MUHAMMAD HANIF SHAH Versus STATE
Through this Constitutional petition, the petitioners have challenged the very registration of 7.I.R. No.307/92, dated 28-8-1992 under section 457/380, P.P.C. registered at Police Station, Thikriwala, District Faisalabad on the ground that this F.I.R. does not disclose any offence and the case has been registered with mala fide intention just to harm and humiliate the petitioners who are respectable citizens of this country.
2. The brief facts relevant for the disposal of this writ petition are that petitioners and respondents Nos.3 and 4 have their lands in Chak No.67/J.B. Petitioner No.3 alongwith his mother Mst. Kubran Bibi and his sister Mst. Safran Bibi owned land in Square No.34 Killa No.20/6 measuring 1 Kanal 15 Marlas situated in Chak No.67/J.B., while Muhammad Arshad son of Safdar Majeed who is brother-in-law of Bashir Muhammad Khan respondent No.3 also owned land in Square No.26 Killa No.1l/1 measuring 2 Kanals 3 Marlas situated in Chak No.67/J.B. Police Station Thikriwala. Petitioner No.3 was owner of Square No.34, Killa No.17 min, 18 min, 23 min, 22 min. measuring 18 Kanals 13 Marlas and 1/2 Sarsai; while Bashir Muhammad Khan respondent No.3 also owned land in Square No.26 Killa No.12/2, 11/2 measuring 4 Kanals 0 Marla and 7 Sersais. Both these parties entered into agreement, dated 25-7-1981 whereby Badar-uz-Zaman Shah petitioner No.3 and Bashir Muhammad Khan respondent No.3 exchanged their above-mentioned land and possession of the said pieces of land was taken in accordance with law. The said exchange deed was registered and in pursuance of that deed Mutations Nos.1321 and 1326 respectively were entered with respect to the exchange of the land mentioned above. Petitioners Nos.2 and 3 are Property Dealers whereas petitioner No.1 is an Advocate. Respondents Nos.3 and 4 are also Property Dealers in Chak No.67/J.B. Police Station Thikriwala, District Faisalabad. There is a litigation between the parties which is being conducted by petitioner No.1 who is an Advocate initiated at the behest of petitioners Nos.2 and 3 against respondents Nos.3 and 4 and due to this grudge respondents Nos.3 and 4 approached the D.I.-G. respondent No.1-A and on their application the aforementioned F.I.R. was registered-in which even exact date of commission of offence is not mentioned and in pursuance of the aforesaid F.I.R. the petitioners were arrested and certain recovery of articles of common nature were effected from them. Neither the Investigating Officer could ascertain any exact date of the commission of the offence nor any witness could pinpoint actual or approximate time and date on which the alleged theft had taken place. The allegations against the petitioners are that they removed certain luggage and goods which were lying in the shops falling to the share of the petitioners some time back and on the basis of these things the aforementioned F.I.R. was lodged on 28-8-1992 after 11 years of the occurrence, whereas the property was exchanged as per registered deed referred to above on 25-7-1981. Even the goods allegedly recovered at the instance of the petitioners are subject-matter of civil litigation, as one Ghulam Hussain, Contractor has filed a civil suit with respect to the ownership of those goods.
3. The learned counsel for the petitioners vehemently contended that the petitioners have been involved in this false, frivolous and fabricated case at the behest of higher Police Officers because respondents Nos.3 and 4 want to settle their civil litigation through the process of Criminal Court which is not permissible under the law and during the investigation even the Investigating Officer could not exactly ascertain the time, date or year when the alleged theft took place. He also contended that the petitioners after the exchange of land in pursuance of the agreement referred to above, became absolute owners of the property hence being owners they could not commit theft of their own goods in the eye of law; thus the F.I.R. does not disclose the commission of a cognizable offence, so the very registration of the F.I.R. is without lawful authority as well as of no legal effect. In pursuance of the investigation carried out in this F.I.R. the challan has been submitted in the Court, he further contended, even the proceedings arising out of this F.I.R. and pending before the learned trial Court are without lawful authority and of no legal effect. He has placed reliance on the following case-law:--
P L D 1965 SC 287, 1968 S C M R 126, 1256, 1972 P Cr. L J (Lahore) 1129, P L J 1974 Cr. Cases 188, P L D 1975 Lah. 210, P L D 1971 SC 677, 1993 S C M R 1873,1993 P Cr. L J 856, 1990 P Cr. L J 1811, 1991 P Cr. L J 9, 1991 M L D 397.
