For a proper appreciation of the points involved in the proceedings which are to be disposed of by this judgment it is necessary to refer-to the relevant facts in some detail.
2. On 18-2-1989 one Ch. Allahditta lodged F.I.R. Against applicant Muhammad Anwar, respondent No.2 Shareef and-co-accused Altaf Kalia in respect of theft of two old wooden doors lying on the roof of his shops, which was registered as Crime No.77 of 1989, Mahmoodabad, P.S:, under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The facts of the case as disclosed in the charge-sheet submitted against the applicant and others run as follows:-- "The brief facts of the case are that on 18-2-1989 at about 21-45 hours complainant reported at police station orally that he was living at the above address (H.No.292, Allama Iqbal Colony, Karachi), and has two shops in Gali No.5, Azam Basti, Karachi. On 24-9-1988 he after taking out two windows/doors of his shops had kept them on the roof as they were replaced by iron shutters. On 6-2-1989 he noticed that these windows/doors were missing. On inquiry Riaz Masih and Bashir informed him that these windows/doors were removed by the present applicant and his two associates, namely, Shared, the respondent No.2 and absconding accused Altaf Kalia. Shahsawar A.S.I. Investigated the case and recovered the stolen property from the possession of the applicant and Shareef, the respondent No.2. The evidence collected by Shahsawar A.S.I. Made out a case against these persons under section 14 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979; and consequently they were challaned."
3. It is the case of the applicant that there was previous litigation between the parties over a house and the case was decided in his favour by this Court in F.R.A. No.493 of 1988 and in order to put pressure upon him this case was concocted. He, therefore, made applications to higher police authorities and the matter was re-investigated. Nahid Almas, Lady Inspector investigated the case and she finally came to the conclusion that the case was false which was cooked up to harass the applicant. She, therefore, recommended that the accused be discharged under section 169, Cr.P.C., and complainant Ch. Allahditta be prosecuted for the offence under section 182, P.P.C. Since the challan against the applicant and co-accused was already submitted a reference was made to Government of Sindh, Home Department, Karachi, for withdrawal of the case under section 494, Cr.P.C. The Government of Sindh sanctioned the withdrawal of the prosecution and consequently on an application made under section 494, Cr.P.C. The case against the applicant and others was allowed to be withdrawn vide order, dated 12-3-1989. The case was re-investigated and this time by Syed Mahmood Ali, Inspector who too confirmed the report submitted by Nahid Almas, Lady Inspector. In the meantime the complainant challenged the order, dated 12-3-1989 passed by A.C.M., Court No.V (South) Karachi, in revision before Sessions Judge (South) Karachi, who allowed it on technical grounds on 23-7-1989, and remanded the case for retrial. The Government of Sindh, Home Department again sanctioned the withdrawal of the prosecution against applicant and others directing the concerned D.P.P. To make such application under section 494, Cr.P.C. Before the trial Court. The D.P.P. Made such application before A.C.M. Court No.X (South) Karachi, where the case was transferred, but the same was rejected vide order, dated 30-11-1991. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court by filing this application under section 561-A, Cr.P.C., seeking the quashment of proceedings pending against him under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, in the Court of A.C.M. Vo.X (South) Karachi.
4. I have heard Alhaj Ameer Ahmad Khan, learned counsel for applicant and Mr. Aziz-ur-Rahman Shaikh, learned counsel for State. I have also heard the respondent No.2, in person.
5. The perusal of the record makes it clear that there was previous litigation between the parties.
Complainant Ch. Allahditta (P.W.1) who was examined before the trial Court has admitted this fact in unambiguous terms in the following words:-- "It is a fact that a civil litigation is pending between me and accused Anwar present in the Court. It is correct to suggest that prior to the lodging of present case a civil litigation was pending between me and the present accused. Zulfiqar is my son. It is a fact that my son Zulfiqar had filed a rent case against accused Anwer. That rent case was decided in favour of my son Zulfiqar Ali. Accused Anwer had filed a rent appeal against the order of the lower Court in the High Court. It is correct to suggest that the rent appeal was allowed and my son was directed to file a civil suit for declaration of title. It is correct that Zulfiqar Ali had filed a civil suit which is pending in the Court of IInd Senior Civil Judge, Karachi South. It is correct to suggest that Muhammad Anwer had filed a Civil Suit No.726/90 which is also pending in the Court of First Senior Civil Judge, South, Karachi."
6. The record also shows that on the complaint of the applicant, the case was re-investigated twice, one by Nahid Almas, Lady Inspector and then by Syed Mahmood Ali, Inspector and both of them were of the firm view that the Complaint filed by Ch. Allahditta was false, which was lodged in order to put pressure upon the applicant who was engaged in civil litigation with him. The Government of Sindh was also satisfied about this aspect of the case and consequently the Home Department directed the concerned D.P.P. To withdraw the prosecution against the applicant under section 494, -Cr.P.C. Twice. The technicalities were, however, pushed to extreme on both these occasions, one by the learned Sessions Judge (South) Karachi, in Cr. Revision No.26 of 19$9, and the second time by learned A.C.M. No.X (South) Karachi, who refused the prayer made by D.P.P.
Under section 494, Cr.P.C.
7. Undoubtedly, where the allegations made against the accused persons disclose an offence, it is for the trial Court to assess the evidence and then to determine whether the allegations arc true or false, but where on the face of the record the allegations appear to be false, which are made with a view to harass the accused, the High Court would quash the proceedings to prevent the abuse of process of the Court.
8. Admittedly the wooden doors which were 28 years old at the time of alleged incident were replaced by iron shutters and they were placed on the roof as junk. The value of the said doors was not mentioned in the body of the F.I.R., which was lodged after about five months of the alleged incident. There is, therefore, good deal of force in the observation made by Alhaj Ameer Ahmad Khan, learned counsel for applicant when he states that no person possessed of his senses would commit theft of moth eaten doors which were lying in the form of junk, valued at about. Rs.50 only.
He has further contended that section 95, P.P.C., intended to prevent penalisation of negligible wrongs or offences of trivial character. In other words it is the case of the applicant that the allegations made against him even if taken on face value and accepted in their entirety would not constitute an offence in view of section 95, P.P.C., as the law does not concern itself with matters too trivial to demand its notice. Section 95, P.P.C., is the legal recognition of the maxim DE MINIMIS NON CURAT LEX (The law takes no account of trifles). A careful examination of section 95, P.P.C., therefore, makes it clear that even the intentional causing of `harm' specified in that section is excused because of its triviality.
9. Mr. Aziz-ur-Rehman Shaikh, learned counsel for State finding himself on the horns of dilemma, conceded and I think rightly, that in view of the circumstances attending to this case, lie would not support the prosecution of applicant in this case.
10. In the result the application filed by applicant under section 561-A Cr.P.C is allowed and proceedings against him which have arisen out of Crime No.77 of 1989 Mehamoodabad P.S. Under section 14 of the Offences Aginst Property (Enforcement of Hudood ) Ordinance, 1979 Now pending in the court of A. C. M.-X ( south ) Karachi are quashed.
N.H.Q./M-1641/K Proceedigns quashed.