1969 P Cr (PLP)

The second respondent has filed a complaint against the petitioner which is pending in the Court of the Civil Judge and F. C. M., Dadu. The learned Civil Judge and F. C. M. has recorded the statement of the second respondent and his witnesses and the petitioner has filed this application under section 561‑A, Cr. P. C. that the proceedings against him are false and vexatious and should be quashed.

2. The facts material to this application are as follows:

On 24th October 1967, at about 12‑00 in the afternoon Anwar Pathan was stabbed and murdered by Munawar Beg, against whom a prosecution is pending under section 302, P. P. C. in the Court of Civil Judge and F. C. M., Dadu. After examining 14 witnesses, the Civil Judge and F. C. M., Dadu committed the said Munwar Beg for trial. One of the 14 witnesses examined by him was the petitioner, and in his committal order against Munawar Beg dated 20th December 1967, the Civil Judge and F. C. M., Dadu made observations against the petitioner and stated that the petitioner appeard to be an accomplice of Munawar Begin the said murder. About three weeks later, on the 11th January 1968 the second respondent, who claims to be an uncle of Anwar Beg deceased, filed a complaint under section 201/302/ 34, P. P. C. directly in the Court of A. D. M., Dadu against the petitioner. According to this complaint, the complainant was away on the day of occurrence and returned to Dadu at about 4‑00 p.m. He then learned from Rehmat Khan, Bashrat Ali, Mahmudul Hassan and Mohd. Shafi that a few minutes before the murder they had seen the petitioner give a knife to Munawar Beg who then went away, that after a few minutes they had heard cries of murder, and on hearing the cries, the petitioner ran away and thereafter they also saw Munawar Beg running away. The second respondent then went to S. H. O., Dadu Police Station and informed him about all these facts. But the S. H. O. did not take any action, therefore, he went on making representations to the Police but as the police did not institute proceedings against the petitioner, he filed a complaint in the Court of the A. U. M., Dadu which was transferred to the Court of the Civil Judge and F. C. M., Dadu. Thereafter the Civil Judge and F. C. M. Dadu examined the second respondent and his witnesses and then ordered the issue of a warrant against the petitioner under section 302/120‑B, P. P. C. The petitioner has, therefore, filed an application to quash this order and the proceedings taken against him, which has now come up for hearing before me.

3. I have observed that the Civil Judge and F. C. M., Dadu has examined the second respondent and his witnesses on the complaint filed by the second respondent. The second respondent in his examination has given evidence about the conduct of the S. H. O , Dadu in not entertaining his complaint in order to explain his delay in lodging the complaint. P. Ws. Rehmat Khan, Bashrat Ali and Mohd. Shafi have given evidence that in their presence the petitioner gave a knife to Munawar Beg, who went away, whilst the petitioner remained near the tea stall of Memon Hotel. After a few minutes they heard cries of murder and according to P. Ws. Rehmat Khan, Bashrat Ali and Mahmoodul Hassan the petitioner then ran away. P. W. Madmoodul Hassan's evidence has been slightly different, he said that he saw the petitioner and Munawar Beg together and that the petitioner gave Munawar Beg something which he could not see, then after a couple of minutes Munawar Beg went away and he came to know that Munawar Beg had stabbed Anwar Shah. P. W. Abdullah is a bus driver; he has said that shortly after the occurrence he had seen the petitioner with Munawar Beg.

4. In support of this application, learned counsel for the petitioner has submitted that the long delay by the second respondent in filing the complaint showed that the complaint was false. He has further submitted that 14 witnesses had been examined in the case against Munawar Beg and, although several eye‑witnesses of the occurrence were examined, none of them had implicated the petitioner, whilst some of the witnesses have said in evidence that the murder of Anwar followed upon a sudden quarrel between the said Anwar and Munawar Beg. Learned counsel, therefore, submitted that the evidence of the prosecution witnesses in the case against the petitioner was false and as no case had been made out against the petitioner the proceedings against him should be quashed. In support of his submission he relied on the judgment of a learned Single Judge of this Court Ghulam Qadir v. State (1968 P Cr. L J 1760). 5, The contention of learned counsel for the petitioner that the prosecution witnesses examined in the case against Munawar Beg have not implicated the petitioner is correct, but the prosecution witnesses in the case against the petitioner have not alleged that the petitioner had attacked Anwar deceased, they have only said that a few minutes before the occurrence they saw the petitioner give a knife to Munawar Beg, who went away and killed the deceased. The fact that the prosecution witnesses in the case against Munawar Beg have not implicated the petitioner is undoubtedly a circumstance which will have to be considered carefully by the trial Court in deciding whether to frame a charge against the petitioner or not. But merely because prosecution witnesses in the case against Munawar Beg have not implicated the petitioner, it does not necessarily follow that P. Ws. Rehmat Khan, Bashrat Ali, Mohd. Shafi and Mahmoodul Hassan have given false evidence. Learned counsel has taken me through the evidence of all these witnesses and submitted that the story put up by them was improbable. This is a question that will have to be considered by the trial Court, and it would not be proper for this Court to go into the question of the credibility of the prosecution witnesses. Similarly, the statement of the prosecution witnesses in the case against Munawar Beg that there was quarrel between the deceased and Munawar Beg, shortly before the occurrence is another circumstance which is relevant to the question whether the prosecution witnesses against the petitioner are speaking the truth or not. But at this stage it cannot be held that, because there was a quarrel between Munawar Beg and the deceased, therefore, the evidence of P. Ws. Rehmat Khan, Bashrat Ali and others is necessarily false.

