1. ' By this Criminal Miscellaneous Application, the applicants Allah Bachayo and others have sought quashment of proceedings of criminal case pending against them under sections 380/34, P.P.C. In the Court of Resident Magistrate, Dadu, hereinafter called the trial Court.
2. ' The respondent No,1, Haji Jaro Spit of Gamboo Otho, who is the complainant filed the direct complaint against applicants/accused in the Court of District Magistrate Dadu on or about 5th October, 1992. The allegations in the complaint are that the applicants/accused who were on visiting terms with him since last so many years came to the Sehwan on 1-10-1992 at about 6-00 p.m. For 'Ziarat' purpose and after 'Ziarat' they stayed at the residence of the complainant. At about 9-00 p.m. The applicants/accused took meals at the residence of complainant, when one Loung son of Imam Bux Machhi and Yousif son of Usman, who were neighbourer of the complainant and were on visiting terms with the accused came there for the exchange of pleasantries. They remained there upto 11-00 p.m. After their departure, complainant and the applicants went to a sleep.
3. ' On the next morning, when complainant Haji Jaro woke up, he found the applicants/accused missing and locks of his trunk lying in the room broken. The clothes etc. Were found missing. The other suit-case of red colour containing one golden neckless weighing about one Tola, three golden finger rings weighing about 3/4 Tolas, one golden nose ring and other golden ornaments mentioned in the complaint alongwith cash of Rs,4,500 and one Shawl/Loee were found missing.
4. The complainant went in search of the accused but could not find them. While complainant was returning from bus stop, prosecution witness Yousif son of Muhammad Usman met him, complainant informed him about.
5. ' A the theft of his aforesaid articles. Whereupon P.W. Yousif disclosed that at about 6-00 a.m. When he was going to purchase 'Sabzi' he saw the applicants/ accused waiting for conveyance at the bus stop. Accused Allah Bachayo was carrying the said red colour suit-case in his hand and accused Hashim had white 'Loee' on his shoulder.
6. ' It is further stated in the complaint, that the complainant and P.Ws. Yousif and Rasool Bux Solangi went to Badin where accused Nisar and Hassan met them. Complainant requested them for the return of his articles to which in the first instance they avoided but later on agreed to return the same to complainant on 4-10-1992, on the pretext that the stolen articles were with accused Allah Bachayo, who was not available at that time. On the stipulated date, the articles were not returned, as such, the complainant went to Sehwan Police Station to lodge the report but police did not register the same therefore he filed direct complaint on or about 5-10-1992 before the District Magistrate, Dadu.
7. ' The learned District Magistrate, Dadu transferred the complaint to the trial Court on the same day.
8. The learned trial Court after holding preliminary enquiry brought the complaint on record and issued process against the accused/applicants by impugned order dated 20-10-1392.
9. ' The applicants have assailed the proceedings by invoking the inherent jurisdiction of this Court under section 561-A, Cr.P.C. The present application was admitted to regular hearing by order dated 13-1-1993 and in the meantime proceedings were stayed by this Court. The notice of the main application, was ordered to be issued to the respondent No,1, who made his appearance in this Court in person.
10. ' Mr. Syed Madad Ally Shah, learned counsel appearing for the applicants relying upon sections 177 and 179, Cr.P.C. Has argued that the learned trial Court had no jurisdiction to take cognizance of the offence on the complaint in view of the fact that the alleged offence of theft had taken place at Sehwan, his next submission was that there is no ocular evidence of the alleged incident as no witness claims to have actually seen the applicants committing theft of the alleged stolen articles of the complainant. The learned counsel further argued that admittedly there is no recovery of the stolen articles from the possession of any of the applicants and present proceedings were initiated malafidely against the applicants at Dadu by the complainant who was set up by Haji Adam who was on inimical terms with the applicants; that the proceedings were launched malafidely to cause harassm ent to the applicants; that the continuation of proceedings amounts to abuse of the process of Court and merits quashment.
11. ' The learned counsel in support of his arguments put reliance upon the decisions Mirza Muhammad Jaffar v. Mirza Dildar Hussain and 2 others 1976 PCr.LJ 1293, Mir Ghullam Abbas Khan Talpur v. The State 1978 PCr.LJ 125, Mst. Ghulam Zohra v. The State 1969 PCr.LJ 67, Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775, Muhib Ali and 3 others v. The State 1988 PCr.LJ 402, Amir Zia v. The State 2. Government of Pakistan NLR 1999 Cr. 314, and Muhammad Saleh and others v. Muhammad Ali 1991 M LD 1430. The respondent No,1 has been called absent though notice for the date of hearing was sent to him well in advance. The learned State counsel has supported the impugned order.
