P L D 1994 Karachi 99 (PLP)

5. I have heard the learned counsel for the parties as well as the AA: G. The main grounds urged by applicants' learned Advocate are that since tile F.I.R. No.166/91 dated 15-11-1991 registered by respondent No.l, on investigation, was disposed of in `A' Class and applicants were found innocent, direct complaint on same facts was maliciously filed, the cognizance was illegally taken and continuance of proceedings against applicants in these circumstances would be abuse of process of law. It is also argued that even if cognizance could have been taken by the learned trial Court, N.B.Ws. could not have been issued in the first instance which shows the malice on the part of the learned Judge. It is further argued that the facts given in the complaint and the evidence of witnesses examined during P.E., are contradicted by the F.I.R. filed by the respondent and the medical evidence. Delay in filing private complaint is also urged as one of the grounds for the quashment of proceedings. The last contention of the learned Advocate is that because the applicants had earlier filed a number of F.I.R. against the father of the respondent and some others about fraud and misappropriation in which some of them were arrested, the private complaint on the face of it was a counterblast in which respondent succeeded in obtaining N.B.Ws. which were not executed for a number of dates but the same were executed when applicants came to Court to attend another matter which was fixed for confirmation of bail. Much emphasis is laid on the manner in which the police Moharrar arrested the applicants in execution of N.B.Ws. within the Court premises which was all done to disgrace the applicants who are highly placed persons and who had sought prosecution of the respondent, his father and others. In the circumstances, it is argued that continuance of proceedings against the applicants would be abuse of process of Court as the case is not likely to end in conviction and the interests of justice require that the proceedings are quashed. In support of all these contentions, learned Advocate has cited the following judgments: (a) Zulfiqar v. Madad Ali and another (1982 PCr.LJ 1264), (b) Mst. Zaitoon v. The State and another (1979 PCr.LJ 279), (c) Mirza Naseer Baig v. Muhammad Iqbal and another (1981 SCMR 315), (d) Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another (1983 SCMR 775); and (e) Javed Hamid v. Hassan Jan and 2 others (PLD 1991 Peshawar 121). Learned Advocate appearing for the respondent has argued that the applicants, taking advantage of earlier F.I.R. against respondent or his father and others, took law in their own hands, came to the house of the respondent and tried to forcibly kidnap him but when they failed in their design, they caused injuries to the respondent for which F.I.R. No.166/91 was lodged. The disposal of the said F.I.R. was inordinately delayed by the investigation agency because of influence of the applicants whereupon a private complaint was filed. It is further argued that during preliminary enquiry a number of witnesses were examined and the medical certificate of injuries on respondent was produced which clearly indicated that the case fell within the ambit of section 324 of P.P.C. as amended and cognizance was rightly taken and N.R.Ws. was lawfully issued. It is next argued that merely because F.I.R. was disposed of in `A' Class due to the influence of applicants, there was no bar in filing private complaint on same facts. It is also contended that in case where medical certificate confirmed injuries on respondent, investigation by police for over 6 months gave a cause to respondent to file direct complaint, which after proper enquiry was registered and N.B.Ws. were issued. Learned Advocate, in support of these contentions, .has referred to:- (i) Ikramullah Khan v. Muhammad Yousaf and 2 others 1984 PCr.LJ 350, (ii) Ghulam Muhammad v. Muzammil Khan and 4 others PLD 1967 SC 317, (iii) Muhammad Farooq and 2 others v. The State 1992 PCr.LJ 834, and (iv) Marghoob Alam and another v. Shamas Din 1986 SCMR

303. Mr. K.M. Nadeem, learned A.A: G., has supported the quashment application. He has argued that after F.I.R. No.16 of 1991 was lodged, one of the applicants was arrested but subsequently released and after thorough investigation, the case was disposed of in 'A' Class as the allegations by respondent were found to be false. It is also argued that filing of F.I.R. under section 154 of Cr.P.C. and private complaint under section 200 of Cr.P.C. are, in fact, complementary and derogatory to each other. Since the police sifted the whole evidence, there was hardly any justification for entertaining a private complaint and without calling for a police report, the learned trial Court was not competent to take cognizance and issue N.B.Ws. in the first instance. Reliance in support of this contention is placed on Shamim v. The State and another (PLD 1966 SC 178). It is then argued that the manner in which the trial Court conducted itself shows its malice in law and the issuance of process is also tainted with a stigma of malice. It is also argued that out of the four witnesses examined during P.E.. two had not witnessed the occurrence and the version given by them hardly required any consideration. Reference is made to Muhammad Soofan v. The State and 2 others 1975 P.Cr.L.J. 255.

