' This is a petition under section 561-A, Criminal Procedure Code, on behalf of Ch. Zahoor Elahi, a Sitting Member of the National Assembly of Pakistan, for quashment of the proceedings under section 411, P. P. C. Pending against him in the Court of Mr. Waheed-ud-Din, Magistrate, First Class, Gujrat.
2. According to first information report No, 52, which was lodged at Police Station Saddar, Gujrat, on the 20th of February 1973, by one Allah Dad son of Muhammad Khan, two of his buffaloes pore stolen from his behk at about midnight 6/7 months prior to the registration of the case. On the day on which the report was lodged, the complainant had come to Gujrat in connection with some work when he noticed a herd of cattle being driven by the police, out of the lot he identified the two buffaloes. It was for this that the petitioner was challaned under section 411, P. P. C. For being in possession of property knowing or having reason to believe the same to be stolen property.
3. Learned counsel for the petitioner sought quashment of the proceedings on two grounds; firstly, that the very registration of the case against the petitioner was mala fide and, secondly, that the prosecution allegations, even if true do not disclose any offence and, if they do disclose any offence, then there is no evidence to support them.
' In support of the first contention, learned counsel argued that as the petitioner did not ascribe to the views of his political rivals, therefore in order to curb his political activities he had been involved in a number of cases. In support of this, learned counsel submitted that first of all the petitioner was arrested in connection with the alleged recovery of illict arms, but he was admitted to anticipatory bail by order dated the 15th of February 1973 of this Court in Criminal Miscellaneous No, 607-B of 1973; he was again detained under section 16 of the Maintenance of Public Ordinance. Section 124 of the Pakistan Penal Code and rule 49 of the Defence of Pakistan Rules, 1971, while on his way to Islamabad to participate in the Session of the National Assembly, but was admitted to bail by the Additional Sessions Judge, Lahore, on the 21st of February 1973, and in spite of the bail order, he was set free. The petitioner, therefore, prayed for a writ of habeas corpus from this Court which was issued by order of this Court dated the 22nd of February 1973. Learned counsel argued that the petitioner had hardly been set at liberty when on the same day at about 3-30 p.m. He was re- arrested after having been shown a copy of report No, 10 of Roznamcha dated the 22nd of February 1973, pertaining to Police Station Lytton Road, Lahore. According to this report, he was wanted in Case No, 52, under section 411, P. P. C., registered at Police Station Sadar, Gujrat. The petitioner, thereafter, straightaway came to this Court and prayed for bail which was allowed on the 23rd of February and was ultimately confirmed on the 16th of March 1973, vide Criminal Misc. No, 738-B of 1973.
4. Regarding the registration of the instant case, learned counsel submitted that even the first information was not genuine, because the complainant was made to sign this report on the pretext that his thumb-impression was being obtained for sapurdari of the cattle belonging to one Nawabzada Zafar Mehdi who was well-known to him and when the complainant had put his thumb impression then only he was informed that he had lodged a report against the petitioner and now he would have to follow those proceedings to the bitter end. Learned counsel submitted that on coming to know of this, Allah Dad expressed his resentment and refused to extend any cooperation to the prosecution of the petitioner but he was threatened with dire consequences both by Nawabzada Zafar Mehdi as well as by the local police; apprehending that he might not be taken into custody the complainant moved this Court, for grant of anticipatory bail as well, vide Criminal Misc. No, 884-B of 1973.
5. In support of the second contention, learned counsel argued that perusal of the first information report and the evidence which the prosecution is likely to lead in support of its case, does not disclose any offence against the petitioner and in case any offence is made out then there is no evidence to support it.
' In view of the above, learned counsel submitted that the sole purpose for involving the petitioner in the present case was to put him to public humiliation and unnecessary harassment, otherwise it was inconceivable that a person of the petitioner's status would in any way be connected with the offence alleged to have been committed by him. In such circumstances; learned counsel argued that the proceedings if allowed to continue would be a clear case of abuse of the process of the Court and the trial would be a mock trial.
6. Before examining the contentions of the learned counsel for the petitioner, I would like to deal with the contention of the learned counsel appearing on behalf of the State, which was, that the petition was premature, because no evidence had so far been recorded and the proper thing for the petitioner was to wait till some evidence was recorded, because then only this Court would be in position to judge as to whether the proceedings be permitted to continue or not. In support of this contention learned counsel relied on Mohsin Ali v. The State (1), and Ghulam Muhammad v.
Chashlum Contractors (2). In the latter case it was observed:- "Similarly, it will be premature without the evidence having been recorded to give a finding that either the allegations are false or that the guilty intention cannot be attributed to the petitioner. In such like cases, the matter cannot be decided without recording the evidence. It is not the purpose of the proceedings under section 561-A, Cr. P. C., to go into the details of the facts so as to give a finding without affording opportunity to the parties to lead evidence. Obviously evidence cannot be recorded in these proceedings and without recording the evidence the questions involved in this case cannot be decided. The only circumstance that the case also involves a civil dispute is not enough to quash the proceedings, The standards laid down by their Lordships of the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan and others (PLD 1967 SC 317) are not satisfied in this case. 1 find no merit in this petition and the same is dismissed.
' Reliance was placed on Ghulam Muhammad v. Muzammal Khan and others (3) where it had been observed:- "If in fact, on offence had been committed, justice required that it should be enquired into and tried.
