P L D1952 Baluchistan 42 (PLP)

R. K. M. SAKER, J. C.‑This is a revision petition under the provisions of section 561‑A Cr. P. C. from the two accused‑applicants Miss Verma and Miss Minhas with a request to set aside the order of the District Magistrate, Zhob in which he has taken cognizance of a case against both of them for an offence alleged to have been committed under the provisions of section 409, P. P. C. The grounds for this petition are very briefly that the two accused‑applicants are being unnecessarily harassed and that in order to prevent an abuse of the process of the Court and to secure the ends of justice the petition should be accepted and that the proceed ings against the accused applicants should be stopped. Learned counsel for the applicants has argued that this is a case designed entirely to harass the two applicants and he draws my particular attention to the fact that the Senior Superintendent of Police in Baluchistan had recommended to the learned District Magistrate that the case should be filed as being untraced. On behalf of the Crown the learned Public Prosecutor argues that even though the Police have made the above recommendation the learned District Magistrate was at liberty to take cognizance in accordance with the provisions of section 190 (c), Criminal P. C., namely that he could take cognizance upon his own knowledge or suspicion that some offence had been committed. I do not, for a moment, propose in this order to doubt that inherent discretion vests in any Magistrate to take cognizance of a case in accordance with the provisions of section 190, Criminal P. C. even though the Police, after investigation, may have reported to him that there is no case for prosecution and that it should be filed as being untraced. Very briefly the circumstances of this case are as follows:‑ A case under section 380, P. P. C. was registered by the Police on 14th June 1951 on receipt of a letter from Mr. S. M. A. Bukhari, Civil Surgeon, Zhob/Loralai, intimating that Midwife‑Zardalo had informed him that Miss Verma, who had resigned from office, had taken away certain Government stores at the time of vacating her quarter. Mst. Zardalo was examined by the Police but she denied any knowledge of the affair of having given any such information to the Civil Surgeon. The Police, however, searched the house of Miss Verma from 10 p. m. (14th June 1951) to 1‑30 a. m. (15th June 1951) but nothing was recovered except one emergency bag, containing some medicines, the possession of which was admitted by Miss Minhas. Another part of the same house was searched on the evening of 15th June 1951 but again nothing incriminating was recovered. The days after this i.e., on the 25th June 1951 the Police received information from some undisclosed source that certain medicines were in a store room, belonging to one Saleh Muhammad. A search warrant was obtained from the E. A. C. and Magistrate 1st Class, were sealed and the search was made on the morning of 26th June 1951. Saleh Muhammad was not present and his wife could not produce the key of the room and so the Police forced entry and recovered six sacks of medicines. Some letters of Miss Verma were found in the sacks. The Civil Surgeon witnessed the search and the recovery, though by that time he had not given a list of missing articles. Ten days after this recovery Saleh Muhammad made a statement that the house had been rented out to Miss Verma from 18th June 1951. Saleh Muhammad, Miss Verma and Miss Minhas were arrested and released on bail on the 5th July 1951. On the 20th July 1951 Saleh Muhammad produced the key of the room, saying that he had obtained it from Miss Verma. I have perused with considerable care the report upon this case by the S. S. P. in Baluchistan which is reproduced below and which discloses the grounds on which he recom mends that the case should be filed as. untraced against the accused‑applicants. "* * * In the following paragraphs of the letter I set forth in full my reasons for these opinions and would request that this letter be considered as a supplement to the Final Report submitted under section 173, Cr. P. C.

