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Criminal Appeal No. 1192 and Criminal Acquittal Application No. 144 of 1986, decided on 9th April, 1987.

‑‑‑S. 249‑A‑‑Quashing of proceedings‑‑Parties having background of deep‑rooted enmity and prosecuting both civil and criminal litigation‑‑First Information Report, private complaint, police inquiry report and statements of complainant and alleged eye‑witnesses suffering from material contradictions‑‑Process, held, could not be issued against accused in circumstances‑‑Contention that Magistrate was not justified in recording acquittal order under S.249‑A, Cr.P.C. without recording further evidence and without providing an opportunity to complainant to refute veracity of documents produced by accused through their application under S.249‑A, Cr.P.C. repelled‑‑Order of Magistrate passed under S.249‑A, Cr.P.C. was therefore, unexceptionable and merited no interferences.

Syed Anwar Ali Shah v. Yar Muhammad and 3 others 1986 PCr.LJ 1278; Dilawar Ali Khan and another v. The State 1986 P Cr. L J 298; Raja Haq Nawaz v. Muhammad Afzal and others 1968 P Cr. L J 1867 and Malik Muhammad Ibrahim v. The State 1985 P Cr. L J 929 ref.

S.M. Syedain Zaidi for Appellant.

Raja Haq Nawaz Khan and Hashmat Habib for Respondents.

Mr. Niaz for the State.

Dates of hearing: 8th and 9th April, 1987.

‑‑This appeal is directed against the order dated 18‑6‑1986 passed by Magistrate First Class and A . C . M . v . Karachi East, in Case No.83 of 1986, whereby he acquitted the respondents Nos.1 and 2 under Section 249‑A, Cr.P.C.

2. The brief facts leading to the filing of the above appeal are that present appellant lodge a police report on 8‑2‑1986 at the Shah Faisal Colony Police Station, alleging therein that Respondent No.1, her ex‑husband came at about 4‑30 a.m. in the morning in a white Datsun Pick‑up and intentionally caused dashing of the same against appellant's Complainant's Car No. 222‑223 Charade Model 1986 and, thereby, caused damage to the extent of Rs.5,000 and that she has been informed of this by Chowkidar Jadoon Khan. The Pick‑up's number plate was given as 202‑X. The police did not take any action upon the above complaint as it considered the alleged offence non‑cognizable. Thereafter, the present appellant filed a direct complaint on or about 19‑2‑1986. In the above complaint the same facts were reiterated with the modification that Pick‑up number was not given at all. The learned Magistrate after examining the appellant and her witnesses sent the case to the police for further inquiry. The SHO after holding the inquiry submitted his report on 4‑3‑1986, in which the name of driver was mentioned as Muhammad Ismail though no name was mentioned in the police report or in the private complaint. After that the respondents Nos.l and 2, filed an application under Section 249‑A alongwith certain certificates which included a certificate from the Railway Authorities to the effect that factually the respondent No.1, the appellant's ex‑husband travelled on the relevant date in a train from Karachi to Sadiqabad. Another certificate indicated that the Pick‑up bearing No. 202‑249 belonged to one Haji Amin s/o Haji Karim. The learned Magistrate after hearing the parties on the above application passed the order under appeal. The appellant has filed the present appeal with the permission of this Court.

3. In support of the above appeal Mr. Zaidi, the learned counsel for the appellant has vehemently urged that once the process was issued by the learned Magistrate after examining the complainant and her witnesses and after receiving the police enquiry report, the learned Magistrate was not justified in recording the acquittal order under Section 249‑A Cr.P.C. without recording further evidence and without providing an opportunity to the appellant to refute the veracity of the certificates produced by them through their aforesaid application. In furtherance of his above submission, he has referred to the case of Syed Anwar Ali Shah v. Yar Muhammad and 3 others reported in 1986 P.Cr.LJ.1278, in which a learned Single Judge of this Court held that the learned Magistrate was not justified in considering the documents. Produced by the accused and recording acquittal without examining the witnesses. Mr. Niaz appearing for the State has supported the above contention.

On the other hand Mr. Raja Haq Nawaz, learned counsel for the respondents has referred to the case of Dilawar Ali Khan and another v. The State reported in 1986 P.Cr LJ. 298 in which the former Chief Justice of this Court upheld the order passed by the learned Magistrate under Section 249‑A and reversed the order of the learned Additional Sessions Judge.

He has also referred to the case of Raja Haq Nawaz v . Muhammad Afzal and others reported in 1968 Cr.L.J. 1867 and the case of Malik Muhammad Ibrahim v. The State reported in 1985 P.Cr.LJ 929.

In the former case the Honourable Supreme Court maintained the order of the learned Chief Justice of the High Court of Lahore quashing the proceedings under Section 561‑A inter alia on the basis of a certificate from the Union Council produced by the accused indicating that he was in the meeting on the date when the alleged incident had taken place, whereas in the latter case a Division Bench of this Court held that under Section 249‑A, Cr.P.C. the learned trial Magistrate can pass an order at any stage without recording any further evidence.

4. In the present case we have perused the first police report, the private compliant, police enquiry report and the statements of the appellant and the alleged eye‑witnesses and we have noticed that there is material contradiction as to the number of the alleged white Datsun Pick‑up involved in the case inasmuch as in the police report the number given was 202‑X whereas in the private complainant no number of the Pick‑up has been given. The alleged eye‑witnesses, Jadoon Khan and Jehangir Khan in their police statements, which were recorded after about two weeks from the date of incident namely, on 27‑2‑1986 have given the number as 202‑246, whereas appellant in her statement and the police in its enquiry report has given the number as 202‑249. The name of the driver was also missing in the first police report and in the private complaint but the alleged eye witnesses in their police statement have come out with the name of the driver as Muhammad Ismail. It is an admitted position that there is deep‑rooted enmity between the parties inasmuch as a number of civil and criminal cases are pending. Keeping in view the background of the case, it was incumbent upon the learned Magistrate to have been more careful before issuing a process in pursuance of a private complaint, the complainant of which was a person, who could have a motive to falsely implicate the respondent. The story in the complaint that respondent No.1 who was admittedly a senior Vice‑President in nationalised bank had come at about 4.00 a.m. from Muhammad Ali Society to Shah Faisal Colony alongwith a driver with the intention to cause damage to the appellant's car seems highly improbable. If in fact the respondent No.1 wanted to cause damage to the appellant's car, there seems to be no plausible reason for him to be present in the Pick‑up. He could have sent his driver for doing the job. In our view, the learned Magistrate has realised his mistake upon hearing the respondents application under section 249‑A and therefore passed the order under appeal. We are satisfied that even if we were to ignore the alleged certificate produced by the respondent alongwith their application under section 249‑A, Cr.P.C., the case was such in which the process should not have been issued in view of lack of material particulars and the contradictions referred to hereinabove. We are inclined to agree with the learned counsel for the appellant, that the learned Magistrate should not have taken into consideration the certificates produced by the respondent without providing an opportunity to the appellant to challenge the veracity of the same in cross‑examination. However, in our view the above alleged irregularity does not affect the result as we are of the view that even on the basis of the material which was produced before the learned Magistrate by the appellant, the process should not have been issued against the respondents as observed hereinabove. The appeal has no merits and, therefore, it is dismissed.

S.G.D./M‑231/K Acquittal maintained.

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