1980 P Cr (PLP)

This application for quashment calls into question the challan sub mitted by Bagarji Police Station, Sukkur in the High Court of F. C. M. Sukkur under section 307/148/149/114/323/324, P. P. C. and 13‑D, Arms Ordinance against the present 8 applicants. The relevant facts are that on 18‑2‑1972 at 10 a. m. Mohammad Parial reported at Police Post Lakhi as under :‑ "I am resident of Mari. I was granted eleven Jarebs of Survey No. 618 in Deh Sherkot, on Harap right, which was earlier granted to Ust. Khanul w/o Abdul Khaliq Pathan. Then I filed an appeal before P. D. Gudu Barrage, which awarded it to me. My opponent filed an appeal against me before the Revenue Board; Hyderabad, but the matter was decided in my favour and their appeal was dismissed. I am 'hari' on the said land. I had also engaged Nabhaho Bhambhro ‑as my 'hari'. The relatives of Mst. Khanul namely Lutifullah, Hayatullah, Mithan Khan Habibullah and Bashir Khan, have filed cases of land against me on her behalf. They have induced and won "over my 'hari' Nobhaho. I had engaged the labourers namely Phulan, Gulhassan, Ghulam Nabi and Bachal by caste Kake Pota resident of Maroo Khake Poto and that land for transplantation for three days. Today, early in the morning 1, Mohammad Hussain Bhambhro and the above mentioned labourers went to the said land for transplantation. As soon as we started the transplantation, at 06‑30 O'clock in the morning, there appeared Lutifullab, Hyatullah, Habibullah, Mithan Khan, Bashir Ahmed Pathan, resident of Mari and others namely Nebhaho, Shafoo, Ghulam Hussain Gulzar, Mir Mohammad by caste Bhambhra, out of whom, Mithan Khan, Bashir Ahmed, Hayatullah were armed with guns and Habibullah Pathan, Miro, Ghulam Hussain and Gulzar Bhambbras were armed with hatchets and the rest were with 'lathis'. Soon after their arrival, lathi fullah abused, saying why I had not given up the land. So saying he incited the aforementioned persons to attack and murder me and not to spare. Thereupon, Mithan Khan, Hayatullah and Bashir Ahmed fired guns direct at me, but I fell down in the water and was not hit. Labourer Phulan who was standing in my land, was hit with the shot and fell down. I ran away towards the bushes in the jungle and was not hit with the shot. The labourers and Mohammad Hassan Bhamhro raised cries. They ran away and I came back, and saw that Phulan had a gun shot injury on his chest and was bleeding. Mohammad Hassan and others told that Habibullah had given hatchet blows to Qamardin and Miro Bhambhro had given hatchet blows to Gul Hassan, while the rest gave lathi blows. Then I put the injured persons in the bullock cart and brought them here to lodge complaint. On account of enmity over the land, the accused .by arming themselves, fired direct shots at me, with intention to murder, and caused injuries to the labourers. Action may be taken. Another F. I. R. was lodged at the same Police Post at 3 p.m. on the same clay by Nebhaho, applicant No. 8 before me, which reads as under:‑ "I am `hari' (Cultivator) of the land bearing Survey No. 618 belonging to Mst. Khanul w/o Abdul Khaliq Pathan, in Deh Sherkot. It is about (5) acres. I am on that land for four or five years. I have transplanted paddy therein. This land is a bone of conation between Parial Bhambhro and Hayatullah Khan Pathan, and they have filed civil cases against each other. Today in the morning before sunrise, 1, my nephew Shafoo and Badar and brother Mir Mohammad had gone for transplantation, and while we were doing it, in between about 10‑0 and I1‑0 O'clock there appeared Mohammad Parial Bhambhro, his sister's son Kirir and about 10/11 unknown persons whom I shall not be able to identify on seeing of whom Mohammad Parial was armed with a gun and Kirir with a hatchet and out of the unknown persons, some were armed with guns and some with hatchets. Soon after Mohammad Parial shouted at me, to quit the land, but I refused, as I was a 'Hari'. Thereupon, Mohammad Parial fired the gun on Shafoo, which struck him and he fell down. Kirir gave hatchet blow to Mor on his head and be too fell down. We raised cries whereupon Mehrab, Osman Bhambhra and others came to whom on seeing coming, the accused ran away. Later, we saw that Shafoo had a gunshot injury in his arm‑pit and was unconscious and died a short while later. Then leaving the above witnesses with the dead body, I went to Hayatullah Khan at Sbikarpur, where he met me and I apprised him of the above incident. He advised me to report to the police. Now I appear and lodge a complaint that the above accused by forming and unlawful assembly, having armed themselves with weapons, opened fire and murdered my nephew Shafoo