MUHAMMAD ALI AND 6 OTHERS Versus THE STATE

1. This is an application under section 561-A, Cr.P.C. for quashment of proceedings pending against the applicants under sections 342, 354, 373 and 34, P.P.C. before the learned A.C.M.-1, South Karachi.

2. The brief facts giving rise to the application are that on 5-1-1983 Mst. Hussain Bano lodged a report at Police Station Defence Karachi, inter alia, alleging therein that she resides with her children at M.A. Jinnah Road, Karachi. That about a year back Mohammad Ali came and started residing in her neighbourhood. He has a shop known as Electronic Limited on the ground floor of her house. They had demanded hand of Naheed daughter of Mohammad Ali for her son Razi Jafferi which was refused by them. On 3-1-1983 at 4-00 p.m. Sultana wife of Mohammad Ali phoned the complainant and showed willingness to give the hand of her daughter and called the complainant to her house. The complainant and her daughter Shaheen aged 21 years went to the bungalow of Mohammed Ali where Mohammad Ali, his sons Shaukat Ali, Nasir Ali, his daughter Naheed, his wife Sultana and five other persons who were not known to the complainant but she could identify them out of which two had beard were present. In the meantime Dr. Zafarul Islam brother of Mohammad Ali also came there. Mohammad Ali's wife made the complainant to sit, and her daughter Shaheen was taken at the first floor by Naheed. Mohammed Ali and two bearded persons put off her Pajama, Mohammad Ali kissed her, took her photographs and spitted on her anus, his son Shaukat Ali took her photographs while her Pajama was being removed. All of them gave her slaps and fist blows and abused her for about half an hour. After her daughter Shaheen came down then they gave them oath and told the complainant to bring her son and daughter Husna again and allowed them to go. They threatened her with dire consequences if she reported the matter either with police or Martial Law. They threw her daughter out of the bungalow after beating and abusing her. At that time her daughter Shaheen told her that Naheed had closed her inside the room in which Mohammed Ali, his son Nazir and Shaukat then entered, and all the three made her naked and Mohammed Ali had put his finger in her private part on which she raised cries, then Nasir put his hand on her mouth and Mohomed showed knife and told her to remain quiet. Nasir Ali then became naked and lay alongwith her, then Shaukat took her naked photographs. and thereafter she had been sent downstairs. After recording the F.I.R. the police investigated the case and submitted final report on 23-5-1983 in which they submitted that the case may be disposed of as B class and necessary orders may be passed under section 169, Cr.P.C. and permission be granted to file proceedings under section 182, Cr.P.C. against the complainant on which the Magistrate passed the following order-

3. "Approved.

4. (Sd.)

5. Magistrate"

6. After the above orders were passed the applicants filed suit for damages against the complainant, her daughter and son being Suit No.713 of 1984. However, during the pendency of the above suit another report/challan was submitted by the C.I.A police before the Additional City Magistrate (C.I.A.) Karachi, on 7-12-1986. The present application is for the quashment of the above proceedings.

7. I have heard Mr. Raja Qureshi for the Applicants. Mr. Usman Ghani Rashid, Advocate for the Complainant and Mr. G.R. Warsi Advocate for the State and have gone through the documents produced by the parties.

8. It was contended by Mr. Raja Qureshi appearing for the applicants that the applicants were discharged by the Magistrate under section 169, Cr.P.C., and therefore, the police was not entitled to reinvestigate the case unless the earlier order was recalled by the Magistrate. That the medical report belied the allegation of violence on the person of complainant and her daughter. That there was delay of two days in lodging the F.I.R. and there was no incriminating recovery from the applicants. That there were no grounds for reinvestigation and submitting fresh challan in the Court.

9. Mr. Usman Ghani Rashid learned counsel appearing for the has contended that the applicants had filed a Writ Petition being Petition No.436 of 1985 in this Court challenging the order of reinvestigation but the same was later on withdrawn. It was further contended that the applicants had not moved the trial Court under section 249-A, Cr.P.C. and therefore, the present quashment application is not maintainable under law. That the F.I.R. and the statement of P.W. Shaheen make out a prima facie case against the applicants, and therefore, this application was liable to be dismissed.

10. Mr. G.R. Warsi, Advocate for the State has contended that at present there was sufficient material available against the applicants Nos.l to 5, therefore, he opposes the quashment application, as far as they are concerned. He has further contended that there were no allegations of any offence against the applicants Nos.6 and 7 and therefore he has no objection if the proceedings in respect of the respondents Nos.6 and 7 were quashed.

11. I have considered the contentions of the learned counsel and have gone through the documents produced by both the parties in the above application and have also gone through the decisions relied upon by the learned counsel.

12. In view of the order which I propose to pass in the above matter I do not consider it proper to make any comments on the merits of the case at this stage as further proceedings might be taken in this regard and any expression of opinion was likely to affect the case of one or the other party.

13. However, there are allegations of serious nature made by the complainant against the applicants Nos.1 to 5 and number of documents have been produced by both the parties in the above application. The copy of Writ Petition which was filed by the applicants before this Court challenging the reinvestigation and which was subsequently withdrawn has also been produced before this Court. In view of the conflicting versions of the parties and the number of documents produced by them I am of the considered view that this is a case in which it will not be appropriate for this Court to interfere at this stage in one or the other way. No doubt the powers of the trial Court under section 249-A, Cr.P.C. and the powers of this Court 561-A are co-extensive but, it was proper for the applicants to have approached the trial Court in the first instance looking to the facts and the circumstances of the case as observed by their Lordships of the Supreme Court in the case of Mian Muneer Ahmad v. The State 1985 S C M R 257.

14. I, therefore, direct the applicants to first approach the trial Court under section 249-A, Cr.P.C. and to raise all the pleas which have been raised before this Court. With these observations the above application is hereby dismissed.

15. S.A./M-406/K Application dismissed.