' These are two miscellaneous applications, the applicant in each case being the same, each in respect of a different prosecution which he is facing in the Court of the Mukhtiarkar and Ist Class Magistrate, Shandadpur under section 411, Pakistan Penal Code. In each case, besides the State, the person who claims to be the owner of the cattle alleged to have been stolen is different and although he has notice of these proceedings he is. Neither represented nor present before me to oppose the application.
2. It would be convenient to deal with Criminal Misc. Application No, 621 of 1973 first. The facts which have given rise to the prosecution which is sought to be quashed in this case are that on the 17th of December, 1972 the Assistant Sub-Inspector of Police, Police Post Berani, namely,, Mr. Ghulam Hussain, came to the village of the applicant, and seized five bullocks which were in his possession, under the provisions of section 552 of the Criminal Procedure Code. A mashirnama of this seizure was made and one of the persons who acted as a mashir is named Sulaiman who has since been examined as a Prosecution Witness. On the next day, that is to say, the 18th of December 1972 opponent No, 2, namely, Palhwan lodged a first information report in which he alleged that he owned two bullocks and a calf which had been stolen from him about five days prior to the filing of the first information report but that although be tracked the prints he could not find the bullocks. He then goes on to allege that on the morning of the day on which he lodged the first information report he learnt that the police had secured the stolen cattle and impounded the same on account of which he had come and lodged a first information report after having identified the three cattle.
These three are among the five which were secured from the applicant and the applicant was then prosecuted before the Mukhtiakar and 1st Class Magistrate, Shandadpur under section 411 of the Pakistan Penal Code. In the course of the trial the applicant applied for an order to be made under section 516-A, Cr. P. C. Giving him the custody of the bullocks but it appears that no order has been passed one way or the other on this application. Presumably, therefore, the cattle is in the possession of the police.
3. One of the grounds which has been taken up for the purpose of quashment of this case is the allegation that the applicant is a hari of one Rais Ghulam Kadir Mari who is a follower of the Pir Pagaro and politically inimical to the present Government; the allegation, therefore, is that the prosecution has been engineered in order to terrorise the followers of the Pir Sahib. It is quite impossible for me to hold upon this bare allegation that this is so and I am not at all inclined to believe that this prosecution has been engineered for the purpose stated; in any case there is no material upon which I can give such a finding; however, upon the merits of the case it is possible for me to reach a conclusion without holding that the prosecution is on this account mala fide and I, therefore, proceed to examine that part of the case.
4. Now the case of the applicant is that these cattle including the three which are the subject- matter of this case have been in his possession but are the property of his Zamindar and that there is no question of his ever having committed theft of them. The prosecution have not examined the alleged owner of the cattle whose evidence would, in any case, be much the same as I have already stated to be the effect of the first information report but they have examined the mashir, Sulaiman. Now Sulaiman's evidence in his examination-in-chief was merely to the effect that the cattle was secured from the applicant and that of course is admitted. In cross-examination, however, he admitted that he had seen these bullocks in the possession of the applicant for over seven years and, if this be true, then obviously the applicant cannot be said to have either committed theft in regard to these cattle or to have received them knowing them to be stolen property; indeed they are not on that basis stolen property at all. Learned counsel for the State concedes that there is no other material evidence which the prosecution has yet to examine and that upon this evidence a conviction is entirely impossible. It has been held in a number of cases, including several which I have decided, that the High Court should be extremely slow in interfering in pending cases under section 561-A of the Criminal Procedure Code but, where it is satisfied that the prosecution case is entirely untrue and that a conviction cannot possibly result from the evidence, it may properly interfere in the exercise of its inherent jurisdiction. Indeed for the High Court to refuse to do so would be to allow an abuse of the process of the Court prevention of which is one of the express purposes for which the inherent powers of the High Court are preserved by that provision. It is clear in this case that the prosecution not only cannot prove that the cattle came into the possession of the applicant after the day on which the first informant alleges that his cattle were stolen but tint it is proved from their own evidence that it had been in his possession for a number of years. The fact that the cattle was seized first and a first information report recorded only thereafter makes the position for the prosecution all the worse. I have, therefore, no hesitation, whatever, in quashing the proceedings against the applicant.
5. The other Misc. Application, that is to say, the one numbered 591 of 1973 also arises out of the same seizure and the only difference between that case and the one which I have already referred to earlier in the course of this judgment is that the person who claims to be the owner of the remaining cattle is different, namely, one Watoo. In this case also the first information report was recorded after the seizure. It is true that no evidence has been led in this case but admittedly the only evidence in this case will be the same as in the other case, namely, that of the police officer, the first informant and the mashir, and it is obvious, therefore, that it is impossible to distinguish the two cases merely upon the ground that evidence has not yet been recorded in this case. For the same reasons, therefore, I quash the proceedings in this case also.
6. As a result it must also follow that the cattle which was secured from the applicant must be restored to him and I .