1988 P Cr (PLP)

This is an application under section 439 read with sections 435 and 561‑A, Cr.P.C. moved by the applicant for setting aside the order dated 9‑2‑1986 passed by the learned Sessions Judge East, Karachi. The brief facts of the prosecution case are that the applicant filed a direct complaint against Shamshad S.I.P. Malir, Khurshed Narejo, S.H.O. Malir, and one Ch. Bashir ‑Ahmed, under sections 500, 506, 332, 384 read with section 109, P,P.C. before the S.D.M. Malir on 11‑6‑1985. On 15‑6‑1985 the statement of the applicant was recorded under section 200, Cr.P.C. and the matter was referred to C.I.A. for inquiry. The papers were returned to respondent No. 1 (S.D.M.) on 13‑12‑1985 by the D.S.P., C.I.A. Karachi, after completing the inquiry. It is alleged by the applicant that thereafter he went on contacting the respondent No. 1 who gave him an impression that he will conduct the preliminary inquiry and will provide a chance to him to lead evidence, if any, before passing any order. That he applied for copies of entire record and the same were supplied to him on 27‑2‑1986 and according to him till then no order was passed in the matter, nor it was fixed in the Court. On 2‑3‑1986 the applicant moved a transfer application before the learned Sessions Judge, Karachi, East, being T . A . No. 9 of 1986, who was pleased to give a direction to the respondent No. 1 to dispose of the matter within three months. According to the Applicant, the respondent No. 1 did not take any action in the matter till he was transferred and posted as S.D.M. Garden, and respondent No. 2 succeeded. That on 14‑6‑1986, the applicant moved another transfer application, being T . A . No. 13 of 1986 before the learned Sessions Judge, Karachi‑East, for the transfer of the said complaint to any other Court on which the learned Sessions Judge was pleased to call for comments from the respondent No.

2. That the respondent No. 2 informed the learned Sessions Judge through his letter dated 29‑6‑1986, that the complaint in question was 'filed' by the respondent No. 1 on 30‑12‑1986. The relevant order was in the following terms:‑ "There is no option but to file the papers." That the applicant moved an application under section 476, Cr.P.C. read with sections 193 and 109, P.P.C. after knowing the above facts, against respondents Nos. 1 and

2. The said application was made during the pendency of transfer application No. 14 of 1986, but learned Sessions Judge was pleased to dismiss the said application on 9‑10‑1986, therefore, this application. I have heard the applicant in person and have also gone, through the R & P of the case. The R & P of the direct complaint shows that the complaint was disposed of by the respondent No. 1 on 30‑12‑1985. The order was passed by the respondent No. 1 in his judicial capacity and the applicant has not produced any evidence, documentary or otherwise, to show that this order was not passed on the particular date. That in the earlier transfer application being T . A . No. 9 of 1986, neither R & P was called for by the ‑learned Sessions Judge nor comment were called for, and, therefore, neither the Sessions Judge could know whether the case was still proceeding, nor the respondent No. 1 knew about the transfer 'application. It was only when the second transfer application was filed and the comments were called for, the respondent No. 2 informed the learned Sessions Judge that the matter had already been disposed of. Under these circumstances, the contention of the applicant that the respondents Nos. 1 and 2 tampered with the Government records was untenable. In view of the above discussion, I am of the considered view that it was inexpedient in the interest of justice to order prosecution of the respondents Nos. 1 and 2, as prayed, and the order of the learned Sessions Judge does not call for interference from this Court, and, therefore, the same is dismissed in limine. During the pendency of the above application, the applicant moved Miscellaneous Application No. 670 of 1987, under sections 3, 4 and 5 of the Contempt of Court Act 1976, against the respondents Nos. 1 and 2 in which the allegations were the same. While arguing the main criminal revision application No. 91 of 1986 he stated that his application for contempt is also based on the same grounds mentioned in the main application. Since no new ground was urged, so far the application under the Contempt of Court Act Has concerned and in view of my above discussion on the main application, Miscellaneous Application No. 670 of 1987 stands dismissed. The above Revision application and Miscellaneous Application No. 670 of 1987 were dismissed by a short order dated 26‑4‑1987 and these are the reasons for the same. M.Y.H./H‑72/K Petition dismissed.