1996 PLP 186 (SCMR)

(b) Penal Code (XLV of 1860)‑‑‑ ‑‑‑‑S. 408‑‑‑Criminal Procedure Code (V of 1898), S.561‑A‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Quashing of F.I.R: ‑‑Investigation in the case was not complete and no challan had been submitted in the Court when the petition for quashing of F.I.R. was filed in High Court‑‑‑Neither any order was made by any Court in the case nor any process was issued by any Court, so the question of making such orders as might be necessary to give effect to any order under the Criminal, Procedure Code or to prevent abuse of process of any Court did not arise‑‑‑High Court under S.561‑A, Cr.P.C. could not quash the F.I.R. on the ground of mala fides or on the ground that it disclosed civil liability‑‑‑Petition for leave to appeal was consequently converted into appeal and the impugned judgment quashing the F.I.R. was set aside. Ejaz Anwar, Advocate instructed by S. Abut Asim Jaferi, Advocate on‑Record for Petitioner. Muhammad Anwar Ghuman, Advocate for the State. Mirza Masood, Advocate for Respondent No.2. Date of hearing‑ 17th October, 1995. MUHAMMAD MUNIR KHAN, J.‑‑This petition for leave to appeal directed against the order dated 20‑6‑1995 of Lahore High Court, Lahore, whereby F.I.R. No.263/95 under section 408, P.P.C. registered against Rana Muhammad Rafi Khan respondent No.2 hereinafter referred to as the respondent at Police Station Factory Area, District Faisalabad, was quashed, in exercise of its inherent powers under section 561‑A, Cr.P.C., arises from the facts that the respondent Zonal Manager, Faisalabad Platinum Insurance Company Limited was given Suzuki car, registration No.LHJ 7660, for his official use. His services were, however, terminated on 6‑2‑1995. He was asked to return the Suzuki car as he was no more entitled to retain it. Instead of returning the car, the respondent put it on his personal use. So, on the report of Ahmad Saeed, Senior Vice‑President, Platinum Insurance Company Limited, Lahore, aforesaid F.I.R. was registered against him. During the investigation, the respondent filed petition under section 561‑A of Criminal Procedure Code for the quashment of the F.I.R in the Lahore High Court, Lahore, which has been allowed vide impugned order.

2. Learned counsel for the petitioner has contended that the F.I.R. could not be quashed by the High Court in exercise of its powers under section 561‑A, Cr.P.C. Contrarily, learned counsel appearing for the respondent in pursuance to notice issued by this Court to the respondent, has supported the impugned judgment. He has argued that no case of criminal breach of trust was mad out against the respondent: that the F.I.R. was registered mala fide against the respondent; since he had lawful claim of Rs.10,000 against the Company, he had a right of lien over the car and as such the retaining of car by him does not amount to criminal misappropriation punishable under section 408, P.P.C.: that at the most it was a case of civil liability so the F.I.R. has rightly been quashed by the High Court which was quite competent to do so under section 561‑A, Cr.P.C. .

3. We have carefully attended to the arguments raised by the learned counsel for the parties. We feel persuaded to agree with the learned counsel A for the petitioner that the High Court, in exercise of its powers under ,section 561‑A, Cr.P.C., was not competent to quash the F.I.R.. We find that the investigation was not complete and no challan had been submitted in the Court 8 when petition for quashment of the F.I.R. was filed in the High Court. The High Court, under its inherent powers, may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. Since" no proceedings were pending in the Court by the time the quashment petition was filed in the High Court, the question of preventing the abuse of process of any Court did not arise in this case. A plain reading of section 561‑A, Cr.P.C. shows that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice. In the instant case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of any C Court does not arise. We are afraid that the High Court under section 561‑A, Cr.P.C. could not quash F.I.R. on the ground of mala fide or on the ground that F.I.R. discloses civil liability. Since we have held that the High Court had no powers to quash the F.I.R. under section 561‑A, Cr.P.C., we need not examine correctness of the reasons given by it for quashing F.I.R.

4. Consequently, the petition is converted into appeal and allowed, and D the impugned judgment is set aside. N.H.Q./A.1347/S Appeal allowed.