and caused injury to Mor. Action may be taken." The police investigated the two crimes and sent up Mohammad Parial and others under section 302/148/149, P. P. C. and 13‑D, Arms Ordinance for having caused different injuries by hatchet and fire arm to deceased Shafoo and Mor. In respect of the offences alleged to have been committed by the present applicant the police submitted summary to the S. D. M. under B Classes and on that basis the S. D. M. ordered on 8‑12‑1978 that the case be treated as cancelled class, which means that the entire proceedings against the present applicant be dropped. The complainant seems to have done nothing for about 5J years and the explanation of Mr. Abdul Ghafoor Manghi is that Mohammad Parial was in jail for about 6 years, therefore, he did not do anything, but there is no definite proof tendered before me in respect of confinement in jail. It is however correct that be was held up under sec tion 302, P. P. C. However that be Mohammad Parial moved the Chief Secretary to the Government of Sind on 10th June, 1978 for resurrection of his case against the present applicants and consequently investigation was started and a challan against the present applicant was submitted on 26‑10‑1978. Mr. Mohammad Hayat Junejo, learned counsel for the applicants has argued that the applicants are respectable persons, two of them being Advocates of this Court, and that the proceedings against them are mala fide and in any case the case which had been treated as cancelled class in 1972 should not be allowed to be continued in 1978. He has relied upon P L D 1963 Lah. 932 where 7 cases of embezzlement were quashed as the proceedings were found to be delayed by 6 years and it was found that there was no explanation of delay for 3 years from 1958 to 1961. That delay had taken place at the investigation stage. I find from that case that their Lordships impressed substantially by two factors one of which was that the co -accused in that case, who had maintained the account, had died and therefore their Lordships of the High Court were of the view that the case of the other accused had been prejudiced by delay. The other factor which had convinced their Lordships in quashing that case was that the accused had made a payment of the embezzled amount of about Rs. 77,000 which he would not have otherwise paid if the proceedings had been challaned against him in time. That case is therefore distinguishable on the facts. In this case I find that the F. I. R. of Mohammad Parial was filed earlier and the three medical certificates show that one Phullan had received lacerated fire arm wound on his chest and the pellet was shown in the chest by X‑ray, The injury was however found, simple. The other medical report shows that Qamaruddin had one lacerated wound by blunt weapon on his head and a contusion on middle finger. Both the injuries were found to be simple. The third certificate about Gul Hassan shows that he had a simple incised wound of " x quarter inches skin deep on left upper arm. But the doctor was of the view that it was a self‑suffered injury. These three injured were on side of Mohammad Parial and the present applicants had been accused to have fire guns and used hatchet against the injured. Only one injury has been found to be self‑suffered and it may be that eventually applicants may be able to show that they had the right to cause the injury upon the injured Phullan and Qamarudin or they may be able to show that Mohammad Parial ,1iid his side had exaggerated in giving the version of the incident. But till such time that it is done, I do not find sufficient reason to quash the proceedings against the applicant as they are alleged to have used fire arm upon the injured and the blunt weapon against the other. It is correct that the side of the present applicants one person Shafoo is dead by fire arm injury. But that atom is not sufficient to declare the case of Mohammad Parial as false, unless the matter has been allowed to be adjudicated in the Court. I do not want to go into the circumstances as to how the police moved for cancellation of that case because that may have to be gone into by the trial Court. Merely the fact that Mohammad Parial did not move for the resurrection of the case earlier than June, 1978 would not entitle the applicant to get the case quashed when there are positive injuries on the side of Mohammad Parial and the case is nut such that on face of it, it appeared to he false and preposterous. Mere delay is of no consequence in the present case unless any prejudice is shown to have been caused by delay. But no such prejudice is shown. The application, is therefore, rejected. Petition dismissed.