Re-Investigation could not be debarred after submission of Challan

PLJ 2011 Lahore 545
[Rawalpindi Bench Rawalpindi]

Present: Hassan Raza Pasha, J.

MEER DAD--Petitioner

versus

INSPECTOR GENERAL POLICE--Respondent

W.P. No. 1406 of 2010, heard on 23.4.2010.

Police Order, 2002 (22 of 2002)--

----Art. 18(6)--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Recommended for re-investigation--Change of second investigation was approved--Challenge the legality and validity of order--Recommendation of P.S.B were approved by I.G. Police and investigation was entrusted (RIB)--Question of--Whether Police authorities were empowered to initiate re-investigation of the same crime for which they had already filed report u/S. 173, Cr.P.C.--Validity--Under Art. 18(6) of Police Order, the law bestows a power on duly constituted board to recommend for re-investigation and if the Board recommended for re-investigation of the case then even after submission of the challan the re-investigation could not be debarred--Petition was dismissed.         [P. 550] A

Duty of Investigating Officer--

----Administer justice--To collect all the relevant evidence pertaining to allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the Court to administer justice between the parties--Held: An investigating officer is not to render any opinion regarding guilt or innocence of an accused person and statutory provisions contained in Cr.P.C. Police Order and Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report before the magistrate so that magistrate can form their own independent opinion regarding sufficiency or otherwise of the evidence and material order to decide whether to take cognizance of offence or not to summon any person to face a trial.            [P. 550] B

PLD 2002 Lah. 470, rel.

Constitution of Pakistan, 1973--

----Art. 199--Police Order, 2002, Art. 18(6)--Constitutional petition--Change of second investigation--Submission of subsequent challan--Not barred--Discretion of Court to admit additional evidence--Alternative remedy--Validity--Holding of successive investigations were deprecated by the Court with intent to avoid undue lingering on the case--How a subsequent challan which almost was completed for submission in the Court of competent jurisdiction can be withheld or brushed aside--Even submission of subsequent challan was not debarred under the provisions of Cr.P.C.--It was entirely discretion of the Court to admit additional evidence if the cognizable of the case submitted to it by the police has already been taken--Complainant can avail an alternative remedy of filing a private complaint--Petition was dismissed.    [P. 551] C

Raja Rizwan Abbasi, Advocate for Petitioner.

Syed Zafar Ali Shah & Syed Ali Shah Bukhari, Advocates for Respondents.

Mr. Abdul Wahid Babar, AAG for State.

Date of hearing: 23.4.2010.

Judgment

Through this constitutional petition, the petitioner has challenged the legality and validity of order dated 14.1.2010 passed by Inspector-General of Police Punjab, Lahore-Respondent No. 1 whereby "second change of investigation" was approved and investigation of the case was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police, Investigation Branch Punjab.

2.  Brief facts of the case, giving rise to the filing of this petition are that the petitioner got registered F.I.R. No. 140 dated 9.4.2009 under Sections 302, 324, 427, 148, 149 PPC read with Section 7 Anti Terrorism Act at Police Station Murree District Rawalpindi with the allegation that on 9.4.2009 at 5.30 p.m. petitioner along with his brother Arshad, Muhammad Irfan and Rashid Sarwar, a taxi Driver were taking tea at Hotel Express Way situated in the area of Samli Bera and were waiting for Faisal to receive money. Imtiaz Bhola, owner of the hotel was also present there. In the meanwhile, Naseer Mehfooz, Waheed Mehfooz, Bashi Khan along with some other accused person came there on one Parado, one double cabin and two corolla cars. They alighted from the vehicles and started indiscriminate firing with their respective weapons and started demolishing the hotel. When Arshad forbad them not to demolish the hotel. Naseer Mehfooz fired a shot with Kalashnikov which hit him on his mouth who fell down and succumbed to the injuries at the spot. Waheed Mehfooz also fired a shot with Kalashnikov which hit on right wrist of Rashid Sarwar-Driver who fell down. Thereafter the accused while boarding the vehicles left the place of occurrence.