12. 'The perusal of material placed on the record shows that the alleged theft was committed at Sehwan and the applicants/ accused retained the stolen articles at Badin. In view of aforesaid facts, the, complaint either could have been filed at Sehwan or at Badin and the learned trial Court had no jurisdiction to take cognizance at Dadu. Section 177, Cr.P.C. Lays down that every offence ordinarily to be enquired in and tried by a Court within local limits of whose jurisdiction it was committed, while section 179, Cr P.C. Envisages that when a person is accused of the commission of any offence by reason of anything which had been done and of any consequences ensued, such offence may be enquired into and tried by a Court within the limits of whose jurisdiction any such consequence resulted. Thus the trial Court was devoid of jurisdiction and entire proceedings have become void, ab initio.
13. ' In the case of Mirza Muhammad Jaffar v. Mirza Dildar Hussain and 2 others reported in 1976 PCr.LJ 1293, this Court quashed the proceedings of the case under sections 420/406, P.P.C. On the ground that the Courts at Karachi had no jurisdiction to take cognizance of the case as the petitioner was living at Hyderabad, whereas, the property in dispute was situated at Sukkur, as such proceedings initiated at Karachi were in violation of section 177, Cr.P.C.
14. ' In the case of Mst. Ghulam Zohra v. The State and other reported in 1969 PCr.LJ 67, this Court set aside the order of the Additional Sessions Judge on the ground of jurisdiction as the alleged marriage had taken place at Jehlam and offence of bigamy under section 494, P.P.C., if any had been 'committed at Jehlam thus the Courts at Karachi had no jurisdiction to entertain, the complaint as envisaged under section 177, Cr.P.C.
15. ' In the case -of Aamir Zia v. State and others reported in NLR 1999 Cr. 314, the proceedings pending before the Customs Court were quashed by this Court as the cognizance in the matter was taken without jurisdiction.
16. ' In the case of Muhib Ali and others v. The State; reported.In 1988 PCr.Li 402 a Division Bench of this Court quashed the proceedings of case under section 392, P.P.C. And section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, on the ground that the recovery of incriminating articles was not made from the possession of applicants. It was observed that under given circumstances the continuation of proceedings against the applicants was abuse of the process of the Courts."
17. ' In the case of Mir Ghullam Abbas Khan, Talpur v. The State reported in 1978 PCr.LJ 125, this Court ordered quashment of proceedings as the F.1.R. Was based on mere presumption and as per statements of witnesses, no person had seen the applicant/accused committing the alleged offence.
18. ' In the case of Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and others reported in 1983 SCMR 775, Honourable Supreme Court declined to grant leave against the order of quashment of proceedings passed by High Court on the ground that the proceedings were initiated malafidely in order to cause harassm ent to the accused.
19. ' In the case of Muhammad Sleh v. Muhammad Ali reported in 1991 M LD 1430, the allegations against the accused were similar as in the present case. The allegations were that the accused had come from Lahore to Kamalia and took away the cash and wrist watch etc. While leaving the house of the complainant. The proceedings of the case under section 386, P.P.C. Were quakhed by the Lahore High Court.
20. ' In the instant case, contention of the learned counsel for the applicants appears to have force that the applicants are businessme n of Badin and they have been dragged in a case at Dadu malafidely at the instance of one Haji Adam. The perusal of annexure 'F' copy of Civil Petition No,2243 of 1992 shows that Haji Adam had dispute with accused Allah Bachayo over a car.
21. ' For the foregoing reasons and material placed on record, I am of the considered view that the prosecution case suffers from legal and factual infirmities and there appears no possibility of the conviction of the applicants. Moreover proceedings suffers from jurisdictional defect. Thus the continuation of proceedings would be abuse of the process of the Court. Consequently Criminal Miscellaneous Application No,3 of 1993 is allowed. The proceedings pending against the applicants under sections 380/34, P.P.C. In the Court of Resident Magistrate and F.C.M. Dadu are hereby quashed.