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Criminal Miscellaneous Application No. 55 of 1968, decided on 230 August 1968.

, S. 561‑A‑Abuse of process of Court‑Complainant in statement under S. 200, Cr. P. C. after one arid a half months of occurrence (murder), introducing fresh facts for first time to implicate petitioner as one of accused persons in case‑Proceedings started on basis of such allegations not likely to result in conviction‑Continuance of proceedings amounting to abuse of proceedings of Court‑Proceedings quashed.

M. S. Khawaja v. The State P L D 1965 S C 287 rel.

Ghulam Muhammad v. Muzammal Khan P L D 1967 S C 317 distinguished.

A. S. Pirzada and Imam Ali G. Kazi for Petitioner.

Muhammad Haleem, Asstt. A.‑G. for the State.

Ghulam Nabi Memon for Respondent No. 2.

Date of hearing 22nd August 1968.

On the 13th of September 1967, at about 8 a.m., Muhammad Siddique lodged first information report against Dino Zardari, Jaffar, Talib, Mooso and Tooh that at about sunrise on that day they had committed the murder of his on, Abdur Rashid, while they were going from their village to Nawabshah to give evidence under the Goonda Act against the petitioner, Ghulam Qadir Dahri. It was also mentioned in the first information report that the accused are the men of Ghulam Qadir Dahri at whose instance they had committed the murder, On the same day at 6 p.m. Muhammad Siddique made‑another statement before the police, in which he gave several instances oaf his previous enmity not only against Ghulam Qadir Dahri petitioner but also against the accused persons in this case. He also mentioned that Abdul Qadir Dahri had been convey ing threats to him and others that they should not give evidence against him under the Goonda Act that on their refusal the petitioner tried to commit his murder but in the attack he murdered his son. From the above two statements it is clear that Muhammad Siddique complainant had a strong suspicion that the murder was committed at the instance of the petitioner. On the 30th of October 1967, Muhammad Siddique filed a complaint in the Court of the Magistrate implicating the accused as well as the petitioner. After enumerating all the instance of previous enmity against Abdul Qadir petitioner, he added the following :‑ .-

"That after filing the first information report the complainant returned to his village, where witness Mobeen son of Lamed Ali informed him that he (Mobeen) along with witness Allah Bachayo had gone to accused No.1 (Ghulam Qadir petitioner), who is the Chairman of the Union Council for permission of the second marriage of his (Mobeen's) son on the evening prior to the day of incident. There accused No.1 made inquiries from his servant about the whereabouts of accused Talib and others. He was told that they had not arrived. Accused No. 1 thereupon ordered his driver to bring Talib and others immediately. While Mobeen and his companion were still waiting there, after about an hour accused Nos. 2 to 6 were brought in a jeep. Then all the six accused retired in a room near the place where Mobeen and his companion were sitting. Mobeen and his companion overheard accused No. 1 asking the other accused as to when the task assigned to them will be over'. They replied that they proposed to do it on the following morning when the concerned party would he on its way to Nawabshah for evidence. Accused Nos. 2 to 6 then left in the jeep."

In his statement recorded under section 200, P. P. C., Muhammad Siddique after reiterating the previous instances of enmity against the petitioner and describing the occurrence, made the following statement :‑‑

"I lodged the complaint at Police Station Doulatpur. The police had obtained my signature, but the complaint ways not read over to me. After lodging the complaint, 1 returned to my village. When I reached at the scene of offence, Akhund Allah Dino was present who informed me that the said plan was arranged by Rais Ghulam Qadir, Dahri because previously also 12 persons had sat in the jawar for two nights to kill me. I was not in the village for the said two nights and had I been there, I would have been killed. Allah Bachayo Dahri had also come to the scene of offence. He is my caste‑fellow. He informed me that he and Mobeen Dahri had been to Rais Ghulam Qadir for obtaining permission of 'Nikah' and had reached there at sunset time, but Rais Ghulam Qadir was not there and had come after a short time. He made enquiry from his servants about Talib, Tooh, Ditto, Mooso and Jaffar as to whether they had returned or not. They replied that they had not yet reached. Then he ordered his driver to bring them in a jeep. After an hour, they also reached therein the jeep. Rais Ghulam Qadir talked to them in privacy. Mobeen and Allah Bachayo further informed that they were also listening to the said private talk. They further told me that Ghulam Qadir had asked them as to whether they had finished the work entrusted to them. They replied to Ghulam Nadir, that it was not finished as they had not secured him. They further added that they would go to the village that day and 'would leave in the morning to give evidence end would finish that work. Ghulam Qadir further told them that he had made every arrangement with the police and that they should not worry about it."