3.  Learned counsel for the petitioner submitted that after submission of challan before the trial Court the Inspector-General of Police could not transfer the investigation of the case. Learned counsel has argued that superior Courts have many a times disapproved the practice of successive investigation, thus action of Respondent No. 1 being a nullity in the eyes of law is liable to be quashed. Further argued that after Ist change of investigation, the investigation was conducted by the Superintendent of Police and now the investigation was entrusted to the Deputy Superintendent of Police. This fact smacked of mala fide on the part of the police. The act of Respondent No. 1 is nullity in the eyes of law and that the accused party is very much influential and the investigation was transferred to the Deputy Superintendent of Police by giving special task to favour the accused party. Learned counsel further argued that the purpose of the investigation is to collect evidence, which has already been collected and, therefore, no useful purpose would be served by further delaying the matter. In support of his submission, the learned counsel has relied upon Muhammad Nasir Cheema v. Mazhar Javaid and other (PLD 2007 SC 31).

4.  Learned counsel for Respondents No. 5, 6 & 7 as well as learned Assistant Advocate-General, have submitted that there is no statutory bar for the police authorities to embark upon investigation of the case even after submission of complete challan, that the petitioner has only challenged the order dated 14.1.2010 for 2nd change of investigation. He has not challenged the recommendations of the Provincial Sanding Board; that the policehas only to collect evidence far and against of either party and the trial Court will decide regarding the innocence or guilt of the accused; that the police can investigate the matter at any stage of the trial on the availability of fresh material and evidence. They have relied upon Ashiq Ali v. Deputy Inspector-General of Police, Punjab, Lahore and 4 others (2009 PCr.LJ 830), Javaid Iqbal v. Additional Inspector General of Police, Lahore and 4 others (PLD 2008 Lahore 488), Muhammad Naseem v. S.H.O. Police Station Thikriwala, District Faisalabad and 2 others (1997 MLD 1555) and Saddar Din v. Deputy Inspector-General of Police (Investigation), Capital City Police, Lahore and 6 others (PLD 2009 Lahore 585) Muhammad Yousaf v. The State and others (2000 SCMR 453).

5.  I have heard the arguments of learned counsel for the parties and have gone through the record carefully. After registration of the case, the investigation was conducted by the S.H.O. who arrested Muhammad Pervez alias Bashi Khan and challaned to Court whereas Naseer Mehfooz and Waheed Mehfooz accused were declared innocent by the local police. The complainant feeling aggrieved of the investigation carried out by the local police applied to the C.P.O. Rawalpindi for Ist change of investigation and investigation was entrusted to Regional Investigation Branch (RIB) Rawalpindi Region, Rawalpindi. During investigation, conducted by Regional Investigation Branch Rawalpindi, both the accused namely Naseer Mehfooz and Waheed were found guilty. Being dissatisfied with the investigation conducted by Regional Investigation Branch Rawalpindi, an application was moved on behalf of Naseer Mehfooz and Waheed Mehfooz for 2nd change of investigation. Upon the said application a Provincial Standing Board comprising of Deputy Inspector General of Police. Investigating Branch Punjab (Chairman), Senior Superintendent of Police Investigating Branch Punjab (Member) and Deputy, Superintendent of Police Investigating Branch Punjab was constituted under Provisions of Article 18(6) of Police Order, 2002. The Provincial Standing Board recommended the above said case for 2nd change of investigation on the following grounds:--

(i)         As per report of complainant Meer Dad, he along with his brother Arshad Ali, Muhammad Irfan and Taxi Driver Muhammad Arshad were sippling tea at a Tea Stall on main road Murree and waiting for their friend when the accused Muhammad Pervez alias Bashi Khan, Waheed Mehfooz and Nasir Mehfooz along with some other persons came on cars and jeeps, made indiscriminate firing and started demolishing the tea stall. Arshad forbade them to do so on which Nasir Mehfooz fired at Muhammad Arshad killing him at the spot, Waheed Mehfooz fired at Rashid Sarwar injuring him seriously;

(ii)        The local police arrested Muhammad Pervez alias Bashi Khan sent him to judicial lock up and challaned him. The other two accused were declared innocent on the basis of their alibi.

