1970 PLP 832 (SCMR)

K. M. Subhan, Advocate Supreme Court instructed by S. M. Huq, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing : 25th June 1970. SAJJAD AHMAD, J.‑This petition for special leave to appeal against the decision of the High Court of East Pakistan (Dacca), dismissing the petitioner's application under section 561‑A of the Code of Criminal Procedure for quashment of the criminal pro ceedings initiated against him on a complaint filed by his nephew, Qazi Feroze Siddique, who is a practicing Advocate at Chittagong. Earlier, the petitioner had moved the learned Additional Sessions Judge, Chittagong, under section 438 of the Code of Criminal Procedure for referring his case to the High Court for quashment of these proceedings. which was dismissed, with the following observations :‑-- "I have gone through this petition of complaint. It is true that apparently no specific offence has been established in the complaint. In fact the contention of the petitioner was found to be true to a large measure that the petition itself does not disclose any offence against him. Only in one portion of the petition, of complaint, there is a reference to the complicity of the accused persons. This is too general an accusation." In spite of this analysis of the complaint made by the learned Additional Sessions Judge and virtually holding that it does not disclose that the petitioner is guilty of any offence be declined to refer the case to the High Court for quashment of the proceed ings, on the ground that the discharge of the petitioner accused person at that stage, was a matter of discretion with the trial Magistrate, should not be forced on him by the superior Courts. The learned Additional Sessions Judge has further remarked as follows :‑ "The petitioner is an old man and is a foreigner in Pakistan. His obvious predicament in staying in a foreign country is easily understandable. His passport has been seized and he has been forced to stay in a foreign country where he has no provision to support himself. Meanwhile his travel documents have expired. Under the circumstances, in order to ensure that he is not detained by the complainant with a view to inflict harassment upon him, it is directed that the case be disposed of by the Magistrate concerned within a period of 30 days from the date of his receipt of the case records. I am also inclined to observe that the petition of complaint does not disclose any specific charge against the present petitioner, and, therefore, the Magis trate should examine the reliability of the petitioner after examining the complaint. If after the examination of the complainant; it is disclosed that no specific case has been made out against the petitioner, he may be discharged and allowed to leave." In view of these observations of the learned Additional Sessions Judge, which we fully endorse on our own view of the case, it would have been best for the petitioner to face the enquiry before the Magistrate and to insist on his discharge. But instead he went to the High Court where also he has failed. The High Court has observed that since the learned Additional Sessions Judge has given certain directions to the Magistrate in dealing with this matter, the petitioner should move the Magistrate for his redress who will of course act in the light of those directions. We were inclined to give leave for appeal to the petitioner, because we thought that prima facie it was a fit case for the High Court for the quashment of the proceedings under section 561‑A of the Code of Criminal Procedure. According to the respondent's own allegations in his complaint the petitioner was neither present at the time of the commission of the alleged offence nor was he privy to the forging of the document, which is alleged to be the subject‑matter of the offence. In fact, it was admitted in the complaint itself that the petitioner was in India at that time. Curiously, the petitioned, is cited both as an accused and as a Witness in the complaint, which are obviously irreconcilable positions. However, we have refrained from this course in the `petitioner's interest, as this would result in the prolongation of the proceedings, the proceedings in the trial Court would have to be suspended and the hearing f the appeal by this Court, if leave granted we take at leaf six months to decide. We are, therefore, dismissing this petition. But we direct that, as ordered the learned Additional Session Judge, the learned trial Magistrate shall dispose of s ease pointed out, the corning does 'not disclose that' the petitioner has committed any offence, and, on the contrary, the allegation contained therein in fact exonerates him, it seems futile to continue with the enquiry against the petition and to prolong his suspense and harassment, unless disproving his own statement of the case, as set out in the complaint, the complaint has something up his sleeve to prove the petition guilt. But his statement must be recorded to show what it is he complainant, however, who is a lawyer, should not be permitted to debase his position to carry on what might turn out to be a malicious legal exercise against his uncle. Leave refused.