2016 PLP 175 (MLD)

The petitioner has filed an application under section 561-A Cr.P.C. for quashing of the proceedings pending before the court of learned Additional Sessions Judge, Lahore in a Private Complaint titled "Syed Muhammad Subtain Bukhari v. Mst. Majeeda Bano etc." filed under section 17 of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979) and section 201 Cr.P.C. And, also for setting aside the order dated 11.06.2015 passed by the learned Additional Sessions Judge, Lahore while deciding an application under section 265-K, Cr.P.C., filed by the petitioner for his acquittal.

2. Brief facts of the case are that respondent No.5 Mst. Majeedan Bano widow of Mukhtar Hussain rented out the upper portion of her house, No.254-W Phase-III, DHA, Lahore to Syed Muhammad Saqlain Abbas son of respondent No.1 for Rs.19,000/- per month. In this regard a lease agreement was executed on 01.03.2011 and the same was valid for a period of 11 months commencing on 01.03.2011 till January, 2012. The tenant Syed Muhammad Saqlain Abbas stopped paying the rent since January, 2012 but continued living in the rented premises of respondent No.5 Mst. Majeedan Bano. On 22.06.2012 Syed Muhammad Saqlain Abbas vacated the premises without payment of the arrears of rent and utility bills and tried to sublet the same to someone else which was resisted by respondent No.5, on which Syed Muhammad Saqlain Abbas son of respondent No.1 lodged an FIR No.592 dated 25.06.2012 under sections 454 and 427, P.P.C., alleging that the petitioner and respondent No.5 Mst. Majeedan Bano illegally broke the locks of his rented premises and stole valuables articles from his house. The matter was investigated twice and in both the investigations, the case was found false. In this regard the Station House Officer, Police Station Defence-A, Lahore made a statement before this Court in W.P.No.22096/2012 that the FIR No.592 dated 25.06.2012 registered under sections 454 and 427, P.P.C. has been recommended for cancellation. Thereafter the complainant of the FIR approached the DIG (Investigation), Lahore for transfer of the investigation and the case was investigated by ASP/SDPO who also found the case as false. After a lapse of more than a year, a private complaint was filed by one Syed Muhammad Sabtain Bukhari/ respondent No.1/father of Syed Muhammad Saqlain Abbas complainant of the FIR who was neither the complainant of the FIR nor the tenant.

3. The main contention of the petitioner is that there has been a serious violation of the second proviso of section 7 of The Offences Against Property Ordinance, 1979. This section is reproduced as under:--

7. Proof of theft liable to hadd. The proof of theft liable to hadd shall be in one of the following forms, namely:- (a) the accused pleads guilty of the commission of theft liable to hadd; and (b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of tazkiya Al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the occurrence; Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslim: Provided further that the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of the eye-witnesses are recorded." Admittedly, respondent No.1 Syed Muhammad Sabtain Bukhari who filed the complaint before the learned Additional Sessions Judge, Lahore/ respondent No.6, is neither the victim nor he has been given any authority by the alleged victim of the case to file a complaint. The learned Additional Sessions Judge, Lahore while deciding the application under section 265-K Cr.P.C moved by the petitioner Saqib Mukhtar has not deliberated on this violation of law as laid down in Section 7 of The Offences Against Property Ordinance, 1979 and dismissed the same vide order dated 11.06.2015.

4. The learned Additional Sessions Judge, Lahore in his orders dated 10.12.2014 has summoned the accused persons in the private complaint in which the petitioner is also one of the accused persons while ignoring the aforementioned proposition of law. Reliance is placed on "Ghulam Ali v. The State" PLD 1985 SC

741. The relevant extract is reproduced below:-- "Section 7 provides that the victim of the theft or persons authorised by him should be examined before the statement of eye-witnesses are recorded. This besides being mandatory is a very salutary provision. According to all schools of thought and Fiqah unless the victim makes a claim about everything that is included in theft liable to hadd the case cannot be proved. If he declines to charge the accused the proceedings for the offence of theft liable to Hadd would be dropped forthwith. In this case the victim should have been examined as a witness in the first instance." In the case mentioned above, the accused persons were acquitted. Guidance can also be sought from "Zafar and others v. Umer Hayat and others" (2010 SCMR 1816). The relevant portion is reproduced below:-- "It is duty and obligation of the trial Court to scrutinize the contents of the complaint, nature of allegation made therein supporting material in support of accusation, the object intended to be achieved, the possibility of victimization and harassment, if any, to ensure itself that no innocent person against whom allegations are leveled should suffer the ordeal of protracted time consuming and cumbersome process of law." In the case mentioned above, the judgments of both the courts below were set aside and complaint was also dismissed.

5. In view of the above discussion, the order dated 11.06.2015 is hereby set-aside with the direction to respondent No.6/Additional Sessions Judge, Lahore to decide the application filed by the petitioner under section 265-K Cr.P.C., afresh while keeping in view the question of law that as to whether the provisions contained in section 7 of The Offences Against Property Ordinance, 1979 have been violated.

6. With above observations and directions the instant petition stands disposed of. SL/S-99/L Petition disposed of.