(iii)       During investigation of RIB, the I.O. belied the alibi of two accused, held them guilty, arrested them and sent them to judicial lock up without recovery as the Court declined to remand the accused further.

(iv)       It has been noted that there is difference of opinion between local police and RIB regarding innocence/guilt of two accused.

(v)        There is no solid motive brought on record against the deceased.

(vi)       The owner of tea stall who was witness to the occurrence resiled from his stance.

(vii)      The I.O. also could not trace the accused other than nominated in the F.I.R.

6.  The recommendation of the Provincial Standing Board were approved by the Inspector-General of Police Punjab and the investigation was entrusted to Mr. Liaqat Ali Deputy Superintendent of Police, Investigation Breach Punjab. The main grievance of the petitioner is that the re-investigation of the case is motivated. The pivotal issue in the field is whether the police authorities are empowered to initiate re-investigation in respect of the same crime for which they have already filed report under Section 173 Cr.P.C.

7.  To resolve the present controversy the provisions of Article 18(6) of the Police Order, 2002, is reproduced as under:

"18(6)  Investigation shall not be changed except after due deliberations and recommendations by a Board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendent of Police, one being incharge of the investigation of the concerned district:

Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation:

Provided further that the second change or investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."

8.  Under Article 18(6) of the Police Order, 2002, the law bestows a power on the duly constituted Board to recommend for re-investigation and if the said Board recommends for reinvestigation of the case then even after the submission of the challan the re-investigation cannot be debarred. The job of an Investigating Officer, is thus only to collect all the relevant evidence pertaining to the allegation levelled regarding the crime in issue so as to dig out the truth enabling and facilitating the relevant Court to Administer Justice between the parties. I may clarify here that an Investigating Officer is not to render any opinion regarding guilt or innocence of an accused person and under the relevant statutory provisions contained in the Code of Criminal Procedure, 1898, the Police Order, 2002 and the Police Rules, 1934 he is only to collect all the relevant evidence and to submit his report before the relevant Magistrate so that the Magistrate or the trial Court can from their own independent opinion regarding sufficiency or otherwise of the evidence and material in order to decide whether to take cognizance of the offence or not to summon any person to face a trial. Reliance is placed on Khizar Hayat and others v. Inspector General of Police Lahore and others (PLD 2002 Lahore 470).

9.  Nevertheless, the re-investigation of a case after submission of the challan cannot be debarred. Reliance is paled on "Atta Muhammad v. Inspector General of Police" reported in PLD 1965 Lahore 734, wherein it has been held as under:

"There is no statutory prohibition in the Code of Criminal Procedure for the police not to embark on a fresh investigation of the case after the conclusion of the first and the submission of the final report whatever the defects in the first investigation or the flaws in the final report given in the wake of it, that might subsequently be detected. The first investigation may be utterly unsatisfactory for many reasons. It maybe due to non-availability of the evidence, or the successful induction of false evidence during the investigation, or the reason may be, the corrupt behaviour of the police officer concerned. To say that the same police officers or their superiors on receipt of further information or on the availability of better evidence cannot revive the investigation already done, leading to a contrary or a varied result, would virtually amount to putting a seal on human errors and frailties once committed whether by design or by inadventence, with no opportunity to make amends, although it be possible to do so. The police, as an agency of the State, should be as much interested as any other agency concerned in the administration of justice, to find out the truth in respect of a crime and lay the whole facts bare for determination by the competent Tribunals as honestly and correctly as possible. The statutory functions of the police and the Courts in this respect are complementary to each other and do not overlap. The facts that the previous investigation had yielded certain results should not act as a hurdle or a deterrent for the police in reaching the truth if additional facts and additional circumstances brought to light help in its discovery. The Magistrate himself does not have the legal powers to direct a further investigation by the police after he himself has taken cognizance of the case and had himself launched an inquiry or trial; but there is no bar for the police to pursue its own investigation and submit their results to the Court to find the guilt or innocence of the accused persons before it becomes too late. There is no bar to the investigation by the police after the submission of a final report under Section 173 of the Criminal Procedure Code, 1898, nor is the police not competent to file, if it is so disposed, a second report as a result of its subsequent investigation into the case."

