1995 P Cr (PLP)

3. Notwithstanding the abovementioned agreement, Lt.-Col. (Retd.) Fazal-e-Akbar, respondent No.1, presented a complaint top: Deputy Commissioner and Assistant Commissioner, Mansehra (respondent No.2 and respondent No:3 respectively) on 28-8-1994. It was stated therein that he had shifted the senior part of Abasin Public School and College to Akbar Road, Mansehra after the vacation of the stay order against him. It was further alleged in the complaint that he was physically threatened "to death" by Maj. (Recd.) Mushtaq Hussain Shah, who was bent upon creating disturbance and was about to take the law into his hands, that the case was pending in the Court of Senior Civil Judge, Mansehra and the next date fixed for hearing was 4th September, 1994. He requested the Deputy Commissioner to stop Maj. (Retd.) Mushtaq Hussain Shah (petitioner before me) from creating disturbance and unlawful activities and that if he (the petitioner) had any grievance, he should approach the Senior Civil Judge for the redress of his grievance, on 4th September, 1994. This, in short, is the substance of the complaint.

4. On receipt of the complaint tile Deputy Commissioner/Sub-Divisional Magistrate (respondent No.2) , marked it to the Assistant Commissioner/S.D.M. (respondent No.3) with the following remarks/directions:-- "Please ensure peace between the parties and security to the life/property of applicant."

5. The Sub-Divisional Magistrate in turn, marked the complaint to D.S.P. (respondent No.5) with the following directions:-- "For registration of case under the law and legal proceedings against the respondent."

6. On the very next day the D.S.P. sent the complaint in question to S.H.O., Police Station City (respondent No.7) for necessary action. The S.H.O. concerned solicited legal opinion from the prosecuting Inspector, Mansehra (respondent No.6) on the point as to what offence, if any, the complaint relates to or makes out. Legal advise was tendered on the same day by the Prosecuting Inspector which is to the following effect:-- "It is a case of intimidation punishable under section 506, P.P.C.?"

7. Accordingly a ease was registered on 24-8-1994 by S.H.O., Police Station City, vide F.I.R. No.386 (Annexure "D") in Police Station City, Mansehra on the basis of the complaint filed by respondent No.1 against the petitioner.

8. It appears that security proceedings under section 107/151, Cr.P.C. were, unilaterally, taken against the petitioner who was ordered by the S.D.M., Mansehra, on 25-8-1994, to furnish requisite bail bonds in the sum of Rs.20,000 with two sureties, each in the like amount, to keep peace between the parties for a period of one year or to undergo imprisonment for the likewise period under section 107, Cr.P.C. The bail bonds, as required, were accordingly furnished by the petitioner on the same day.

9. The petitioner was, however, arrested under section 506, P.P.C. op 25-8-1994 and was later released on basil by the Ilaqa Magistrate on medical grounds.

10. After the completion of the usual police investigation, a charge-sheet under section 173, Cr.P.C. was submitted by the local police under section 506, P.P.C., against the petitioner in the Court of Magistrate 1st Class, Mansehra (Respondent No.4) for trial.

11. In the light of the factual position narrated above, it was vehemently contended by Mr. Abdullah Jan Mirza, Advocate, learned counsel for petitioner that in the first instance, the so-called complaint disclosed only the business dealings between the petitioner and respondent No.1 and as such the transaction is basically of civil nature and, therefore, respondent No.1 could not be permitted to use criminal proceedings as coercive measure to force the other party to forego his claim in civil Court and to suffer indignity of being an accused person in a criminal case on the basis of a photostat copy of complaint in the absence of the original complaint, for which there is no explanation at all nor was given during the course of arguments before me, though pressed therefore, time and again. And, in the second place, it was stressed that the complaint does not disclose the place of commission of alleged offence nor was there any mention of witnesses in whose presence the alleged threat was extended. It was further urged that there existed no reason or purpose for which such threat could have been extended. He contended that the complaint was forged one because photo copy ex-facie revealed that the wordy "to death" were subsequently added with ink, in fresh writing, to attract the application of section 503, P.P.C. and that the complaint as contained in the photostat short of addition, does not disclose offence under section 506, P.P.C. In short, according to him, the charge on the face of it was groundless, concocted and false and that the continuance of criminal proceeding was nothing but blatant abuse of the process of Court. 12 On the other hand, Mr. Abdul Latif Khan, Advocate, learned counsel for respondent No.1 contended that pendency of civil suit by itself does not bar the proceedings under the Criminal Procedure Code. According to him since the complaint, irrespective of its apparent shape, has disclosed commission of offence under section 506, P.P.C., the proceedings at this stage could not be quashed. He also raised the plea that the alternate remedy under section 249-A, Cr.P.C., being readily available, the petitioner cannot invoke the jurisdiction of this Court under section 561-A, Cr.P.C. without first exhausting the aforesaid remedy. He further alleged that although there is no mention of witnesses in the complaint, nevertheless, the complainant has produced two witnesses on 25-8-1994 before the Investigating Agency and whose statements were duly recorded on the very day and thus the complaint did not proceed on ipsi dixit of respondent No1. alone. In short, the submission of the learned counsel for respondent No.1 is that the present petition for quashment is not only misconceived but is also premature..

