PLJ 2010 Cr.C. (
Present: Hasnat Ahmad Khan, J.
Rana RIAZ AHMAD KHAN, LAMBARDAR--Petitioner
versus
STATE and 5 others--Respondents
Crl. Misc. No. 449-M of 2003, decided on 10.1.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 249-A--Pakistan Penal Code, (XLV of 1860), S. 182--Applciation for acquittal--Allegation of--False information--Theft of trees--Government property--Petition bonafidely brought forward the matter regarding the theft of government property into the notice of the concerned police, which instead of register the case against the accused who, prima facie, had committed a cognizable offence, and them to ask, ironically booked the petitioner for lodging false information--Besides the falsehood or otherwise of the allegations submitted by petitioner against respondents were to be decided on the basis of the material collected by the police but in the case the police declared the allegation false on their own, without any probe into the allegations levelled against the respondents named in the said application--Such probe and investigation could be conducted after registration of the case u/S. 154, Cr.P.C.--Respondent regarded the charges baseless without collecting any material and merely on the ground that the complainant/petitioner did not turn up pursuant to the summon issued to him--No show-cause notice was issued requiring the petitioner to explain his position as to why proceedings u/S. 182, PPC be not issued against him--Said action taken against the petitioner was violative of the principles--Held: Under the law, a person who lays information to police, is entitled to have his case judicially determined before he is called upon to answer the chance of giving false information--Charge levelled against the petitioner was groundless and there was no probability of the conviction of the petitioner--Both the Courts below committed illegality while dismissing the application u/S. 249-A, Cr.P.C.--Impugned order set aside--Application u/S. 249-A, Cr.P.C. accepted and acquitted. [P. ] A, B, D & E
1974 PCr.LJ Note 114, 1983 PCr.LJ 1097, 1991 PCr.LJ Note 86 and
2005 YLR 1785 Rel.
Criminal Procedure Code, 1889 (V of 1898)--
----S. 154--Pakistan Penal Code, 1860, (XLV of 1860) S. 182--Case of the complainant must be judicially determined before giving show cause under S. 182, PPC. [P. ] C
1974 PCr.LJ Note 114 and PLD 1970 Lah. 726 Rel.
Rana Zahid Iqbal, Advocate for Petitioner.
Mr. Shahid Mehmood Khan, DPG for Respondents.
Date of hearing: 10.1.2008.
Order
Brief facts of the case are that the petitioner being the "Lumberdar" of the village moved an application on 27.12.2002 before the Deputy District Officer (Revenue), Arifwala, for action against Respondents No. 2 to 4 for the theft of "Sheesham and Keeker" trees from the land owned by the Provincial Government. The matter was entrusted to Respondent No. 5 who instead of proceeding against the said respondents i.e. the accused, submitted a "report/Kalandra" under Section 182, P.P.C. on 06.1.2003 with the allegation that after filing of the afore-mentioned, the complainant was summoned by the police for 30.12.2002, 31.12.2002 and 01.1.2003, but he failed to turn up on the said dates, moreover, the averments made in the said application were found to be false and baseless.
2. The petitioner was summoned for 26.2.2003 by the Special Judicial Magistrate on which date the petitioner appeared before the said Court and submitted a petition under Section 249-A, Cr.P.C. for his acquittal. The said petition, however, was dismissed by the learned Special Judicial Magistrate vide order dated 07.5.2003 on the ground that the same was premature. Being aggrieved the petitioner filed a revision petition against the order-dated 07.5.2003 before the learned Additional Sessions Judge, Arifwala who also dismissed the same vide order dated 14.7.2003. Hence this petition.
2. Learned counsel for the petitioner contended that the petitioner being the "Lumberdar" of the village was duty bound to bring the commission of any crime to the notice of the police, therefore, he performed his duty whereas the police instead of registering a criminal case against the culprits/Respondents No. 2 to 4 malafidely proceeded under Section 182, P.P.C. against the petitioner; that the proceedings under Section 182, P.P.C. were not maintainable against the petitioner as he had not deposed any thing falsely; that the mere non-appearance of the petitioner before the police officer on three occasions, within short span of three days, would not render the contents of his application false or groundless, rather after receipt of the said application, which certainly disclosed commission of a cognisable offence, the Station House Officer was bound to register the case; that the petitioner performed his duty with due diligence without any personal interest/gain but the police had failed to perform their obligations and that in fact the petitioner was never given any notice, required under the law, with regard to the initiation of proceedings under Section 182, P.P.C. Reliance in this regard has been placed on the cases reported as Mian Fazal Ahmad v. The State (PLD 1970 Lahore 726), Sarwar Begum v. The State (1974 P.Cr.L.J. (Note Lahore) 114), Muhammad Murad v. The State (1983 P.Cr.LJ. (Karachi) 1097), Mst. Sarwat Ilyas v. The State (1991 P.Cr.LJ (Note) 86), Murad Mi v. State (PLJ 2000 Crl.C. (Lahore) 212), Razia Bibi v. The State (1990 P.Cr.LJ. (Lah.) 284), Nasim Akhtar Soofi v. The State (1990 P.Cr.LJ. 1336) and Evon Dilbar v. Innocent Dilbar Feroze and another (2004 P.Cr.LJ. 428).
