1. This application under section 561-A, Cr.P.C. Is filed on behalf of applicants Abdul Sattar son of Ghulam Hyder, Hussain Bux son of Muhammad Bux, Abdul Ghani son of Haji Khan and Shankarlal son of Pheroomal who are involved in case F.I.R. No.28/89 under section 379/411/109 read with section 14 Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered at. Police Station `A' Section, Sukkur. The applicants had moved an application under section 249-A, Cr.P.C.
2. Which was rejected by the trial Court vide order, dated 6-2-1992. The applicants have 'now preferred this application for quashment of the said proceedings pending against them.
3. The facts of the case arc that the complainant Abdul Sattar is L.A.-II with S.D.O. Construction, Sukkur Division No.II, Sukkur. There is a plot in front of their office in which 4 drums aluminium wire; issued to the complainant were lying. Apart from it 2 drums issued to Hussain Bux were also lying there. On this plot Abdul. Ghani is posted as watchman. This plot has a boundary wall. In the cast part of this boundary wall there is a passage without gate. On the evening of 27-2-1989 the complainant and Hussain Bux after checking the drums went to their houses, while watchman Abdul Ghani was there. Next morning at 8-00 a.m. When complainant and Hussain Bux came on duty, the watchman Abdul Ghani informed them that in the night 6 drums of wire have been stolen. That the drums have been taken from the eastern part of the boundary wall by means of tractor trolley through the open space. After hearing the watchman the complainant went and checked the material and found the said drums were not available. They brought the facts to the notice of Shankarlal S.D.O.
4. Who immediately issued letter for lodging report. The complainant went and lodged report at P.S. `A' Section, Sukkur.
5. On 1-3-1989, a large police force of F.I.A. Sukkur conducted raid at the house of one Mahboob Ahmed, Railway employee. This raid was supervised by Mukhtiarkar and F.C.M. Rohri on the directions of A.D.M. Sukkur. In the compound wall' of the said house, a number of articles were found, all belonging to WAPDA including 3 drums, of wire. Entire property was seized under a Mashirnama and the same was handed over to S.D.O. Shankarlal who was also present there. In the house of Mahboob Ahmed 2 persons were sleeping, namely, Ali Muhammad and Rasool Bux. One of the neighbours namely Haji Muhammad Siddiq who resides just 5 paces away also came there.
6. The police recorded the statements of these persons namely Rasool Bux, Ali Muhammad and Haji Muhammad Siddiq. All of them disclosed that on the midnight of 27-2-1989 6 drums of conductor wire were brought in a tractor trolley by D.S.P. Abdul Rahim, Butt. He got them off loaded from the trolley and kept them in this compound. They further disclosed that on the next day, that is, 28-2- 1989 he brought 4 persons with implements for making scrap of these wires and in this way they have completed the scrap making from 3 drums; while 3 drums are left. The raiding party came to know that the said D.S.P. Abdul Rahim Butt resides about 20 paces-away and it was also found that the said D.S.P. Was available at his house at that time. All these facts arc mentioned by the Mukhtiarkar in his raid report issued on 2-3-1989 copy of which is placed on record by the applicants.
7. The matter was investigated and on 25-3-1989 interim challan was submitted in which 3 persons were shown as accused namely Allah Rakhio son of Allahabad, Habibullah son of Shafi Muhammad and Imdad Hussain son of Miran Bux. This challan was submitted in the Court of S.D.M.
8. Sukkur. On 7-12-1989 on the orders of Sessions Judge, Sukkur, the case was transferred to the court of City Magistrate, Sukkur, where it is still pending trial.
9. On 15-6-1991 police submitted report under section 170, Cr.P.C. In the Court of City Magistrate, Sukkur. In this final challan, the police submitted names of 7 more accused persons in red ink which included the names of the present 4 applicants.
10. Being aggrieved the applicants preferred an application under section 249-A, Cr.P.C. On 14-11-1991 and prayed for acquittal on the ground, that there was no likelihood of their conviction for this offence. This application was heard and rejected by the trial Court vide order, dated 6-2-1992. It is in these circumstances, the applicants have filed the present application for quashment of the proceedings pending against them.
11. I have heard Mr. Nizamuddin Baloch learned Advocate for the applicants and Mr. Mushtaq Ahmed Amir Mahar Advocate for AA.-G. For State.
12. The learned counsel for the applicants has argued that the principal accused is the D.S.P. Abdul Rahim Butt, the investigation conducted by the police is mala fide as the police has shielded the principal accused and implicated innocent persons. It is also pointed out that interim challan was submitted on 25-3-1989, while report under section 170, Cr.P.C. Is submitted on 15-6-1991 after more than 2 years of interim challan. It is further argued that the prosecution has no material in hand against the present applicants and the present proceedings against the applicants amounts to harassm ent and therefore, the said proceedings against the applicants is an abuse of the process of Court.