4. The case against Miss Verma is that (1) the recovered medicines had been entrusted to her, (2) she had dishonestly removed them, that is, misappropriated them and (3) they had been recovered from premises rented by her. The first two items must have taken place on or before the 21st January 1951 when' Miss Verma left her post and proceeded on leave. On that date she handed over charge to Miss Minhas who reported no shortages. On the 9th May 1951 Miss Minhas handed over charge to Mrs. Bukhari (wife of the Civil Surgeon complainant) who had been appointed Lady Doctor of the Zanana Hospital. Mrs. Bukhari certified in her charge report that all the hospital medicines had been correctly accounted for and nothing was short. No stock register was being maintained in the Zenana Hospital before the 18th February 1951 when Miss Minhas opened one and entered therein the stocks apparently on charge on that date. All this goes against the case on the first two charges which rest mainly on a very rough "issue list" dated the 3rd January 1951 combined with the recoveries. This "issues list" is of certain medicines, etc., allegedly given to Miss Verma, but it is so over‑written with changes in figures, etc., as to make it of little value as a prosecution exhibit. Its value is further destroyed, and suspicion in regard to over‑writings, etc., increased by the following factors (a). The Hospital Head Clerk states that in fact all the items in the list had not been issued to Miss Verma on the 3rd January but that some had been issued later but when, he cannot say, (b) it was not produced by the Civil Surgeon until the 3rd July 1951 after he had witnessed the search and recovery on the 26th June, (c) the very serious irregularity committed in having the complainant (Civil Surgeon) as a witness to the recovery when by that time he had not furnished any detailed list of the missing property, (d) The Civil Surgeon's inability despite Police requests to furnish any detailed list before the 3rd July and his failure to produce before that date 'the stock register opened by Miss Minhas. (e) In some cases stock entered by Miss Minhas on 18th February 1951 exceed those in the "issue list". (f) where the stocks as entered on 18th February 1951 are less than those in the "issue list" the possibility cannot be excluded of consumption between the 3rd January 1951 and the 18th February 1951, and (g) among the recoveries there are more than a hundred items which have not been shown to have been issued to Zenana Hospital. Miss Verma's renting of the bhoosa room from Saleh Muhammad is dependent on (a) Saleh Muhammad's oral statement, (b) Khuda Dad's oral statement, and (c) .the pro duction of a lock and key. Saleh Muhammad's oral statement is of little value since he is a co‑accused, and this more particularly so when it was made for the first time on the 5th July 1951, and when during the search on the 26th June Saleh Muhammad's wife had made no mention of the renting of the premises. Whatever little value the statement might have, has been destroyed by the fact that on the 16th July Saleh Muhammad was produced before the E. A. C. Fortsandeman and his statement was recorded under section 164, Criminal P. C., on oath. The recording of the statement on oath, and the fact that the statement implicates only Miss Verma in regard to renting the room, means that Saleh Muhammad was produced and examined as a witness although he was an accused, this being illegal procedure. Khuda Dad is believed to be a relation of Saleh Muhammad and this alone goes against the value of his statement as prosecution evidence. Further, in the same statement he himself says that on the evening of the 26th June, that is shortly before the room was sealed, he had taken out bhoosa from the room and that time did not see the six sacks of medicines. The manner of production of the key is too crude to be even offered as evidence. When the Police forced entry on the 26th June they did not take into possession the lock etc., this being a serious and irregular omission. When Saleh Muhammad was examined on the 5th July he made no mention of who had the key. In his above mentioned state ment before the E. A. C. Saleh Muhammad claimed to have forcibly recovered the key from Miss Verma. Four days later, that is on the 20th July Saleh Muhammad produced to the Police a lock and key saying that the former had been the one on the room into which the Police had forced entry on the 26th June and that the latter had been obtained from Miss Verma. There remain the few letters, etc., of Miss Verma alleged to have been found in the sacks. Why she should put them there is difficult to understand. In any case in view of the facts as stated above it does not seem possible to rely on this piece of evidence alone to establish that the sacks were in Miss Verma's possession.

