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Criminal Miscellaneous No. Q‑969 of 1983, decided on 5th December, 1984.

‑‑‑S. 561‑A‑‑Penal Code (XLV of 1860), S. 307/34‑‑Quashing of pro ceedings‑‑Appreciation of evidence‑‑Several contradictions on material points existing between First Information Report and direct complaint and story stated therein appearing to be absurd‑‑Eye‑witnesses named by complainant in direct complaint having no mention in First Information Report lodged by him‑‑Case filed by complainant against accused false and concocted‑‑District Magistrate, on report of Public Prosecutor that case was not likely to end in conviction of accused, directing withdrawal of case‑‑Perusal of record and police diaries leading to conclusion that case was false and frivolous‑‑Proceedings against accused quashed in circumstances.

Iftikhar Ali for Petitioner.

Imam Bux Shaikh for the State.

Date of hearing: 5th December, 1984.

This is a petition under section 561‑A, Cr.P.C. for quashment of a criminal case filed on the report of respondent No.2 against the petitioner and respondents Nos. 3 and 4 for offences under section 307/34, P.P.C. For the sake of convenience respondent No. 2 shall be referred to as the 'Complainant', while the petitioner and respondents Nos. 3 and 4 as 'accused'.

2. On 7‑9‑1981 the complainant had lodged a report at Gulbahar Police Station that three accused persons had come to his house, called him out and that one of them, who was identified by him as Bashir petitioner fired at him four shots, while his two companions abused him and went away saying that they shall not leave him alive. All the four shots were missed and no injury was caused to the complainant. The S.H.O. Gulbahar Police Station investigated the case submitted the papers to Mr. Javed Iqbal, A.S.P. who verified the investigation and came to the conclusion that the case was false. He made such report in the case diary, dated 14‑10‑1981. On 1‑11‑1981 Mr. Javed Iqbal A.S.P. made further report in case diary that the case is false and that the accused persons should be released under section 169, Cr.P.C.

3. It appears that on the orders of Superintendent of Police, the case was referred to another Police Officer Mr. Khalid Anwar D.S.P. for further investigation, Mr. Khalid Anwar verified the investigation and vide his report, dated 12‑1‑1982 found that the case was false and not fit for challan. From the further report of Mr. Khalid Anwar, dated 14‑1‑1982 it appears that the Superintendent of Police had also agreed with the view that the case should be disposed of as false.

4. Aggrieved by this conduct of the Police, the complainant respondent No.2 filed a direct complaint in the Court of XIV Assistant Sessions Judge, Karachi under section 307/34, P.P.C. In this complaint he made improvements over his F.I.R. which has been quoted above. In the F.I.R. he had given the name of only one accused Bashir. About his two companions he had said that they were sitting in the Jeep and had abused him. But complainant did not give their names in the F.I.R., nor did he state as to what was the weapon with which the petitioner had fired at him. In this complaint which was filed on 5‑12‑1981, he stated that all the three accused had come to his house at night, that accused Bashir had fired at him 3 times and that his two companions were identified by him as Sarwar Siddiqui and Ghulam Muhammad Siddiqui. He further stated in the complaint that the incident was seen by Hassan Khan, Fakhruddin and Mustafa Hussain. The names of these witnesses did not appear in the F.I.R. Meanwhile it appears that another Superintendent of Police took over charge, who obtained the opinion of the P.D.S.P. and decided that the police case should be challanged. Thus, all the three accused were sent up before Assistant Sessions Judge. In view of the challan, the complainant did not prosecute his direct complaint which was dismissed for non‑prosecution.

5. Mr. Haq Nawaz learned counsel for respondents Nos. 3 and 4 and Mr. Iftikhar Ali counsel for the petitioner have argued that the very fact that two Senior Police Officers of the rank of A.S.P. and D.S.P. had found the case to be false, and that the then S.P. had also agreed with their findings, proves that the case was not fit for being sent up for trial. They have also produced several documents to prove that there was previous enmity between the parties, due to which the complainant had a motive to file a false case against the accused persons. He did not name the witnesses in the F.I.R. According to the F.I.R., although four shots were fired at him, still he did not receive even a single scratch. There are several contradictions on material points between the F.I.R. and the direct complaint, true copies of which are on the record of the case. In the F.I.R. he says that four fires were shot at him by Bashir and that his two companions who were not identified at that time, had abused him. In the direct complaint he stated that three shots were fired at him by Bashir and that his companions Sarwar Siddiqui and Ghulam Muhammad Siddiqui had abused him. He made further improvements in the direct complaint inasmuch as the names of the three eye‑witnesses have been added which were conspicuously omitted in the F.I.R. The story as stated in the F.I.R. and the direct complaint at the face of it appears to be absurd. If the three persons i.e. accused wanted to kill the complainant, nothing prevented them from executing their intention, when one of them was, according to the complainant, armed with a fire‑arm, the nature of which is still unknown. It is surprising that at mid‑night so many shots were fired at the complainant, but no injury was received by him and the accused persons went away satisfied simply by issuing threats.

6. The three witness named by the complainant in his direct complaint also appear to be set up. Had they seen the incident, then nothing prevented the complainant from mentioning their names in the F. I.R., which was lodged after one hour of the incident at the police station, which was only 1/2 mile away from his house. Within one hour he could have ascertained the names of the persons who had seen the incident and who, according to the complaint, were present at the spot. The witnesses named above have claimed to have identified all the three accused at the spot. The complainant must have gone to the police station after contacting the three witnesses named in the complaint. Still he does not mention their names in the F.I.R. I am, therefore, of the view that the criminal case filed by the complainant is false and concocted.

7. After filing of this petition, an application was moved by the petitioner to the District Magistrate praying for withdrawal of the prosecution. The case was referred by the District Magistrate to the Public Prosecutor, who submitted a detailed report to the District Magistrate saying that the case was false and was not likely to end in conviction as against accused Ghulam Sarwar Siddiqui and Ghulam Muhammad Siddiqui. On this report the District Magistrate directed that the case against these two accused should be withdrawn. Consequently, on 8‑5‑1984 the A.P.P. made an application under section 494, Cr.P.C. before the learned trial Judge for withdrawal of the criminal case against Ghulam Muhammad and Sarwar Siddiqui. However, no order could be passed by the trial Court on this application, because the proceedings were stayed by this Court by order, dated 25‑3‑1984. The pendency of the above application will not preclude this Court from quashing the criminal proceedings against all the three accused, if on perusal of the record and the Police Diaries, the Court comes to the conclusion that the case is false and frivolous, which conclusion is evident as stated above.

For the above reasons I hold that the criminal case pending against the accused persons in the Court of IVth Assistant Sessions Judge, Karachi under section 307/34, P.P.C. is liable to be quashed and is hereby quashed.

M. Y. H. Proceedings quashed.

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