1989 PLP 862 (MLD)

Before this quashment application, the applicants had filed Criminal Miscellaneous No.5 of 1987, which was decided by me on 30‑9‑1987 with the following observations:‑ "However, there are allegations of serious nature made by the complainant against the applicants Nos. 1 to 5 and number of documents have been produced by both the parties in the above application. The copy of writ petition which was filed by the applicants before this Court challenging the re‑investigation and which was subsequently withdrawn has also been produced before this Court. In view of the conflicting versions of the parties, and the number of documents produced by them, I am of the considered view that this is a case in which it will not be appropriate for this Court to interfere at this stage in one or the other way. No doubt the powers of the trial Court under section 249‑A, Cr.P.C. and the powers of this Court under section 561‑A are co‑extensive but, it was proper for the applicants to have approached the trial Court in the first instance looking to the facts and the circumstances of the case as observed by their Lordships of the Supreme Court in the case of Mian Muneer Ahmad v. The State 1985 S C M R

257. I, therefore, direct the applicants to first approach the trial Court under section 249‑A, Cr.P.C. and to raise all the pleas which have been raised before this Court. With these observations the above application is hereby dismissed. After the dismissal of the above application, the applicants moved an application under section 249‑A, Cr.P.C. before the learned Magistrate but the same was rejected by the learned Magistrate observing as follows: "Heard the parties. I am not inclined to grant this application at this stage. I agree with the contentions of the prosecution as far as the evidence of witnesses is concerned. Let the charge be framed on the next date of hearing. Let process be issued against the rest of the witnesses. Application stands rejected as premature." The present application has been moved for the quashment of the proceedings pending before the learned trial Court. I have heard Mr. Muhammad Hayat Junejo, learned counsel appearing' for the applicants, Mr. Mubarak Hussain Siddiqui, learned counsel appearing for the complainant and I4r. M.A.I. Qarni, learned counsel appearing for the State. It has been contended by Mr. Muhammad Hayat Junejo, learned counsel appearing for the applicants that there was inordinate delay of thirty‑t4vo hours in lodging the F.I.R., that no overt act has been assigned to the applicants No&. 6 and 7 except that they had also come 'to the house of applicant No.1, that, no marks of violence were found on the person of Mst. Shaheen and Husan Bano by the Medical Officer, that the second investigation was dishonest, that the prosecution story was improbable and unreliable. Mr. Mubarak Hussain Siddiqui, learned counsel appearing for the complainant has contended that there is no allegation from the prosecution that two ladies were beaten with any weapon and, therefore, there could be no marks of violence. That the nature of offence was such that it took some time for the complainant party to lode report and to expose themselves to further humiliation. That the applicants were most influential people and were not appearing before the police. They appeared before the police only after getting bail before arrest. They had also filed a Constitution petition bearing No. C.P.D.426 of 1985 challenging their prosecution on the basis of second investigation but the same was later on withdrawn. That the case has not yet proceeded and therefore, the application was premature. However, he did not controvert the contention of Mr. Muhammad Hayat Junejo as regards the applicants Nos. 6 and

7. Mr. MA.I. Qarni, learned counsel appearing for the State has opposed the above application; on the ground that the previous application was dismissed, and there are no fresh grounds, and as such, it will not be appropriate to quash the proceedings at this stage. However, he conceded that since there was no allegation against the applicants Nos. 5 and 7, and no overt act was assigned to them, proceedings against them may be quashed. Messrs Muhammad Hayat Junejo and Mubarak Hussain Siddiqui have also referred to various reported cases with regard to principles which are to be kept in view at the time of quashment of proceedings. I have considered the contentions of the learned counsel. The F.I.R. does not show that applicant Dr. Zafarul Islam and his wife Khalique Fatima, applicants Nos. 6 and 7 had played any part in the incident. No overt act has been assigned to them and it is only stated that they had come to the house of applicant Muhammad Ali. It appears that there is nothing on record to show that they had any hand in the acts committed by the co‑accused. I am, therefore, of the A considered view that it will be an abuse of the process of the Court if proceedings are continued against them. Therefore, the application in respect of applicants Nos. 6 and 7 is allowed, and the proceedings pending against them are hereby quashed. However, as far as applicants Nos. 1 to 5 are concerned, there are allegations of serious nature made by the two ladies against them. It is an admitted position that the applicants had filed. Constitution petition before this Court challenging the reinvestigation but the same was subsequently withdrawn. There are conflicting versions and disputed questions of fact are involved in the case. The allegations are of serious nature and the case has not yet proceeded. There has been no change in the circumstances after the previous quashment application was dismissed except the fact that the applicants had moved an application under section 249‑A, Cr.P.C. before the trial Court but the same was rejected without giving reasons. In view of the above circumstances, it will not be appropriate to interfere at this stage when the case has not yet proceeded. I am, therefore, of the considered view that no case for quashment is made out at this stage. As far as the decisions relied upon by the learned counsel appearing for the parties were concerned, they were not directly relevant to the facts of the present case. Specially in view of the nature of allegations made in the‑F.I.R. The application of I applicants Nos. 1 to 5, is therefore, hereby dismissed. However, in view of the fact that the matter is very old one, the learned trial Magistrate is directed to frame charge immediately and to proceed with the case without any delay. He is directed to examine at least complainant and Mst. Shaheen within 2‑1/2 months, and thereafter the applicants can repeat their application under section 249‑A, Cr.P.C. if so advised. The accused shall appear before the learned trial Magistrate on 2‑2‑1989. Mr. Muhammad Hayat Junejo, learned counsel appearing for the applicants undertakes to inform them accordingly. I had decided the above application on 17‑1‑1989 and these are the reasons for the same. H.B.T./M‑716/K Order accordingly.