' MUHAMMAD ROSHAN ESSANI, J.--- By this Criminal Miscellaneous Application No,95 of 2000, the applicants have sought the quashment of proceedings in Criminal Case No,52 of 1999. The State v.
Allah Rakhio and others under sections 447, 147, 149 and 109, P.P.C. Pending before the learned Civil Judge and F.C.M. Bhriya. It arose out of F.I.R. No,4 of 1998 of Police Station Baghodero, District Naushero Feroze.
2. The brief facts of the case as disclosed by complainant Zahid Hussain Hisbani in the F.I.R. Lodged on 23-12-1993 at Police Station Baghodero, District Naushero Feroze are reproduced hereinbelow in extenso:-- ' "Today complainant visited police station and brought to me his application addressed to Superintendent of Police which contained ' Order No,138, dated 23-124998 of S.D.P.O., Tharo Shah. The order reads as under-- ' Register the case against the law-breakers. Arrest the accused persons and see that no breach of peace should take place and report compliance within 3 days without fail'.
(Sd.) 22-12-1998 S.D.P.O. T. Shah."
Contents of the application.- ' The Superintendent of Police, Naushero Feroze.
' Sir, ' Petitioner Zahid Hussain son of Dr. Nooruddin Heesbani submits that he has 9 acres of land in Deh Haji Shah. Noor Muhammad Shah is getting forcibly watercourse excavated from the middle of the land. He got Dost Ali Kalhoro, my Hari, arrested by making false application. He was released on next day from Gaman Mari Police Station. Noor Muhammad Shah is an influential man, therefore, request is made for our protection from his high-handedness.
(Sd.) Zahid Hussain Heesbani 11-12-1998.
' Complaint was lodged verbatim as per facts given in the application. It was read over to the complainant who accepts it to be correct and has signed it. (Sd.) Zahid Hussain (complainant).
(Sd.) S.H.O. Of Police Station Bhagodero.
' Having registered the case under section 154, Cr.P.C. Copies thereof were sent to authorities concerned as per requirements of section 157, Cr.P.C. Investigation started.
' (Sd.) Zahid Hussain complainant. (Sd.) S.H.O. Bhagodero.
Further statement of complainant.
' "I, Zahid Hussain son of Dr. Nooruddin Heesbani, resident of Deh Haji Shah, presently residing at Kandiaro State that I have 9 acres of land in Deh Haji Shah, which is in Khata of my father Dr. Nooruddin. I manage the said land. On 11-12-1998 at 2-00 p.m. I accompanied by my Hari Dost Ali son of Muhammad Ishaq Kalhoro and my cousin Ghulam Haider alias Muhammad Moosa son of Haji Ghulam Ali Heesbani went to the land where we saw Noor Muhammad Shah getting excavated watercourse and about 8 feet wide Katcha path constructed from my land, S.Nos.223 and 224 through his men namely Allah Rakhio Soomro, Manager, Kamdar Nasrullah Towano, Tractor owner Hussain Ahmed Tractor Driver Nazeer Ahmed Solangi, Mumtaz Ali Shah, Sarwar Mangi, Muhammad Uris Ujjan, Photo Solangi, Sajjan Chandio, Hafeez Chandio, Ali Hussain Chandio, Behram Chandio, Jan Muhammad Gopang, Rustum Gopang, Talib Chandio, Mukhtiar Abro, Rabban Gopang, Budho Chandio. I protested against high-handedness of Noor Muhammad Shah and told him that he was taking possession of the land forcibly. Noor Muhammad Shah told me to go away quietly else his men would fight with me. Hearing that all those men collected and were ready to fight with us.
Realising the situation we returned to our homes. While we were leaving Noor Muhammad Shah challenged us and told us to go and report to whomsoever we want, he would not give up possession of the land. I then made application to Superintendent of Police. S.D.P.O. Tharo Shah on 15-12-1998 visited Wardat alongwith Supervisor Swan Metlo, Liaqat Ali Kalhoro Kotar and Muhammad Dawood Larik, Tapedar of the beat. He then got certificate of ownership of the land from Mukhtiarkar and got attested unauthorised occupation of the land by Noor Muhammad Shah whereafter he sent me to S.H.O. Bhago Dero for lodging F.I.R. Thus, I have appeared for that purpose.
I want justice be done to me."
3. The police after usual investigation sent up the applicants/accused to stand trial.
4. The applicants/accused moved application under section 249-A, Cr.P.C. Before the trial Court, but the same was dismissed by impugned order, dated 13-3-2000.
5. I have heard Mr. S. Ali Aslam Jafferi learned counsel on behalf of the applicants/accused and Mr. Sher Muhammad Shar learned Assistant Advocate-General on behalf of the State. The latter concedes to the quashment of proceedings. I have perused the material placed on record as well as police record with the assistance of the learned counsel for the parties.
6. The perusal of the record shows that the F.I.R. Is divided in two parts. In the initial application dated 11-12-1998 made by the complainant Zahid Hussain to the S.P. The complainant did not implicate the applicants/accused. He made a grievance therein that one Noor Muhammad Shah is an influential person and has got excavated watercourse from the middle of his land and got arrested his Hari Dost Ali Kalhoro. In his subsequent statement, dated 23-12-1998 which was incorporated in 154, Cr.P.C. Book i.e, F.I.R. The complainant implicated applicants/accused and has levelled allegation that they at the instance of said Noor Muhammad Shah excavated the watercourse from S.Nos.223 and 224 of his agricultural land forcibly.
