2017 PLP 444 (YLRN)

AFTAB AHMED GORAR, J.

Through this Crl. Misc. Application, the applicant seeks quashment of proceedings emanating from FIR No.140/2014, registered under section 147/148/149/427/ 504/506(ii), P.P.C. at Police Station Hussainabad, Hyderabad, pending in Crl. Case No. 92/2015 before the learned IIIrd Civil Judge/Judicial Magistrate, Hyderabad. Learned counsel for the applicant submitted that the instant FIR registered against the applicant is false, fabricated, mala fide and motivated in order to settle personal score by the complainant and just to harass, humiliate and pressurize the applicant as he is pursuing several cases in this Court against HIAST and certain individuals concerned with HIAST. He further submitted that it is not mentioned in the memo of place of incident that there is any mark of smashing/breaking the things, which shows that no physical humiliation/disorder took place, which is contrary to the contents of the FIR. Learned counsel for the applicant further contended that the FIR was lodged with the unexplained delay of about 08 days, which shows that the FIR is frivolous and mala fide. He further contended that there are armed security guards inside and outside the HIEAST, therefore, in their presence there is less chances of any physical humiliation or fight. Learned counsel for the applicant further contended that there is no admissible evidence available on record against the applicant with regard to occurrence of such incident, therefore, FIR is liable to be quashed. He has relied upon 2002 SCMR 1076 (Maqbool Rehman v. the State), 2000 SCMR 122 (Miraj Khan v. Gul Ahmed and 3 others), 1994 SCMR 694 (Muhammad Afzal Shah v. Mazhar Hussain Shah and 3 others), PLD 1985 SC 285 (Mian Munir Ahmad v. The State) and 2016 PTD 365 (Zaheer Ahmed v. Directorate General of Intelligence and 4 others). On the other hand learned counsel for the complainant submitted that the application under section 561-A, Cr.P.C. (instant Crl. Misc. Application) is maintainable as the applicant has not filed proper application before the learned Trial Court and without exhausting remedy before the learned Trial Court he approached to this Court. He has further submitted that even applicant has not obtained bail from the learned Sessions Court or from learned Trial Court and he directly approach to this Court for quashment of FIR. Further, the applicant remained absconder and he did not surrender himself before the Trial Court therefore, being fugitive from law he is not entitled for any relief. Learned counsel for the complainant further submitted that the contents of FIR disclose the detail of offence committed by the accused, which requires proper trial as well as recording of evidence, therefore, same cannot be quashed at this stage without giving the chance to the prosecution to bring evidence collected during investigation. He further submitted that application for lodging the FIR was submitted on the same day of incident i.e. 12.12.2014 but due to influence and direction of senior police officers the FIR was not registered as they were reluctant to register the FIR, however, finally on 20.12.2014 FIR was registered therefore, the delay is not on the part of the complainant. He prayed for dismissal of instant Crl. Misc. Application. He has relied upon PLD 2016 SC 55, PLD 2016 SC 484, 2002 SCRM 1076, PLD 2004 SC 298, 2014 YLR 429, PLD 2001 Kar. 279, 2015 YLR 2418, 2000 SCMR 122, PLD 2009 Kar. 24, PLD 2007 SC 09, 2005 SCMR 1544, PLD 2013 SC 401, PLD 2014 SC 753, PLD 2014 SC 343, NLR 2015 Crl. 343 and 2002 SCMR 1076. Learned APG adopts the arguments advanced by the learned counsel for the complainant and submitted that the instant Crl. Misc. Application is not maintainable and liable to be dismissed. She has relied upon 1998 PCr.LJ 1323, 1980 SCMR 843, PLD 2007 SC 09, PLD 1997 SC 275 and 2005 SCMR 1544. I have heard learned counsel for the parties and perused the material available on record carefully. A perusal of record shows that after lodging of the FIR applicant neither surrendered before the Investigating Officer nor cooperated with him in investigation nor obtained bail before arrest from the learned Sessions Court. It also reflects from the record that the applicant did not file any application under section 249-A, Cr.P.C. for quashment of the FIR/proceedings before the learned Trial Court and he directly approach to this Court by filing instant Criminal Misc. Application under section 561-A, Cr.P.C. In the case of Muhammad Farooq v. Ahmed Nawaz Jagirani, it has been held by the Honourable Supreme Court of Pakistan that:- "Exercise of jurisdiction under section 561-A, Cr.P.C. by the High Court is akin to the exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; exercise of such jurisdiction is not to be exercised in routine and or as a matter of course merely because such jurisdiction is available and or could be exercised. Exercise of inherent jurisdiction is dependent on non-availability of alternate and efficacious remedy and or existence of some extraordinary circumstances warranting exercise of such jurisdiction by-passing such alternate remedy by the High Court. Another rule of propriety, that has evolved by precedent law must not lose sight is that where two Courts have coextensive or concurrent jurisdiction, than the propriety demands that jurisdiction of Court of the lower grade is to be invoked in the first instance.

