1993 PLP 2024 (MLD)

S. 173

Constitution of Pakistan (1973), Art.199

Quashingof proceedings

Police record, F.I.R., report under S.173, Cr.P.C. and the Court record did not indicate at all that the petitioner was ever cited as an accused-- Writ petition was accepted in circumstances and proceedings against petitioner were quashed subject to the condition that complainant may file a proper complaint, if so desired, which would be decided afresh on merits. Ghaus Muhammad Chaudhary for Petitioner, According to the police record as stated by Wazir Ali, S.I. the accused mentioned is "Muhammad Hussain son of Umar Din, caste Arain, resident of Tibba Jewan Pura".

2. The Court record has also been thoroughly checked up. In the original report under section 173, Cr.P.C. the accused mentioned was "Muhammad Hussain son of Umar Din, caste Arain" but the word "Umar Din" has been now overwritten by a thick different ink as "Siraj Din" and to make the matter clear Siraj Din has also been written above it. Who did it, under what order and on what date, is not clear from the record at all. Even the photostat copies of the report under section 173, Cr.P.C. (the document to be supplied to the accused), the accused mentioned is "Muhammad Hussain son of Umar Din, caste Arain". In none of the other documents on the record or in the order sheet we have any indication that the actual accused was Muhammad Hussain son of Siraj Din, the writ petitioner. Only in the recovery memo as to Sota the accused mentioned is Muhammad Hussain son of Siraj Din, caste Arain. This is dated 10-4-1988. No accused by the name of Muhammad Hussain son of Siraj Din, caste Arain was sent up to the Court alongwith the report under section 173, Cr.P.C. nor in the F.I.R. the father's name of Muhammad Hussain accused is mentioned. On the record we have an application moved to the Illaqa Magistrate by Sabir Ali complainant to the effect that actually the accused was Muhammad Hussain son of Siraj Din but when Muhammad Hussain appeared before the local police he gave his wrong parentage as son of Umar Din and that correction be made. No stamp is affixed on it nor there is any order on this application or any notice to the prosecution or the accused side. It purports to have been dated 7-4-1991.

3. Thus the record of the police (case diaries), the F.I.R., the report under section 173, Cr.P.C. and the Court record do not indicate at all that Muhammad Hussain son of Siraj Din, the writ petitioner was ever cited as an accused. In view of such a state of affairs it cannot be now said as to which was A Muhammad Hussain who was cited as accused in the F.I.R. In view of this state of affairs the writ petition is accepted and the proceedings against the writ petitioner stand quashed subject to the condition that the complainant may file a proper complaint, if desired, which would be decided on its merits afresh.

4. The record be sent down immediately. N.H.Q./M-1084/L Petition accepted.