2013 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Through this petition under section 561- A, Cr.P.C. by invoking the inherent powers of this Court the petitioners seek setting aside of order dated 10-11-2010, whereby the petitioners were summoned to face trial in the private complaint filed by the respondent Syed Shabir Shah Gillani against Intizar and 6 others.

2. Brief facts giving rise to the filing of this petition are that the respondent filed a private complaint against the petitioners and 5 others under section 382, P.P.C. with the allegation that on 20-10-2007 at about 8-00 p.m. they cut the trees from the graveyard of Darbar Hazrat Meeran Shah which was witnessed by the complainant and two witnesses. Since the matter was reported to the police but no action was taken, therefore, a private complaint was filed. After recording the cursory statements of Syed Shabbir Hussain, Safdar Hussain and Syed Ibn-e-Ali Shah the petitioners along with others were summoned by the trial Court to face trial vide order dated 10-11-2012, hence this petition.

3. Learned counsel for the petitioners contends that the private complaint was filed just to harass, humiliate and blackmail the petitioners and others; that there is no incriminating or any corroborating piece of evidence to connect the petitioners and others with the alleged offence; that all the assertions are oral in nature; that the complaint was filed with the delay of more than two years and three months and 9 days; that no plausible justification for filing the complaint has been explained, that there is no possibility of conviction on the basis of such delayed private complaint; that the private complaint is counterblast of case F.I.R. No.276 dated 1-8-2008 under section 379, P.P.C. at Police Station Chak Baidi District Pakpattan Sharif got lodged by one of the accused persons in the private complaint against two witnesses mentioned in the private complaint for steeling trees of Rs.40,000 on the same graveyard as alleged in the private complaint; that although three persons were challaned but they were acquitted on 14-10-2011 which order has been assailed before this Court. Places reliance on State v. Muhammad Saleem Khan (2011 SCMR 863), ZAFAR v. UMAR HAYAT (2010 SCMR 1816), MST. NASREEN BIBI v. ABDUL WHAEED (2006 YLR 2934), GHULAM AKBAR v. RIAZ alias RIAZI (2006 YLR 286), MUHAMMAD FIAZ KHAN v. AJMER KHAN (2010 SCMR 105), MUHAMMAD DIN v. BASHIR AHMAD NASIR (2007 YLR 2195) and MUSHTAQ AHMAD v. AKHTAR HUSSAIN (2006 PCr.LJ 825) to argue that the complaint filed at this belated stage and that too as a counterblast is required to be dismissed.

4. Conversely, learned counsel for the respondent submits that out of all the accused persons only two have filed this petition whereas rest of five have not challenged this order and they have not been made party and after summoning order they become relevant party; that the petitioners had been filing different application before the different forum for redressal of their grievance and the complaint was filed as last resort; that the delay in tiling private complaint has been adequately explained; that the occurrence was narrated as it was without any exaggeration; that the petitioners have alternate remedy by filing application under section 249-A, Cr.P.C. for their acquittal. Prays for dismissal of this petition.

5. I have heard the learned counsel for the parties and perused the record.

6. A perusal of the complaint reveals that it was filed on 9-2-2010 of the occurrence dated 20-10-2007 at 8-00 p.m. A reference was however given to the application before the police in paragraph No.3 thereof. Although reference was also given in the statements of Syed Shabbir Hussain, Safdar Hussain and Syed Ibn-e-Ali Shah but all such applications filed to the police hierarchy are without specific date without filing copy thereof along with the complaint. Even no reference of F.I.R. No.216 of 2008 dated 1-8-2008 under section 379, P.P.C. registered at Police Station Chak Baidi District Pakpattan Sharif was given in which the respondent and his companion have been acquitted of the charges of theft of cutting trees from the graveyard. To my humble understanding, this complaint was counterblast of the above said criminal case. This Court may also take into consideration any special circumstance to arrive at a conclusion as to whether prosecution should be allowed to proceed with the case in the interest of justice when there is no possibility of conviction of the accused. Although no limitation is prescribed in criminal prosecution, yet the longer the complaint is delayed the lesser would become the chance of believing in its truth, particularly when the same was based entirely on oral evidence. To consider this aspect is obligation of the Court. Moreover the evidence is comprised of only oral assertion and no documentary proof was brought on record against the petitioners.

7. In view of what has been said above, this petition is allowed and this Court while exercising the inherent jurisdiction under section 561-A, Cr.P.C. set aside the impugned order passed by trial Court and acquit the accused from the charge. MWA/A-47/L Petition allowed.