2021 P Cr (PLP)

ABDUL HAMEED BALOCH, J.

Through this petition the petitioner prayed as under:- A) Quash the FIR No. 116 dated: 03/09/2019 under sections 419/420/34, P.P.C., Police Station Zhob lodged against the petitioner in the interest of justice. B) Cancellation of warrant of arrest of the petitioner and transfer of case property excavator issued by the official respondents and to protect the petitioner from agony of dual trial and prosecution in the FIR, which is against the Constitution and natural justice. C) Any other remedy which deems fit by this honourable Court may also be granted in favour of petitioner. Interim relief:- All the three ingredients like prima facie case, balance of convenience and irreparable loss are in favour of petitioners against the respondent, therefore, by way of interim relief, this august Court may kindly be pleased to suspend the operation of the impugned FIR No. 116 dated 03/09/2019 under sections 419/ 420/34, P.P.C. Police Station Zhob and warrant of arrest of the petitioner and transfer of case property excavator issued by the official respondents and no adverse action be taken against the petitioner till the final disposal of the Writ Petition/ Quashment Petitioner.

2. Brief facts of the case arc that one Fazal-ur-Rehman lodged an FIR No. 116 of 2019 with Police Station Zhob against the petitioner and his two companions, alleging therein that he rented out the excavator to the petitioner and his companion and in this regard an agreement was also executed and the excavator along with documents were handed over to them and after sonic time he asked about the agreed amount but they were lingering on the matter on one and other pretext and now even they refused to hand over the excavator and documents. Pursuant to the referred FIR, the Government of Balochistan Home and Tribal Affairs Department (Judicial Section-1) vide letter No.SO(Judl-I)3(1)/2019/14, dated Quetta the 3rd October, 2019 for arrest of the accused/petitioner conveyed to the Secretary Government of Khyber Pakhtunkhwa Home and Tribal Affairs Department, Peshawar.

3. The petitioner being aggrieved or the registration of FIR, surrendered before the learned Sessions Judge, Zhob for grant of pre-arrest bail and filed the instant petition with the above-mentioned prayers.

4. We have heard the learned counsel for petitioner and have gone through the record. It is imperative to mention here that prior to registration of FIR, a civil case is also pending between the parties in the court of Senior Civil Judge West Islamabad. Be that as it may, but the record transpires that the challan of the case has already been submitted by the investigating officer before the trial court and the petitioner has also got pre-arrest bail, therefore it would be advantageous to the validity of the instant petition in the light of law laid down by the Hon'ble apex Court.

5. The controversy involved in the instant petition was resolved in another case titled as Ubaidullah v. The State 2014 YLR 753, whereby following observation was made: "The record reveals that after completion of formal investigation, challan has been submitted against the petitioner, thus, at this stage any interference by this court while exercising inherent jurisdiction, which can only be exercised in extraordinary circumstances, would amount to pre-empting the powers of the trial Court. Even otherwise, the petitioners had alternative remedy viz. before, the trial Court under Criminal Procedure Code ("Cr.P.C.") 1898 i.e. section 249-A. Cr.P.C."

6. Whereas in the case of Ghulam Muhammad v Muzammal Khan PLD 1967 SC 317, the Hon'ble Supreme Court held that the remedy for quashment of proceedings is not available when alternate remedy is available in the shape of sections 265-K and 249-A, Cr.P.C. The Hon'ble Supreme Court has observed that quashment proceedings at early stage is neither permissible nor preferred and every criminal case should be allowed to proceed on its merits. Reliance is placed on the cases of Akbar Hussain v M.M.K.A. Zai 1968 SCMR 386 and Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607.

7. Before parting to judgment, it would be advantageous to refer the case of Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC

298. Wherein, the correct importation of provision of section 561-A, Cr.P.C. had been summarized as under:- "(i) The said provision should never the understood to provide an additional or an 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 where the code offers no remedy for the redress of a grievance; (iii) inherent power 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 provision of section 561-A, Cr.P.C. be invoked only in exceptional cases for reasons to be recorded."

8. As far as the jurisdiction of the High Court under Article 199 of the Constitution is concerned, the High Court before exercising its extraordinary jurisdiction must be satisfied about the non-availability, or inefficacy of alternate remedy provided under the law and once it is shown to the satisfaction of the High Court that alternate remedy is expedient, effective, then courts would be reluctant to exercise writ jurisdiction, which is not meant to bypass such authority to render such hierarchy as redundant and superfluous. For rendering this view, we are fortified from the dictum laid down on the case of KSB Pumps Company Ltd. v. Government of Sindh 2011 MLD 1876.

9. The challan of the case has already been submitted against the petitioner before the trial court, therefore, at this stage any interference by this court while exercising its inherent jurisdiction would amount to pre-empting the powers of the trial Court. Even otherwise, the petitioner has an alternative remedy before the trial Court, under Criminal Procedure Code, 1898. For the above reasons, the petition being devoid of merits is dismissed in limine. SA/4/Bal. Petition dismissed.