1984 P Cr (PLP)

Mst. Maqsood Mai alias Kalsoom was allegedly abducted from the house of her husband Hafiz Wahid Bakhsh complainant a month before the registration of the present case at Police Station Muzaffargarh. During the investigation it transpired that she appeared before an A.S.I. of Multan police who took her to the Magistrate on 24th September, 1983 and requested that she may be sent to Darul Aman. The Magistrate after recording her statement sent her to Darul Aman. The Muzaffargarh police took her custody from Darul Aman on 4th October, 1983 and got her statement recorded under section 164, Cr.P.C. by a Magistrate wherein she stated that she was brought to the place of the petitioner after the abduction where the petitioner also raped her.

2. The petitioner remained unsuccessful before the Additional Sessions Judge in obtaining the relief of bail, hence this petition.

3. I have heard the learned counsel for the petitioner as well as for the State and also perused the record produced by the Investigating Officer.

4. Admittedly the petitioner is not named in the F.I.R. No doubt that an allegation of rape has been levelled against the petitioner by the abductee namely Mst. Maqsood in her statement dated 4th October, 1983. A Surprisingly she did not make any such allegation against the petitioner when she appeared before the Magistrate on 24th September, 1983 nor did she say so before the A.S.I. who had taken her before a Magistrate.

5. In the circumstances narrated above the case of the petitioner needs further inquiry as to whether he is guilty of an offence with which he is charged or not? Consequently this petition is allowed. It is directed that the petitioner be released on bail subject to his furnishing bond in the sum of Rs. 10 000 (Rupees ten, thousand only) with one surety in the like amount to the satisfaction of the A.C./Duty Magistrate,) Muzaffargarh. M. Y. H . Petition allowed 1984 P Cr. L J 2275 [Karachi] Before Z. C. Valiani, J QALANDAR ALI SHAH--Applicant versus THE STATE--Respondent Criminal Miscellaneous Application No. 134 of 1982,decided on 6th November, 1983. (a) Criminal Procedure Code (V of 1898)

S.561-A--West Pakistan Arms Ordinance (XX of 1965), S.13--Quashing of proceedings--Accused, a Zamindar and businessman coming from a respectable family allegedly apprehended with an unlicensed gun at a busy place--Police not taking independent and respectable Mashirs of arrest which were available at that place but choosing two police constables as Mashirs--Prosecution story not above board and possibility that accused might have been involved due to political enmity not ruled out--Prosecution witnesses all police officials- Conviction of accused on their evidence unlikely--Such proceedings against accused, held, abuse of process of Court in circumstances and quashed. 1979 P Cr. L J 731; 1980 P Cr. L J 407; 1977 P Cr. L J 671; P L D 1961 S C 635 and 1976 S C M R 72 ref. (b) West Pakistan Arms Ordinance (XX of 1965)

S.13-D--Criminal Procedure Code (V of 1898), Ss.103 8 561-A--Recovery of unlicensed arm--Mashirs of recovery--Police officials, held, can act as Mashirs in certain circumstances like Nakabandi at night and or in respect of arrest of people from places where no independent and respectable Mashirs are available.--[Recovery]. A. Q. Halepota for Appellant. Ch. Nazir Ahmed for the State. Date of hearing: 3rd November, 1983. Applicant abovenamed has filed the above application for quashment of proceedings pending against him under section 13(d), Arms Ordinance, in the shape of Case No.13/82, in the Court of Civil Judge and F.M. Mehar, on the facts and grounds mentioned in the memo of above petition. The learned Advocate for the applicant in support of the above application submitted that applicant is alleged to have been arrested in the town of Mehar, which is a sub-divisional headquarter and one of the most important business centres of Dadu. He further submitted, that bridge of Kokal canal on which the applicant is alleged to have been arrested at 7-15 p.m. with an unlicensed gun, is a busiest spot in the town, as the said canal passes through the middle of the town. In view of this at the time of arrest of the applicant number of persons respectable and disinterested could have been available for purposes of acting as Mashirs, but in spite of this the, police chose to pick Police Mashirs of the arrest of the applicant in utter disregard of the law laid down by various cases of this Court and others and as such the proceedings in question cannot lead to the conviction of the applicant and, therefore continuance of said proceedings would amount to abuse of the process of the learned trial Court. In support of this contention the learned Advocate for the applicant relied upon cases reported in 1979 P Cr. L J 731, 1980 P Cr. L J 407 and 1977 P Cr. L J. 671. The learned Advocate appearing for the State on the other hand submitted, that mere fact that the Mashirs of the arrest are Police Officials it is not necessary that their evidence ought to be ignored and as such it cannot be said that the proceedings pending against the applicant would not result in his conviction. In support of this contention, the learned Advocate for the State relied upon cases reported in P L D 1961 S C 635 and 1976 S C M R 72. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the F.I.R. as well as orders dated 6-2-1982 passed on applicant's application under section 249-A, Cr.P.C. by the learned trial Court. It is an admitted position, that the applicant is a Zamindar and a businessman and comes from a respectable family of Mehar town. It is also admitted position, that Mehar town is a busy town specially near the, place from where the applicant is alleged to have been arrested with un-licenced arm and as such it should not have been difficult for police to have secured two independent and respectable witnesses for such arrest. In spite of this, the police chose to make two police constable as Mashirs. It is true, that there is no bar to Police Officials acting as Mashirs in certain circumstances like Nakabandi at the nig6A time and/or in respect of arrest of people from the place where no independent and respectable Mashirs are available. However, in the present case it is an admitted position, that applicant was arrested in the centre of Mehar town at 7-15 p.m. in the evening, when availability of independent and respectable Mashirs cannot be doubted and as such in the absence of any explanation on record to show, why police chose not to select independent and respectable Mashirs from the Public, I find great force in the contentions urged by the learned Advocate for the applicant before me. The very fact, that the police avoided taking independent Mashirs for the arrest of the applicant shows, that the prosecution story is not above-board and the assertion of the learned Advocate for the applicant, that the applicant has been involved due to political enmity cannot be overlooked. It may further be noted, that applicant is alleged to have been apprehended by constables Hazoor Bux and Ghulam Mustafa, while on Patrol duty in the town and thereafter applicant was taken to the Police Station, where again the police failed to call independent and respectable Mashirs for the arrest of the applicant and for taking into possession the alleged unlicensed gun secured from him, but chose to select constable Mashooq Ali and constable Ghulam Mustafa as Mashirs for such arrest. In view of this in my opinion conviction of the applicant in respect of the alleged offence, on the basis of prosecution witnesses, who are all police officials is not possible and as such continuance of the said proceedings against the applicant would amount to abuse of the process of the learned trial Court. In this connection the case reported in 1977 P Cr. L J 671 is fully applicable to the facts of the present case. The cases cited by the learned Advocate for the State are based on completely different facts and as such not applicable to the facts of the present. Therefore, I allow the above petition and quash the proceeding pending against the applicant, in the shape of Case No. 13!82 under section 13(d), Arms Ordinance, in the Court of Civil Judge and F.C.M Mehar and discharge the bail bonds executed by him. M.Y.H Proceedings quashed.