10.  No doubt that holding of successive investigations are deprecated by the superior Courts with the intent to avoid undue lingering on the case but how subsequent challan which almost is complete for submission in the Court of competent jurisdiction can be withheld or brushed aside, even otherwise submission of subsequent challan is not debarred under the provisions of the Criminal Procedure Code, however, it is entirely the discretion of the Court to admit additional evidence if the cognizance of the case submitted to it by the Police has already been taken. Moreover, in case of any grievance, the complainant can avail an alternative remedy of filing a private complaint.

11.  In view of what has been discused above, I find no merit in this writ petition, which is accordingly dismissed.

(R.A.)  Petition dismissed.

Six Days Delay in Lodging FIR

PLJ 2015 Cr.C. (Lahore) 412

Present: Abdul Sami Khan, J.

MUHAMMAD HASSAN and another--Petitioners

versus

STATE and another--Respondents

Crl. Misc. No. 2999-B of 2015, decided on 7.4.2015.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Pakistan Penal Code, (XLV of 1860), S. 365--Bail before arrest--Confirmed--Tentative assessment was allowed--There was a delay of six days in registration of FIR which has not been explained by complainant--Son of present alleged abductee had contracted marriage with daughter of petitioner against wishes of her parents--Petitioner party got registered case u/S. 365-B, PPC, Section 376, PPC was added subsequently, at Police Station against complainant party--Prima facie it appeared that instant FIR has been lodged against petitioners in order to counter above-mentioned criminal case--Alleged abductee has got recorded her statement u/S. 161,Cr.P.C. in which she levelled allegation that after abduction she was severely beaten by petitioners but there was no MLC available on record to prove this allegation--False implication of petitioners by complainant in this case in connivance with police cannot be ruled out of consideration--Admittedly petitioners were previous non-convicts and never involved in any other case--No useful purpose would be served by sending them behind bars--Bail confirmed.         [Pp. 413 & 414] A

Mr. Abdul Samad Khan, Advocate with Petitioner in person.

Mr. Irfan Zia, D.P.G. for State.

Mr. Gulzar Hussain, Advocate for Complainant.

Date of hearing: 7.4.2015.

Order

Through this petition under Section 498, Cr.P.C. the petitioners have sought bail before arrest in case FIR No. 561/2014 dated 21.12.2014 under Sections 365, PPC, registered at Police Station Qaboola, DistrictPakpattan Sharif.

2.  I have heard the learned counsel for the parties and have also gone through the record of this case with their able assistance. This is bail before arrest and only tentative assessment is allowed at this stage. It has been noticed by this Court that there is a delay of six days in the registration of FIR which has not been explained by the complainant. Admittedly Liaqat Ali son of Mst. Bashiran Bibi (present alleged abductee) had contracted marriage with the daughter of petitioner No. 1 on 14.12.2014 against the wishes of her parents. The petitioner party got registered case FIR No. 89/2015 dated 07.02.2015 under Section 365-B, PPC, Section 376, PPC was added subsequently, at Police Station Haveli Lakha, District Okara, against the complainant party. Prima facie it appears that the instant FIR has been lodged against the petitioners in order to counter the above-mentioned criminal case. The alleged abductee Mst. Bashiran Bibi has got recorded her statement under Section 161, Cr.P.C. in which she levelled allegation that after abduction she was severely beaten by the

petitioners but there is no MLC available on record to prove this allegation. False implication of the petitioners by the complainant in this case in connivance with the police cannot be ruled out of consideration. Admittedly the petitioners are previous non-convicts and never involved in any other case. No useful purpose would be served by sending them behind the bars.

3.  For what has been discussed above, the ad-interim pre-arrest bail already granted to the petitioners vide this Court's order dated 06.03.2015 is hereby confirmed subject to their furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) each with one surety each in the like amount to the satisfaction of the learned Trial Court.

4.  The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.

(A.S.)  Bail confirmed

Powers of High Court are wide under 561-A of CRPC

PLJ 2005 Cr.C. (Karachi) 772

Present: Muhammad Afzal Soomro, J.

