P L D 2006 Supreme Court 598 (PLP)

KHALIL-UR-REHMAN RAMDAY, J.

Mansha petitioner had alleged through F.I.R. No.633 dated 10-12-2004 of Police Station City, Chiniot registered for the alleged commission of offences punishable under sections 379/447/148 and 149 of the Pakistan Penal Code that he had purchased, through a sale-deed dated 28-3-2003, Twenty Kanals of land in Batakhianwala of Tehsil Chiniot for a consideration of Rs.10,50,000; that possession of the said land had also been delivered to him whereafter he even built a residential house thereon and started living there; that on 18-3-2004, the nominated accused persons trespassed into the said land after arming themselves with fire-arm weapons and dispossessed him and his family from the said land and even looted away their house-hold articles -and other property.

2. One of the accused persons, namely, Majid, rushed to the Lahore High Court through Writ Petition No.4470 of 2005 praying for quashment of the said F.I.R. on the ground that on an application submitted by Mansha complainant seeking registration of this F.I.R., It had been reported by one Muhammad Akram S.I. that though the complainant had purchased the land in question from the mother of the said accused writ-petitioner yet the possession of the same had not been delivered to him; that like-wise a Local Commission appointed by a learned Civil Judge seized of a suit filed by Mansha complainant had also reported that the possession of the said land was not with the complainant and that in the circumstances since the complainant was not in possession, therefore, there was no question of the accused persons trespassing into the same and dispossessing him from the said land.

3. Relying upon the said opinion of Akram S.I. and on the said alleged report of a Local Commission. the learned Judge in Chamber, quashed the said F.I.R. through the impugned judgment dated 31-5-2005.

4. Despite our best efforts for the purpose, we have not been able to persuade ourselves to approve either of the manner in which the F.I.R. in question had been quashed or even the reasons which had led His lordship to the said end.

5. This Court has been repeatedly reminding all concerned that determination of the correctness or falsity of the allegations levelled against an accused person; the consequent determination of the guilt or innocence of such an accused person and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast on the Court prescribed by the Code of Criminal Procedure for the purpose on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes. It is a principle too well-established by now that a resort to the provisions of section 561-A, Cr. P. C. or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person on the basis of material which was not admissible in terms of Qanun-e-Shahadat Order of 1984.

6. No such extraordinary circumstances could be indicated to us which could have permitted the learned High Court to deviate from the normal course of law and to quash the F.I.R. by exercising the extraordinary constitutional remedy under Article 199 of the Constitution.

7. Secondly as has been noticed above, what had weighed with the learned High Court in so doing, on merits, was a report allegedly submitted by one Muhammad Akram, S.I. of Police Station City Chiniot which report had been made by him in pursuance of an order of the learned Sessions Judge under section 22-A of the Cr.P.C. in pursuance of an application made to him seeking registration of the case. By no stretch of imagination could such a report be held to be legal evidence at a trial and at the most what the either party could have done at the trial was to produce the said Muhammad Akram, S.-I. as a witness either of the prosecution or of the defence, who could then have been subjected to cross-examination which obviously was not done and could not have been done through a summary resolution of the issue pursuant to a writ petition filed in the High Court. The learned High Court was thus in error in this connection, firstly, because the said report was not legal evidence and was in fact not even admissible in evidence being opinion of a person who was not an expert and secondly because no evidence was available with His Lordship regarding the hotly contested question of possession and dispossession vis-a-vis the land in question.

8. Similar was the position of an alleged report of Local Commission submitted in a civil suit pending between the parties. Suffice it again to say that such a report could not be acted upon without an opportunity to the parties to raise objections thereto in accordance with law and in any case such a report could not be considered as evidence in a criminal trial unless the same was brought on record at such a trial in accordance with law.

9. Having thus examined all aspects of the matter we find firstly, that no extraordinary circumstances existed which could have permitted the learned High Court to make a departure from the normal mandatory procedure prescribed by law for trial of cases and, secondly, that the material which had weighed with the learned High Court in reaching the impugned conclusion was no material in the eyes of law which could have been used to determine the guilt or innocence of an accused person.

10. Consequently, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment dated 31-5-2005 passed by the Lahore High Court in Writ Petition No.4470 of 2005 is set aside. The S.H.O. of Police Station City Chiniot shall now feel free to proceed with the said F.I.R. in accordance with law. M.B.A./M-108/S???????????????????????????????????????????????????????????????????? ??????????? Appeal allowe