1980 P Cr (PLP)

The brief facts leading to these two applications are that petitioners Taj 'Mohammad and Mohabbat (Criminal Revision No. 24/1976) are brothers inter se who had a dispute with respondent Abdul Wahab (Crimi nal Revision No. 24/1976) over some land. There was some background ‑of litigation between the parties. On 17th March, 1974, at about 6‑30 p.m. respondent Abdul Wahab filed a report at Tangwani Police Station, District Jacobabad, alleging that while he was going from his village alongwith Haji Mohammad Hayat, the two petitioners who were respec tively armed with a hatchet and gun came up and while petitioner Mobabbat fired his gun at Abdul Wahab causing him injuries on his legs, the other petitioner Mohabbat stood at his side. Police investigated into the case and prepared a Mashirnama of the juries on the person of respondent Abdul Wahab. While there were injuries on his person there was no corresponding mark on the loin‑cloth which was worn by him. The police visited the scene of occurrence but did not notice any blood or footprints. Respondent Abdul Wahab was sent for examination and treatment to the Medical Officer at Kandhkot, who issued a certifi cate stating that the nature of injuries was simple but the injuries had been caused 5 days before the date of examination which would corres pond to 13th March, 1974, when according to the report lodged by res pondent Abdul Wahab, had been caused on 17th March, 1974. The Medical Officer also sent respondent Abdul Wahab for radiological test and on receipt of X‑ray films he issued another certificate on 23rd March; 1974, stating that the "injury is probably self‑manipulated". During the investigation the two petitioners produced certificates issued by the Mukhtiarkar of Kandhkot to show that on 17th March, 1974, both the petitioners were present in his office up to 5‑30 p.m. in connection with an inquiry regarding boundary marks of some land. On conclusion of investigation the Investigating Officer came to the conclusion that the case lodged by respondent AbdL1 Wahab was false and he sought a `B' summary which was granted by Sub‑Divisional :Magistrate, Kandhot. On the basis of such summary a complaint was filed against respondent Abdul Wahab for his prosecution under sections 182 and 211, P. P. C.

2. After the police case was disposed of respondent Abdul Wahab filed a direct complaint before the District Magistrate which was trans ferred for disposal to the Civil Judge and First Class Magistrate, Kandhkot. It seems this complaint was misplaced and was not traceable so that another complaint was filed which was remitted for disposal to the Court of the Resident Magistrate at Kandhkot. The Magistrate examined res pondent/complainant Abdul Wahab and witnesses Shafi Mohammad, Malik Dinno and Dr. Mohammad Umer Baloch at the stage of preliminary enquiry. On the conclusion of the enquiry the Magistrate by a detailed order dismissed the complaint on the ground that the material on record was not sufficient for issuance of process. The main reasons were that the witnesses were deeply interested, circumstantial evidence negatived the case of the complainant, crime weapon and the empty shell had not been secured, the witnesses whom the Magistrate had an opportunity of seeing appeared to have been tutored the medical evidence was in conflict with direct testimony and the Medical Board constituted to confirm the Medical Certificate had not submitted its report. The learned Magistrate also came to the conclusion that the offence, if any, would not fall under section 307, P. P. C. as the injuries caused were simple and were on the legs. The learned Magistrate also suspected the conduct of respondent Abdul Wahab who had lodged a direct complaint after 3J months and had not moved the superior authorities, qua the Investigating Officer, for having his case sent up before the Court for trial. Aggrieved by such order of the Resident Magistrate, respondent Abdul Wahab filed a Revision Appli cation before the Additional Sessions Judge, Jacobabad. The learned Additional Sessions Judge set aside the .order of the Resident Magistrate on the ground that the latter had not considered the facts of the case and he disagreed with his finding and passed an order for further enquiry. Revision, Application No. 24/1976 was then filed by petitioners Taj Mohammad and Mohabbat to challenge the order of the learned Additional Sessions Judge, Jacobobad.

3. This case was heard as early as in January 1979, and judgment was reserved. Before the judgment could be announced respondent Abdul Wahab filed a separate application seeking quashment of the proceedings in the case under section 21 I /182, P. P. C. instituted against him. This application was registered as Criminal Miscellaneous Application No. 25!1980. Both these cases have now been heard together.

