' By this application, applicant seeks quashment of proceedings of Special Case No,2 of 1994 State v. (Rtd.) Major Aftab Ahmed and others pending against him in the Court of learned Special Judge for (S.T.A.) Court, Larkana.
' The facts leading to the filing of this application are that on 4-1-1994 the birth anniversary of late Zulfiqar Ali Bhutto, some police pickets were established at different places in order to combat terrorism. Inspector Allah Dino Junejo, S.H.O., Police Station A-Section and other police staff were deployed at the picket near Municipal High School. Whereas at Sokarno Memorial Chowk Inspector Niaz Muhammad Abbasi, S.H.O., Taluka Police Station and other police officials were also deployed.
While complainant along with his subordinate staff duly armed with Lathis were standing at Civil Hospital Chowk, when at about 8-30 a.m. They heard fire reports from the side of Municipal High School and proceeded there in Government mobile along with S.P. Staff and arrived at 8-45 a.m.
And found S.S.P. And District Magistrate, Larkana already available, S.I.P. Abdul Wahid Bhutto disclosed that at about 8-30 a.m. a procession of 60/70 persons armed with Lathis, arms and bricks came from the side of Al-Murtaza and threw stones upon police party and attempted to overpower them and did not disperse in spite of warning given by Mr. Pir Bux Ujjan, the District Magistrate, as a result the said Magistrate received injury on his foot. According to the prosecution case, complainant party had fired seven shells of tear gas to disperse the procession and in the result whereof about 15/20 armed persons from that mob while taking the position started firing at the police, resultantly constable Gullan Khan sustained serious injuries and terrorists also kidnapped two other constables. In retaliation complainant party fired 15 rounds from their respective weapons in self-defence whereby three terrorists sustained injuries whose weapons were taken away by their companions, whereas one terrorist fell down and handed over his pistol to another terrorist. One of the. Injured had received bullet injury in his head and become unconscious at that time while other injured disclosed their names as Suresh Kumar and Shahid, whereas about unconscious they disclosed his name as Ghulam Kadir Jakhro. The person who had fell down disclosed his name as Major Aftab. Complainant party also identified terrorists Ghulam Hussain Chandio and Ali Sonaro and stated that rest would be identified if seen. It was further disclosed by S.I.P. Abdul Wahid Bhutto that applicant Makhdoom Khaliq-uz-Zaman was also available inside the crowed. One woman of Lahori Muhalla had also sustained injury at the hands of terrorists inside her house. While complainant party was still present at the Vardat kidnapee P.C.
Barkat Ali came back. Thereafter, injured were removed to hospital, whereas accused Major Aftab was taken into custody. The terrorists and miscreants had, thus, violated section 144, Cr.P.C. By forming unlawful assembly and creating hindrances in the official duties.
2. It is contended by Mr. Abdul Razak D. Soomro on behalf of the applicant that applicant is facing trial before the abovementioned Court since last more than 4 years and not even a single witness has been examined though all of them are police officials. According to him, applicant has nothing to do with the alleged offence. Even according to F.I.R. The only allegation against him is that he was seen standing among the crowd. No one from the side of prosecution has neither assigned any role in the commission of offence nor any one has deposed that he had participated in any manner in the crime. Simply standing among the mob would not bring his case within the ambit of unlawful assembly. According to him learned trial Court has ignored the fact that as per the prosecution case only 16 to 20 persons had committed the offence of firing only. Mr. Soomro further argued that alleged offence at the most against applicant would fall under section 188, P.P.C. For violating the provisions of section 144, Cr.P.C. Which was imposed by District Magistrate. Larkana at that relevant time.
4. He lastly contended that in view of section 195(i)(a), Cr.P.C. Applicant even cannot be convicted under section 188, P.P.C. As such further proceedings against applicant will be furtile exercise.
5. On the other side Mr. Ali Azhar Tunio, learned A.A.-G. Frankly conceded to the above contentions of the applicant's counsel and admitted that according to the case of prosecution there is not any incriminating evidence connecting him with the alleged offence, as such he has no objection if the proceedings against him are quashed.
6. We have given anxious thought to the contentions raised at the Bar and have gone through the record of the application as well as the order under section 249-A, Cr.P.C.
7. We are of the considered opinion that mere presence of applicant among a mob of many persons as stated above would hardly be a relevant factor to connect the applicant with the commission of offence. It has been categorically stated in F.I.R. That S.I.P. Abdul Wahid Bhutto alone identified the applicant standing from among the crowd. Applicant being a famous politician, well- known personality and a man of eminence was neither known to the complainant or to S.S.P., D.M.
And other high officers present at the time of occasion, but was known to S.I.P. Abdul Wahid Bhutto alone, did not appeal to our mind at all. Even if according to said S.I.P. Applicant was seen available in the crowd it would be utmost a case of violation of section 144, Cr.P.C. Against the applicant which is punishable under section 188, P.P.C. In respect of section 188, P.P.C. Courts have been precluded from taking cognizance except on the complaint in writing of public servant whose orders have been violated or of some other public servant to whom he is subordinate. Apparently this has not been done in this particular case, hence there is not any possibility of applicant's case ending in the conviction. Reference is made to the case of Abdul Baqi and 3 others v. The State reported in 1998 PCr.LJ 187 whereunder this Court has quashed the proceedings by holding that the Police Officer was not authorized to register F.I.R. For the violation of section 144, Cr.P.C. Only complaint in writing made by the authority in terms of section 195(i)(a), Cr.P.C. Is competent.
8. On the common object of an unlawful assembly Federal Court in the case of Fazal Illahi and others v. The Crown reported in PLD 1953 FC 35 has held that intention or knowledge in the minds of such members, apart from common object or knowledge on the part of the members of unlawful assembly must be proved. The words that applicant was seen among the crowd would not in any case fulfill requirements of being a member of unlawful assembly having that common object of committing the offence.
9. For the foregoing discussion, we are of the considered opinion that there would be no possibility of applicant's case ending in conviction and it would be in the fitness of things to quash the proceedings of the above case against him. Irrespective of this, if the case is allowed to proceed further against the applicant, it would amount to the abuse of process of Court.
10. Accordingly, application is allowed and proceedings in the above referred special case pending against the applicant alone are quashed. So far case against the remaining accused is concerned, that would proceed in accordance with law.