6. Finally learned counsel has laid great stress on the delay by the second respondent in filing the complaint. Delay in filing a complaint is always a circumstance which leads to an adverse inference against the prosecution, and the longer the delay the stronger is the adverse inference. However, the second respondent has given an explanation of the delay. His explanation is that the S. H. O. had refused to entertain his complaint, therefore he had made representation to the higher authorities and it was only when these representations failed, that he filed a complaint directly in the Court of Civil Judge and F. C. M., Dadu. Learned counsel has argued that the second respondent's explanation of his delay in filing the complaint is false, because the second respondent has not produced copies of his alleged representations to the higher authorities. The failure of the second respondent to file copies of his representations leads to an adverse inference against the second respondent, but on the other hand it does not automatically follow that his explanation is false. In the result, bearing in mind the principles laid down by the Supreme Court in Ghulam Mohd. v. Mozammul Khan (P L D 1967 S C 317) about the exercise of this Court's powers under section 561‑A, Cr. P. C., it appears to me that it cannot be said on the basis of the prosecution evidence that the case against the petitioner is false.

7. However, learned counsel for the petitioner relied on a judgment of this Court reported in Ghulam Qadir v. State ‑(1968 P Cr. L J 1760) in which according to the learned counsel a prosecution was quashed under circumstances almost identical to that of the prosecution of the petitioner. The facts of that case were that the respondent in that case had lodged an F. I. R. against an accused under section 302, P. P. C. and six weeks later he had filed a complaint in the Court of a Magistrate against another accused Ghulam Qaudar and he also mentioned the names of two witnesses who had implicated the said Ghulam Qaudar. It is relevant to observe here that the respondent had mentioned Ghulam Qaudar in his F. I. R. and expressed his suspicion about Ghulam Qaudar, but he had neither named him as an accused nor mentioned the names of the two witnesses which were mentioned in his complaint in the Court of the Magistrate. Ghulam Qaudar, therefore, filed an application in this Court to quash the proceedings against him. In allowing the application Jamil Asghar, J. stated on page 1764 as follows: "It is thus clear that after he had lodged the first information report, he had come to know from Mobeen and Allah Bachayo that they had heard the petitioner asking the other accused to commit the murder, and even then he did not mention that fact before the police when he made his second statement at 6‑00 p.m. on that very day. It was only after a month and a half he woke up from a deep slumber and filed a complaint implicating the petitioner by introducing the facts related to him by Allah Bachayo and Mobeen. All this shows that he introduced these facts in order to falsely implicate the petitioner and, therefore, this evidence will not result in conviction of the petitioner. Taking all the aforementioned circumstances into consideration it will be an abuse of the process of the Court if the proceedings are allowed to continue against him."

8. The observations quoted shows that the evidence of the respondent was disbelieved, not only because of the discrepancy between the F. I. R. and the complaint of the complainant. In the instant case, the F. I. R. against Munawar Beg was not lodged by the second respondent, therefore, the judgment cited is distinguishable. Learned counsel next referred to a judgment of the Supreme Court in Haq Nawaz v. Mohd. Afzal (1968SCMR1256) in which the Supreme Court has observed as follows:‑ "The learned counsel for the appellant conceded that there was power vested in the High Court to quash criminal proceedings, if it was satisfied that a false complaint had been brought and process of Court was, therefore, being abused, not to advance the interests of justice but to subject the accused persons to unnecessary harassment. We are convinced that the present cases are of the nature and, consequently, the order passed by the learned Chief Justice requires no interference by this Court. Both the appeals are hereby dismissed." I am in respectful agreement with these observations, but the judgment cited is distinguishable. The fact of the case before the Supreme Court were that the same complainant‑appellant had filed two complaints against the accused‑respondent and before making the observations quoted, their Lordships had criticised the complaints and observed that they "contain intrinsic indications of their falsity and (that) the charges (against the accused) were in all probability groundless." Thus the proceedings against the respondent‑accused were quashed because it appeared to their Lordships that the every complaints filed against him were false. It is true that the petitioner's plea is that the complaint against him is false, because of the delay in lodging that complaint and because of the discrepancies in the prosecution evidence in the case A against him and the case against Munawar Beg. However, as I have observed, whilst learned counsel's arguments on the case against the petitioner merit careful consideration, it cannot be said per se that the prosecution evidence against the petitioner is false on account of the respondent's delay in filing the complaint or on account of the discrepancies in the evidence between the case against Munawar Beg and the case against the petitioner. It will be the duty of the trial Court to consider these arguments, and decide whether the case against the petitioner is false.

9. However, learned counsel for the petitioner apprehends that in view of his observations in the committal order of Munawar Beg dated 20th December 1967 the learned Civil Judge and F. C. M., Dadu has made up his mind about the guilt of the petitioner. If this were so it might lead to a miscarriage of justice. But in my opinion the observations of the learned Civil Judge and F. C. M., Dadu in his order of 20th December 1967 merely show that in the opinion of the learned Civil Judge and F. C. M. an investigation was required against the petitioner. These observations were made without giving any chance to hear the petitioner, therefore, it will be the duty of the learned Civil Judge and F. C. M. to consider the case of the petitioner with an open mind and without any reference to his observations against the petitioner in the order of 20th December 1967. Subject to these observations petition is dismissed. Petition dismissed.