P L D 2009 Karachi 24 (PLP)

ABDUR RAHMAN FARUQ PIRZADA, J.

By this criminal miscellaneous application the applicant has made the following prayer:-- (a) To quash the proceedings of criminal case bearing crime No. 30 of 2007 under sections 440, 341, 355, 511, 148, 117, 114, 147; 149, 504, 337-A(i), 337-F (i), P.P.C. of Police Station Kario Ganhwar and proceedings under sections 107, 150, Cr.P.C. vide Tola No.11 of 2007 of Police Station Kario Ganhwar pending trial before the Honourable Court of Civil Judge and Judicial Magistrate Golarchi @ Badin. (b) Any other relief (s) which this Honourable Court deems fit, just and proper in favour of the applicant. Learned counsel for applicant has contended that the applicant/ accused had been falsely and malafidely implicated in the case. There is no substance in the allegations as contained in F.I.R, and no penal sections for cognizable offences will be applicable in the circumstances of the case. He has submitted that the allegations against the applicant and other accused were to the effect that they being armed with lathies had committed rioting and had damaged the motorcycle of complainant party by way of inflicting lathi blows, and after spilling the petrol bottles on the shop of complainant, tried to set it on fire, and also the accused persons plucked out the hair of beard and moustaches of complainant, thereby dishonouring him. Learned counsel has contended that; such allegations are false, and the applicant was simply involved in the case due to previous grudge on the part of complainant party. It appears that the Constitutional Petition was filed on 16-7-2007, whereas as per statement by learned Additional A.-G. the case vide crime No.30 of 2007 Police Station Kario Ganhwar was challaned in the competent Court on the same day viz. 16-7-2007. Subsequently on the request made by learned counsel for petitioner the petition was converted into criminal miscellaneous application, and such amended application was duly filed by the applicant. Learned counsel for applicant has stated that the case is pending trial in the Court of learned Additional Sessions Judge Badin, however, the charge has not yet been framed. It has been argued that since there is no substance in the allegations contained in the F.I.R, as such, it will be futile to proceed with the case before the learned trial Court, and no useful purpose will be served. He has placed reliance on the case-law reported in 1994, SCMR 798, 2002 SCMR 1076 and 2005, PCr.LJ 1524. Learned Additional A.-G. has opposed this application, while stating that prima facie cognizable offences are made out in the light of allegations made by complainant in the F.I.R. He has submitted that the accused persons being armed with weapons, not only damaged the motorcycle of complainant party, but had also spilt petrol on the shop of complainant, and tried to set it on fire; the accused did not remain contented even with that action, but went ahead to dishonour the complainant by way of cutting off his beard and moustaches. Learned Additional A.-G. has submitted that in our society, the alleged offence is considered to be a very serious offence, by which the honour of a respectable person is undermined in public. Learned Additional A.-G. has further submitted that the applicant has not availed the remedy available under the law, before the learned trial Court, by way of moving a proper application under section 265-K, Cr.P.C. He has further submitted that it will not be proper to enter into the factual controversy with regard to the allegations made by complainant, and it may be most appropriate that the learned trial Court may adjudicate upon this aspect of the matter at present stage. Learned Additional A.-G. has placed reliance upon the case law as reported in 1993 SCMR 1973, 1996 SCMR 276, 2006 SCMR 1957 and PLD 2004 SC

298. We have considered the submissions made by counsel for applicant and learned Additional A.-G. There are certain allegations contained in the F.I.R, which are denied by the applicant to be untrue. The worth of these allegations can be properly known after recording sufficient evidence, and thereafter evaluating the same in the light of principles as laid down by law. This exercise can be appropriately taken up by the learned trial Court, before which the evidence may be recorded, and before which all the other relevant material pertaining to the allegations, can be brought forth on record. At the moment the allegations are made by the complainant and on the other hand they are being refuted by the accused/applicant. We are of the view that this issue of the veracity of contents of F.I.R. cannot be properly thrashed out at this stage in the present application, but the same controversy can be resolved by the learned trial Court after evaluating the evidence available before it. We have also perused the authorities of law cited by learned Additional A.-G. as well as learned counsel for applicant. While having profound respect for the Honourable Superior Courts, from what we have gathered from the above cited authorities, the legal position emerges that it is primarily the domain of learned trial Court to properly adjudicate upon the factual controversy emanating from the allegations by complainant party and their refutation by the accused party, and that is the proper forum for finally deciding the case on its own merits. Even in the case law as reported in 1994 SCMR 798, as cited by learned counsel for applicant it has been clearly held that ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. unless trial Court exercised its powers under section 249-A, Cr.P.C. or 265-K, Cr.P.C. which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C., however in exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of Justice. In the present case, prima facie the allegations in F.I.R. constitute the cognizable offences under the law, which require proper trial after evaluation of evidence available on record. In the light of this authority of law, it has to be established that this is' an exceptional case where this power under section 561-A, Cr.P.C. must be exercised. Fairly, we do not find any exceptional circumstances to intervene in the matter at this stage, with regard to the factual controversy in the case. It may be pertinent to make respectful reference to the case of Bashir Ahmed v. Zafar-ul-Islam and others, as reported in PLD 2004 Supreme Court 298, wherein the Honourable apex Court by way of a detailed discussion laid down very valuable principles of law, which are reproduced as under:-- "