5. Conversely, learned Deputy Prosecutor General has opposed the petition on the ground that both the orders, impugned herein being quite legal are not amenable to the proceedings under Section 561-A, Cr.P.C; that it was the duty of the petitioner to appear before the police after the submission of the application by him to prove the allegations levelled therein against the said respondents; that the learned trial Court was justified to dismiss the petition under Section 249-A, Cr.P.C filed by the petitioner; that the order passed by the learned revisional Court also does not suffer from any jurisdictional defect and that the petitioner's petition under Section 249-A, Cr.P.C. was not dismissed on merits rather the same was turned down being pre-mature.
6. After hearing the parties and going through the record I have noticed that, prima-facie, the petitioner bonafidely brought forward the matter regarding the theft of Government property into the notice of the concerned police, which instead of registering the case against the accused who, prima facie, had committed a cognisable offence, and taking them to task, ironically booked the petitioner for lodging false information. Besides, the falsehood or otherwise of the allegations contained in the application submitted by the petitioner against Respondents No. 2 to 4, were to be decided on the basis of the material collected by the police but in the case in hand the police declared the allegations false on their own, without any probe into the allegations levelled against the respondents named in the said application. Such probe and investigation could be conducted after registration of the case, under Section 154, Cr.P.C, The Respondent No. 5 regarded the charges baseless without collecting any material and merely on the ground that the complainant/ petitioner did not turn up pursuant to the summons issued to him. Further, no show-cause notice was issued requiring the petitioner to explain his position as to why proceedings under Section 182, PPC, be not issued against him.
7. The said action taken against the petitioner is violative of the principles laid down in the cases of Sawar Begum V. The State (1974 P.Crl.LJ (Note) 114), Muhammad Murad V. The State (1983 P.Crl.LJ 1097), Mst. Sarwat Ilyas V. The State (1991 P.Crl.L.J (Note) 86) and Muhammad Juman V. The State (2005 YLR 1785). The report prepared and submitted by Respondent No. 5 under Section 182, PPC, reveals that the same was not based upon any evidence, rather the same was prepared just on the basis of speculations and surmises. So much so, it does not even reflect that the police officer visited the forest from where the trees owned by the Government were felled and stolen. Moreover, it does not contain any material on the basis of which the application submitted by the petitioner could prove to be false. After receiving the information regarding the theft of Government trees, the Respondent No. 5 should have taken the matter seriously and the fate of the application should have been decided in view of the material evidence collected in this regard. The application should not have been regarded as false only on the ground that the complainant/petitioner (herein) had failed to appear before Respondent No. 5 in response to summons There is neither any oral assertion nor any documentary evidence available on the record to show that the petitioner committed the offence attracting the provisions of Section 182, P.P.C.
8. Under the law, a person who lays information to police, is entitled to have his case judicially determined before he is called upon to answer the chance of giving false information. Reliance in this regard is placed on the cases of Sarwar Begum v. The State (1974 P.Crl LJ Note 114) and Mian Fazal Ahmad v. The State (PLD 1970 Lah. 726). In this backdrop, the continuation of the proceedings under Section 182. Cr.P.C. would amount to abuse of process of law.
9. Considering all the pros and cons of the prosecution's case, I have come to the conclusion that the charge levelled against the petitioner is groundless and there is no probability of the conviction of the petitioner. Therefore, both the Courts below committed illegality while dismissing the application under Section 249-A Cr.P.C. and the revision filed by the petitioner.
10. There is yet another reason for the acceptance of this petition as the matter pertains to the year 2002 while petition in hand was admitted on 23.9.2003 on which date proceedings before the trial Court were also stayed. It shows that the petitioner has already undergone ordeal and rigorous of the proceedings for five years. Consequently, the impugned orders dated 07.5.2003 and 14.7.2003 passed by the learned trial Court as well as that of the revisional Court are hereby set aside and the petition filed by the petitioner under Section 249-A, Cr.P.C. is accepted and he is acquitted of the charge.
( ) Petition accepted.