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Criminal Miscellaneous Application No. 602 of 1975, heard on 24th October, 1979.

‑‑‑S. 561‑A‑Quashment of proceedings‑Petitioner throughout in Police and Judicial custody when allegedly arrested by Police in nakabandi and found carrying a gun and a stolen machine‑All, held, a concoction and false affair‑Proceedings quashed; in circumstances.

Ameer Ahmed Khan for Appellant.

B.B. Huda for the State.

Applicant Ali Gohar has prayed for quashment 'of the ‑‑cases pending against him under section 380/41 P.P.C. for which F.I.R. was registered oat 24th..March‑1975,. where complainant Noor Mohammad had alleged that during last night, he had forgotten to lock his shop and in the morning, he found an electric machine and some cloth missing. He had suspected Sabir Mahajir and Noor Mohammad Dhobi for the theft. But, the applicant All Gohar was alleged to have been arrested on 2nd April 1975, with the electric machine in a Nakabandi by the Police of Nawabshah at 3 O'clock in the night.

The other case sought to be quashed in Criminal Miscellaneous No. 603/1975, arises out of F.I.R. dated 2nd April 1975, under section 13‑D of Arms Ordinance, which was the result of Nakabandi carried on by Police of Nawabshah Town on 2nd April 1975 at 3 a.m. in the night when Police arrested the present applicant with a gun and gunny bag containing sewing machine with a small electric motor.

No evidence has so far been recorded as these applications were filed on 4th July 1975, and interim stay was granted on 4th August 1975. The applicant has alleged in his petition that he was in love with Mst. Hakimzadi, who is the sister of first informant Noor Mohammad. On 31st January' 1975, she had sworned an affidavit at Karachi that she wanted to marry with applicant. He had therefore, taken her away to Jevani. The applicant has filed a detailed affidavit showing that he was arrested at Jevanr, Baluchistan on 4th March 1975, in a case under section 366/367, P.P.C. for which F.I.R. was lodged at P.S. Town Nawabshah by the same Noor Mohammad in early March 1975. Applicant has filed a certified copy of the letter of Shafi Mohammad Abro, Additional S.H.O. Town Police Station, Nawabshah dated 9th March 1975, addressed to‑to take away the present applicant Jevani Tehsildar, where he had requested for permission. Rasool Bux son of Din Mohammad the present applicant, who was in custody at Jevani. The applicant has also filed true translation of the daily diary of Police Station, Turbat, Makran, Baluchistan showing that sub‑Inspector Shafi Mohammad S.H.O: Nawabshah P.S.; Sind has taken the custody of Rasool Buksh Ali Gohar on 19th March 1975, with a police guard, in para. 6 of affidavit dated 21st October 1979, the applicant has asserted that since his arrest on 4th March 1975, till his released on bail on 17th June 1975, he was in Police and judicial custody. There is no rebuttal of the same from the side of the State. The applicant had also produced the certified copy of the charge‑sheet in this case, which shows that he was arrested on 2nd April 1975, and the challan was presented in Court on 16th April 1975, and the present applicant has been shown in column No. 2 as the accused in custody. The petition had been admitted on 4th August 1975, by a ' detailed order passed by the Chief Justice, where it has been mentioned that the case registered against the petitioner on 24th March 1975, under section 380, P.P.C. and the other registered on 2nd April 1975, under. section 13‑D of Arms . Ordinance were totally false cases as the petitioner was in custody on 'those days. This Court has tried to obtain the records and proceedings under F.I.R. No. 67/1975 entitled State v. Ali Gohar but City Magistrate, Nawabshah had informed by his letter dated 12th July 1975 that the said case was not challaned to that Court as the same is reported to have been disposed of as 'C' Class by Town Police, Nawabshah, and therefore, the City Magistrate could not send any record o: proceedings to this Court. Even, the Station House Officer of New Town Police Station, Nawabshah was directed by this Court by a letter dated 28th , August 1979, and then again by letter dated 11th October 1979 to submit the police papers in F.I.R. 67/1975, under section 366/367/363/34, P.P.C. of Police Station, ' New Town, Nawabshah, but he has not sent any papers so far, and I have no option, but to presume that the papers are missing. In view of the definite assertion by the applicant that he was in confinement from 4th March 1975, to 19th March 1975 and also in view of the fact that he had been taken in custody by Nawabshah Police at Turbat‑Makran on 19th March 1975 in a case under section 366/367, P.P.C., it is reasonable to presume that the applicant continued to remain in confinement at Nawabshah Police thereafter, and therefore, the allegation that he either committed the theft on 24th March 1975 in the shop of Noor Mohammad or that he was arrested by Nawabshah Police in Nakabandi .on 2nd April 1975, and was found carrying a gun and machine all seem to be concoc tions and false. How could the applicant commit in crime on. 24th March 1975 or 2nd April 1975, when he was in the custody of Police It was incumbent thus for the State to show that the applicant had been released ,g by Nawabshah Police, . but State had failed to do so and even the public papers in Case 67/1975 are not forthcoming.

In these circumstances, I have no option but to quash the proceeding pending against the applicant in the trial Court under section 380/411, P.P.C. in F.I R. 84/1975 dated 24th March 1975, and the other pending under section 13‑D of Arms Ordinance under F.I.R. No. 92/1975, dated 2nd April 1975.

The copy of this order should be sent to the Inspector‑General of Police, Sind for the purpose of such suitable action, which would be Justified under the circumstances against the concerned Police Officials.

Proceedings quashed.

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