' Through this Constitutional petition, the petitioners have sought quashment of the following F.I.Rs,:--
(i) F.I.R. No,87/94 under section 379/411, P.P.C. Read with section 25 of Telegraph Act, dated 16-4- 1994, Police Station Qaimpur.
(ii) F.I.R. No,242/94 under section 395/412, P.P.C., dated 27-11-1994, Police Station Qaimpur.
(iii) F.I.R. No,223/93 under section 382/511, P.P.C., dated 30-10-1993, Police Station Qaimpur.
' The above-referred F.I.Rs, quashment of which is being sought were registered against the petitioners and others at different times. The allegations in F.I.R. No,87/94 is that certain persons committed theft of a wire belonging to Pakistan Telecommunication Corporation amounting to Rs:20,280. It was only during investigation that the petitioners were involved an' the wire was allegedly recovered from them.
' F.I.R. No,242/94 which was lodged on the complaint of Munir Ahmad wherein it was alleged that five persons named in it armed with fire-arms stopped the complainant who was going on a motor-cycle. At pistol point, they robbed the complainant of Rs,2,000, motor-cycle and the identity card carrying in his wallet (Batwa). It was further alleged that Munir Ahmad petitioner harbours these persons and gets various dacoities committed from them.
' In F.I.R. No,223/93 which was registered on the complaint of Abdul Latif it was alleged that five persons stopped complainant's car by breaking the windscreen and threatened that the car and the money should be handed over to them otherwise he will be done to death. However, the complainant, who was accompanied by his son, did not stop the car whereupon one of the accused persons fired which hit the petrol tank of the car.
2. In support of this petition for quashment, the learned counsel for the petitioners has urged the following points:--
(i) That all the three cases are false and have been registered against the petitioners for mala fides reasons.
(ii) That the petitioners were in the illegal custody of the police from 23-11-1994 to 28-11-1994 when a habeas corpus petition was moved on their behalf in the High Court. The police got to know about the filing of this petition and with a view to create a defence, they have involved the petitioners in these cases.
(iii) That the recovery of wire affected in F.I.R. No,87/94 is fake and nothing was recovered from the petitioners.
(iv) That the allegation that Munir Ahmad petitioner harbours the accused mentioned in F.I.R.
No,242/94 is absolutely incorrect.
3. In the comments called from the respondent-S.H.O. The allegations levelled in the writ petition have been controverted. It has been submitted that the accused-petitioners led to the recovery of wire in F.I.R. No,87/94 and that petitioner No,1 also led to the recovery of a number plate of the stolen motorcycle and also the looted money in case F.I.R. No,242/94. It has also been reiterated by the respondent S.H.O. That petitioner No,1 harboured proclaimed offenders in case F.I.R. No,198/92 under section 302/365, P.P.C., Police Station City Sadiqabad who were involved in serious offences of dacoity, murder and tractor theft. The S.H.O. Has also appended with the comments a list of 11 cases in which the petitioner No,1 was involved out of which he was convicted in two cases.
Similarly, a list of eight cases has been appended in which petitioner No,2 was involved.
4. Having heard the learned counsel for the petitioners and having gone through the comments I am afraid no case of quashment is .Made out for following reasons:--
(i) The petitioners have not alleged any direct or indirect mala fides against the respondent S.H.O.
Who registered and investigated the afore-referred cases. It is also not explained as to why were the petitioners detained from 23-11-1994 to 28-11-1994. An accused cannot be permitted to frustrate the process of law just by making vague allegations of mala fides against the police. The person seeking quashment of an F.I.R. Or of an order passed by a person competent in law to pass the same, on the ground of mala fides, has to be specific and has to bring on record some tangible proof of mala fides against the Investigating Officer or the complainant. In absence of that no credence can be given to such pleadings.
' In a celebrated judgment reported in Federation of Pakistan v. Saeed Ahmad and others PLD 1974 SC 151, the Honourable Supreme Court (at page 156) has defined the parameters of mala fides in following terms:- "`Mala fides' literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either told hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fides. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. Thus, action taken, for instance, to acquire lands or taken over industries or banks on the basis of a policy intended for introducing a more socialistic system cannot be characterised as action taken mala fides. But in order to make out a case of mala fides, an individual must establish that his land was taken not for the purposes authorised by the law but for the personal aggrandisement of the person empowered with the power to make the order of acquisition, or because the person so authorised to take action bore any personal grudge against the person in respect of whose lands or properties action has been taken. In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession."
5. Quashment of proceedings can be directed if it is shown that the prosecution case even if believed no offence is made out. In all the three cases quashment of which is prayed, challans have been submitted in the learned trial Court after due investigation. In two cases there has been recovery of the case property from petitioners which was witnessed by persons named in the recovery memos. And it shall be for the learned trial Court to adjudicate upon the truth or falsehood of those recoveries after recording of evidence. Prima facie the petitioners are involved in cases in which they have been arrayed as accused and this Court cannot circumvent the process of the learned trial Court by quashing the proceedings. This would be in line with the view taken by this Court in Mazharul Islam v. The State and others 1988 MLD 2360 where it was held:-- "Constitution of Pakistan (1973)--- ' Art. 199---Penal Code (XLV of 1860), Ss.452 and 506---Criminal Proceedings, quashing of---Three eye-witnesses of occurrence deposing against accused in their statements under S.161, Cr.P.C.--- Evidence not yet recorded by Trial Court---No revision filed against order of Magistrate passed on application under section 249-A, .Cr.P.C.---Constitutional petition, held, was not maintainable--- Functions and duties of trial Court not to be pre-empted--- Constitutional in limine."
' This view was re-affirmed in yet another case reported Malik Abdul Wahid and others v. The State and others 1989 M LD 4065 and was held:-- "Criminal Procedure Code (V of 1898)--- ' S.154---Constitution of Pakistan (1973), Art.199---Penal Code (XLV of 1860), Ss.114, 409 and 420--- Quashing of F.I.R.---Constitutional jurisdiction---Investigating Officer having no personal enmity or malice against accused---No recovery was effected from accused---Submission of challan was delayed by more than two years---Mere non-recovery of money or delay in submission of challan, held, would not be a ground to interfere with recording of F.I.R. In exercise of Constitutional jurisdiction---High Court would be reluctant to interfere with recording of F.I.R. Or investigation except in cases of clear malice or where F.I.R. Would not disclose commission of any # cognizable offence--- in circumstances."
6. The principle that if the allegations levelled in the F.I.R. And statements under section 161, Cr.P.C., prima facie disclose commission of an " offence, proceedings cannot be quashed, was upheld by the Honourable Supreme Court in Muhammad Gulshan and others v. Muhammad Inayat and others 1978 SCM R 183, wherein it was observed:-- "Penal Code (XLV of 1860)- ' ----Ss. 506, 148, 149, 188 and 324 read with Criminal Procedure Code (V of 1898), S.561-A--- Quashment of criminal proceedings---Criminal Courts not concerned with questions of title to property---Petitioners prosecuted for offences allegedly committed by them under section 506 etc. Calling for necessary inquiry into them. High Court, held, justified in circumstances of case to hold allegations in F.I.R. Having prima facie disclosed a case for prosecution of petitioner and prosecution could not be satisfied by quashment of proceedings."
For what has been discussed above, respectfully following the law laid down by the Honourable Supreme Court, this petition has no merit which is dismissed in limine.