1988 P Cr (PLP)

The brief facts giving rise to the present application are that on 11‑8‑1986 one Muhammad Jaffar lodged a report at P.S. Mirpur‑Sakro inter alia alleging therein that he is doing business of "Prawns". He purchases Prawns from fisherman, who catch them from Baghar Darya near village Parero, and sells the same at Karachi. On 10‑8‑1986, he, Yousif Samejo, Umar Gado, and Muhammad Rahim Khalifa went towards Baghar Darya in the evening in this small boat for purchase of Prawns. At night they slept on bank of Darya, waiting for the fishermen. On 11‑8‑1986 at 4‑00 a.m. they woke up on the noise and light of the car. In the meanwhile a Datsun car came and stopped there. Sajjan Shah armed with revolver, Malook Shah son of Sajjan Shah armed with revolver, Aloo Shah son of Sajjan Shah armed with revolver, Mohib Ali Shah armed with gun, and Umar son of Jumo Dablo armed with gun, got down from the car. The complainant party identified them on the light of Datsun car. The accused abused them and asked them as to why they had come there. The complainant party told them that they had come to purchase Prawns. On this the accused asked him to take out money whatever was with him otherwise they would kill him. The complainant had Rs.5,070 with him, which he gave to Sajjan Shah due to fear. Thereafter Sajjan Shah and Mohib Ali Shah stood over them, and asked other accused to search the boat, and whatever is there, they should keep it in the Datsun. The accused took out 200 killos of Prawns from the boat, kept in the car, and went away, after issuing threats that in case any report was lodged they will kill them. The complainant could not note the number of Datsun, but it was of green colour. The complainant then went and lodged the report with Mirpur Sakro Police at 9‑30 a.m. That after recording the F.I.R. Mirpur Sakro Police started investigation and recorded statement of P.Ws. later on the complainant and P.Ws. were produced before D.S.P./S.D.P.O. Thatta, who recorded their further statements. That ultimately accused Sajjan Shah was found innocent and he was let off under section 169, Cr.P.C., while the present applicants were challaned. The present application has been filed for the quashment of the above proceedings. It has been contended by Mr. A . Q. Halepota, learned counsel for the applicants that the case against them is false, and is the outcome of enmity. That the complainant and P.Ws. are men of one Amir Ali Shah who has recorded enmity with Sajjan Shah father of applicants Nos. 2 and 3 over land, and a Civil Suit is pending between them. That one Pir Muhammad Shah nephew of Sajjan Shah has dispute with complainant Jaffar over land, and a Civil Suit is pending between them. He has further contended that the further statements of complainant and P.Ws. recorded by D.S.P. show that Sajjan Shah was not present at the time of incident and the allegation of robbery of money was incorrect, and therefore Sajjan Shah has been let off under section 169, Cr.P.C. That there are no incriminating recoveries from the applicants, and continuation of proceedings against the applicants is an abuse of the process of the Court. Mr. M.A.I. Qarni, Advocate appearing for the State has not controverted the factual aspect of the case as argued by Mr. A.Q. Halepota, but has further contended that the application is premature. I have considered the contentions of the learned counsel and have also gone through the papers. The photostat copy of plaint in Suit No. 7 of 1986 produced by the learned counsel for the applicants shows that Syed Sajjan Shah and his brothers have filed a suit for Declaration and Injunction against Syed Amir Ali Shah and others in respect of land situated in Taluka Mirpur Sakro, and this suit was filed on 11‑2‑1986. The photostat copy of another suit bearing No. 38 of 1986 filed by the learned counsel for the applicants shows that one Pir Muhammad Shah son of Ghulam Haider Shah had filed a suit for Declaration and Injunction in respect of land situated in taluka Mirpur Sakro against complainant Jaffer and others. This suit was filed on 28‑4‑1986. The further statements of complainant and prosecution witnesses recorded by D.S.P. show that Syed Sajjan Shah, father of applicants No. 2 and 3 was not present at the 'wardat' at the time of the incident. They further show that the applicants were not armed with any weapon. The police papers show that the case against Syed Sajjan Shah was found to be false and therefore he was let off under section 169, Cr.P.C. The further statements clearly show that the complainant was not robbed of his money and this allegation was also incorrect. No incriminating recovery has been made from the applicants and the enmity stands proved from the documents produced by the "applicants. Since enmity is there, it has been proved that at least one person was implicated falsely, and there being no corroborative evidence, the case cannot end in conviction under the circumstances. In Mst. Zaitoon v. The State 1979 P Cr. L J 279 it was held by this Court that "In this state of evidence the charge is not likely to succeed and the accused is bound to be acquitted, and therefore, the continuation of the prosecution would be an exercise in futility", and the proceedings were quashed. In the above case a decision of late Chief Justice Mr. Justice Tufail Ali Abdur Rehman in P L D 1973 Kar. 478 was relied upon. In Mujtaba Ahmad Khan and two others v. The State and another 1977 P Cr. L J

565. Mr. Fakhruddin G. Ebrahim, J. (as he then was) quashed the proceedings in murder case and had observed that "I have carefully examined the evidence of the eye‑witnesses and the material evidence of the doctor, who had examined the deceased. The conclusion in my mind is irresistable that their evidence is not only weak but it will be impossible to convict the accused for the offences, with which they were charged and it will, therefore, be futile to allow the trial to proceed against them", and the proceedings were quashed. In view of the above discussion, I am of the considered view that since there is enmity between the parties, one person namely Syed Sajjan Shah is proved to have been implicated falsely, and there being no corroborative evidence, the case is not likely to end in conviction. Therefore, the proceedings pending against the applicants before the learned Additional Sessions Judge, Thatta, are hereby quashed. Miscellaneous Application No. 362 of 1987 also stands disposed of. S.G.D./M‑318/K Proceedings quashed.