6. The entire record of the case has been perused and it includes various F.I.Rs. lodged by either party. I would desist from making any observation with regard to other F.I.Rs. except F.I.R No.166 of 1991 lodged by respondent on 15-i1-1991 in which it was stated that applicants had tried to push respondent into their car and having failed to succeed, they gave blows to respondent. The medical certificate regarding the injuries on respondent shows 2 lacerated wounds, one incised wound and an abrasion. This certificate is dated 1511-1991, on which date respondent lodged F.I.R. No.166 of 1991 against applicants. Private complaint was filed by respondent on 11-4-1992, as till this date, no disposal of respondent's F.I.R. was made. It is not known why there was no disposal of respondent's F.I.R. till 27-5-1991, when suddenly a report under section 173, Cr.P.C. was submitted and disposal under `A' Class was shown. In the circumstances, when respondent felt that his grievance in F.I.R. was not redressed, perhaps due to influence of applicants, he riled direct complaint in Court. During preliminary enquiry, besides the evidence of respondent/complainant, statements of Khalid Javed, Pervez Aslam and Ali Bin Muhammad were recorded and on 18-4-1992, case was registered and N.B.Ws. were issued against applicants. Cognizance was taken by Illrd Addl. Sessions Judge, Karachi-East under section 204 of Cr.P.C. Since, according to fourth column of the Second Schedule to Cr.P.C., the offence was non-bailable, the learned Judge issued non-bailable warrants. Although the learned Judge should not have issued N.B.Ws. in the first instance, yet nothing has been shown that it was illegally done, or when such jurisdiction did vest in the trial Court, it was exercised illegally or with material irregularity. The said Presiding Officer of the Court has been succeeded by another Judge who has even framed the charge against applicants on 4-10-1992 and the case is ripe for recording evidence.

7. Because of the background of certain cases between the parties, it cannot be held that private complaint was filed by respondent without a just cause. The contents of F.I.R 166/91, the medical certificate of injuries on respondent and evidence recorded during preliminary enquiry, prima facie, made out a case against applicants. Applicants have full right under law to discredit respondent during trial and so also his witnesses. It would be premature to hold that private complaint was maliciously filed and that it needs to be quashed. This would amount to giving licence to applicants, whose other cases are pending either against respondent or his father and some others.

8. The case-law referred by applicants' learned Advocate is distinguishable and is not applicable to the facts of instant case. In the case of Zulfiqar 1982 PCr.LJ 1264, the private complaint was filed on same facts after cancellation of police report and it was held that private complaint was filed to harass and humiliate petitioner and the proceedings were quashed. In the instant case, the police report was not cancelled when the private complaint was filed. In the case of Mst. Zaitoon 1979 PCr.LJ 279, more than one local police agency found petitioner not involved in murder, the process issued against petitioner in a direct complaint was quashed as it was observed that evidence on file even if believed, did not disclose commission of offence by petitioner. In the case of Mirza Naseem Baig (1981 SCMR 315), the proceedings were quashed and in appeal, the Hon'ble Supreme Court set aside such order and observed, `The High Court, however, in the instant case, held that the case was false and concocted on the basis of credentials of the respondent without there being any material to hold so'. In the case of Javaid Hamid PLD 1991 Peshawar 121, it was observed that if on consideration of facts patent on record no crime can be formed, then to allow the proceedings to continue will amount to perpetuating the illegality. It was also observed that stage of proceedings in such a case would not be material as further continuance of the proceedings would amount to further abuse of the process of Court. As pointed out earlier, none of the cited judgment are in aid of applicants' case. The story given by the complainant does not seem implausible and as held in 1984 PCr.LJ 350, unless some evidence is recorded,' complaint E cannot be said to be baseless. In case of Ghulam Muhammad PLD 1967 SC 317, it was observed:-- "The High Court should be extremely reluctant to interfere in a case where a competent Court has, after examining the evidence adduced before it come to the view that a prima facie case is disclosed and has framed the charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence." The Supreme Court allowed appeals against orders of High Court, which had quashed the proceedings. In the case of Marghoob Alam 1986 SCMR 303, it was observed that when facts alleged in complaint prima facie disclosed commission of criminal offence, refusal by High Court to quash proceedings against accused was held unexceptionable in circumstances.

9. I do not agree with the view expressed by learned AA.-G., who supported quashment of proceedings. There is no cavil with the proposition that F.I.R. under section 154, Cr.P.C. is complementary and not derogatory to complaint under section 200, Cr.P.C. Nor can I subscribe to the view that because report to police was disposed of in `A' Class, complaint on same facts would be deemed to be malicious. Learned AA: G. has failed to explain why report to police lodged by respondent was kept pending for over six months before its final disposal. In the instant case, report was not yet disposed of when complaint was filed and reason given by respondent that due to influence of applicants his report was kept pending indefinitely is in my view not without force. A Court dealing with a private complaint has the discretion under section 202, Cr.P.C. to either inquire into the case itself or direct an enquiry or investigation to be made by a police officer for ascertaining the truth or falsehood of the complaint.

10. The upshot of the above discussion is that unless some evidence is recorded, it would be premature to hold that the charge is groundless or the complaint is based on falsehood. There is no merit in this application and the same is dismissed. The learned trial Court shall proceed with the case expeditiously and dispose of the case within 3 months. R & P of the case shall be returned immediately. N.H.Q./A-1421/K Petition dismissed