ZULFIQAR ALI MAHAR Versus THE STATE

With the consent of learned counsel for the applicant and the learned Additional Advocate-General, Sindh this matter is being taken up for final disposal.

2. Through this criminal miscellaneous application filed under section 561-A, Cr.P.C. applicant Zulfiqar Ali Mahar has prayed for quashment of F.I.R. No. 19 of 2000 registered against him at Police Station Bachal Bhayo, District Shikarpur, under section 21(2), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and the proceedings being taken in pursuance thereof in the Court of learned IVth Additional Sessions Judge, Shikarpur.

3. The main thrust of the arguments of Mr. Siddiqui is that the contents of F.I.R. do not attract the ingredients of section 21(2) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (hereinafter referred as "the Ordinance"). He has further argued that even otherwise after going through the contents of the F.I.R. no other cognizable offence appears to have been made out and, in fact, it is a blank paper in the eyes of law hence no proceedings can be initiated or proceeded with on the basis of such F.I.R., still the applicant is facing the agony of trial for no fault on his part for last more than two years. The learned counsel has, therefore, vehemently urged that further continuation of the proceedings before the learned trial Court in pursuance of the said F.I.R. shall amount to abuse of process of law, hence the F.I.R. and the proceedings are liable to be quashed.

4. In support of his contentions that the F.I.R. and the proceedings are liable to be quashed and this Court can also exercise such jurisdiction without waiting for an order under section 249-A or 265-K, Cr.P.C. as the case may be, the learned counsel for the applicant has relied on two reported cases. Firstly, the case of Gulnaz v. State and 3 others 1996 PCr.LJ where F.I.R. and the proceedings in a case registered under sections 11/16, Offences of Zina (Enforcement of Hudood) Ordinance, 1979, initiated against the accused where, in fact, no such offences appeared to have been made out were quashed. The second case relied upon by the learned counsel is Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122 where dealing with such legal situation where an offence was apparently not made out and a civil dispute was being confronted in the civil proceedings, the Honourable Supreme Court, has held that in exceptional cases High Court can exercise directly jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass orders under section 249-A or section 265-K, Cr.P.C.

5. Mr. Muhammad Bachal Tonyo, learned Additional Advocate-General, Sindh has opposed to the quashment on two-fold grounds. The first ground taken by him is that evidence is yet to be produced in support of the case as set up in the F.I.R. and secondly, on the ground that the applicant should -have approached the learned trial Court in the first instance for acquittal under section 265-K, Cr. P. C.

6. In order to appreciate the contention of Mr. Siddiqui learned counsel for the applicant and Mr. Tonyo, learned Additional Advocate-General, it shall be beneficial to reproduce the F.I.R. and thereafter section 21 of the Ordinance. The F.I.R. reads as follows:--

"Our complaint on behalf of the State is, that today we alongwith police staff namely H.C. 781 Fida Hussain, PC-1068 Abdul Jabbar PC-1642, Muhammad. Arbar, PC-121 Muhammad Akram, M-2019 Hadi Bux in police uniform armed with service weapons by Roznamcha Entry No.9/1730 dated 25-6-2000, went for patrolling in the local jurisdiction on foot, and during patrolling, we received spy information that offenders are sitting in the Otaq of Zulfiqar Mahar, and on such information, we went towards that place alongwith subordinate police, when at about 19-50 time, we reached near the Otaq of Zulfiqar Ali Mahar we saw that two persons seeing us in police uniform succeeded in escaping away towards Katcha side, PC-1068 Abdul Jabbar identified them and told that one of them was Abdul Shakoor son of Abdul Ghafoor caste Qadirani Jatoi, resident of Shah Belo and other one was Alim son of Sajjan, caste Kursi Jatoi resident of Mazar Kursi Jatoi, Taluka Lakhi Ghulam Shah. We went to the Otaq where Zulfiqar. Ali Mahar son of Nawab Ali Mahar was sitting, who was arrested, we inquired about escaped offenders, from Otaq, who disclosed above names and said that they were his friends, who were staying in Otaq and we saw that two chairs, one table on which jug and glass were lying. Pieces of bread and empty utensils were also lying and in Otaq. Zulfiqar Ali was arrested by appointing H.C. Fida Hussain and PC Abdul Jabbar as Mashirs. On his personal search nothing was recovered from him excepting his wearing apparel. Mashirnama was prepared, accused Zulfiqar Ali was taken in custody and taken to police station. As the accused Zulfiqar Mahar, by staying the offenders and serving meals to them, has committed offence under section 21/2, Offences Against Property (Enforcement of Hudood) Ordinance, therefore, I become complainant on behalf of the State against him, this case is registered."