MUHAMMAD HANIF--Applicant

versus

STATE--Respondent

Cr. R.A. No. 150 of 2004, decided on 11.3.2005.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 435/439 & 561-A--Quashment of criminal proceedings against appellant--Justification--Object of S. 561-A Cr.P.C. whereby inherent powers have been conferred upon High Court is to do real and substantial justice and to prevent abuse of process of Court--To secure such end of justice, powers of High Court are very wide--On basis of facts admitted and patent on record no offence can be made out against appellant who is aged 60 years and stated to be patient of diabetes and hypertension as also infirm person on account of which he was unable physically to take part in physical attack on appellant--In respect of appellant there was no possibility/probability of his conviction in alleged offence--Processing pending against appellant were nothing but abuse of process of Court, therefore, the same were quashed.      [Pp. 776 & 777] A, B & C

1994 SCMR 798; 2000 SCMR 122; 2000 SCMR 125; 2000 PCr.LJ 551; 2002 SCMR 1076 and PLD 1965 SC 287, ref.

Mr. Mehmood A. Qureshi, Advocate for Applicant.

Ms. Rehana Akhtar Awan, Advocate for State.

Mr. Fazal-ur-Rehman Awan, Advocate for Complainant.

Date of hearing : 11.3.2005.

Order

By this application, filed under Sections 435 and 439 Cr.P.C., applicant, Muhammad Hanif, has impugned the order dated 29.5.2004 passed by learned VIIth Sessions Judge Karachi South dismissing the application moved by him under Section 265-K Cr.P.C., holding that the name of the applicant is clearly mentioned in the FIR and specific role has also been assigned to him together with the fact that the evidence collected by the prosecution. Prima facie, shows the involvement of the applicant and he cannot be set free without recording the evidence of the prosecution witnesses.

Brief facts leading to the filing of the present Revision Application are that on 27.2.2002, one Asim Husnain lodged FIR Bearing No. 59/2002 under Section 147/148/149/337-A(i)/324/504 PPC at Police Station Defence Karachi stating therein that on 23.2.2002 while he was present in the hotel, owned by his father, at about 12.30 a.m. owner of Ghousia namely Muhammad Hanif, having churri, alongwith Fareed Qureshi, Shahid Qureshi, Rashid Qureshi, Hafeez Qureshi and 20-25 other persons, having wooden sticks, iron rods, came. It is further stated in the FIR that Muhammad Hanif caused churri blow on the abdomen of Sajid with intention to kill him. Sajid received injuries. The complainant also received injuries on his head whereas his father and brother received internal injuries. Sajid was taken to Jinnah Hospital for treatment and medical report. Accordingly, FIR, as above, was registered.

Prior to the above said FIR on 23.2.2002 a non cognizable report was entered in the book kept under Section 154 Cr.P.C., in which the complainant stated that on the same day at about 12.30 a.m. while he was at hotel, one person alongwith 6 persons belonging to Ghousai Hotel came there and started beating him which resulted in causing of grievous injury. It was further stated in the said report that the culprits had also broken the hotel articles. However, he showed his desire to go to hospital which was complied.

Investigation followed and in due course the applicant alongwith other co-accused was sent up to stand trial where after framing of charge evidence of one witness namely Mehboob Ali Memon. MLD, out of eight was recorded. The said witness deposed that on 23rd day of February 2002 while he was performing his duty at JPMC as a Medico Legal Officer, at about 1.55 a.m. Sajid Muhammad attended his section with police letter. The following injuries were sustained by him.

1.    General condition was conscious with history of assault as alleged;

2.    The injuries are:--

(i)   abrasion 2 cm x 0.25 cm below the left eye;

(ii)  abrasion two in numbers over nose with history of bleeding but on examination there was no bleedings.

(iii) Lacerated wound 1.5 cm x 0.25 cm over the right side of umbilicus skin deep.