If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the {{FOOT NOTE}}
(1) 1972 SCM R 229 (2) 1972 P Cr. L.1 348
(3) .1) L_ D 1967 SC 317 {{FOOT NOTE}} ' respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law."
' Learned counsel submitted that the first information report did disclose a prima facie case and therefore, this was no stage to consider the request of the petitioner for quashment. Regarding the mala fides on the part of the prosecution, it was submitted that it is a question of fact and in order to successfully urge this, the petitioner had to wait till some evidence was recorded. In support of this, reliance was placed on .Muhammad Tayyab Shah v. Syed Fayyaz Hussain and others (1), but in my view this decision would not be of much help to the learned counsel for the State because in that case the enquiry was in progress and it was rightly observed that the accused would have sufficient opportunity at the time of enquiry or trial to demonstrate the plea of mala fide.
7. 1 have taken note of the authorities referred to above and most respectfully observe that there is one distinguishing feature in this case and that is, that specific allegations of mala fide have been levelled against the prosecution and, therefore, it becomes all the more necessary to examine these allegations more thoroughly in order to ascertain as to whether a prima facie case had been made out or not, if it is so, then whether on the evidence which the prosecution wishes to adduce, the case is likely to result in conviction. This, in my opinion, could be done even if no evidence had been recorded, because if the person proceeded against was to wait till some evidence was recorded then the very purpose of section 561-A of the Code of Criminal Procedure is likely to be defeated. I am fortified in this view by a decision of this Court in Yaqoob Khan and others v. The State and three others (2), where it had been observed:- "It was submitted by Mr. Abdur Razzaq on behalf of the respondents that the case has not yet been put in Court, but I find that on the King-Emperor v. Khawaja Naar Ahmad (217 I C 1) this Court has the power, in a suitable case, to quash the proceedings even at the investigation stage. I would accordingly accept this petition and quash the proceedings initiated against the petitioner under section 379 of the Pakistan Penal Code at the instance of the respondents."
' The case here is not at the investigation stage, but the challan has already been submitted in the Court after completion. The entire material and the evidence in the case has already been collected, I can therefore examine it with a view to forming my opinion whether on that evidence and material any case is made out against the petitioner or not.
9. The case against the petitioner is under 'section 411, P. P. C. In order that the prosecution succeeds it has to satisfy all the ingredients of section 411, viz :
(i) property should be stolen property;
(ii) receipt or retention of that property; and
(iii) existence of knowledge or belief on the part of the person found in possession that the property was stolen and the receipt and retention should be dishonest. {{FOOT NOTE}}
(1) PLD 1973 Lah. 396 (2) 1971 P Cr. L J 266 {{FOOT NOTE}} ' In filtarodwal Singh v. The State (1), Harries, C. J. Observed:- "To prove in a prosecution under section 411, P. P. C., the prosecution must not only prove that the property had been stolen but they must also establish facts from which the Court can properly either knew the property to be stolen or had reasonable grounds for believing the same to have been stolen. Unless there is some prima facie evidence as to knowledge of the accused, then the latter is liable to be acquitted because, as I have said, merely proving of that he was in possession of the stolen property establishes no offence of any kind."
' This view was affirmed by their Lordships of the Supreme Court in Mukhtar Ali v. The State (2). It is, therefore, obvious that if any one of these ingredients is missing then the conviction is not likely to result. Learned counsel submitted that taking the prosecution case on its face value, the utmost the prosecution could prove against the petitioner would be the recovery of the animals from his dera, as is evident from the recovery memo, which was prepared by the Sub-Inspector and signed by one Sadiq as an attesting witness, but this evidence will not be sufficient in law to result in the conviction of the petitioner under section 41, P. P. C. Unless and until the remaining essential ingredients of section 41 a, P. P. C. Were duly proved. Learned counsel submitted that the prosecution has no evidence to lead in order to prove the remaining essential ingredients of section 411, P. P. C.
8. The prosecution case rests on the testimony of the complainant and two other witnesses,' named in the first information report who also identified the animals, the rest of the evidence consists of recovery alleged to have taken place from the dera of the petitioner and as is clear from the recovery memo. It was witnessed by one Sadly who is an attesting witness of the memo.
The other being the Sub-Inspector who investigated the case and prepared the memo. It is thus obvious that the prosecution has no other evidence to advance its case beyond this stage.
Although in the first information report it was stated by the complainant that a theft took place in his beck, nevertheless he admitted that he never reported the matter to the police. It is thus evident that there is no evidence to the effect that the property was stolen, nor the prosecution has any evidence to rely upon to prove the existent of any knowledge or belief on the part of the petitioner from which it could be inferred that the petitioner retained the property either dishonestly or knowing or having reason to believe the same to be stolen property. This being the prosecution case, even if the allegations of the prosecution are accepted to be true even then there is no evidence to prove the remaining essential ingredients of section 411, P. P. C. In such circumstances, it would be futile to allow the proceedings to continue. I would, therefore, accept this petition and quash the proceedings pending against the petitioner in the Court of the trial Magistrate, Gujrat. {{FOOT NOTE}}
(1) AIR 1952 Cal. 616 (2) PLD 1971 SC 725 {{FOOT NOTE}}