1993 PLP 832 (MLD)

Date of hearing: 27th January, 1993. This is a petition for quashment of proceedings against Rafiq Ahmad Awan petitioner in case F.I.R. No. 205/91 dated 8-5-1991 under sections 148, 365, 380, 427, 506/149, P.P.C. and Article 14 of the Offences Against Property (E.O.H.) Ordinance, 1979, Police Station, Allama Iqbal Town, Lahore pending in the Court of Mr. Muhammad Ashiq, M.I.C., Lahore.

2. Briefly stated the facts are that Ghulam Abbas P.W. got registered the aforementioned case on 8-5-1991 at Police Station Allama Iqbal Town, Lahore alleging that he owned land in Allama Iqbal Town where he alongwith his family members was residing. On the preceding night at about 3 a.m. 150 persons carrying fire-arms came to their land and resorted to firing and dragged them out of their house. It was further alleged that they demolished then house with a tractor and trolley. They were also alleged to have abducted Sajid brother of Ghulam Abbas, his mother and sister. The theft of articles of dowry of the sister of Ghulam Abbas was also alleged.

3. Although in the F.I.R. name of none of the accused was mentioned, Ghulam Abbas complainant made a supplementary statement before the police on 14-5-1991 alleging that he had learnt that Muhammad Rafiq Awan, A.C. Sadar, Lahore was also among the accused who had taken part in the above crime. He also introduced the names of Habib Ullah Goraya, M.I.C. and Khalid Javaid Virk, M.PA., Gujranwala as accused persons. On the basis of that statement Rafiq Ahmad Awan petitioner was arrested. During investigation, the allegation of the presence of the petitioner at the spot at the relevant time was found untrue but the occurrence in question was said to have taken place at his behest. In the report under section 173, Cr.P.C. it was stated that the petitioner had deputed Habib Ullah Goraya, M.I.C. to supervise the forcible occupation of the land and house of Ghulam Abbas complainant and he accomplished the task as per his dictates. Surprisingly, despite this conclusion Habib Ullah Goraya was not arrayed as accused.

4. The quashment of the proceedings against Rafiq Ahmad Awan petitioner is sought on the grounds that these were initiated at the instance of his rivals for mala fide reasons to cause harassment to him by abusing the judicial process. On merits, it is stated that he yeas not named in the F.I.R. but his name was introduced six days after the alleged occurrence, that the allegation levelled in the supplementary statement of Ghulam Abbas of his personal presence at the spot at the time of the commission of the offence was found to be false during investigation. Mr. Habib Ullah Goraya M.I.C. who had deposed against the petitioner was disbelieved by Mr. Saeed Ahmad Khan, Additional Secretary Health in the enquiry conducted by him against the petitioner under E & D Rules, 1975 on the charge of patronizing and supporting the illegal occupation of the house of Ghulam Abbas complainant on the night between 7th/8th May, 1991. It is further stated that during investigation Ghulam Abbas and his brother Sajid had got their statements recorded under section 164, Cr.P-C. denying the participation of the petitioner in the offence. According to them he had no hand in the said incident and was innocent, Conies of the statements of Ghulam Abbas and Sajid were appended to the petition. In order to verify their genuineness, I summoned them. In the first instance, Ghulam Abbas complainant denied having made any statement under section 164, Cr.P.C. before any Court but at a later stage he admitted having made it. But stated that he had made that statement under the threat of the petitioner. Sajid P.W. also made a similar statement. They went to the extent of saying that, in fact, Rafiq Ahmad Awan petitioner had dictated those statements which were accordingly recorded by Mr. Waqar Ahmad, M.I.C.

6. Sardar Munir Gil, Advocate who had presented application on behalf of Sajid Afi and Ghulam Abbas complainant for recording their statements was summoned. Mr. Waqar Ahmad 'Khan, M.I.C., was also summoned and questioned about the above allegations. Mr. Waqar Ahmad Khan, M.I.C., stated that the application for recording the statements of the aforementioned persons was forwarded to him' by Mr. Mazharul-Haq, A.C. Sadar and after observing necessary legal requirements, he correctly recorded their statements. He categorically denied that the petitioner was present in his Court at that time. According to him, the statements were recorded in the presence of Sardar Munir Ahmad Gill, Advocate and that no allegation was made before him by Ghulam Abbas complainant and Sajid Ali that they were making their statements under any duress.

7. Sardar Munir Ahmad Gill, Advocate stated that the application for recording the statements of Ghulam Abbas and Sajid Ali P.Ws. was moved by him before A.C. Sadar, Lahore who marked it to Mr. Waqar Ahmad Khan, M.I.C. and that the statements were recorded by him in his 'presence. He denied that the petitioner was present in the Court room at that time. According to him, the witnesses did not make any complaint of being harassed or coerced but made their statements of their free will. 7-A. Arguments of the learned counsel for the parties have been heard at length. Admittedly, the name of Rafiq Ahmad Awan petitioner is not mentioned in the F.I.R. His name was introduced by Ghulam Abbas in his supplementary statement on 14-5-1991 alleging that he was personally present alongwith other accused at the spot at the time of the commission of the crime but this allegation was found to be false during investigation. The allegation of the petitioner's participation/involvement in the occurrence in question was not found proved during the departmental inquiry conducted against him. Mr. Habib Ullah Goraya, M.I.C., who had deposed against him was disbelieved and fend to have made contradictory statements. Resultantly, the petitioner was exonerated of the said charge.

8. Learned counsel for the complainant has opposed the application. According to him, since the challan has been submitted to Court the petitioner is precluded from seeking quashment of the case from this Court, He further maintained that since there were other accused also in the case, the petitioner could not seek partial quashment of the proceedings.

9. In reply learned counsel for the petitioner stated that recourse to section 249-A, Cr.P.C. cannot be had, for, acquittal of the petitioner was not sought on the charge being groundless but the proceedings were challenged being mala fide and abuse of process of the Court. Syed Manzoor Hussain Shah v. S. Agha Hussain Naqvi and State 1983 S C M R 775 was cited to show that non-invocation of remedy under section 249-A, Cr.P.C. did not bar the High Court from exercising its inherent jurisdiction for quashment of criminal case. On the point of partial quashment, Riat Ali v.The State 1972 P Cr. L J 1129 and Mst. Rehmat Bibi v. The State 1973 P Cr. L J 246 were cited.

10. The question to be determined in the quashment matters is as to I whether the machinery of law is being employed for an operation from which any result in furtherance of justice can accrue. A case which cannot possibly succeed, if allowed to continue would be an abuse of the process of the Court and to quash it under section 561-A, Cr.P.C. would secure the ends of justice.

11. In view of the circumstances discussed in the preceding paragraphs, the petitioner appears to have been involved in the case for mala fide reasons, to harass him by abusing the process of the Court. The judicial proceedings initiated against him do not appear to be intended to secure the ends of justice but to malign him and if the proceedings against him are allowed to continue they would defeat the ends of justice and would perpetuate injustice. He would unnecessarily suffer the agony of a trial. His case is clearly separable from that of his co-accused. Consequently, I allow the petition and partially quash the proceedings in so far as the petitioner is concerned, these, shall, however, continue in so far as the other co-accused are concerned. N.H.Q./R-73/L Proceedings quashed.