11. The remedy under section 561-A, Cr.P.C. is not an alternate and or substitute for an express remedy as provided under the law in terms of sections 435 to 439, Cr.P.C. and or sections 249-A or 265-K, Cr.P.C., as the case may be. One cannot be allowed to bypass and or circumvent the ordinary remedy in normal course of the event. In the case of Maqbool Rehman v. State (2002 SCMR 1076) in paragraph 6 thereof it was held that "normally, High Court does not exercise inherent jurisdiction unless there is gross miscarriage of Justice and interference by the High Court seems to be necessary to prevent abuse of process of court or to secure the ends of justice. Jurisdiction under section 561-A, Cr.P.C. is neither alternative nor, additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provisions should not be used to obstruct or direct the ordinary course of Criminal Procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice. It is neither akin to appellate nor the Revisional Jurisdiction." In another case of Bashir Ahmed v. Zafarul Islam reported in PLD 2004 SC 298 it has been held by the Honourable Supreme Court of Pakistan that:- "

22. Using the powers under section 561-A, Cr.P.C. to determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable. Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route. Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under section 561-A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity and the trial Courts as a surplusage. This never was and could never have been the intention of the law maker in adding section 561-A to the Code. Reference may be made to Sheikh Mahmood Saeed and others v. Amir Nayaz Khan and another (1996 SCMR 839), Malik Salman Khalia v. Shabbir Ahmad, D&SJ, Karachi and another (1993 SCMR 1973) and Mst. Sarwar Jan v. Ayub and Gulab (1995 SCMR 679).

23. The correct import of the provisions of section 561-A, Cr.P.C, may be summarized as under: (i) The said provision should never be understood to provide an additional or art alternate remedy nor could the same be used to override the express provisions of law; (ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy 'for the redress of a grievance; (iii) inherent powers can be invoked to make a departure from the normal course prescribed by law only and only in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation; and (iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561-A, Cr.P.C. should be invoked only in exceptional cases for reasons to be recorded. In another case of the State v. Raja Abdur Rehman reported in 2005 SCMR 1544 it has been held by the Honourable Supreme Court that:-- "

Ss. 249-A, 265-K & 561-A

Provisions not to be used for deciding the fate of a criminal case

Usually a criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under S.342, Cr.P.C. and under S.340(2), Cr.P.C. if so desired and hearing the arguments of both the parties

Provisions of S.249-A, S.265-K & S.561-A of the Code of Criminal Procedure should not normally be pressed into action for deciding the fate of a criminal case.

S.561-A

Inherent powers of High Court

Quashing of proceedings-Principles-When the law provides a detailed inquiry into offences for which an accused has been sent up for trial, then ordinarily and normally the procedure prescribed by law for deciding the fate of the case should be followed unless some extraordinary circumstances are shown to exist to abandon the regular course and follow the exceptional routes

Such exceptional routes can also be one envisaged by S.249-A, Cr.P.C.". In view of the above facts circumstances and the dicta laid down by the Honourable Supreme Court of Pakistan, I am of the humble view that the applicant is not entitled to any extraordinary relief as he neither surrendered before the Investigating Officer nor cooperated with him in investigation nor obtained bail before arrest from the learned Sessions Court and approached to this Court without filing application under section 249-A, Cr.P.C. for quashment of the FIR proceedings before the learned Trial Court, therefore, instant Criminal Misc. Application under section 561-A, Cr.P.C. is not maintainable as the mina, cases should be allowed to be disposed of on merits after recording of prosecution evidence, statement of accused under S.342, Cr.P.C. and under S.340(2), Cr.P.C. if so desired and hearing the arguments of both the parties therefore, no extraordinary circumstances appears to me to entertain the instant application, Consequently, instant Criminal Misc. Application is hereby dismissed being meritless and misconceived along with pending application(s). WA/W-3/Sindh Application dismissed.