On the 23rd of September 1971 an F. I. R. Was lodged be one Ali Mukhtar Naqvi who stated in substance that Falak Sher, a person known to the informant, had purchased a Datsur Taxi on instalments from some other person who was not named The purchase money was to be paid by instalments and some 12.000 rupees had already been paid by way of instalments but the vendor had refused to give any receipts. Falak Sher fearing that the owner of the taxi might attempt forcibly to take possession of the taxi had given the taxi to the first informant for custody. The first informant went on to say that some four persons whose names and addresses were no known to him came to his house and forcibly removed the tax A sequel of this F. I. R. Was that three persons, namely, the two applicants before me, namely, Syed Hisamuddin and Syed Jamaluddin who are brothers and who now claim to be owners of the taxi and one Ghulam Rabbani, applied to the Sessions Court for bail before arrest. At the hearing of this application the Assistant Public Prosecutor made a statement that the police did not wish to arrest the accused persons and the application fat bail was, therefore, dismissed as premature.
2. In the meantime is appears that the police went on- with the investigation of the case and, the question arising as to who should have the custody of the Datsun Taxi which in the meantime had been recovered by the police, the learned Magistrate ordered that the custody of it be given to Mr. Naqvi, that is, the person who lodged the F. I. R. To which I have referred. This order became the subject-matter of a revision application in the High Court and this Court in Criminal Miscellaneous Application No. 217/71 by a judgment dated thd 24th of November 1971 ordered the possession of the tax to be given to Syed Hisamuddin, that is, the applicant No. I before me-, upon certain conditions as to security and so forth. The learned Judge who heard that case came to the conclusion that the owner of the taxi were admittedly the applicants and that Falak Sher could not, at that stage, he held to have become the owner. So far as Mr. Naqvi was concerned the learned Judge pointed out that he did not even have an ostensible claim to the possession of the taxi in question.
3. In the meantime it would seem that the police made an application to the Court of the Magistrate that in the course of investigation it having been found that Syed Hisamuddin was the real owner of the taxi a report under section 168 had been submitted to the superior police officers for allowing the case to be disposed of as a non-cognizable one under section 424. It would seem, however, that the superior police officers disagreed with this view and filed, what purported to be, a charge sheet upon the basis of which the present applicants are undergo--ing trial.
4. A translation of the material part of the charge-sheet is reproduced below "The brief history of the case is that the applicant is the Advocate of High Court. Falakaher is well known to him. On 23-9-71 Mr. Ali Mukhtar Naqvi lodged a report in police station for a Taxi No. Nil that four persons have taken away the said taxi. A. S,,I. Shafiq Ahmad lodged the report and the investigation was given to me A. S. I. 1 visited the site. Next day Falak Sher stated that Taxi No. K. A. X.
4279 was purchased by him from accused Ehsamuddin for R$. 27,000 and payment was settled in instalments of Rs. 1,000 each nothing was written in this respect. Rs. 4,000 was given as advance.
On the same day i.e. On 23-9-'71 I reached Lasbella Autos and enquired about the accused Ehsamuddin. The accused Ehsamuddin accepted that he has brought the Taxi with his brother Mr. Jamal and the taxi is standing at present in Paris Service Station, which is at a near place, and was put before me, and was taken in Police custody. The Taxi it question was later on given in possession of the informer (applicant) tinder the order of Court No. 30, dated 29-'9-71, But the said taxi was later on given in the custody of Mr. Ihsamuddin vide order of High Court dated 24-11-71: The case was forwarded to Prosecution Agency for comments. Hence challan is put up for action. The case may be dealt against the accused who have been committed to the, offence of "SARQA".
Accused Jamuluddin is released on bail from Sessions Court while Ehsamuddin is gone to Quetta against whom action be taken against section 87/88, P. P. C. Case is challaned under section 512.
Now clearly in this case the learned Magistrate was taking cognizance if at all under the provisions of section 90 (1) (6) and the question, therefore arises whether this can be described as a report in writing of facts which constitute such an offence. It is true that the report does mention that the accused (the applicant No. I before me) admitted certain facts but no assertion seems to have been made throughout this document of the facts which would constitute any offence. Earlier in the charge sheet section 379 read with section 34 is undoubtedly mentioned but none of the facts which constitute the ingredients of such an offence are anywhere stated. The learned Assistant Advocate--General argued that such facts can be inferred from the language used. I regret I am unable to agree. What the law requires is a report stating such facts and not stating others from which the pos--sibility of such facts existing may be inferred. I must, therefore, hold that cognizance has been illegally taken in this case.
5. Upon a full examination of the case a question could well arise whether in any case the dispute complained of was one which attracted the provisions of the Penal Code or was merely a civil dispute. I, however, refrain from giving any expression of my view on this part of the case because in the view that I have taken it will obviously be open to the police, if upon the material which they have they consider it proper to do so, to present a proper charge-sheet upon which cognizance can taken.
6. In the result, therefore, I quash the proceedings. The applicants are on bail and their bail bonds would be cancelled.