ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Rev. A. No. S – 110 of 2019

Date of hearing

Order with signature of Judge

For hearing of main case

(Notice issued)

20.01.2022

Syed Sardar Ali Shah Rizvi, Additional Prosecutor General.

O R D E R

MUHAMMAD FAISAL KAMAL ALAM, J. None present for the applicants and same was the position on the last date of hearing.

2. In these proceedings, the order dated 01.06.2019 has been challenged whereby on the Direct Complaint No.11 of 2019, learned Trial Court had taken the cognizance.

3. Learned Addl. P. G. states that the matter is pending before the learned Trial Court, hence, present Revision is not maintainable; he has relied upon the case reported as Naeem Akhtar and another v. Learned Civil Judge & Judicial Magistrate and 5 others, (2018 MLD 1173).

4. Contents of present Application disclose that applicants are claiming to be employees of Railway and it is their case that they got the subject quarter vacated after fulfilling codal formalities, that too on 16.01.2017. History of previous litigation is mentioned, which were purportedly not disclosed by the respondent No1 / complainant in his Complaint No.3/2019, and the impugned order is passed by misleading the Court.

5. Record shows that the direct complaint was filed by respondent No.1 in respect of quarter bearing No.91 DH and it is stated that on 16.01.2017 at about 03:00 p.m. present Applicants came to the above quarter and forcibly got vacated the same without any notice and also took expensive items including jewelry and air-conditioners. The present record shows that Railway Department has issued a notice of vacating the same quarter way back on 03.10.2007 and on subsequent dates. Earlier litigation is also not disclosed in the direct complaint by the respondent No.1, whereas copies of the order of earlier litigation have been produced by the applicants. Cr. Rev. Application No.32/2017 earlier preferred by same respondent No.1 against Pakistan Railway in respect of same quarter, containing almost the same version, was dismissed vide order dated 14.09.2017 (at page 105 of the Court file). Similarly, Cr. Misc. Application No.92/2019 filed by same respondent No.1, the Court in its order dated 10.01.2019 had observed that petitioner (present respondent No.1) furnished a false information to the Court. Earlier another Criminal Miscellaneous Application filed by same respondent No.1 was dismissed vide order dated 12.08.2017 in respect of same quarter. Most interestingly, a Cr. Misc. Application No. D – 141/2017 preferred by same respondent No.1, arraying Pakistan Railway and present applicants as respondents, was dismissed for non-prosecution by this Court vide order dated 14.03.2018; the said order is at page 95 of the Court file.

6. The cited judgment of Naeem Akhtar (supra) is distinguishable, as it reiterates the rule that after Magistrate sent the case to Court of Sessions within meaning of Section 190 (2) of the Criminal Procedure Code, he becomes functus officio. It is further held that framing of charge means commencement of trial and it is not an administrative but a judicial order. What is applicable to the undisputed facts of present case, are the decisions of the Hon'ble Supreme Court handed down in the cases of Abdul Wahab Khan v. Muhammad Nawaz and 7 others, 2000 SCMR 1904, Muhammad Fiaz Khan v. Ajmer Khan and another, 2010 SCMR 105 and Waqar Ali and others v. The State through Prosecutor / Advocate General Peshawar and others, PLD 2011 SC 181. Crux of these judgments is that courts are duty bound to scrutinize complaint, examine complainant, in order to ensure that no innocent person against whom allegations are leveled should suffer the ordeal of protracted time consuming and cumbersome process of law. It is further held that although in criminal matters limitation does not apply but factum of delay creates doubt regarding authenticity and genuineness of the allegations and in certain circumstances such delay can be fatal.

7. From the above record, it is quite apparent that by concealment of material facts and misleading the Court, direct complaint was filed by present respondent No.1, upon which cognizance has been taken. In view of the cited case law of the Hon'ble Supreme Court and undispsuted record discussed in the foregoing paragraphs, present case falls within the exception, where filing of a subject Direct Complaint after two years of the incident was / is fatal. The subject Direct Complaint should have been considered cautiously by the learned Trial Court, in order to evaluate the ulterior motive of a party filing such complaint, in the present case, respondent No.1. The learned Trial Court could have issued, in the first instance, a notice [rather than summons; as held in Waqar Ali case (ibid)] to the accused persons / present applicants, for obtaining certain clarifications, which then could have been provided as is done in the present case. The issue was decided multiple times in earlier round of litigation, as discussed above, and although applicants can file an application under Section 265-H or 265-K, Cr. P. C, for a premature acquittal in the matter, but allowing such type of cases to continue would be an abuse of the process of Court, which can and should be remedied under Section 561-A, Cr. P. C.

8. Consequently, this Criminal Revision Application is allowed and the impugned Order dated 01.06.2019 is set-aside.

__________________

J U D G E

N.M.