MUHAMMAD SAFAR Versus STATE

ORDER

1. This is an application for quashment of the proceedings pending in the Court of Additional Sub. Judge Magistrate Rawalakot against the petitioners under section 379, P.C. A case under section 379/447, P.C. was registered by the Police Rawalakote against the accused‑petitioners and some others on 4th March, 1973. Four of the accused namely Muhammad Safar, Timber, Muhammad Sabir and Muhammad Ramzan were challaned by the police in the Court of the Magistrate. Two persons namely Muhammad Azam and Billa, accused of the aforesaid offence were shown in column No. 2 of the challan from against whom the proceedings under section 512, Cr. P. C. were prayed to be taken. Since then the interlocutory orders in respect of the process to issue against the accused absent, are being made.

2. Muhammad Safar and Muhammad Sabir accused have been appearing before the Court. Muhammad Ramzan accused is a Military personnel for whose prosecution no sanction or consent of his commending officer was obtained by the trial Court or the Police, as the case may be, as warranted by law and the trial Court was thus unable afterwards to secure his attendance. No trial against him could proceed unless a consent pointed to above for his trial could be obtained by the trial Court. This is a prerequisite condition before holding a trial against the Military personnel for the offences for which he was charged by the police.

3. Muhammad Sabir accused is son of Fazal Din. Feroze Din is not an accused in this case as no offence was committed by him as alleged by the maker of the report vide report of the police dated 31st December, 1974 which was submitted to the trial court as challan wherein it was clearly stated in these words underlined :‑

4. One is shocked to find that the trial Magistrate was issuing non bailable warrants for ‑the arrest of Feroze Din who is not an accused. To justify his action Feroze Din was also numbered as 4th accused in the case by tampering the judicial record vide column IV of the challan form. During the trial of the case, a compromise deed was also placed before the Court by the complainant with the accused under which the accused were acquitted of the charge of criminal trespass against them. Offence under section 379, P. C. was not compound able and so the Prosecuting Inspector made a recommendation for withdrawal of the case but it could not be withdrawn. The Pro secuting Inspector was of the view that the case against the accused was not expected to be proved in the circumstances as there had been a compromise between the parties. No proceedings with regard to the trial of the accused were taken so far and even their (petitioner's) statements could not be recorded by the trial Court under section 242, Cr. P.C. This is height of injustice in shape of abuse of the process of the Court which was being made against the accused by the trial Court for over a period of nine years.

5. In the circumstances above, no further harassment and oppression of the accused can be allowed under law. That being so, in exercise of the powers vested in the High Court under section 561‑A, Cr. P. C. the Challan report against all of the accused is dismissed and they & acquitted thereby. The trial Magistrates who were dealing with this case must look into themselves as to how they have dealt with this case. It all shows that they lack responsibility and are slack in performance of their functions and have no judicial conscience at all. They are, therefore, warned to be careful in future and further to see that they deal with the cases fairly according to law and no abuse of the process of the Court is allowed to take place. An enquiry shall be made by the present presiding officer of the Court as to ascertain with regard to a person who tampered the judicial record in order to harm Feroze Din and further to proceed against him accordingly.

6. Petition accepted.