1998 P Cr (PLP)

Date of hearing: 29th April, 1997. Complainant Azizur Rehman on 13‑11‑1995 at 9‑15 a.m. lodged a report at Police Station City, Abbottabad and charged accused‑respondent Kala for injuring him on head with a stone. The complainant was examined on the same day before a doctor at D.H.Q. Hospital, Abbottabad who found:‑‑ "A lembda thype laceration on the top of skull 5" above right ear bone deep." The patient was X‑Rayed but the X‑Ray Report is not on file.

2. Anyhow, during investigation Investigating Officer examined some witnesses mentioned in the report and received affidavits from few other persons and came to the conclusion that the case did not occur in the manner as, mentioned in the F.I.R. and recommended for the cancellation of the case and for release of the accused under section 169, Cr.P.C. and obtained an order from the Ilaqa Magistrate. He also initiated proceedings for prosecution of the complainant under section 182, P.P.C. Hence this petition by the complainant under section 561‑A, Cr.P.C. for the quashment of the said proceedings.

3. I have heard the learned counsel on behalf of the complainant, for the respondent and State. The learned Advocate stated that although factum of injury caused to the complainant in skull area by a blunt object has been supported with medical evidence and by the statements recorded under section 161, Cr.P.C. of the persons named in the report, but the Investigating Officer obtained affidavits of some persons not mentioned in the F.I.R. and thereafter, came to the conclusion on the basis of said affidavits that the occurrence was false and recommended the case to the Ilaqa Magistrate for cancellation and release of the accused under section 169, Cr.P.C. and simultaneously initiated proceedings against the complainant under section 182, P.P.C. That the case having been' prima facie established from the statement of the injured person coupled with medical evidence and statements of the eye‑witnesses mentioned in the report the Investigating Officer should not have thrown it out from prosecution as against the accused in a manner like this by taking into consideration affidavits of few interested persons. The learned counsel on behalf of the accused argued that the complainant after the cancellation of his case should have gone in revision before the Sessions Judge under section 435 read with section 439(A), Cr.P.C. instead of filing a petition before this Court under section 561‑A, Cr.P.C. for the quashment of the order in question. He further argued that order of cancellation of the criminal case for that reason is also not amenable to the revisional jurisdiction of this Court under section 435 read with section 439, Cr.P.C. and placed reliance on the Supreme Court case reported in PLD. 1985 SC

62. This case rather supports position of the complainant side that instead of filing a revision petition before the Sessions Judge it invoked jurisdiction of the High Court under section 561‑A, Cr.P.C. against the order in question by relying on the case of the Supreme Court reported in 1993 SCMR 187 wherein the Supreme Court in case of Bahadur v. State PLD 1985 SC 62 was also referred.

4. Not only this that the case has been reported to the police within 25 minutes the complainant was medically examined by a doctor who certified his injuries caused in the skull area by a blunt object. It is not shown as how Investigating Officer conveniently overlooked all these important facts during investigation and placed undue weight on the affidavits furnished by certain interested persons not even mentioned in the report and obtained the impugned order of cancellation of the case which prima facie seems a mala fide act on the part of the Investigating Police Officer and the manner in which he obtained these orders from the Magistrate for the discharge of the accused from prosecution of the case which clearly amounted to abuse of the process of the Court and the High Court would be, therefore, fully justified in setting aside impugned order of the Magistrate under section 561‑A, Cr.P.C. by directing the disposal of the case on merits in accordance with law.

5. In a recent case before the Supreme Court Muhammad Sharif and 8 others‑Appellants v. The State and another‑Respondents 1997 SCMR 304, this proposition was again considered by the Court in the light of the cases, Bahadur and another‑Appellants v. The State and another‑Respondents PLD 1985 SC 62 and Arif Ali Khan and another‑Petitioners v. The State and 6 others‑Respondents 1993 SCMR 187 and came to the conclusion that, "Looking to the erosion of positive values in social set up, loss of moral direction, the development of culture of corruption, ever increasing and unbridled tendency of abuse of power and lack of complete accountability in almost all walks of life, we find that it would be in the interest of justice that ratio in Arif Ali's case (supra) which tends to counter the deterioration pervading in the society at this juncture is followed and the order passed by a subordinate criminal Court which clearly amounts to an abuse of process of the Court, the High Court remains empowered to rectify the injustice."

6. I would be, in the circumstances, constrained to accept this petition and pass an order accordingly. H.B.T./2156/P???????????????????????????????????????????????????????????????????????????????????? Petition accepted.