QAIM ALI SHAH Versus STATE

ORDER

1. The applicant Syed Qaim Ali Shah seeks quashment of proceedings in a case vide Crime No.52 of 1996, pending against him in the Court of learned Judicial Magistrate and F.C.M., Tando Adam.

2. Briefly the facts of the case are that S.H.O. Muhammad Banaras of Police Station Berani lodged a F.I.R. being Crime No.28 of 1992 on 28‑4‑1992 at 19‑15 hours under sections 353, 147, 149 and 188, P.P.C. This F.I.R. was lodged against the present applicant as well as Mr. Shahnawaz Junejo and his sons Gul Junejo and Roshan Junejo, Parwaiz Ali Shah, Altaf Bhayyo and Pir Khalid Jan Sarhandi. It is alleged that on the date of elections for PS‑67 in Constituency of Tando Adam and Berani the complainant was posted on special duty alongwith his subordinate staff Muhammad Ashraf Sajjan, Abdul Karim, Nek Muhammad and P.Cs. they were asked to patrol different places in the Government vehicle. They were given information by some "spy information" that some miscreants will reach the Gulab Polling Station in order to create law and order situation. Urgent messages were conveyed to S.D.P.O. and S.D.M. The S.H.O. alongwith his party reached village Sero Mal and blocked the road leading to the Polling Station. They saw the abovenamed people including the applicant in this case coming in three Pajeero Jeeps fully armed. There were also other male and female persons accompanying them. They were asked to stop and undergo a search where upon all the said persons started manhandling the police and used indecent languages. Apprehending a situation the orders were given tc take positions whereafter all the so‑called accused again got into their Pajeero vehicles and went back towards Tando Adam. According TO the F.I.R, the said gentlemen have committed offence under section 144, P.P.C. and section 188. P.P.C. A case was registered against these gentlemen which is lying with the Judicial Magistrate and F.C.M., Tando Adam since 18‑1‑1997. On the other hand the F.I.R. and challan are still lying in the Court of learned S.D.M., Tando Adam. The same have not been sent to the Judicial Magistrate hence no proceedings are taking place save and except repetition of N.B.Ws. against the accused.

3. The present application under section 561‑A, Cr.P.C. has been filed by the applicant and the learned counsel has pleaded as follows:‑‑

4. According to him the bare reading of the F.I.R. amply proves and shows that it has been concocted purely and simply for political gains. They have further gone on to show that the F.I.R. was lodged by the S.H.O. who under the relevant provisions of law is not authorized to do so. Most of the sections that have been mentioned in the F.I.R. are non‑cognizable. The learned counsel has further gone on to point out that if there is any complaint against an accused for violation of sections 172 to 188, P.P.C. then the complaint has to be in writing of the public servant concerned. In the instant case according to the learned counsel for the applicant the District Magistrate or the Deputy Commissioner should have lodged the necessary complaint. According to him in such cases no F.I.R. is cut but a complaint is filed based upon which proceedings take place.

5. The sections that have been applied in the F.I.R. are very interesting keeping in mind the fact that elections have now become a part and parcel of our lives since the last ten years have shown more than five elections taking place. Both in the rural and the urban areas of Pakistan the seats are contested very strongly and in effect certain political parties and their workers are known for being over enthusiasm and overzealous in trying to ensure that their candidates wins. While it is appreciative that in order to ensure fair, free elections under peaceful conditions yet every time election take place certain incidents do occur most of them hopefully are not violent and, therefore, certain actions can be condoned on the ground of election fever.

6. On the other hand it is also important to note the overenthusiasm of the machinery that is supposed to control the law and order who are at most times more loyal than the king and, therefore, probe to take action against those candidates who would be construed as members of the opposition. Since by all standards elections are comparatively new phenomenon to the every day Pakistani, therefore, one could justify certain actions at the time of elections but by no remote possibility could a gathering of people near the Polling Booth or the taking out of voters to the election place could be construed as violation of section 144

7. The learned counsel appearing on behalf of the State have on the other hand insisted that the present application is not maintainable as they could have filed the same as provided under the law. According to them such quashment was premature and, therefore, this application should be dismissed.

8. The learned counsel on the other hand appearing for the applicant insisted that he was well within his rights to come straight to the High Court and filed such an application. According to him there were enough case‑laws to support his stand that he could move the High Court for quashment of the proceedings and the High Court could take cognizance and pass orders if enough grounds were shown to warrant such an action. The learned counsel has relied on the following case‑laws in support thereof:‑‑

(1) 1997 PCr.LJ (Kar.) page 589, (2) 1993 PCr.LJ (Kar.) page 1307, (3) PLD 1994 Kar. page 363, (4) 1993 PCr.LJ 1913, (5) 1994 SCMR 798 and (6) 1985 SCMR 257.

9. Under the circumstances, proceedings in question are quashed and this application is allowed.

10. Q.M.H./M.A.K./Q‑18/K Proceedings quashed.