2006 P Cr (PLP)

M.A. SHAHID SIDDIQUI, J.

Wali Muhammad and his four sons namely Muhammad Anwar, Muhammad Rafique, Muhammad Aslam and Muhammad Ashraf, all petitioners, through this petition under section 561, Cr.P.C. have prayed for quashing the proceeding in case F.I.R. No.332 of 2001, dated 10-6-2001, Police Station Ghulam Muhammadabad Faisalabad for offences under sections 451/452, 354/427, P.P.C.

2. Prosecution's case as per the F.I.R. is that on the night between 9th and 10th of June, 2001 Muhammad Saleem son of Wali Muhammad, petitioner, entered into the house of Zahid Sarfraz, complainant, and caught hold of the complainant's sister Zaida on her cot attempting to commit Zina with her. She raised hue and cry which attracted Jaffar Ali and Muhammad Yasin, P.Ws., from the neighbourhood who caught hold of Muhammad Saleem. The allegation against the petitioners is that in the meantime, they also entered into the house by breaking open the door and rescued Muhammad Saleem. The matter was reported to the police on the following morning at 8-15 a.m. After completion of the investigation the S.H.O. submitted his report under section 173, Cr.P.C. against all the six accused nominated in the F.I.R.

3. At the commencement of the trial the learned trial Court formally charge-sheeted the accused jointly for the offences under section 427/452/451/354/148/149, P.P.C. on 11-10-2001 but the learned trial Court has not yet recorded the statement of even a single witness. The petitioners moved an application under section 249-A, Cr.P.C. seeking their acquittal, which the learned trial Court dismissed on 3-10-2005 solely on the ground that the petitioners had been found guilty during the investigation of case and that the fate of the case cannot be determined without recording evidence. Hence this petition.

4. I have heard the learned counsel for petitioners and have gone through the record appended with the petition with the assistance of the learned counsel appearing on behalf of the State. A plain reading of the F.I.R. shows that they petitioners had arrived at the spot after the apprehension of Muhammad Saleem, accused, and arrival of the P.Ws. There is no allegation that they entered the house in order to commit an offence. They have been charged jointly with Muhammad Saleem for the offences under sections 354/451/452/427/148/149, P.P.C. Entry of the petitioners after the entry of P. Ws. into the house of complainant simply shows that they wanted to rescue Muhammad Saleem from the clutches of the complainant party. The petitioners have been facing the agony of trial simply because they happen to be the father and brothers of Muhammad Saleem. The learned trial Court while dismissing the application of petitioner under section 249-A, Cr.P.C. omitted to consider the facts of the case and incriminating material available on record in the form of statements under section 161, Cr.P.C. In view of the close relationship of the petitioners with the principal accused Muhammad Saleem, they appear to have been falsely implicated in this case. There is no possibility of their being convicted of any offence. They have been exposed to the rigours of trial for more than four and half years without any lawful justification which amount to abuse of process of law. I, therefore, accept this petition and quash the proceeding to the extent of the petitioners.

5. Before parting with this judgment I would like to observe that the charge-sheet, dated 11-10-2001 has not been framed in accordance with law. The learned trial Court shall proceed against Muhammad Saleem, accused alone and frame a fresh charge for such offence separately under different heads as provided under section 235, Cr.P.C. H.B.T./W-20/L Petition accepted.