P L D 2012 Peshawar 46 (PLP)

NISAR HUSSAIN KHAN, J.

Through instant petition, petitioners, seek quashment of F.I..R No.478, dated 10-11-2011, registered against them, under sections 419/420/468/471 P.P.C. in Police Station Saddar District, Bannu.

2. The facts of the case are that one Abdul Jamil son of Abdul Jalil, resident of Kot Beli Bannu, moved an application to the District Police Officer Bannu, which was marked to S.H.O. Police Station Saddar District, Bannu, for necessary action. The S.H.O. entrusted the same to an ASI, for investigation, who recorded statements of some inhabitants of the village of complainant and submitted his report. On the basis of his report, the opinion of District Public Prosecutor was obtained on 28-10-2011. In pursuance of the said opinion of D.P.P., instant F.I.R was registered, against the petitioners.

3. The application of the complainant contained the allegations that he is inhabited in village Kot Beli, since his forefathers and they are owners of considerable property in the village; that the detail of his property is recorded in the Revenue Record, along with his pedigree-table and caste, in clear words; that petitioners-accused, have recently shifted in their village Kot Beli, from village Fatma Khel and have purchased houses and agricultural land for their subsistance and they are purchasing the properties, by taking advantage of the caste of complainant and concealing their own caste, which is illegal. The complainant further averred in his application that respondents have entered their caste as "Afghan Purtana" Family No.20 while purchasing property bearing Khata No.10, Khasra Nos.298, 299 and 300, by concealing their own caste, which is injurious to him and his other family members and on the basis thereof, they are proceeding to claim share in their property by fraudulent means; that they are pretending themselves as "Afghan" by caste and some times "Purtuna" in their pedigree-table, which is ample proof of the fact that they are not aware of their own caste. So they are concealing their caste by fraudulent and deceitful means and misusing the name of the caste of complainant, which is wrong and illegal. He further maintained in his application that the respondents are also misusing the name of the caste of complainant in the Revenue Record and different other official documents, knowing well that they are not "Purtana' by caste and by this act, they are committing fraud and forgery; that respondents have got no proof that they are "Purtana by caste, but even then they are using the same in different documents with mala fide and fraudulent means, which has given the right to the complainant to initiate legal proceedings against them. He prayed for registration of case against them under sections 471/468/420/474, P.P.C.

4. Learned counsel for the parties and learned A.A.-G. heard at length and record perused with their assistance.

5. The purpose of re-producing the full account of the contents of the application, in preceding Paragraph, is to deduce therefrom that as to whether any offence is made out, in light of the allegations so made, or not. The gist of the allegations and grievance of application, may precisely be summarized; that accused-petitioners have purchased property in the village of complainant and at the time of purchase they have mentioned their caste in the documents as "Afghan Purtana" which is also the caste of the complainant. So far as the purchase of property in the village of complainant is concerned, that is the fundamental right of every citizen to acquire property in any part of Pakistan, subject to the Constitution and any reasonable restrictions, imposed by the law in the public interest, as enshrined in Article 23 of the Constitution. Thus by purchasing the property in village of the complainant, the accused- petitioners, have committed no offence. There is no allegation that they have violated any reasonable restrictions, imposed by law, in the public interest, nor they have transgressed any mandate of the Constitution.

6. In light of the conclusion drawn in the preceding Paragraph, the controversy is boiled down to the only point that the accused-petitioners have mentioned their caste as "Afghan Purtana" which is the caste of the complainant, as well. It is the matter of common knowledge that so many people live in different parts of the country as well as of the world, having common caste. The caste is not an object or property, for which an exclusive ownership may be claimed by an individual. We, being Muslims, derive guidance from the teaching of Islam. The main Sources of our teachings are the Holy Quran, Hadith and Fiqa. Hazrat Muhammad (peace be upon him ), commanded in the sermon of "Hujjat-ul-Widah that no Arab has got any superiority over the Ajam, no white can claim superiority over the black and the caste of none, would be a determining factor of his being beloved to the Almighty Allah. Rather, it would be his honesty, piousness, generosity and devotion to the commandments of the Almighty Allah, which would be the decisive features and virtues for his fate, on the Day of Judgment. Moreover, the name of caste can never be used to claim superiority and malign the others, but these are only for the identification, amongst the people.

7. Article 25 of the Constitution, mandates that all citizens are equal before law and are entitled to equal protection of law. Likewise, Article 33 of the Constitution, clearly postulates that all parochial, racial, tribal and sectarian prejudices, among the citizens, shall be discouraged. When the allegations of the complainant are tested at the touchstone of Articles 25 and 33 of the Constitution of Islamic Republic of Pakistan, one wonders that how, these allegations can constitute any offence, particularly, when the complainant has got no right to claim exclusive entitlement of the caste of "Afghan Purtana" when there are hundreds and thousands of people, residing in the Sub-continent, having this caste, including Pakistan, Afghanistan and India.

8. Section 154, Cr.P.C. clearly envisages that Officer Incharge of Police Station, shall record the information in concerned Book/Register, with regard to a cognizable offence. The Officer Incharge of Police Station, is supposed to be aware of the law on the subject and it is his legal obligation to assess the information, so conveyed, that whether any cognizable offence is made out, on the basis of such information or not. If no counizable offence is constituted, in light of the allegations so made, he is not required to register the case. While in the instant case, no offence has been committed by the petitioners-accused, much less, the cognizable offence, in light of the allegations in the application of complainant. So the F.I.R. has wrongly and illegally been registered against the petitioners by misuse of authority by the official concerned.

9. The learned counsel for the respondents argued that once the F.I.R. has been registered, let it be tried by the Trial Court and the petitioners can approach the trial Court under sections 249-A and 265-K Cr.P.C. The contention of the learned counsel is not tenable in light of peculiar circumstances of the case. As it has been held earlier that even if the allegations contained in the application of complainant are admitted, even then, no offence is made out against the petitioners. The mala fide of the complainant is palpably floating, on the record, whereby he has entangled the petitioners in connivance with the Officer Incharge of the concerned Police Station, on the basis of allegations, which constitute no offence at all. In this backdrop of the events, non-interference of the High Court, would tantamount to allow an illegality and high handedness to perpetuate. Rather the High Court would be failing to discharge its obligation, as mandated in section 561-A, Cr.P.C. to step in and to prevent the abuse of process of the Court and to pass an appropriate order to secure the ends of justice.

10. For the reasons discussed above, this petition is allowed. The impugned F.I.R and proceeding, pending on the basis thereof are hereby quashed. MWA/14/P Petition allowed.