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Criminal Miscellaneous No. 22 of 1969, decided on 5th March 1969.

, S. 561‑A‑Quashing of pro ceedings‑Stage when High Court can interfere‑Facts and circum stances on record indicating no prima facie case against accused ----- Proceedings, held, could be quashed even before recording prosecut ion evidence.

The accused were arrested under sections 307/148/149, P. P. C., after registration of F. I. R. and recording of statements of pro secution witnesses by the Police under section 161, Cr. P. C. and also by the Magistrate under section 164, Cr. P. C. The facts and circumstances on record however indicated no prima facie case against the accused. The contention that the proceedings against the accused were not liable to be quashed at the stage before the prosecution evidence had been recorded, was rejected by the High Court. The High Court quashed the proceedings and observed "if, in the circumstances, the case against the accused in the trial Court is allowed to proceed, it would be a mock trial".

Col. F. S. Wahid‑ud‑Din v. The Crown P L D 1956 Kar. 489; S. P. Jaiswal v. The State and another 1953 Cr. L J 1018; Lasu Janu Pawar and others v. Emperor 49 Cr. L J 203 and Rashid Akhtar Nadvi v. Major irshad Ahmad Lodhi and others P L D 1965 Lah. 492 rel.

Mian Shaukat Hussain for Petitioners.

Fakhri Alam, A. A.‑G. and Kazi Moh adullah Khan for the State.

Date of hearing : 5th March 1969.

This is a petition under section 561‑A, Cr. P. C. for the quashment of proceedings of the case under sections 307/148/149, P. P. C., pending against the five petitioners in the Court of Mr. Khalid Mansoor Khan, Magistrate, 1st Class Charsadda.

2. A summary of facts will be of advantage to be given. On 8‑JO‑1968 Hukmat Khan petitioner lodged a report in Police Station Prang, District Peshawar, F. I. R. No. 168, charging Jafar, son of Umar Khitab and Pasal, son of Mir Afzal, resident of village Nisatta, Tahsil Charsadda, for an attempt to murder him by effectively firing at him with topaks. Both Jafar and Pasal absconded after the occurrence.

3. On 26‑10‑68 Jafar surrendered to the Police in the above noted case. Jafar also produced a written report dated 25‑10‑1968 at Police Station Prang, which had been incorporated in the F. I. R. No. 174, dated 26‑10‑68 of the same Police Station. In this report Jafar alleged that on 8th October 1968 he along with Hastam, son of Shah Pasand, Zolan, son of Tehmas, Shahigul, son of Bakhtiar Gul and Margbuz, son of Yaqub and Nisatta, were coming from Gulzamir Koruma to their village at about 12 midday. When they reached near the field of Hijmat, son of Mir Alam, they saw Hukmat along with his sons Yasin, Mian Gul and Khadim, and Fanoos, son of Yasin, standing armed. Hukmat called them out, saying if Jafar was with them, he should not come by that path. Jafar changed the path to the eastern direction in other fields. Jafar's companions entreated Hukmat, but Hukmat did not agree. Hukmat ordered his sons and grandson that Jafar should be killed. At Hukmat's bidding the other four fired shots at Jafar. He was also armed with a licensed shotgun and in self‑protection fired a shot at the opposite‑party. Jafar escaped unharmed. A case was registered on this report and investi gated. The' Investigating Officer recorded the statements of P. Ws. Hastam, Zolan, Shahi Gul and Marghuz under :section 161, Cr. P. C. on 27‑10‑68. Fazal Qadus, A. S. I. prepared the site plan on 27‑10‑68. Statements under ‑section 164, Cr‑ P. C. of all the four witnesses, named above, were also recorded by a Magistrate on 2‑11‑68. All the five .accused‑petitioners were arrested. They were bailed out on ,furnishing bail bonds on 29‑10‑68. This case was put in Court on 16‑1‑69 and the accused were summoned for 24‑1‑69. :It appears that the accused‑petitioners appeared in Court on 24‑1‑69. They were given copies of the police statements of the P. Ws. and the case was adjourned to 30‑1‑69 for recording the prosecution evidence. No evidence could be recorded in the ‑case as the file was requisitioned by this Court in connection with ‑this petition.