4. Mr. Mohammad Hayat Junejo has appeared for petitioners Taj Mohammad and Mohabbat in Criminal Revision No. 24/1976 and the same parties who are respondents in Criminal Miscellaneous Application No. 25/1980. Mr. Zahiruddin Khan has appeared for Abdul Wahab who is the respondent in Criminal Revision No. 24/1976 and is the petitioner in Criminal Miscellaneous Application No. 25 of 1980. Mr. Manzoor Hussain appeared for the State and he has supported both the applications.

5. It must be initially stated that the case which is the subject‑matter of Criminal Revision No. 24/1976 was instituted on 17th March, 1974, viz. six years back from today. Admittedly, no progress has been made in this case. Even direct complaint filed by respondent Abdul Wahab was dismissed on 28th October, 1974. The order for further enquiry was passed by the Additional Sessions Judge, Jacobabad, on 18th February, 1976. Apart from this factor of delay I find that the case in question will in all probability result in acquittal. The several reasons enumerated in the order of Resident Magistrate dismissing the complaint are indeed weighty. One factor that clearly emerges is that there is a background of enmity between the parties. There is no independent testimony. Apart from the interested 'testimony there are no corroborating circumstances. Even the medical evidence contradicts the direct evidence. No useful purpose will therefore be served by burdening the lower Courts with this case. In the case of Mst. Hamida v. The State and another (P L D 1973 Kar. 478), such a view was taken by the Late Tufail Ali A. Rahman, C. J. Coming to the order of the Additional Sessions Judge it must be stated that he has taken different view from the one adopted by the Resident Magistrate but he has not considered most of the reasons advanced in the order of the Resident Magistrate for dismissing the complaint. The Resident Magistrate had observed on seeing the demeanour of witnesses that they appeared to be tutored. Normally such observations of a Presiding Officer of the Court who had an opportunity of seeing and hearing the witnesses is entitled to great weight and substitution of such a finding is generally not resorted to unless the reasons are compelling.

6. Coming to the case against Abdul Wahab under section 182/211, P. P. C. one must state that this case is also equally old. `B' summary was granted by the Sub‑Divisional Magistrate on 8th July, 1974. Nearly six years have in the meantime passed by but admittedly no progress has been made. The B' summary granted by Sub Divisional Magistrate is not supported by any reason. In fact, such orders are in the nature of admi nistrative orders. All that is stated in the summary is as follows :‑ "Cancelled false case."

7. This "B" summary was issued on a reference by the Investigating Officer. Even the Resident Magistrate who held a preliminary enquiry into the allegations made by Abdul Wahab in his Court had observed that the direct complaint was being dismissed because "there is no sufficient material," against Taj Mohammad and Mohabbat who had been accused. It is not every case in which the accused earns his acquittal or discharge or when the complaint against the accused is dismissed, that the com plainant must be prosecuted. Cases may result in dismissal of the complaint for a variety of reasons like insufficiency of evidence, benefit of doubt in favour of the accused, nature of evidence being interested, independent corroboration lacking, etc. When a complaint is dismissed for the mere fact of insufficiency of evidence it cannot be said that the complaint must be termed to be false. The order of the Resident Magis trate on the credibility of the case instituted at the instance of Abdul Wahab simply states that the evidence was insufficient. The other relevant factor in that context is the conflict between the direct testimony and medical evidence. Medical evidence is after all an opinion of an expert which may or may not be correct. Similarly, absence of traces of blood or foot prints at the scene of occurrence may also be obliterated by a vast number of reasons. Abdul Wahab had not cited any witnesses in his complaint except Haji Mohammad Hayat who was accompanying him and if the latter is found to be the relative of the complainant it would not lead to an un-displaceable inference that the case is false. For a prosecution under section 211 or 182, P. P. C. it has to be affirmatively shown by strong evi dence that the case is false. The mere fact of the case failing for insufficiency of material or for lack of corroboration would not lead to the conclusion that the case is false. In these circumstances, such facts as are mentioned and the factor of delay brings me to the conclusion that the case would B in all probability result in acquittal. The same principles as govern the case against respondent Taj Mohammad and Mohabbat would be appli cable in the case against Abdul Wahab, if not with greater force, at least with equal force.

8. For the above reasons I accept both the applications and quash the proceedings in both the cases. Proceedings quashed.