5. The case against Miss Minhas is that of the recovery of the emergency bag in the search on the night of 14th/15th June and a few alleged shortages in the stock register started by her on 18th February 1951. Miss Minhas stated that she was permitted to keep the bag for use on night work or in other emergencies. No immediate enquiry was made from the Civil Surgeon (complainant) to find out whether or not this was true. On the 3rd July, however, he stated that Miss Minhas could not keep the medicines in the bag. But on the 14th July 1951, Dr. Jaffar of the Civil Hospital, Quetta, and formerly Civil Surgeon, Fortsandeman was examined on this point and he said that as Miss Minhas was then in charge of the Zenana Hospital she had permission to keep this emergency bag and its contents. It there be any irregularity in Miss Minhas keeping this bag it seems to me that it calls for departmental action and not a criminal prosecution, particularly in view of the conflicting statements of the two doctors. As regards the few alleged shortages in respect of medicines, etc., issued to her in February there are against, the prosecution (a) Mrs. Bukhari's charge report referred to in paragraph 4 and (b) the fact that here again a statement of the shortages was not produced by the Civil Surgeon (complainant) until after he had witnessed the recoveries." On the other hand, in reply to this reference the learned District Magistrate has commented as follows :‑ "

2. I have reconsidered the case carefully and gone through the Police file again. I maintain that this is a fit case to take cognizance of under section 409, Pakistan P. C. The following further cogent grounds warrant the trial of the case in a competent Court of law:‑ (1) Saleh Muhammad's own statement dated 16th July 1951, on solemn affirmation before the Assistant Political Agent and Magistrate 1st Class, Zhob, saying that the room in question from which the medical stores were recovered was rented to Miss Verma through her servant named Khudaidad for the storage of bhoosa for Rs. 3 per mensem. (2) Statement of the aforesaid Khudaidad before the Station House Officer, Fortsandeman dated 18th July 1951, saying that Miss Verma used to keep the key of the room in question from which the medicines, etc., were recovered and where bhoosa was stored was rented by Saleh Muhammad to Miss Verma for Rs. 3 p. m, (3) As stated in penultimate portion of Para. 2 of the memorandum under reference, the Civil Surgeon Zhob/ Loralai was no doubt a witness of the search and recovery and could not furnish any list of the missing property up to that time but his failure to do so cannot be treated as a bar to pursue the case further. (4) The Civil Surgeon's certificate dated 25th June 1951, attached to inventory, confirms that all articles mentioned in the certificate belong to Government, the point as to how these medicines, etc., found their way into the room, from which they were recovered by the Police, can be thrashed out by further inquires. (5) The Inventory shows that 30 items of medicines were recovered the same night from a Hospital bag when the report was lodged by the Civil Surgeon, Zhob/Loralai. This bag was found lying with other articles belonging to Miss Verma in Pir Baghdadi's house. Most of the articles so recovered are the same as reported by the Civil Surgeon. Apart from this one tin of vaseline bearing a label of Medical Stores Bombay and 2 bottles containing medicines were found concealed in a water pipe. Further inquiries may reveal from where these articles were obtained and by whom. (6) In last sub‑para of Para. 4 of the memorandum under reference it is stated that the few letters, etc., (including certificates of Miss Verma and her photographs) alleged to have been found in the six sacks of medical stores were recovered by the police and it was difficult to understand why Miss Verma should have put them there. This may be clarified by further inquires. (7) It is alleged that no proper record of the stores was maintained by Miss Verma for years. This may have some bearing on the recovery of six bags of medical stores from a room alleged to have been rented by Miss Verma. (8) Saleh Muhammad implicates Miss Verma by alleging that she was the tenant of the room from which the medical stores were recovered whereas Miss Verma involves Saleh Muhammad saying that the stores were recovered from a house belonging to Saleh Muhammad. This is a point for the Court to deal with and find out as to who is the real culprit.

