2017 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The petitioner along with one co-accused Babar Ali was booked for the offence under section 380, P.P.C. vide FIR No. 22/2016 dated 23.06.2016 registered at Police Station Danyore.

2. During course of investigation the petitioner was released by the police under section 169, Cr.P.C., and co-accused Baber Ali was challaned to face trial on the above charge. The challan of the case was submitted in the Court of learned Judicial Magistrate 1st class Danyore, who took cognizance of the case on 25.8.2016 and fixed the case of co-accused Baber Ali for framing of charge on 05.09.2016. On the said date learned counsel for the accused Baber Ali and learned counsel for complainant filed their wakalat namas and on the said date ADPP also filed an application for summoning the petitioner/accused Rizwan Ali as he was directly charged in the FIR for commission of offence. As evident from the order-sheet dated 05.09.2016, the application of ADPP was allowed and the petitioner/accused was summoned for 26.9.2016. On 26.9.2016 the petitioner was marked absent and bailable warrants were issued against him. On 05.10.2015 the petitioner/accused put up his appearance before the trial Court and the learned State counsel was directed to provide copies of case to the accused and case was fixed for framing of charge on 19.10.2016. On 19.10.2016 one Sadiq Ali, Advocate filed wakalat nama on behalf of petitioner and case was again adjourned for framing of charge.

3. The petitioner/accused being aggrieved from the order of learned Judicial Magistrate dated 05.09.2016, filed the instant petition for quashment of the impugned order.

4. The learned counsel for the petitioner submitted that there is not an iota of evidence against the petitioner and he was released under section 169, Cr.P.C., by the I.O. due to deficient evidence and the order of summoning the petitioner without any incriminating evidence will amount to abuse of process of Courts and law. The learned counsel further submitted that the powers under section 249-A, Cr.P.C., 265-K and 561-A, Cr.P.C., co-exist and can be invoked directly by filing a petition before Chief Court without availing the remedy under section 249-A or 265-K, Cr.P.C. The learned counsel for the petitioner relied on 2002 YLR 3595, wherein it was held that trial Court calling of an accused on the application of complainant, when they were released under section 169, Cr.P.C. was not justified and it was held that trial Court should exercise due care in this regard.

5. On the other hand the learned Dy. A.G, opposed the petition and submits that the petitioner has approached this Court directly, hence the petition is not maintainable. The learned Dy. A.G, further submitted that the trial Court is vested with ample powers to summon any accused placed in Column No. 2 of the Challan and the powers under section 561 A, Cr.P.C. cannot be exercised to stifle the prosecution case. The learned Dy. Advocate General relied on PLD 2001 SC 536.

6. Having heard the parties and perusal of record shows that the petitioner was declared innocent and was released under section 169, Cr.P.C., due to insufficient evidence. On 05.09.2016 as evident from the record, learned ADPP moved an application before the learned Judicial Magistrate for summoning of the petitioners to face trial and the application was allowed. No application was required in this regard and trial Court itself was competent to call any accused placed in Column-2 of the challan as the Court always take cognizance of the offence and not the offender. The powers of Court to summon an accused placed in column-2 of the challan are though unfettered but before summoning an accused to face trial the trial Court must apply its judicial mind and his approach should be objective. If there is some incriminating evidence against an accused placed in column-2 of the challan, the trial Court's powers cannot be curtailed. In the instant case the learned Judicial Magistrate did not think it proper to summon the petitioner/accused as evident from the order-sheet dated 25.08.2016 and the petitioner was summoned on 05.09.2016 when ADPP moved an application in this regard. Needless to say that provisions of section 173, Cr.P.C. were not available to complainant, who if dissatisfied with decision of investigating agency, could file a direct complaint.

7. As discussed above the powers of trial Court to summon an accused placed in column-2 are not under challenge and there is consensus that these powers are the sole discretion of the trial Court. The only point agitated before me is that there is no incriminating evidence on the file to establish a prima facie case against the accused and trial would be a futile exercise. Except mere mentioning of name of the petitioner in FIR and a bald statement of one Aqil Hussain son of Khukoro resident of Nomal recorded by police under section 161, Cr.P.C. The petitioner is from Danyore and there is no evidence that PW Aqil Hussain was ever familiar with the petitioner when did not know the principal accused Baber Ali and also hails from a different locality many kilometers away from the native town of petitioner. Nothing was recovered on the pointation of accused nor was his taxi impounded during investigation as a case property. There is another statement of PW Sultan son of Nighban available in file, who is also a taxi driver and as per his statement his taxi was being frequently booked by the principal accused Baber Ali. The role of this PW and the petitioner is same but he has not been arrayed as an accused and trial if allowed will not result in conviction.

8. Another legal proposition needs to be addressed here is that moving of trial Court first under section 249-A, Cr.P.C., arises in the cases, where FIR does not reflect a complete picture of the case, but when FIR gives an idea that the evidence which prosecution wants to adduce in the trial Court, even if such evidence can come on record, the accused cannot be convicted, and the proceedings against him would be abuse of process of Court and can be quashed without the person seeking quashment being moved the trial Court under section 249-A, Cr.P.C. The Supreme Court of Pakistan in a case reported in PLD 1967 SC 317, has held that inherent jurisdiction should not be normally exercised where another remedy is available as the inherent powers are perversed to meet a lacuna in the criminal procedure in extra ordinary cases.

9. Once again it is clarified that the inherent jurisdiction under section 561-A, Cr.P.C., is not an alternate or additional jurisdiction and cannot be invoked when an alternate remedy is available in the trial Court and the trial Court would be well competent to acquit the accused at any stage of proceedings if the charge is found groundless.

10. The contents of FIR and statement of P.W. Aqil Hussain are only pieces of evidence available with the prosecution, which are vague and sketchy and without any other incriminating evidence, there are remote chances of conviction of the petitioner. For the foregoing reasons, the proceedings pending against the petitioner on the basis of FIR No. 22/2016 of Police Station Danyore are hereby quashed by setting aside the order of learned trial Court dated 05.09.2016, to meet the ends of justice. JK/241-GB Proceedings quashed.