1986 P Cr (PLP)

P L D 1979 S C 94 ref. Muhammad Ali Shaikh for Applicants. Imam Bux for the State. Date of hearing: 20th January, 1983. The applicants above-named have filed the above petition under section 561‑A., Cr.P.C. for quashment of proceedings pending against them in the Court of Assistant Sessions Judge Moro under section 395 P.P.C., on the facts and grounds mentioned in the above petition.

2. The main contention of the applicants in the above petition is, that the proceedings in question have been filed mala fidely, after the lapse of over six months for the alleged offence of robbery, and no plausible explanation for delay in filing of the F.I.R. has been given by the complainant. In addition to this, according to the applicants, alleged robbed property was never recovered. The applicants have further stated in the above petition, that the case in question was fabricated by police against them, as the applicants had filed a Constitution Petition No. 1864 of 1979 against their detention, on account of political victimization and consequently the proceedings in question are not only mala fide, but the prosecution case cannot result in conviction of the applicants, due to earlier mentioned grounds.

3. The learned Advocate appearing for the State at the outset submitted that prima facie and admittedly there was delay of six months in lodging of the F.I.R. in question and further a robbed property was never recovered by police till today. In view of this the learned Advocate for the State submitted, that the stands of the applicants, that this .a mala fide action on the part of the police to harass them, on account of political victimization cannot be ignored. The learned counsel for the State further submitted, that on the basis of prosecution evidence, it will not be possible to convict the present applicants, in the case in question, merely on the ground of inordinate delay in lodging of F.I.R., for which no plausible explanation has been given.

4. I have carefully considered the above submissions made by the learned Advocate for the State and have gone through the F.I.R. in question, which admittedly was lodged after six months of the alleged incident, for which no plausible explanation has been given in the said F.I.R. I further find from the F.I.R. in question, that description of the 32 goats alleged to have been robbed is also not at all given in the F.I.R. and the prosecution story as given in the F.I.R. regarding the incident in question prima facie seems to be unbelievable. In view of A my above conclusion, I am of the opinion, that the F.I.R. in question has been lodged mala fidely and the prosecution case as disclosed in the said F.I.R., in my opinion cannot lead to the conviction of the applicants and as such the continuous of proceedings in question against the present applicants would amount to abuse of the process of the learned trial Court.

5. It is true that the applicants have not moved the trial Court under section 265‑K, Cr.P.C., but in view of my conclusion, that the proceedings were initiated against the applicants mala fidely, none filing of such application would not bar the maintenance of the above application for quashment, as the law led down by Hon'ble Supreme Court in PLD 1979 S C 94 would not be applicable to the present case.

6. Therefore, I allow the above petition and quash the proceedings pending against the present applicants under section 395, P.P.C., in the Court of Assistant Sessions Judge, Moro and discharge the bail bonds executed by the applicants. S.A. Petition accepted.