1976 P Cr (PLP)

5. In support of the second contention learned counsel argued that perusal of the first information report and the evidence which the prosecution is likely to lead in support of its case, does not disclose any offence against the petitioner and in case any offence is made out then there is no evidence to support it. In view of the above, learned counsel submitted that the sole purpose for involving the petitioner in the present case was to put him to public humiliation and unnecessary harassment, otherwise it was inconceivable that a person of the petitioner's status would in any way be connected with, the offence alleged to have been committed by him. In such circumstances learned counsel argued that the proceedings if allowed to continue would be a clear case of abuse of the process of the Court and the trial would be a mock trial.

6. Before examining the contentions of the learned counsel for the petitioner, I would like to deal with the contention of the learned counsel appearing on behalf of the State, which was, that the petition was pre mature, because no evidence had so far been recorded and the proper thing for the petitioner was to wait till some evidence was recorded, because then only this Court would be in position to judge as to whether the proceedings be permitted to continue or not. In support of this contention learned counsel relied on Mohsin Ali v. The State (1972 S C M R 229), and Ghulam Muhammad v. Chashlum Contractors (1972 P Cr. L J 348). In the latter case it was observed:‑ "Similarly, it will be premature without the evidence having been recorded to give a finding that either the allegations are false or that the guilty intention cannot be attributed to the petitioner. In such like cases, the matter cannot be decided without recording the evidence. It is not the purpose of the proceedings under section 561‑A, Cf. P. C., to go into the details of the facts so as to give a finding without affording opportunity to the parties to lead evidence. Obviously evidence cannot be recorded in these proceedings and without recording the evidence the questions involved in this case cannot be decided the only circumstance that the case also involves a civil dispute is not enough to quash the proceedings, The standards laid down by their Lordships of the Supreme Court in the case of Ghulam Muhammad v. Muzammal Khan and others (P L D 1967 S C 3 17) are not satisfied in this case. I find no merit in this petition and the same is dismissed. Reliance was placed on Ghulam Muhammad v. Muzammal Khan and others (PLD1967SC317) where it had been observed:‑ "If in fact, on offence had been committed, justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law." Learned counsel submitted that the first information report did disclose a prima facie case and therefore, this was no stage to consider the request of the petitioner for quashment. Regarding the mala fides on the part of the prosecution, it was submitted that it is a question of fact and in order to successfully urge this, the petitioner had to wait till some evidence was recorded. In support of this, reliance was placed on Muhammad Tayyab Shah v. Syed Fayyaz Hussain and others (P L D 1973 Lah. 396), but in my view this decision would not be of much help to the learned counsel for the State because in that case the enquiry was in progress and it was rightly observed that the accused would have sufficient opportunity at the time of enquiry or trial to demonstrate the plea of male fide.

7. I have taken note of the authorities referred to above and most respectfully observe that there is one distinguishing feature in this case and that is, that specific allegations of male fide have been levelled against the prosecution and, therefore, it becomes all the more necessary to examine these allegations more thoroughly in order to ascertain as to whether a prima facie case had been made out or not, if it is so, then whether on the evidence which the prosecution wishes to adduce, the case is likely to result fn conviction. This, in my opinion, could be done even if no evidence had been recorded, because if the person proceeded against was to wait till some evidence was recorded then the very purpose of section 561-A of Code of Criminal Procedure is likely to be defeated. I am fortified in this view by a decision of this Court in Yaqoob Khan and others v. The State and three others (1971 P Cr. L J 266) where had been observed. "It was submitted by Mr. Abdur Razzaq on behalf of the respondents that the case has not yet been put in Court. but I find that on the King‑Emperor v. Khawaja Nazir Ahmad (217 I C 1) this Court has the power, in a suitable case, to quash the proceedings even at the investigation stage. I would accordingly accept this petition and quash the proceedings initiated against the petitioner under section 379 of the Pakistan Penal Code at the instance of the respondents." The case here is not at the investigation stage, but the challan has already been submitted in the Court after completion. The entire material and the evidence in the case has already been collected, I can therefore examine it with a view to forming my opinion whether on that evidence and material any case is made out against the petitioner or not.

9. The case against the petitioner is under "section 411, P. P. C. In order that the prosecution succeeds it has to satisfy all the ingredients of section 411, viz (i) property should be stolen property; (ii) receipt or retention of that property; and (iii) existence of knowledge or belief on the part of the person found in possession that the property was stolen and the receipt and retention should be dishonest. In Bharadwal Singh v. The State (A I R 1952 Cal. 616), Harries, C. J. observed:‑. "To prove in a prosecution under section 411, P. P. C., the prosecution must not only prove that the property had been stolen but they must also establish facts from which the Court can properly either knew the property to be stolen or had reasonable grounds for believing the same to have been stolen. Unless there is some prima facie evidence as to knowledge of the accused, then the latter is liable to be acquitted because, as I have said, merely proving of that he was in possession of the stolen property establishes no offence of any kind." This view was affirmed by their Lordships of the Supreme Court in Mukhtar Ali v. The State (P L D 1973 S C 725). It is, therefore, obvious that it any one of these ingredients is missing then the conviction is not likely to result. Learned counsel submitted that taking the prosecution case on its face value, the utmost the prosecution could prove against the petitioner would be the recovery of the animals from his dera, as is evident from the recovery memo, which was prepared by the Sub‑Inspector and signed by one Sadiq as an attesting witness, but this evidence will not be sufficient in law to result in the conviction of the petitioner under, section 411, P. P. C, unless and until the remaining essential ingredients of section 411, P. P. C. were duly proved. Learned counsel submitted that the prosecution has no evidence to lead in order to prove the remaining essential ingredients of section 411, P. P. C.

8. The prosecution case rests on the testimony of the complainant and two other witnesses, named in the first information report who also identified the animals, the rest of the evidence consists of recovery alleged to have taken place from the dera of the petitioner and as is clear from the recovery memo. it was witnessed by one Sadiq who is an attesting witness of the memo. the other being the Sub‑Inspector who investigated the case and prepared the memo. It is thus obvious that the prosecution has no other evidence to advance its case beyond this stage. Although in the first information report it was stated by the complainant that a theft took place in his behk, nevertheless he admitted that he never reported the matter to the police. It is thus evident that there is no evidence to the effect that the property was stolen, nor the prosecution has any evidence to rely upon to prove the existent of any knowledge or belief on the part of the petitioner front which it could be inferred that the petitioner retained the property either dishonestly or knowing or having reason to believe the same to be stolen property. This being the prosecution cast, even if the allegations of the prosecution are accepted to be true even then there is no evidence to prove the remaining essential ingredients of section 411, P. P. C. In such circumstances, it would be futile to allow the proceedings to continue. I would, therefore, accept this petition and quash the proceedings pending against the petitioner in the Court of the trial Magistrate, Gujrat. Proceedings quashes.