3. I do not agree with the presumption that these so‑called irregularities by the Police would necessarily vitiate the trial as somehow or the other the police has been successful in recovering Government medical stores worth a considerable amount. In these circumstances I am referring the case for disposal to the Assistant Political Agent and Magistrate 1st Class, Zhob". In effect there are therefore two conflicting opinions before me as to the case against the accused‑applicants and while I do not propose to adjudicate upon either of these opinions as being correct or otherwise, I will confine my order solely to the question of whether this is a case of harassment and whether, in the ends of justice, the proceedings against the accused should be quashed. In this connection my attention has been drawn to a ruling namely A I R 1932, Pat. P. 72 ,in which it was held that ordinarily if the Magistrate has ordered an accused to be tried, the trial must proceed. But when the High Court is satisfied that an accused is being prosecuted without there being any material before the Magistrate for his prosecution, it will be abdicating its function if it did not‑ interfere to stop patent 'injustice calling for a prompt redress". In all the circumstances of the case before me I am of the view that it is analogous to the Patna case. The fact remains that it is normally the duty of the police to investigate and prosecute cases of a cognizable nature. If the police, for sound and. valid reasons, consider that there is no case for presentation to a Court, it should follow as a matter of course that a Court would not normally take cognizance of such a case against the advice of the Police. There is of course no such bar to any Magistrate taking cognizance, for occasions might arise in which evidence or information no: available to the police might be available to the Magistrate; in which event the Magistrate would be at liberty to take cognizance in accordance with the provisions of section 190, Criminal P. C. It will be clear from these proceedings that after the Magistrate had taken cognizance the police will not proceed to prosecute and while it is not for me to anticipate events 'which might occur if the trial of the accused‑applicants' were to continue, I consider it is most likely that the trial Court will be faced with very considerable difficulty in finding any prosecu tion evidence upon which it could proceed. However that may be, I must carefully weigh the provisions of section 561‑A, Criminal P. C., to see whether the polders conferred upon me by this section should be exercised. This section is divided largely into three parts : the first being to confer powers upon the Court to give effect to any order under the Criminal Procedure Code, secondly to prevent the abuse of a process of any Court ; and thirdly otherwise to secure the ends of justice. The section is operative only to deal with cases not covered by any other express provision of the Code. In this case therefore it is clear to me that if I were to accept the petition, there is no other provision of the Code which would allow me to quash the proceedings. While the first part of the section is not applicable to the case before me, the second and third portions of this section are applicable. It has been held that a process of a. Court means anything which is done by a Court and abuse of that process is committed by starting a proceeding which is wanting in bona fides and is frivolous, vexatious or oppressive. The powers of this Court to make use of section 561‑A, Criminal P. C., to secure the ends of justice, though very wide, will normally be sparingly used. These powers are, however, inherent and where circumstances indicate that there is a patent case of injustice this Court will undoubtedly interfere at any stage at which the case in question has been reached. Another general principle governing the powers conferred upon this Court by section 561‑A, Criminal P. C., is that the Court is at liberty to interfere at an interlocutory stage of a criminal proceeding and it has been held that one of the tests to be applied is to see whether in the admitted circumstances of the case it would be a mock trial if the case is allowed to proceed. In my view the entire circumstances of this case disclose that the accused‑applicants are undoubtedly being harassed. The manner in which, in its initial stages, this case was investi gated by the police leaves much to be desired, though ultimately for the reasons stated in the Senior Superintendent of Police's report, the most senior Police Officer in the Province himself came to the conclusion that there was no case against the two accused‑applicants to be placed before a Criminal Court. Despite this categoric opinion expressed by the Senior Superintendent of Police the District Magistrate has taken cognizance of the case for reasons stated in his order which has been reproduced above. I cannot but come to the irresistible conclusion that this is a patent case of harassment and that it will be in the ends of justice to direct that the proceedings against the accused‑applicants are immediately quashed. There is strong logical reasons given in the report by the Senior Superintendent of Police that even if the accused are prosecuted the case against them will fail. I am there fore of the view that in the event of the case proceeding the trial will be nothing more than a mockery and that the applicant will ultimately be discharged or acquitted. In the light of this reasoning, it will certainly not be in the ends of justice to allow a trial of this nature to take place when it will end in discharge or acquittal of the accused applicants Accord ingly in exercise of the powers conferred upon me by section 561‑A, Criminal P. C., I direct that the proceedings will be quashed. The accused‑applicants, if on bail, will immediately be released from their bail obligations. A. H. Proceedings quashed.