4. The learned counsel for respondents Nos.3 and 4 has taken up a preliminary objection that as an alternative remedy is available to the petitioners because the challan has been submitted in the learned trial Court where formal charge has been framed against the petitioners during the pendency of this writ petition in spite of the stay order granted by this Court, the petitioners should avail the remedy before the ordinary criminal Court, and this Court in these circumstances would not like to quash the proceedings while exercising its inherent jurisdiction under section 561-A, Cr.P.C. He has placed reliance on 1993 S C M R 1177.
5. The learned Additional Advocate-General appearing for the State has brought this fact to the notice of this Court after going through the police file minutely that the Investigating Officer has given three different dates regarding the commission of offence and there is no evidence on the record which could pin-point the date and time when the alleged theft actually took place in this case.
6. I have heard the learned counsel for the parties and have perused the record and examined their respective submissions referred to above carefully.
7. The learned Judges of the Supreme Court of Pakistan in M.S. Khawaja v. The State P L D 1965 S C 287 observed, "to find an "abuse" it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engage in an operation from which no result in furtherance of justice can accrue, and similar perverse results".
Their Lordships of Supreme Court of Pakistan in Malik Salman Khalid v. Shabbir Ahmad, District and Sessions Judge, Karachi and another 1993 S C M R 1873 observed, "if by looking to the facts and circumstances of the case the Court comes to the conclusion that the process of Court is being abused or mala fide action has been taken to scandalise a judicial officer or to harass him on concocted and prima facie false charges to wreak vengeance and intended to defame and cause disrepute to the judiciary, the High Court would be justified to exercise its inherent jurisdiction".
In Mian Bakhsh Ellahi and others v. The State 1993 P Cr. L J 856, this Court held, if the matter between the parties is purely of a civil nature, the resort to criminal jurisdiction is a clear misuse of the process of Court, as no offence prima facie can be said to be made out upon the bare reading of the F.I.R.
In Riffat Ali Barq v. S.H.O., Police Station Muzaffarabad and 4 others 1991 P Cr. L J 9, a Division Bench of this Court observed, "in the instant case it is very much obvious from the contents of the F.I.R. that the ingredients requisite to attract criminal liability under section 294, P.P.C. were not satisfied as the raiding party had not seen the appellant and his female co-accused doing obscene act". Even in the instant case, no offence is made out as the matter is purely of a civil nature and the complainant want to resolve this civil dispute through the process of criminal Court.
8. Applying the aforesaid principle of law to the facts of this case, I find, even the complainant and the D.I: G. respondent No.1-A could not disclose precisely the date and time when the occurrence took place. The gleaning of the police file shows that even the Police Officer conducting the investigation with his best efforts could not find out the exact date and time when the offence was committed. It appears that this case was got registered against the petitioners; one of them is a practising lawyer, just to harass, humiliate them and the said matter is purely of a civil nature, as the exchange of the property between the parties took place on 25-7-1981, whereas the F.I.R. was lodged on 28-8-1992, 11 years after the occurrence which speaks volumes about the mala fide of the complainant. The trial in this case, if allowed, would be a mock trial and it would be travesty of the justice as no conviction can be recorded on the basis of the material so far collected by the police against the petitioners.
9. Respectfully following the case-law referred to above, I find, it is a fit case in which the proceedings arising out of F.I.R. referred to above which does not disclose prima facie any offence, are liable to be declared without lawful authority and of no legal effect and I order accordingly. As complicated law points were involved in this case, the parties are left to bear their own costs.
N.H.Q./M-1591/L ??????
Petition accepted.