2004 P Cr (PLP)

Azeem Sarwar for Respondent No.2. Date of hearing: 7th July, 2004. Facts of this Constitutional petition are that on -a habeas corpus petition filed by the wife of the petitioner, on Court order, the petitioner was recovered by the bailiff on i4-5-2001 from Police Station Sargodha Road Faisalabad. He was found unlawfully detained there without there being any report or case registered against him. He was produced before the Court by the bailiff alongwith his report on the following day i.e. 15-5-2004 when he was set at liberty by the said Court (Sessions Judge, Faisalabad) and the petition was directed to be put up on 17-5-2004 for which date notice was already issued to the respondents.

2. On the said date Muhammad Yousaf A.S.-I. of Police Station Sargodha Road filed a report in the Court that the petitioner was arrested vide Rapat No.29, dated 14-5-2004. However, the Court disbelieved the said Rapat and held that it was fabricated to justify petitioner's illegal detention. D.P.O. Faisalabad was directed to take necessary legal action against delinquent officials.

3. A day earlier to the passing of the aforesaid order by the Sessions Judge, Faisalabad, F.I.R. No.407 dated 6-5-2004 was registered at Police Station Sargodha Road, Faisalabad against the petitioner under sections 457. 380 and 411, P.P.C. on the information of one Khadim Hussain (respondent No.2) to the effect that in the month of March, 2003 theft was committed in his shop by some unknown persons with respect to some counter-sale items of toilet, make-up hosiery and watches total value whereof was Rs.26,000 and cash amounting to Rs.4,500; that on receiving information about the recovery of such-like articles from the petitioner by the police of Police Station Sargodha Road he visited the said police station and had identified the recovered articles which were stolen from his shop. Possession of the said articles was taken by the police from the petitioner under section 550, Cr.P.C. on suspicion vide Rapt No.29, dated 14-5-2004 (referred which was disbelieved the learned Sessions Judge).

4. It is urged by the learned counsel for the petitioner that the aforesaid F.I.R. was lodged by the local police in collusion and in connivance with the complainant (respondent No.2) on the basis of Rapt No.29, dated 14-5-2004 which was held by the Sessions Judge as fabricated, on account of vengeance, mala fide and in order to save their skin from the expected legal action against them. It is further submitted that even if allegations in the F.I.R. are taken at their face value and accepted in their entirety no case is made out on the face of it, hence the F I.R is liable to be quashed. Notice on the petition was issued to the respondents. A.A.-G. appearing on behalf respondent No. 1 and Mr. Azeem Sarwar, Advocate for respondent No.2 have opposed the writ petition.

6. Arguments heard. Record perused.

7. F.I.R. in question was lodged by respondent No.2 on 16-5-2004 regarding an occurrence of theft which had taken place more than a year ago without any plausible explanation for the delay in lodging the same. Even the date of occurrence is not mentioned in the F.I.R. Articles mentioned in the F.I.R. viz. perfumes, shampoos, lotions, vests, wrist watches. make-up items and toilet soaps are all manufactured branded products which are available in the open market. Item of each category being identical is neither distinguishable nor identifiable from the other piece, hence it cannot be proved that items recovered from the petitioner were the same which were stolen from the shop of respondent No.2. The so-called identification made by the complainant (respondent No.2) after more than one year of the alleged theft regarding manufactured branded A counter-sale items was therefore, meaningless inasmuch as it cannot be established that articles in question were in fact the same which were allegedly stolen from the complainant's shop. Similar is the case with; cash. The complainant has not mentioned numbers of currency notes which were stolen, hence question of recovery of stolen money also does not arise. Rapat No.29, dated 14-5-2004 is the basis of the said F.I.R. which has already been held as false and fabricated and the circumstances in which the F.I.R. was lodged on the basis of the said report clearly reflect mala fides on the part of local police, hence F.I.R. is prima facie bogus inasmuch as from the contents thereof no offence appears to be made out against the petitioner. It is accordingly quashed. Writ petition is accepted. H.B.T./M-613/L F.I.R. quashed