Dr. Missal Khan vs State

2012 M L D 1021

[Peshawar]

Before Qaiser Rashid Khan, J

Dr. MISSAL KHAN and 2 others---Petitioners

versus

THE STATE and 3 others---Respondents

Criminal M. Q. Petition No. 19 of 2012, decided on 15th March, 2012.

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

----S.561-A---Penal Code (XLV of 1860), Ss.506/454/427/380/147/34---Criminal intimidation, lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment, mischief causing damage to the amount of fifty rupees, theft in swelling house, etc., rioting, common intention---Quashing of F.I.R.---Record revealed that both accused and compliant had locked horns since the accused had been transferred from his post and complainant was transferred to the same post---Report of complainant stemmed from the same controversy---Accused had even approached the Service Tribunal for redressal of his grievance and a status quo order was passed in his favour---Basis of present report was a call made to the complainant by his subordinate doctor informing the complainant about the breaking of lock of the hospital gate, and strangely enough such information prompted the complainant to lodge the F.I.R., but statement of said subordinate doctor was never recorded---Official record allegedly stolen by the accused was not recovered from him---Where there was no witness or evidence worth the name to support the prosecution version during trial and where the end result would be the acquittal of the accused, it would be a futile exercise to proceed with the F.I.R.---Quashment petition was accepted and F.I.R. registered against the accused was quashed.

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

---S. 561-A---Quashing of F.I.R.---Scope---Where there was no witness or evidence worth the name to support the prosecution version during trial and where the end result would be the acquittal of the accused, it would be a futile exercise to proceed with the F.I.R.---F.I.R. registered against the accused was quashed.

Bahadur Khan Marwat for Petitioner.

Sana ullah Shamim D.A.G. for the State.

Muhammad Khurshid Qureshi for Respondent No.4.

Date of hearing: 15th March, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Through this petition filed under section 561-A, Cr.P.C, the petitioners, Dr. Misal Khan, Khalid Mahmood and Adnan Khan, seek the quashment of case F.I.R. No.904 dated 22-12-2011 registered under sections 506/454/427/380/147/34, P.P.C. at Police Station, Cantt: District D.I.Khan.

2.Precise facts of the instant case are that complainant/respondent No.4 namely, Dr. Khalid Aziz Baloch, Medical Superintendent, District Headquarter Teaching Hospital, D.I. Khan, lodged a written report with the local police on 22-12-2011 at 9-30 a.m. to the effect that on 21-12-2011 Dr. Misal Khan Bhittani along with 15/20 persons including

some health staff came in front of Administration Block and they raised slogans and interfered in the Government work; that in this respect, a letter/complaint was sent to the police station and at 3-00 p.m the same day Dr. Misal Khan again came to the office and interfered in the office work and obstructed him and also threatened him to leave the office otherwise he would have to face dire consequences; that on 22-12-2011 Dr.Rafiqullah, DMS called him on his mobile phone and told him that Dr. Misal Khan Bhittani with his elder son and another person had broken the lock of western gate and had entered in the Administration Block at around 7-30 a.m.; that they had broken the lock of office of Medical Superintendent, District Headquarter Teaching Hospital, D.I. Khan and in return, he called the local police; that when he reached the spot, some documents were misplaced from the office of the complainant which were probably stolen by the Dr. Misal Khan, hence the ibid F.I.R. was chalked out.

3.The learned counsel for the petitioners argued that they have been falsely and malafidely implicated in the F.I.R. ibid; that there is no evidence at all against the petitioners for the commission of the alleged offence; that the statement of Dr. Rafiqullah who had allegedly informed the complainant/respondent No.4 about the breaking of the lock was never recorded by the police and just to settle a score with the petitioner No.1 on account of a petty transfer matter, the latter has been charged by the complainant.

4.Conversely, learned D.A.-G, assisted by learned counsel for the complainant/respondent No.4 argued that the petitioners have been rightly charged for their highhandedness when they went to the extent of breaking 'Kunda' (lock) of the main gate and forcibly entered in the Administration Block and even stole some official documents from the Medical Superintendent's office and the petition in hand is thus misplaced and misconceived as all the contentions raised by the petitioners would be sorted out during the trial of the case.

5.Arguments heard and record perused.

6.The record reveals that both the petitioner No.1 and respondent No.4 have locked horns since the former was transferred from the post of Medical Superintendent DHQ Hospital, to Civil Hospital, Chaudhwan, D.I.Khan on 14-9-2011 and complainant was transferred to his place. Both the complainant and petitioner No.1 are claimants to the office of Medical Superintendent District Headquarter Teaching Hospital, D.I.Khan and on the transfer of the petitioner No.1 from the said office, he even approached the Khyber Pakhtunkhwa Service Tribunal, Peshawar for the redressal of his grievance and a status quo order was passed in his favour on 19-12-2011. The report of the complainant prima facie stems from the same controversy. In his very letter addressed to the S.H.O. of Police Station, Cantt. D.I. Khan dated 22-12-2011 he has made a brief reference to some threats posed by the petitioner a day before i.e. on 21-12-2011 when he allegedly in the company of 15/20 persons interfered in the official work of the complainant. Anyway, the basis of the present report is the mobile call made to the complainant by Dr. Rafiqullah, his subordinate and Deputy Medical Superintendent in the same very hospital telling the complainant about the breaking or 'Kunda' (lock) of the western gate by the petitioner No.1 at around 7-30 a.m. Strangely enough, the statement of Dr. Rafiqullah who prompted the complainant to lodge the F.I.R. and on whom the complainant has been banking heavily was never recorded. Even the alleged stolen official record was not recovered from the accused/ petitioner No.1. Thus in a situation where there is no witness or evidence worth the name to support the prosecution version during trial and where the end result would be the acquittal of the accused/ petitioners, it would be a futile exercise to proceed further with the F.I.R.

7.For reasons stated above, the instant quashment petition is accepted and the F.I.R. No.904 dated 22-12-2011 registered against the accused/petitioners under sections 506/454/427/380/147/34, P.P.C. Police Station Cantt. D.I. Khan, is hereby quashed.

M.W.A./122/P Petition accepted.