' Through this Constitutional petition, the petitioners have sought quashment of case registered vide F.I.R. No,163, dated 10-8-1994 Police Station Khairpur, Tamiwali. The above-referred F.I.R. Has been registered by the complainant Ghulam Hussain alleging therein that his Fiat Tractor 480 model bearing Registration No,5035 was stolen six months prior to the registration of the case. Foot trackers found foot prints of six persons. On query made from the P.Ws. Named in the F.I.R. It was found that those P.Ws. Saw Muhammad Ramzan, Zulfiqar son of Munir Ahmad, Iftikhar, Abdul Ghafoor and Sanaullah taking the said tractor on the fateful day. Muhammad Siddique was allegedly driving the said tractor. It was further alleged in the F.I.R. That despite the efforts made the tractor could not be traced. Thereafter, the complainant contacted Mian Shah Nawaz who called the accused at his Dera. They confessed having stolen the tractor but despite the promise made, they did not return the tractor.
2. In support of his prayer for quashment, the learned counsel for the petitioner has made the following submissions:--
(i) That the petitioner is not named in the F.I.R. Which was lodged after a delay of six months.
(ii) That the instant case has been got registered by Liaqat Ali, A.S.I. Against whom he had given an application in the Anti-Corruption Department. The said A.S.I. With a view to avenge his honour approached Sh. Abdul Hameed, S.I. Who has in connivance with the said A.S.I. Roped in petitioner's son Zulfiqar in this case.
(iii) That the recovery of the tractor from the petitioner is fake and the same is not tenable in law.
3. Comments called from the respondent S.H.O. Have since been submitted. It is stated in the said comments that the petitioner has, to his discredit, 11 criminal cases, a list of which has been appended with the comments. It is further submitted that the petitioner was already under arrest in a case bearing F.I.R. No,242/94 under section 395/412, P.P.C., Police Station Qaimpur as he is member of gang who has allegedly committed serious offences of dacoity and theft. It was during interrogation .In the said case that the petitioner led to the recovery of the stolen tractor in case F.I.R. No,163/94, Police Station Khairpur.
4. I have heard the learned counsel for the petitioner and have also gone through the comments submitted by the respondent-S.H.O.
5. The quashment of the case is primarily sought on the ground of mala fides alleged against the respondent-S.H.O. The petitioner does not allege any enmity against Sh. Abdul Hameed, S.I. Who registered the instant case and proceeded with the investigation. He alleged that one A.S.I. Liaqat (posted in a different District) was inimical towards him and he got registered the instant case. The case was registered against the petitioner's son Zulfiqar and five others named in the F.I.R. If Abdul Hameed S.I. Had acted at the behest of Liaqat Ali, A.S.I., then the petitioner should have been named in the F.I.R. Right from the first day. In any case, the petitioner does not attribute any direct enmity or mala fides to Abdul Majeed, S.I. Who registered and investigated the instant case.
6. A person seeking quashment of F.I.R. Or of an order passed by a person or authority competent to do on the grounds of mala fides has to bring on record some tangible proof. Mere allegation of mala fides and that too against some one who admittedly did neither record the F.I.R. Nor conducted investigation would not make the registration of a case product of mala fides. Defining the word "mala fides", the Honourable Supreme Court in a very illuminating judgment reported Federation of Pakistan v. Saeed Ahmad etc. PLD 1974 SC 151 (at page 156) has observed:- "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 to 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."
' Thus, to establish `mala tides', the petitioner had to show that the person recording F.I.R. Or conducting the investigation was 'maliciously' motivated and he had some personal axe to grind.
No such prima facie proof has been brought on the file.
7. So far as the question of delay in lodging the F.I.R. Is concerned, it has partly been explained in the F.I.R. Whether this explanation is tenable in law or not, shall have to be commented upon by the learned trial Court.
8. The quashment of proceedings in a criminal trial can be made by this Court provided the prosecution case, even if accepted, there is no probability of conviction. In the instant case, the allegation is that the petitioner alongwith others named in the F.I.R., committed theft of complainant's tractor and during investigation, he led to the recovery of the stolen tractor. The challan has admittedly been submitted in the learned trial Court. The guilt or innocence of the petitioner shall be determined during the trial. At this stage, however, it cannot be said that no offence is made out as F.I.R., statements recorded under section 161, Cr.P.C. And the recovery of the stolen property do disclose commission of an offence which has been alleged against the petitioner.
9. For what has been discussed above, respectfully following the law laid by this Court and the Honourable Supreme Court, this petition has no merit which is hereby dismissed in limine.