7. Now I would like to reproduce section 21 of the Ordinance which reads as under:--

"21. Punishment for "Rassagiri" or "Patharidari ".---(1) Whoever extends patronage, protection or assistance in any form to, or harbours, any person or group of persons engaged in the theft 'of cattle ,' on the understanding that he shall receive one or more of the cattle in respect of which the offence is committed, or a share in the proceeds thereof, is said to commit "Rassagiri" or "Patharidari".

(2) Whoever commits "Rassagiri" or "Patharidari" shall be punished with rigorous imprisonment for a term which may extend to fourteen years, or with whipping not exceeding seventy stripes, and with confiscation of all his immovable property and with fine."

(Underlining is mine).

8. I have given due consideration to the arguments advanced by Mr. Mazhar Ali Siddiqi and Mr. Muhammad Bachal Tonoyo. I have also gone through the contents of the F.I.R. which have been reproduced above. I have also examined section 21(2) of the Ordinance which provides punishment for "Rassagiri" or "Patharidari". The above said two connotation "Rassagiri" or "Patharidari" have been defined under section 21(1) of the Ordinance. A bare perusal of section 21(1) shows that it relates to the persons who extend patronage, protection in any form to, or harbour, any person or group of persons engaged in the theft of cattle, on the understanding that he/they shall receive one or more of the cattle in respect of which the offence is committed.

9. After going through the contents of F.I.R. and putting it in juxtaposition with section 21(1) of the Ordinance. I do not find that any of the ingredients of the said section stand attracted to the facts of the case and the contents of the F.I.R., hence no offence punishable under section 21(2) of the Ordinance appears to have been made out.

10. It is a matter of judicial notice that such stereotype of F.I.Rs. are being registered by the police at various police stations, in all the Districts of the Province of Sindh without taking pains to go through the ingredients and requirements of section 21(1) of the Ordinance. Indeed before invoking the jurisdiction of this Court under section 561-A, Cr.P.C. this Court normally and usually insists that, the trial Court should be moved under section 265-K, Cr.P.C. in the first instance for acquittal of an accused when there is no probability of his conviction under the circumstances of a particular case but it is also well-settled that in appropriate cases this Court can exercise such jurisdiction directly without waiting for an order from the trial Court. The two authorities cited by Mr. Siddiqui are very clear on the point that in exceptional cases High Court can quash the F.I.R. and proceedings by exercising its jurisdiction directly under section 561-A, Cr.P.C.

11. I am, therefore, of the considered view that this case falls under the exceptional cases and, as such, I have no hesitation to exercise the powers under section 561-A, Cr.P.C. directly and to quash the proceedings in question pending before the trial Court as the same if allowed to be continued, shall amount to abuse of the process of law and an exercise in futility. Resultantly, this criminal miscellaneous application succeeds and the proceedings pending before the trial Court in pursuance to the F.I.R. No.19 of 2000 of Police Station Bachal Bhayo registered under section 21(2) of the Ordinance against the applicant/accused are hereby quashed.

12. The above are the reasons for the short order dated 21-10-2002 announced after conclusion of the arguments of the learned counsel for the applicant and the learned Additional Advocate-General, Sindh for the State.

N.H.Q./Z-44/K Proceedings quashed.