7. The record shows that before registration of present F.I.R. i.e, 4 of 1998, the complainant had tiled Civil Suit No,159 of 1998 in the Court of learned Senior Civil Judge, Kandiaro on 15-12-1998 for permanent injunction and recovery of damages, against the Mukhtiarkar Kandiaro and the Government of Sindh. In that suit it was stated by the complainant (plaintiff) that on 5-12-1998 he had gone to his land to supervise the same where he found that respondents/accused 1, 3, 4, 6, 7, one Hussain, Hassan. Bhoroo and Sarwar excavated the watercourse from the survey number of agricultural land stated hereinabove, and thereby caused damage to the tune of Rs,40,000 to the complainant (plaintiff). In the F.I.R. Reproduced hereinabove the date of incident is shown 23-12- 1998 whereas in the plaint the date of incident has been shown 11-12-1998. Moreover, in the F.I.R. No reference of the factum of the filing of the suit or that of alleged incident, dated 5-12-1998 has been mentioned, the number of the accused shown in the F.I.R. Is different from the number shown in the plaint. Only S. Nos.223 and 224 of agricultural land situated in Deh Haji Shah have been shown to be the same.
8. The record further reveals that the complainant with regard to the alleged incident filed a direct complaint bearing Criminal Case No,51 of 1998 against 10 persons namely, (1) Syed Noor Muhammad Shah son of Syed Kararo Shah, (2) .Hussain son of Mitho Gopang, (3) Hassan son of Mitho Gopang, (4) Rustam son of Chuttal Gopang, (5) Rabban son of Julio Gopang, (6) Allah Rakho son of not known by caste Soomro, (7) Bhoor son of not known by caste Sival and (10) Chakar son of not known Chandio by caste, in the Court of learned Civil Judge and F.C.M. Kandiaro under sections 147, 148, 149, 427 and 506/2, P.P.C. The learned trial Court after holding P.E. Brought the case on file and issued process against the accused. The trial Court was moved under section 539-E, Cr.P.C. For the purpose of local inspection. The request was allowed by the Court with the consent of both the parties. It will be pertinent to reproduce hereinbelow the memorandum of the site inspection:-- ' "Mr. Ghulam Hussain Ujjan, Advocate for accused moved an application under section 539-E, Cr.P.C. For local inspection of the disputed agricultural land. Notice was given to complainant to which his Advocate Mr. Khamiso Khan gave no objection and said application was allowed. On 30- 4-1999 the undersigned alongwith complainant Zahid Hussain and accused with their respective counsels Mr. Khamiso Khan, Advocate and Mr. Ghulam Hussain Advocate, visited/inspected the place in which according to the complainant offence is alleged to have been committed by the accused party. The place is situated in S. Nos.223 and 224 Deh Hai Shah Taluka Kandiaro in which wheat crop was cultivated by complainant and which is ripe for harvesting. In S.Nos.223 and 224 Deh Haji Shah there is no any watercourse seen Katcha or Pacca constructed by the accused party. There is no any mark of watercourse. The land of both survey numbers was fully cultivated wheat crop. According to complainant that accused Syed Noor Muhammad Shah encroached his piece of land from S. No,224, but the Tapedar of the beat stated by seeing the map of the said survey number that there is a school building and vacated plot are of S. No,225 but not of the piece of S.No,224. There is dispute over the piece of land (uncultivated) on which wheat of accused Syed Noor Muhammad Shah are lying. The measurement of the S.Nos.224 and 225 Deh Haji Shah are to be taken necessary by the Land Survey Department for which both parties are required to move an application before the Settlement and Land Survey Department. The Tapedar of the beat stated that S.No,225 Deh Haji Shah is a Government land on which school building is present, and same is not piece of S.No,224. The accused Syed Noor Muhammad Shah owns S.No,229/AB Deh Haji Shah and there is watercourse in S.No,228 of Syed Noor Muhammad Shah. This 30th day of April, 1999.
(Sd.) 30-4-1999 Civil Judge and F.C.M. Kandiaro."
9. The site inspection note reproduced hereinabove shows that there was no watercourse in S. Nos.223 and 224 of Deh Haji Shah. There was no Katcha (unmettled) or Pacca (mettled) path at the site, but on the contrary wheat crop was found in the aforesaid survey numbers. The alleged watercourse was situated in the land bearing S. No,228 of Deh Haji Shah owned by the respondent/accused Noor Muhammad Shah. In the direct complaint filed by the complainant Zahid Hussain, the date of alleged incident has been shown 5-12-1998 whereas in the F.I.R. No,4 of 1998 the date of alleged incident has been shown 11-12-1998. The number and names of the some accused are different from the number and names shown in the F . I . R .
10. The factum of the pendency of the civil suit in the Court of learned Senior Civil Judge, Kandiaro with regard to same subject-matter clearly shows that the complainant made an attempt to circumvent the civil remedy if any into a criminal case.
11. The object of section 561-A, Cr.P.C. Whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of Court. To secure the ends of justice powers of this Court are very wide. In the case of M.S. Khawaja v. The State PLD 1965 SC 287, following observations were made by the apex Court:-- ' "To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."
12. In the case of Meraj Khan v. Gul Muhammad 2000 SCM R 122, it was observed by the Honourable Supreme Court that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record E no case can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the case are scrutinised on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned F.I.R.
Would be sheer wastage of time.
13. The upshot of the above discussion is that the proceedings pending before the trial Court against the applicants/accused are abuse of the process G of the Court and they are quashed.
Consequently the present application for quashment of proceedings is allowed.
14. By our short order dated 13-9-2000 the present Criminal Miscellaneous Application was allowed and above are the detailed reasons for the same.