After the statement had been recorded, Ghulam Qadir peti tioner was also challaned along with the other accused. Ghulam Qadir petitioner has now preferred this application under section 561‑A, Cr. P. C. for the quashment of proceedings pending against him.

2. From the above narration of facts it is clear that in the first information report and in the statement which was re corded at 6 p.m. on that very day Muhammad Siddique did not mention that Mobeen and Allah Bachayo had informed him that they had heard the petitioner asking the accused to accomplish the task assigned to them, i.e., the present murder. These witnesses were introduced for the first time by the complainant in his complaint and the statement recorded to the Magistrate under section 200, Cr. P. C. In that statement it is mentioned that when the complainant after lodging the first information report had gone back to the place of occur rence, Allah Bachayo had informed rim that the petitioner was a party to the criminal conspiracy to commit the present murder, If that is so, why did not the complainant mention this fact at 6 p.m., when he made the additional statement to the police. It was only after about a month and a half for the first time he disclosed this information in the complaint. All this shows that this piece of evidence has been fabricated by the complainant who on his own showing is inimical towards the petitioner. It was, therefore, argued by the learned counsel for the petitioner that in view of the material omissions in the statements made by the complainant earlier on, no conviction can be recorded against him and the proceedings if allowed to continue, would defeat the ends of justice, or in other words, it would either operate or per petuate an injustice. According to the learned counsel the petitioner has been implicated Merely to cause harassment which amounts to an abuse of the process of the Court. In this connection the learned counsel relied on the authority of the Supreme Court in case M. S. .Khawaja v. The State (PLD 1965 SC287) wherein it was observed:---

"Abuse, as attracting the inherent power of the Court, must be 'abuse‑ of the process of any Court', and 'the investigation stage' is generally speaking, outside the purview of the Court and rarely involves employment of, any Court process. Further, the ends of justice' to secure which the inherent power may be invoked, have reference .to the purposes which the judicial process is intended to secure, and it is difficult to include the actions of investigating agencies within the scope of judicial process. On the other band, it is possible to agree with the observation that the circumstances of each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceedings is really' intended to 'secure the ends of justice' or is really 'an abuse of the process of the Court'. To quash judicial proceedings 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."

The learned Assistant Advocate‑General and the counsel for the complainant, on the other hand, argued that it is for the trial Court to see whether there is any case made out or not and the High Court in the exercise of its inherent powers should not interfere at this stage but should allow the trial to continue. In this connection they relied on the authority of the Supreme Court in case Ghulam Muhammad v. Muzammal Khan (PLD1967SC317) wherein it was observed :‑

"The inherent jurisdiction given by section 561‑A is riot an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court had not found in the present case but had merely proceeded on an erroneous conception that in a case where a complaint has been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investi gation of the complaint, particularly, if the offence disclosed is of a non‑cognizable nature. There is no legal bar ire the police submitting a challan in respect of offences other than those mentioned in the first information report if, the same should come to its notice during the course of the investigation on the basis of the', complaint except in the cases mentioned in sections 196 to 199, Cr. P. C. Sec tion 190(1)(b) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non‑cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in respect of which the challan was submitted was under section 408, P. P. C. which was cognizable. Thus even the obstacle posed by section 155(2), Cr. P. C. did n6t stand in the way. The challan submitted by the police was, therefore, lawfully submitted and legally enquired into."

In this ruling the principle laid down in case M. S. Khawaja v. The State was approved. The facts in the afore mentioned ruling cited by the learned Assistant Advocate- General and the learned counsel for the complainant are quite different to the facts in the present case. In that caste the Magistrate after examining the evidence was of the view that a prima facie case teas disclosed and had framed charges. In the present case, however, no charge has so far been framed and the prosecution only challaned the petitioner after the complaint had been filed. It is thus clear that after rte had lodged the first information report, he had come to know, from Mobeen and Allah Bachayo that they had heard the petitioner asking the other accused to commit the murder, and even then he did not mention that fact before the police when he made his second statement at 6 p.m. on that very day. It was only after a month and a half ‑he woke up from a deep slumber and filed a complaint implicating the petitioner by introducing the facts related to him by Allah Bachayo and Mobeen. All this shows that he introduced these facts in order to falsely implicate the petitioner and, therefore, this evidence will not result in conviction of the petitioner. Taking all the afore mentioned circumstances into consideration it will be an abuse of the process of the Court if the proceedings are allowed to continue against him. I, accordingly, relying on the authority of the Supreme Court in case M. S. Khawaja v. The Stat accept the petition and quash the proceedings pending against the petitioner.

A. E. Petition accepted.

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