4. The record perused. Jafar has lodged the report F. I. R. No. 174) presumably as a counterblast to F. I. R. No. 168, wherein Hukmat Khan petitioner has charged him (Jafar) and Pasal for effectively firing at Hukmat. Jafar lodged the report on 26‑10‑68 after a delay of 18 days. The P. Ws. mentioned in Jafar's report were examined a day after, that is, on 27‑10‑68. The Magisterial statements of these ‑witnesses were recorded on 2‑11‑68. The site plan indicates that Jafar and his companions were at point No. 6, distant 50 paces. When Hukmat accosted them and that Jafar went ‑to point No. 7 beyond a maize crop field to a distance of 85 paces Rwhen he was allegedly fired at by the accused petitioners.

5. The learned counsel for the petitioner vehemently argued that regard being had to the facts and circumstances of the case, no prima facie case has been made out against the accused‑petitioners, and it will be a mock trial to proceed against them.

6. The learned Additional Advocate‑General contended that the proceedings against the accused‑petitioners are not Cable to be quashed at the stage before the prosecution evidence has been recorded.

7. In Col. F. S. Wahid‑ud‑din v. The Crown (P L D 1956 Kar. 489) Lari, J. ,observed:‑

"The application under consideration was made immediately :after charge‑sheet bad been submitted. No evidence had been recorded by the Magistrate. It was contended on :behalf of the Crown that the application was unentertainable at such a stage. It was argued on behalf of the applicant that the charge‑sheet had been preceded by a police enquiry casting several months and the entire evidence available to the prosecution has been recorded in the police diary running into several hundred pages and that it was open to this Court to consider whether on the face of the allegations made in the charge‑sheet or evidence recorded in the police diary any case whatsoever was made out against the accused. Reference was made to the case S. P. Jaiswal v. The State and another 1953 Cr. L J 1018 Kapur, J observed:‑

At this stage I may dispose of the objection that was taken on behalf of the State that I am not entitled to look into the police diaries for determining whether any case has been made out or not. This is a proposition of law which has only to be stated to be rejected. I cannot believe nor do I think that that is the law that a man can be put on trial and his liberty jeopardised when there is no material on which the police could have made a report. That a Court has the power to look into the police records seems to be clear from the various sections of the Criminal P. C. that I have mentioned above My attention was also drawn to the case Lasu Janu Pawar and others v. Emperor 49 Cr. L J 203. This case is an authority for the proposition that affidavits can be looked into to find out if there is any prima facie case against the accused. Mr. Dialmal also cited several unreported cases, of the 'Sind Chief Court wherein the Chief Court interfered even at a stage when no evidence had been recorded. I may refer to Criminal Reference No. 263 of 1953, decided by Justice Agha and Vellani, J. on 25th March 1954, and Criminal; Revision Petition No. 122 of 1946 decided by Chief Judge and Justice Thadani.

This Court has undoubtedly power to quash proceedings if it is satisfied that on the basis of the allegations made or undisputed documents made available no prima facie case carp be said to have been made out."

Also in, Rashid Akhtar Nadvi v. Major Irshad Ahmad Lodhi and' others (P L D 1965 Lah. 492), Sardar Muhammad Iqbal, J. observed:

"Doubtless, the power conferred on this Court under section 561‑A, Cr. P. C. is to do real and substantial justice: for the administration of which alone Courts exist. It is the inherent power of the High Court to interfere with the. proceedings of the lower Courts at any stage when it finds that an abuse of the process of law is being carried on in the trial of the case, or that such an interference is necessary to secure the ends of justice. There may be a case in: which the prosecution on the face of it is illegal. Proceedings in such case can be rightly quashed even though they may be at the initial stages. There may be other cases where a bare statement of the facts of the case may be sufficient to convince the Court that no case is made out against the accused and if the case is allowed to proceed, it would be a mock trial. In such cases and in other cases where the admitted circumstances of the case do not constitute the offence. this Court can proceed to remedy the wrong forthwith and quash the proceedings."

8. In view of the above discussion, I am convinced that no case is made out against the accused‑petitioners, and if the case against them in the trial Court is allowed to proceed, it would be a mock trial. I, therefore, accept the petition, quash the proceedings pending against the accused‑petitioners in the Court of Mr. Khalid Mansoor Khan, Magistrate Ist Class,Charsadda, under sections 307/148/149, P. P. C., and discharge them in the case.

A. E. Petition accepted.

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