13. On the other hand, the learned counsel for the State has not opposed this application, but has prayed that his concession is only to the extent of these 4 applicants against whom there is no evidence as per the challan.
14. I have carefully applied my mind to the points raised and I have also gone through the record. It appears that the principal accused in this case is the D.S.P. Abdul Rahim Butt against whom there is cogent material available, but he has been completely shielded by the Investigating Officer. There is raid report of Mukhtiarkar and F.C.M. Rohri who had supervised the raid on 1-3-1989 when a variety of property all belonging to WAPDA was secured. There-are statements of 3 witnesses namely Rasool Bux, Ali Muhammad and Haji Muhammad Siddiq who fully implicate the said D.S.P.
15. Abdul Rahim Butt. They have even stated that the original shape of the stolen property was being changed at the behest of the said D.S.P., therefore, it is quite obvious that he has been clandestinely let off by the Investigating Officer.
16. It is also to be noted that report under section 170, Cr.P.C. Was filed 2 years after the interim challan was submitted. The perusal of report under section 170, Cr.P.C. Clearly indicates that the present applicants have been joined as accused not on account of any material collected against them by the Investigating Officer but tin account of directions issued by the S.S.P. Sukkur. It also appears that the I.O. Has not bothered to see what was the material Available against the applicants so also, whether they are really accused or not. Irrespective of the consequences, the I.O. Has blindly complied with the directions issued by the S.S.P. Sukkur. In complying with the directions of the S.S.P.
17. Sukkur, the I.O. Did not even realise that the complainant of this case namely Abdul Sattar son of Ghulam Hyder has also been made an accused by him. No reasons are given why the complainant has been made an accused alongwith others.
18. It may be noted that this is not a case where the name of the accused is placed in column 2 and who has been summoned as accused by the Court. In the present case a report under section 170, Cr.P.C. Has been submitted giving names of additional accused as per the directions of S.S.P.
19. Sukkur. This report of 15-6-1991 is also not in conformity with the requirements of section 170, Cr.P.C.
20. This section requires that if it appears to the Police Officer that there is sufficient evidenceor reasonable ground then only such officer shall forward the accused to the Court. In the present case the Investigating Officer has not applied his mind to consider if there is sufficient evidence or reasonable ground against the accused of not. He has purely acted in a mechanical manner, by complying with the directions of the S.S.P. Sukkur. His mechanical application of mind is further evidence from the fact that the complainant of the case has been made an accused without assigning any reasons.
21. The learned trial Court has rejected the applicants' application under section 249-A, Cr.P.C. On the short ground that it was premature stage to dispose of the case under section 249-A, Cr.P.C. And that the Court will come to know the real picture of the case after the evidence is recorded.
22. I may observe that the above reasoning adopted by the learned trial Magistrate is erroneous and contrary to the requirements of section 249-A, Cr.P.C. It may be noted that section 249-A, Cr.P.C.
23. Itself provides that it is applicable at any stage of the proceedings. It can be applied even before the framing of the charge.
24. In the present case, rile names of the applicants do not appear in the F.I.R. As accused persons. No role is assigned to them. Neither any property was recovered from them nor have they led to any such recovery. Sufficiency of evidence or reasonable suspicion has also not been indicated in the challan or report under section 170, Cr.P.C. The applicants have been implicated on the 8 bare directions of the S.S.P. Sukkur and that too in a mechanical manner. In these circumstances, the applicants were perfectly justified in moving an application under section 249-A, Cr.P.C. In such a situation a duty is cast upon the trial Court to see whether there is prima facie evidence available against the accused or not. If no evidence is available, then the accused is to be acquitted whatever mar be the stage of the proceedings. Otherwise, an innocent person who is roped in a criminal case may have to face the- ordeal of the trial. Obviously section 249-A, Cr.P.C. Has been so designed and, promulgated to meet with such a situation.
25. In this view of the matter, the learned trial Magistrate erred in not considering the application under section 249-A, Cr.P.C. The learned counsel for the State was specifically asked to point out what was the proposed evidence available against the applicants in the hands of the prosecution. The learned counsel for the State admits that apart from the directions of the S.S.P., Sukkur, there is no other evidence against the accused.
26. In the above circumstances, when there is no evidence against the applicants and yet they are being subjected to face the rigors of the trial clearly this amounts to harassment of the applicants.
27. One of the applicants namely, Shankarlal was attending the trial Court all the way from Lahore.
28. Applicant Abdul Sattar and Abdul Ghani are residents of District Shikarpur, while applicant Hussain Bux is resident of District Khairpur.
29. In view of my above discussion, I am of the opinion these proceedings I are nothing but harassm ent of the applicants and an abuse of the process of Court which cannot be allowed to continue.
30. Consequently this application is allowed and the proceedings pending in the Court of City Magistrate, Sukkur as per F.I.R. No.28/89 of Police Station 'A' Section, Sukkur are hereby quashed to the extent of the applicants only.
31. N.H.Q./A-1237/K