He further deposed that he issued provisional certificate immediately and reserved Injury No. 2 for X-ray. He produced such Provisional Certificate issued by him as Ex. 3-A. According to him, after receipt of X-ray report from the Radiologist JPMC.Karachi indicating no fracture he declared injury No. 2, having been reserved, as Shujah-e-Khafifa. Accordingly, he issued final certificate, which he produced as Ex. 3-B. In cross-examination, he admitted that all the injuries, mentioned by him in his examination-in-chief, were caused by hard and blunt substance. He further went on admitting that none of the injuries was caused any sharp edged weapon and could be self-suffered.

After examination of above prosecution witness, being contradictory to the version given by the complainant in the FIR as well as in Entry No. 46 dated 23.2.2002, recorded as non-cognizable report in the Book kept under Section 154 Cr.P.C., the applicant moved an application under Section 265-K Cr.P.C., before the trial Court where said application was disposed of with the observation that the evidence collected by the prosecution prima facie shows the involvement of the accused and he cannot be set free without recording the evidence of the prosecution witnesses.

Being aggrieved by the above order, the applicant has approached this Court under Section 435-439 read with Section 561-A Cr.P.C., invoking its revisional as well as inherent jurisdiction.

I have heard the learned counsel appearing for the applicant, learned counsel for the State and Mr. Fazalur Rehman Awan, learned counsel for the complainant.

It has been contended by the learned counsel for the applicant that the alleged victim, prior to registration of FIR (Bearing No. 59/2002), reported at Police Station Defence (vide Entry Bearing No. 46 dated 23.2.2002) that complainant stated that on the same day at about 12.30 a.m. while he was at hotel, one person alongwith 6 persons belonging to Ghousia Hotel came there and started beating him which resulted in causing of grievous injury, hence on account of his desire he was sent to hospital. It has, further, been contended by the learned counsel that on the basis of said report, Sajid was medically examined by the MLO Jinnah Hospital Karachi on 23.2.2002 and declared the alleged injuries as J.G.J. Damhan & Shajjah-e-Khafifa and therefore alleged injuries did not fall under cognizable offence. It has, further been contended by the learned counsel that in order to make the case cognizable the prosecution/complainant suppressed the above said report (Entry No. 46 dated 23.2.2002) and made another fabricated story narrated in the FIR Bearing No. 59/2002 by introducing a different version entering the name of the present applicant after five days of the incident with mala fide intention and ulterior motive while assigning him specific role of causing churry injury to the said victim Sajid whereas his was not mentioned in the said Entry. It has further been contended by the learned counsel that PW-1, Dr. Mahboob Ali Memon, clearly belied the version of the complainant, incorporated in the said FIR, by deposing that all the injuries mentioned by him in his certificate were caused by hard and blunt substance and none of the injuries observed to be caused by any sharp edged weapon and further more that the said injuries, so caused to the complainant, could be self suffered. It has, therefore, been contended by the learned counsel that perusal of said Entry Bearing No. 46 dated 23.2.2002 and deposition of PW-1 Dr. Mehboob reveals that no sharp edged injury was received by alleged victim Sajid as such version of the complainant with regard to causing churry injury to Sajid by the applicant does not have any weight. Further more, nothing was disclosed about the presence of the complainant, his father and brother on the spot by the said victim Sajid in the Entry No. 46. It has, therefore, been contended that in view of this background no case would be made out against the present applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence. It has, next, been urged on behalf of the applicant that the complainant party has lodged the present FIR to pressurize him for compromise in a case bearing FIR No. 58/2002 which was registered at the behest of son of the applicant namely Fareeduddin against the Complainant party who, after due consideration and consultation, have got involved the applicant and his other persons in the present case. It has, also, been contended by the learned counsel that the applicant is aged about 60 years and not only is patient of diabetes and high per tension but also an infirm person on account of which is physically unable to take part in any dispute, as alleged. It has, therefore, lastly, been argued that it is a fit case where proceedings pending before the learned VIIth Addl. Sessions Judge Karachi South be quashed in respect of the applicant as there is no probability of the applicant being convicted in the alleged offence, hence proceedings, pending as above, are nothing but abuse of process of the Court. He has relied upon the cases of The State vs. Asif Ali Zardari and another (1994 SCMR 798); Miraj Khan vs. Gul Ahmed and 3 others (2000 SCMR 122); Hazrat Muhammad Khan and 6 others vs. Muhammad Zair Khan and 2 others (2000 SCMR 125); Allah Rakhio and others vs. The State (2001 P.Cr.L.J. 551); and Maqbool Rehman vs. The State and others (2002 SCMR 1076) in support of his contentions.

