' This is an application under section 561-A of the Criminal Procedure Code, praying that the proceedings of the case State v. Muhammad Rafiq and others under section 454/380, P.P.C.
Pending trial in the Court of Assistant Commissioner, Gujranwala, be quashed.
2. Briefly the facts of the case are that Muhammad Latif respondent No,2 got a case registered against his real brother Muhammad Rafiq petitioner No,1 and another, under section 454/380, P.P.C.
The allegations made therein were that Nawab Din deceased, father of the complainant and the petitioner No,1 was settled in a house belonging to the Auqaf Department as a tenant, alongwith the petitioner No,1, the complainant and others. After the death of their father in 1977, the respondent No,2 got possession of the main room on the upper floor and the shop underneath.
Muhammad Rafique petitioner statedly got possession of a lower big room and upper small room.
Subsequently, Muhammad Rafiq petitioner got the rent deed made in his own name exclusively.
That led to the litigation between him and their mother etc. The Department recognized respondent No,2 and their mother also as the tenants. Muhammad Rafiq petitioner filed an appeal against that order and got a stay order. The appeal is yet undecided.
3. The case of the respondent No,2 is that due to the above uncertainty of tenancy rights, the complainant-respondent started residing with his brother Muhammad Siddiq in another house at a different place. It is in that period that the petitioners are stated to have broken open the locks of his room and shop and took away his articles. The complainant/ respondent No,2 was informed of the occurrence by Asif Shah. The complaint then visited the spot with Asif Shah, Muhammad Arshad Tanvir and Ch. Allah Ditta and found that the locks had been broken and there were no articles inside. The complainant did not give any list of the articles to the Police while registering F.I.R. But stated that he will do so later. The occurrence is said to have taken place on 30th May, 1981 whereas the complaint was lodged on 3rd June, 1981.
4. It is stated by the learned counsel that on coming to know of the registration of the case, the petitioners made an application for anticipatory bail before the learned Additional Sessions Judge, Gujranwala, on the ground that the case was false and vexatious. He summoned Asif Shah and Muhammad Arshad Tanvir in Court. They got their statements recorded to depose that they did not know anything about the alleged occurrence. The petitioners also filed a similar affidavit of Allah Ditta the third eye-witness. Their bail was confirmed on that basis.
5. The contention raised now is that as neither Asif Shah, who is alleged to have given the information about the breaking open of the locks nor any of the other eye-witnesses supported the prosecution version, the proceedings taken against them would amount to a mock-trial, resulting in loss of time and money in addition to embarrassment.
6. The factual position as stated above is not denied by the respondent. He, however, contends that as the challan has already been submitted and an application filed by the petitioners under section 249-A, Cr.P.C. Dismissed, the trial should be allowed to continue. The facts stated, however, do make it clear that there is no evidence to support the prosecution case against the petitioners.
According to the F.I.R., as well as the challan submitted in Court, Asif Shah, Muhammad Arshad Tanvir and Allah Ditta only are the eye-witnesses of the occurrence.
7. Asif Shah had informed the complainant of the alleged fact of breaking open of the locks and theft of the articles by the petitioners. He, in his sworn statement before the Sessions Judge did not support that version. The other witnesses only accompanied the complainant later to see at the spot that the locks were broken and articles missing. They are not witnesses of the fact that it was the petitioners who either broke open the locks or stole the goods that were known to them to be lying there. Rather, according to the petitioners, the respondent had given in writing that the petitioner No,1 took forcibly physical possession of the house years back. Consequently, no useful purpose would be served to let the prosecution, in which the three witnesses have to prove the prosecution case, go on.
8. The learned counsel then submitted that some articles have already been recovered from the petitioner No,1 and that the charge against him may be proved. Even this contention has not force.
Suppose, it is proved that some articles were recovered from the possession of the petitioner, it will not be established that they had been stolen in the occurrence, from the two rooms by breaking open the locks. The complainant and the petitioners are real brothers. The question as to when those articles reached the possession of the petitioners may not be possible. It may be through another transaction and not the one in hand. As there is no evidence to prove that the articles were taken by the petitioners from the accommodation referred to in the complainant by breaking open the locks the proceedings cannot be allowed to continue.
' In view of the above, the proceedings of the case referred to above, awaiting decision before the Assistant Commissioner, Gujranwala, against the present petitioners, are quashed.