These are two applications under sections 439 and 561-A of the Code of Criminal Procedure, for the quashment of the proceedings being taken against the petitioners in two cases challaned against him, one under section 406/420, P.P.C. And the other under section 406/409/411, P. P. C. And also for the quashment of an order passed by the learned XIIth Additional City Magistrate, Karachi, in the latter case, directing that tie buffaloes and their calves, recovered from the possession of the peti-- tioners, be given on Superdinama to Rustam, the first informant in that case. As common points are involved in the two petitions, they have been heard together and are being disposed of by this order.
2. The petitioners are dealers in the supply of milk and for this purpose maintain and keep buffaloes in their Varas at Bhains Colony, Landhi, and also in Mahmoodabad Colony. The petitioners grievance is that the officers of the Mahmoodabad Police Station, particularly Police Inspector Zafar lqba1, have been on inimical terms with them and had consequently instituted a number of false and vexatious cases against them, details whereof are given in the two petitions. Particular mention is made of a complaint filed by one Haji Abid Ali against the petitioners under section 380/411, P. P. C., in consequence of which Search Warrants were issued for the recovery of the buffaloes which the said Haji Abid Ali had alleged were stolen from his possession. The police, on the strength of that Search Warrant, recovered seven buffaloes from the Vara of the petitioners which buffaloes were subsequently ordered by the learned trial Court to be delivered on Superdinama to the complainant, Haji Abid Ali. Petitioner ultimately took up the matter to the Supreme Court which ordered that the buffaloes taken into custody by the police from the Vara of the petitioners be returned to him on his furnishing security in the sum of Rs. 30,000. The Supreme Court further stayed the proceedings pending before the trial Court on the complaint of Haji Abid Ali. The petitioner ultimately got delivery of these 7 buffaloes on 26th March, 1976 from the Incharge of cattle pound at Hyderabad. However, on the 6th April, 1976, the police headed by Inspector Zafar Iqbal, is alleged to have raided the house of petitioner No. 1, Abdul Ghafoor, and forcibly taken away 4 out of the 7 buffaloes which had b; en returned to the petitioners in pursuance of the orders of the Supreme Court. On enquiries the petitioners came to know that a case under section 406, P. P. C.
Had been registered against them on 5th June, 1976, at Mahmoodabad police station on the report of one Rustam and it was in connection with that case that the police had raided their Vara and taken away the 4 buffaloes. In an earlier raid by the police upon the Vara of the petitioners at Bhains Colony, Landhi, in consequence of a report filed on 24th January, 1976, by one Muhammad Hussain, the police seized 8 buffaloes, the ownership whereof is claimed by the petitioner. These buffaloes were delivered on Superdinama to the said Mohammad Hussain under the orders of a Link Magistrate, as the Magistrate, having jurisdiction in the case was allegedly not available. The petitioners applied to the Illaqa Magistrate for return to them of these buffaloes, but their request was rejected on account of the opposition of the police.
3. As the grievance of the petitioners was that the two alleged first informants, Rustam and Muhammad Hussain, to whom the buffaloes in question have been given in superduiama, were non-existent and fictitious persons and it was in fact the police which out of malice to the petitioners had wrongly raided their Varas and forcibly taken away their buffaloes, notice was issued to Inspector War Iqbal to produce the said two first informants. Both of them were produced before this Court by Inspector Zafar lqbal today. They have filed affidavits to the effect that the buffaloes given to them in Superdinama have all died and hence they cannot now be produced.
Since these buffaloes are the subject-matter of the two cases against the petitioners and as the description of these buffaloes has neither been shown in the memos of recovery from the Varas of the petitioners nor is the Superdinamas upon which they were given to Rustam and Muhammad Hussain, the identity of the property in question cannot be established. This was conceded by Mr, Syed Ghouri, the learned counsel for the State, who frankly conceded that in view of this position, the two cases against the petitioners cannot possibly succeed and hence it would be fruitless to proceed with the trial of these two cases. I would like to state that I am not quite convinced that the eight buffaloes given to Muhammad Hussain and the four buffaloes given to Rustam have all died within the short span of less than two years The contention of Mr. Syed Nasiruddin, the learned counsel for the petitioners, thus does not appear to be unfounded that these two persons are deliberately avoiding to produce the buffaloes in question, possibly on account of the fact that they have either disposed of the same or they will not be able to establish their ownership over them. However, the learned counsel frankly admitted that there was no material with him or the petitioners whereby he could establish that either the buffaloes were still with the aforesaid two first informants or with anybody else, nor are the peti--tioners in a position to cause their production. In the circumstances, the only appropriate order that can be passed by me is to quash the proceedings pending against the two petitioners before the learned XVIIth, and XIth Additional City. Magistrates, Karachi. As all the buffaloes concerned are said to have died, Mr. Syed Nasiruddin conceded that his prayer for the quashment of the order passed by the learned XVIIth Additional City Magistrate in regard to the delivery on Superdinama of 4 buffaloes to first informant Rustam had become infructuous and hence he did not press the same. Before reading this order, I would like to add that as the two first informants, Rustam and Muhammad Hussain, have prima facie given wrong addresses in theta affidavits, they have been ordered to show cause why they would not be prosecuted for perjury.