciled with his disclosing to the Commissioner in his said application the amount of Rs, 500 offered to him. The petitioner has alleged that the scheme of P.
5. W. Jehangir Khan was that he would be given Rs, 500 per visit but be would show more than that amount thereafter in order to misappropriate the money but as he disclosed the fact of offering the amount to the Commissioner in his application, it offended P. W. Jehangir Khan and consequently he involved him falsely in the present case. The petitioner has, therefore, moved this Court in the present application under section 561-A, Cr. P. C. With a prayer that the proceedings against him pending trial in the Court of Magistrate may be quashed, as being abuse of the process of the Court.
6. ' I have heard the learned counsel for the parties. The question for consideration in this case is whether the petitioner has received the amount fraudulently introducing himself as Afghan refugee or that the amount was offered to him under the impression given to him that the same was offered to him as the prize of a poet.
7. ' Now P. W. Jehangir Khan is the solitary witness who has spoken against the petitioner. P. W. Naik Muhammad was also examined under section 161, Cr. P. C. At the material time, he was an employee in the Reception Room of the Office of Commissioner, Afghan refugees, Peshawar. He stated that he was on duty in the Reception Room on 1st February, 1983 when the petitioner came.
8. The petitioner said that he was a poet and wanted to see the Commissioner in connection with his book of verses. He showed his residence at Khar Bajaur Agency. The witness, therefore, entered petitioner's particulars in the register exclusively meant for Pakistani national and thereafter he was escorted to the Office of Commissioner under security guard. Thereafter the petitioner had come many a time. His particulars to the above effect were also registered in the said register by his counterpart, namely, Abdul Karim. P. W. Naik Muhammad further stated that the petitioner never introduced himself an Afghan refugee but always told him that his name was Abdul Rashid and a resident of Khar Bajaur Agency and that he was a poet. He offered his book to the people in the premises of the office of Commissioner. He also told him that he was given Rs, 500 by the Commissioner.
9. It is clear from the above statement of P. W. Naik Muhammad that be does not support the allegation of P. W. Jehangir Khan. He stated that the petitioner had never introduced himself as Afgan refugee. This witness was an employee in the Office of Commissioner, therefore, he cannot be said to be in any way connected with the petitioner to doubt his testimony, the moreso as the witness entered the particulars of the petitioner as Pakistani national in the relevant register at the instance of the petitioner. Similar particulars of the petitioner were also entered in the said register by his counterpart Abdul Karim. The fact that the petitioner had shown himself a Pakistani national is also borne out from the two receipts in lieu whereof the -petitioner was offered the amount in question by P. W. Jehangir Khan. In these two receipts the petitioner had shown himself a resident of Khar Bajaur Agency under his signatures. P. W. Jehangir Khan has not made mention of these receipts in the F. I. R., therefore, an adverse inference can be drawn in this behalf that he wanted to suppress the receipts in question so that it should not be known that the petitioner had ever introduced himself as Pakistani national, but as obviously on the demand of the I.
10. 0., he was to produce some material in support of his allegation that the petitioner had secured the amount fraudulently, fortunately for the petitioner there was no way out for P. W. Jehangir Khan but to produce before the L 0. The said receipts which completely destroyed the prosecution case, as in the said receipts the petitioner had not described himself a Muhajir but a Pakistani national resident of Khar in the Bajaur Agency.
11. P. W. Jehangir Khan also did not make mention in his F. I. R. Of the application (Annexure 'A') addressed by the petitioner to the Commissioner in which, as stated earlier, he in plain terms submitted that he was not a greedy man coming with the object of getting money. The reason that P. W. Jehangir Khan had suppressed to make mention of this application in the F. I. R. Is not far to seek. A look at this application will show that its contents were clearly not favourable to the allegations of P. W. Jehangir Khan levelled by him against the petitioner. I will examine and ascuss the application (Annexure 'A') at an appropriate stage in order, to show that the petitioner had done nothing to get the amount fraudulenly, as alleged by P. W. Jehangir Khan and as this application was to contradict and belie him, he suppressed to make mention thereof in the F. I. R.
12. Just as for that reason he suppressed to make mention of the two receipts in the F. I R. I observe that even if it is assumed that P. W. Jehangir Khan himself voluntarily produced the two receipts as well as the application before I.