On the other hand, learned counsel appearing for the complainant has urged that the present Revision Application is not maintainable, at all, in as much as there are five accused persons involved in the case whereas this application has been filed only on behalf of one person. It has, further, been contended by the learned counsel that there are counter cases between the parties and both the cases are pending trial where witnesses are inter se and cases could be disposed of within 5-6 dates. Further more, the cases are being dragged only on account of the fault of the applicant and others.

Learned counsel for the State, Ms. Rehana Akhtar, adopted the arguments of the learned counsel for the complainant.

Perusal of record reveals that prior to registration of FIR (bearing No. 59/2002), victim Sajid reported at Police Station Defence (vide Entry Bearing No. 46 dated 23.2.2002) that on the same day at about 12.30 a.m., while he was at hotel, one person alongwith 6 other persons belonging to Ghousia Hotel came there and started beating him which resulted in causing of grievous injury, hence on account of his desire he was sent to hospital where he was medically examined by the MLO. Perusal of certificate issued by said MLO, Dr. Mehboob Ali Memon, reveals that injuries were declared as J.G.J.Damhan & Shajjah-e-Khafifa, which did not fall under cognizable offence.

However, this FIR Bearing No. 59/2002 by introducing a different version entering the name of the present applicant after five days of the incident assigning him specific role of causing churry injury to the said victim Sajid was registered though such assertion was not made in the said Entry. Consequently, as stated above, the medical certificate issued by said MLO (PW-1, Dr. Mahboob Ali Memon), belied the version of the complainant, incorporated in the said FIR, by deposing that all the injuries mentioned by him in his certificate were caused by hard and blunt substance and none of the injuries observed to be caused by any sharp edged weapon and further more that the said injuries, so caused to said victim Sajid, could be self suffered. Further more, perusal of said Entry Bearing No. 46 dated 23.2.2002 and deposition of PW-1 Dr. Mehboob reveals that no sharp edged injury was received by alleged victim Sajid as such version of the complainant with regard to causing churry injury to Sajid by the applicant does not have any weight. Even nothing was disclosed about the presence of the complainant, his father and brother on the spot by the said victim Sajid in the Entry No. 46.

The objection of Section 561-A Cr.P.C., whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of Court. To secure the ends of justice powers of this Court are very wide. In the case of M. S. Khawaja vs. The State (PLD 1965 SC 287) following observations were made by the apex Court:--

"To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an abuse, it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."

In the case of Meraj Khan vs. Gul Muhammad (2000 SCMR 122), it was observed by the Hon'ble Supreme Court that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out against the present applicant then it would amount to abuse of process of law to allow the prosecution to continue with the trial against him.

In view of this background, I am of the considered view that no case would be made out against the present applicant at the time of conclusion of trial and there is no probability of the applicant being convicted in the alleged offence. Admittedly, there is litigation, already pending between the parties in as much as the son of the applicant namely Fareeduddin has lodged FIR Bearing No. 58/2002 against the Complainant party in the present case and it is the contention of the learned counsel for the applicant that these proceedings have been initiated, after due consideration and consultation, only to pressurize them for compromise in the said case. Further more it appears that the applicant is aged about 60 years and is not only stated to be a patient of diabetes and high per tension but also an infirm person on account of which is physically unable to take part in any dispute.

Accordingly, I am of the considered view that it is a fit case where proceedings pending before the learned VIIth Addl. Sessions Judge Karachi South in respect of the present applicant be quashed as there is no probability of the applicant being convicted in the alleged offence, hence proceedings pending as above, are nothing but abuse of process of the Court.

Consequently, this Cr. Misc, Application is allowed and the proceedings against the present applicant pending before the learned VIIth Addl. Sessions Judge Karachi South in Sessions Case No. 596/2002 are quashed.

Cr. Misc. A. No. 150/2004 disposed of.

(A.A.)      Application granted.