13. I have heard the rival contentions of the contesting parties in the above form and substance and have also gone through the record carefully. The first and foremost question that fall's to be decided is whether there exists a legal foundation to proceed with the complaint and secondly to determine whether facts alleged in such complaint disclosed commission of any criminal offence. Thirdly whether the dispute between the parties is essentially of civil nature or whether the criminal proceedings have been initiated with mala fide intention to coerce the petitioner to withdraw the civil suit filed by him against respondent No.1 and others.

14. In consideration of the questions formulated above, I came across the V most prominent fact, which admits of no doubt and contest, that the original complaint is not forthcoming nor has it been made integral part of the judicial record available before me. The learned counsel for respondent No.1 was repeatedly asked as to What had happened to the original complaint and as to why had, it not been produced nor was any explanation offered for its loss/destruction, the learned counsel for respondent No.1 could not give a plausible explanation in this respect. The record is also silent as to who got the original complaint photo copied. In this picture of facts, the provisions as contained in section 63 of the Evidence: Act, akin to Article 74(2) read with 76(c) of Qanun-e-Shahadat, that secondary evidence can only be produced when original was lost or original was otherwise destroyed and in the absence of this vital ingredient, secondary evidence cannot be produced in Court, cannot be ignored or lost sight of. This fact thus introduces an important question of admissibility of a photostat copy of complaint, which forms the very basis of the prosecution case. The veracity of the photostat copy, in the absence of its comparison. with its original cannot be accepted blindly. Accordingly the photostat copy of complaint does not furnish the basis for proceedings therewith and being inadmissible, no conviction can be based thereon.

15. By parity of reasoning I find myself in complete agreement with the learned counsel for the petitioner that the words "to death" were the by product of subsequent addition, so as to bring the case within the teeth of section 503, P.P.C. If the added words i.e., "to death", are ignored, then the recital relating to mere threat does not amount to criminal intimidation. On plain reading of the complaint, it transpires that the petitioner was neither armed nor was any overt act committed by him to translate his alleged threat into reality. It is equally not defined_ as to how he was going to create disturbances and take the law in his own hand. Beside this what complaint the petitioner had laid bare, which needed to be placed before Senior Civil Judge, Mansehra, on 4th September, 1994 for redress.

16. The accusation, on the very face of it, and in all events, are as vague as they are ambiguous. It has not been made clear as to what prompted the petitioner and for what purpose he wanted to take law in his own hand and in what manner. The belated witnesses, who have offered altogether different stories/tales, deroute the very base of the alleged complaint and do not advance the case, set up therein, an inch forward.

17. In this setting of facts, it may be stated, that the contents of complaint cannot lead one to infer commission of offence of criminal intimidation for compelling respondent No.1 to do, what he is not legally bound to do or omit to do what he is legally required to do. The underlying object of the alleged complaint shortly before the date fixed in the civil suit, apparently, is to coerce the petitioner to withdraw the same.

18. I am, therefore, of the view that the charge, on its very face, is groundless and it amounts to abuse of the process of Court. Needless to mention that the powers of the trial Court under section 249-A, Cr.P.C. and section 265-K, Cr.P.C. are co-extensive with the similar power of the High Court under section 561-A, Cr.P.C. Both can be resorted to and that there is no bar in moving the High Court under section 561-A, Cr.P.C. particularly in a case, like the one in hand, in which proceedings are intended to be used as a vehicle of operation and coercion against the petitioner.

19. To direct the petitioner to go to trial Court, in view of what has been stated above, will be futile exercise. Resultantly, this petition is allowed and proceedings pending before EA.C./M.I.C., Mansehra (respondent No.4) are hereby quashed. N.H.Q./1773/Penh. Proceedings quashed.