0. During investigation, yet as these three documents speak against him, he cannot place reliance upon them in support of his stand against the petitioner.
13. ' The two receipts in question also do not bear the signatures/initials of the Commissioner which will show that P. W. Jehangir Khan had not informed the Commissioner that the amount was paid to the petitioner. It is conceded that such act on the part of the witness was highly objectionable in an official accounts matter. The Commissioner was also not examined as to what the petitioner had told him in the interview. In the circumstances of the case, the Commissioner was a material and crucial witness. I observe that the law has not exempted a high ranking officer, if he is a material and crucial witness in a criminal transaction and in the interest of justice his evidence is decisive for a just and fair verdict of the Court. I have already noted that the case of P. W. Jehangir Khan is that on the direction of the Commissioner, he offered the amount to the petitioner and the petitioner had also met the Commissioner. Yet strangely the Commissioner was not examined, therefore, an objection can be raised that the Commissioner was not examined, as he was not disposed to support the allegations of P. W. Jehangir Khan against the petitioner.
14. ' Now I turn to deal with the application (Annexure 'A') addressed to the Commissioner, Afghan Refugees, Peshawar. It contains few verses of the petitioner in the opening and thereafter he has explained the object of his visit. This application is in Pashto and its English rendering would read as under :- "To ' The Commissioner Sahib, ' I thought you, would be supporting the righteous, but you treated me too a man in the class of greedy men. The hopes of oppressed people will be satisfied, should you look as a benevolent person at the country. 0' Abdullah Sahib, Rashid came to you out of compulsion, but the world looked upon him as beggar.
15. ' Application to the Hon'ble Commissioner Sahib for interview. Assalam-u-Alaikum.
16. ' Sir, ' When I came the other day on 13th for the purpose of interview, you instead of granting me interview kindly offered me the sum of Rs, 500 through Secretary Sahib. Dear elder, I want interview with you. If you give me two minutes time for interview, it will be your great kindness.
17. ' Kindly excuse me, Your servant, (Sd.)
18. Abdur Rashid Rashid Poet."
19. It will be seen that this application is as simple in meaning and under tanding that if put to a layman of average senses, he will also straightaway ay that the amount was offered to the petitioner against his disposition, duchess that he had approached in this behalf. The only conclusion that can be drawn in the circumstances of the case would be that the petitioner was given the impression that as he was a poet, the amount was offered to him as prize for his poetical work and labour. I observe that the tradition in the history still exists without any change that poets are prized.
20. ' From the above discussion, it is clear that the barren and mere ipsi dixit of P. W. Jehangir Khan to involve the petitioner in this case stands in isolation surrounded by the other adverse material placed by the prosecution on record, namely, the statement of P. W. Naik Muhammad, other documentary evidence as well as circumstantial evidence. No material on the record supports the allegations, of P. W. Jehangir Khan that the petitioner had introduced himself as Afghan refugee and had fraudulently obtained the amount. Rather, all other material fully supports the petitioner that he had never introduced himself an Afghan refugee and obtained the amount fraudulently. I regret to observe that on coming on record the two receipts in question as well as the application (Annexure 'A') in the handwriting of the petitioner coupled with the police statement of P. W. Naik Muhammad all of which run counter to the allegation of P. W. Jehangir Khan, yet the petitioner was challaned in Court to stand trial on the so-called charges.
21. ' I, therefore, hold that in the circumstances of the case, it will be too much and very unfair to put the petitioner to the rigors of trial in the present case. On the basis of the material placed by the prosecution on E record, the petitioner cannot be held to have impersonated himself an Afghan refugee and obtained the amount fraudulently. The amount in the present case was offered to the petitioner from Zakat Fund. I observe that Zakat money is a sacred trust money of Allah and must not be spent lavishly. It ought to be disbursed in Muslim society to the needy persons who deserve and stand for it. The record is clear on the point that the petitioner was kept unaware that the amount was offered to him from the Zakat fund. I am reinforced in this behalf by reference to the application of the petitioner (Annexure 'A') placed by the prosecution on record in which, as I have already pointed out, the petitioner submitted to the Commissioner that he was not coming with the object to secure monetary grant from him and the Commissioner might render such Sakhawat to the oppressed. The amount out of Zakat Fund should, therefore, have been withheld from the petitioner at his own initiation and behest.
22. ' As a result, I accept this application and quash the proceeding against the petitioner in the case.