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Criminal Miscellaneous No. 638/Q of 1976, decided on 16th November 1976.

S. 561‑A‑Quashment of proceedings‑Name of petitioner included ‑in statement of complainant and witnesses due to malice‑Nothing on record to show any community of interest between petitioner and his co‑accused‑Proceedings hanging on for last 3J years without any progress‑Proceedings quashed, in circumstances.‑[Quashment of proceedings].

Mian Muhammad Bashir for Petitioner.

M. A. Zafar for Respondent.

Date of hearing: 16th November 1976.

Muhammad Aslam S. I. posted at New Anarkali, Lahore, has filed a petition under section 561‑A, Cr. P. C. for the quashment of proceedings in a complaint case under section 307/148/149/427/430, P. P. C. titled "Muhammad Ali v. Noor Ahmad etc." pending in the Court of Mr. A. R. Sharif, Magistrate Section 30, Narowal, District Sialkot.

2. The brief facts of the case are that a was registered at the instance of one Zahoor Ahmad at Police Station, Zafarwal under section 307/326/148/149, P. P. C. against Muhammad Ali respondent and some others on 4‑6‑1972 on the allegations that the respondents and his companions had cut the trees and took them from the place in dispute while some negotiations were going on between the parties. The respondent's party was arrested and challaned and their case is still pending before the trial Court. The present complaint, which is subject‑matter of quashment was filed by the respondent's party against the present petitioner and others before a Magistrate Section 30, Sialkot.

3. Learned counsel appearing on behalf of the petitioner has submitted that the reading of the complaint does not disclose any part assigned to the present petitioner although he has been mentioned as one of the accused in the title of the complaint. This according to the learned counsel, by itself was sufficient to show that the later statement made before the Magistrate by the complainant as well as his witnesses in preliminary proceedings were based on male fide in order to rope in the present petitioner to cause him humiliation and embarrassment. It has been farther submitted that even in the statements before the Court the only part assigned to the petitioner is that he at the time of occurrence was sitting is the baithak of the accused and the incident took place due to his support. A further grievance was made that despite the fact that the complaint was lodged in the year 1973 but no evidence has been recorded so far in this case during this long period of three and a half years.

4. Learned counsel for the respondents has submitted that although no Part has been assigned to the petitioner in the body of the complaint, yet he was mentioned as one of the culprits in the statement made by the complainant as well as the witnesses during the preliminary evidence and it was positively said that he was sitting in tie baithak of the accused at the time of occurrence and all happened due to his support. Therefore, the proceedings were not liable to be quashed qua him.

I have given my anxious thought to all the contentions raised from bath sides and have perused the complaint as well as the statements of the witnesses placed on the record and find that the contentions raised by the learned counsel for the petitioner are fully borne out. It seems the name of the petitioner was included in the statements of the witnesses due to malice as at the time when the earlier case was launched against the respondent and his companions, the present petitioner was posted as A. S. I. at that Police Station. I also do not find from the statement of respondent any community of interest between the petitioner and his co‑accused and therefore, it does not stand to reason that he should make himself available at the time when the respondent and his companions were being belaboured and attacked by the co‑accused of the petitioner. The inordinate delay, which has occurred in this case to complete the proceedings adversely reflects on the conduct of the respondent as such like delaying tactics would cause humiliation and embarrassment to a person of the status of the present petitioner.

6. In view of the above discussion, I am of the considered opinion that the case against the petitioner is simply based on malice and proceedings against him would amount to abuse of process of Court. Accordingly, I accept the application and quash the proceedings qua the petitioner only.

Proceedings quashed.

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