1977 P Cr (PLP)

Jalaluddin Baloch for the State. Mohd. Ali Shaikh for Respondent No.

2. Date of hearing : 14th February 1977. By this application the applicant has sought quashment under sec tion 561-A, Cr. P. C. of proceedings which were originally initiated on 8th May, 1965, by the respondent No. 2 by filing a direct complaint under sec tions 392, 380, 352, 452 and 448, P. P. C. but which are at present pending in the Court of IIIrd Additional Sessions Judge, Hyderabad, as a result of the commitment made by the concerned Magistrate.

2. The above-said complaint had been filed by the respondent No. 2 against the applicant, his brother Abdur Rasheed and one Hamid Hassan. It was alleged that on 10th April, 1965, the respondent No. 2 and his two brothers went on their duty but on returning at about 5 p. m. he found the female members of his family standing in the street outside the house and crying. The household goods including boxes, etc, were also scattered. On enquiries he was informed that the applicant and his two co-accused had entered the house and taken out the articles and thrown on the street. They had broken the locks and taken away cash and ornaments. They had also assaulted and beaten the ladies. Witness Bashir Ahmed Khan, Mohammad Aslam and Abdul Sattar had seen this incident. He approached the police and the ladies were sent to Civil Hospital for treatment. However, it transpired that the police authorities were not taking necessary steps and he was constrained to file a direct complaint.

3. In the present application, the applicant has claimed that house bearing No. E/39-281-A had been transferred to him and three others by the Settlement Department in the year 1960 whereafter ejectment proceedings had been filed against the respondent No. 2 by filing Suit No. 1476/61. Ejectment of the respondent No. 2 was ordered in that suit and in the year 1965 the bailiff of the Court handed over the possession of the same to the applicant, which was in execution of the order of the Civil Court. However, the respondent No. 2 concocted a false case against him and his relations by filing the direct complaint on 8th May, 1965, which is the subject- matter of this application. The property i.e. house bearing No. E/39-281-A continued to be the subject-matter of dispute between the parties and according to the applicant many cases, civil as well as criminal had been filed between them since 1965. In this regard reference was made to Writ Petition No. 526/69 which accord ing to the applicant had been decided by this Court on 28th April, 1976 in favour of the applicant.

4. The main contention raised before me by Mr. Habib-ur-Rashid, learned counsel for the applicant was that of delay that had taken place in the proceedings resulting from the above-said complaint. This delay, in fact, was for a period of more than ten years from the date of the filing of the complaint. But the fact remains that the case had been committed to the Court of Session after completion of the committal enquiry by the Magistrate. The learned counsel has not produced the committal order nor hat it been challenged in the present application or at any time before, on the other hand, a certified copy of the statement dated 20th August, 2976, filed in this case by the Assistant Public Prosecutor has been pointed out by Mr. Mohammad Ali Shaikh learned counsel for the respondent which shows that the prosecution had closed their side. An order of the IIIrd Additional Sessions Judge dated 110th November 1976, as also been pointed out by the learned counsel for tire respondent which had been passed on an application made by the present applicant expressing their inability to give any statement under section 342, Cr. P. C. on account of the proceedings pending in the High Court. The order of the Additional Sessions Judge shows that he adjourned the matter as the applicant and others refused to give any statement, although the prosecution had closed their side. These two orders would show that even the case in the Court of Session had already been concluded so far as the prosecution is concerned, and it was its last stage when only the statement was to be made by the applicant, defence witnesses to be examined, if so desired. The applicant has not produced any evidence recorded in the Court of Committal Magistrate or the Court of Session for consideration in the present proceedings. It is true that the proceedings Lave taken a very long time to reach the stage where they are now but that in itself cannot be a valid ground for quashment of the proceedings, particularly when the case was complete and could be decided by the Court where it is pending. The proceeding have not been attacked on the ground that no case is made out from the evidence that has been recorded. If that was so, the evidence could have been produced in this Court. Even in the application itself such a ground has not been taken. The allegation is that the complaint is a concoction and the whole story of the prosecution case is a false story. But this allegation cannot be looked into and any decision taken in absence of the full facts being placed on record and appreciation of the same done, which I am afraid, will not be function of this Court, particularly in exercising the powers under section 561-A, Cr. P. C. Proceedings could be quashed if it could be shown on the basis of facts proved or admitted that in fact no offence is made out or that continuing with the proceedings would amount to abuse of process of the Court. Such is not shown to be the case. In these circumstances this application appears to be misconceived and is dismissed as such. Petition dismissed.