19. Of late, the incidence of quashing criminal cases which are under trial which the Courts of competent jurisdiction by invoking powers under section 561-A, Cr.P.C. is becoming increasingly frequent. It is time to take stock of this tendency and to remind ourselves of the correct principles governing the subject so that the powers meant to prevent the abuse of law are not abused themselves. "

20. According to the scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused person is a serious business which commences with a pre-trial exercise to be judicially carried out by a competent Magistrate under section 190 of the Cr.P.C. If these allegations levelled and the evidence collected are found worth a trial, then cognizance is taken of the case and the accused is summoned to face the trial. Chapters XX and XXII-A of the Cr.P.C. then prescribe a detailed inquiry and a thorough probe into the matter where the prosecution has the fullest right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution where the accused then has the right to explain different pieces of evidence offered against him by the prosecution; where the accused can make a statement on oath in disproof of the allegations levelled against him and finally where he can produce his own evidence to discredit the prosecution case against him. What could, therefore, be at stake at a criminal trial are, on the one hand the invaluable rights of life, liberty, freedom and even of property of an accused person and on the other hand the demand of the society to be rid, permanently or temporarily, of a person who is a threat and a menace to it. The law commands a detailed inquiry as envisaged by the above mentioned Chapters XX and XXII-A of the Cr.P.C. so that a correct decision is reached by the trial Court after due consideration of the totality of facts and circumstances brought out before it. This is then the normal procedure prescribed by law for the purposes of finding out whether the person accused of the commission of a crime was or was not guilty of the same. "

21. As against this, when a High Court decided to proceed under section 561-A, Cr.P.C. the parties get divested of their right to adduce evidence; of their right to cross-examine the witnesses produced by the other side and of their right to D discredit the evidence offered to the Court. The result is that the normal course of law is disrupted; the parties get deprived of the precious and valuable rights vesting in them; the trial Court gets deprived of the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full-fledged trial is decided in more than a summary manner and thereby depriving the High Court of the opportunity to determine the issue in the light of proper material. "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 surplus age. 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 Nawaz Khan and another (1996 SCMR 839), Malik Salman Khalid v. Shabbir Ahmed, D and SJ, Karachi and another (1993 SCMR 1973) and Mst. Sarwar Jan v. Ayub and Gulab (1995 SCMR 1679)." In the case of Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.), Lahore PLD 1997 SC 275 it was laid down as under:-- "The powers under section 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised mechanically of in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected." In the case of Sheikh Mahmood Saeed and other v. Amir Nawaz Khan and another (1996 SCMR 839) (Supreme Court of Pakistan), it was held as under:-- "Normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A, Cr.P.C. should not be lightly made, as this would tend to circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317)." In the case of Ghulam Muhammad v. Muzammal Khan as reported in PLD 1967 SC 317 it was held:-- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." The Honourable Supreme Court laid down in the case of Khushi Muhammad and 4 others v. The State (1979 SCMR 94), as under:-- However, under the law, as it now stands, the trial Magistrate can acquit the petitioners under section 249-A, Cr.P.C. at any stage of the proceedings and in these circumstances the most appropriate remedy for the petitioners appears to be to request the trial Magistrate to consider their case under the above provisions of law. The learned trial Magistrate should, thereupon, apply his mind to this aspect of the matter and in the first instance, before proceeding any further with the proceedings, decide whether the petitioners are entitled to be acquitted in terms of section 249-A, Cr.P.C." In support of above contentions, reliance may also be placed on the case of Khawaja Fazal Karim v. The State and another (PLD 1976 ' SC 461), wherein it was laid down as under:-- "It is well settled that the inherent jurisdiction of the High Court 10under section 561-A, Cr.P.C. is neither alternative nor additional in its character and is to be rarely invoked only in the interest of justice so as to seek redress of grievances-for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary course or criminal procedure. Reference may be made in the regard to this Court's judgment in Ghulam Muhammad v. Muzammal Khan and 4 others (PLD 1967 SC 317). The same view was reiterated by this Court in Shahnaz Begum v. Honourable Judges of the High Court of Sindh and Baluchistan and another (PLD 1971 SC 677). It was observed in the case of Ghulam Muhammad v. Muzammal Khan and 4 others, "this Court had occasion to point out that the power given by section 561-A, Cr.P.C. can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." In the given circumstances, we are of the view that the ends of justice as envisaged under section 561-A, Cr.P.C. will be properly secured if the applicant/accused choose to avail the legal remedy before learned trial Court, in the first instance. The applicant shall be at liberty to approach learned trial Court by way of filing an application under section 265-K, Cr.P.C, on which an appropriate order may be passed by learned trial Court. Since the learned counsel for applicant has emphasized that the case is pending before learned trial Court since considerable period and even the charge has not been framed, therefore, in the given circumstances we observe that in case the applicant moves any such application under section 265-K, Cr.P.C. before learned trial Court, the same application shall be heard and decided strictly on merits and according to law, without any unnecessary delay. With the above observations, this criminal miscellaneous application is dismissed. N.H.Q./S-77/K Petition dismissed.