2001 P Cr (PLP)

272. It is well‑settled that Constitutional jurisdiction vesting in the High Courts under Article 199 of the Constitution cannot be taken away or abridged, or curtailed by subordinate legislation. The above provision insofar as it purports to oust the jurisdiction of the superior Courts from exercising the jurisdiction whether under Article 184(3) or 199 of the Constitution is ultra vires. Refer Inayat Ullah and others v. M.A. Khan and others PLD 1964 SC 126, Nagina Silk Mills, Lyallpur v. Income‑Tax Officer PLD 1963 SC 322, Abdul Rashid v. Pakistan PLD 1962 SC 42, Muhammad Anwar v. Government of West Pakistan PLD 1963 Lah. 109, Abdul Rahim v. Chancellor of West Pakistan University of Engineering and Technology PLD 1964 Lah. 376, Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan as Supreme Commander of the Armed Forces, Islamabad and others PLD 1996 SC

632. However, by way of abundant caution, section 32 be suitably amended so as to clarify in unambiguous terms that ouster of jurisdiction does not embrace the superior Courts in the exercise of their Constitutional jurisdiction. Needless to observe that High Courts shall exercise this power sparingly in rare and exceptional circumstances for valid reasons to be recorded in writing." Although the Honourable Supreme Court, has held that the Constitutional jurisdiction vesting in the High Court under Article 199 of the Constitution, cannot be taken away, abridged or curtailed by subordinate legislation and the provisions contained under section 32(d), which provides that no stay of proceedings before Accountability Court shall be granted by any Court on any ground whatsoever, nor proceedings thereof be suspended or stayed by any Court on any ground whatsoever, is ultra vires the Constitution and has directed for suitable amendment to clarify that ouster of jurisdiction does not embrace the superior Courts in exercising of their Constitutional jurisdiction, and the application under consideration before us is under section 561‑A, Cr.P.C. and not under Article 199 of the Constitution. Nonetheless, we will examine whether the present case warrants exercise of jurisdiction by this Court which is to be exercised sparingly in rare and exceptional circumstances. It is stated in the application that as many as 18 prosecution) witnesses were cited in the challan, out of whom 10 prosecution witnesses have been examined and 6 prosecution witnesses have been given up by the prosecution, vide statement, dated 6‑7‑2000 before the trial Court. During the course of arguments before us Mr. Abul Inam, learned counsel for the applicant has stated that all the prosecution witnesses including Investigating Officer, have been examined to the trial Court and the prosecution side has been closed. Thus the moot point for consideration is, whether at this advance stage of trial this Court should intervene with the normal course of proceedings provided in law, and whether this Court should embark up on assessing, appreciating and evaluating the prosecution evidence brought on record? Principles have been laid down in this regard by the Honourable Supreme Court of Pakistan to the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC

317. In this case criminal proceedings pending in the trial Court were quashed by a learned Single Judge of the erstwhile West Pakistan High Court, Lahore Bench, under section 561‑A. It was contended before the Honourable Supreme Court that the reason given by the High Court for interfering in the matter were not legally sound. It was pleaded that in a case where a Court is properly seized of a criminal proceedings and has after examining the evidence taken the view that then a prima facie case to be tried and has framed charges, the High Court is not competent to quash the proceedings unless it is satisfied that even if the evidence adduced is left unrebutted no charge can, at all be framed. Then and only then can the proceedings be quashed. It was contended in the cited case that the evidence recorded by the trial Court was by no means, of that nature and it cannot be said that if it is left unrebutted no case has at all been made out against the respondents. Reliance was placed on earlier decision of the Honourable Supreme Court in the case of M.S. Khawaja v. The State PLD 1965 SC 287. wherein it was observed as follows:‑‑ "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice', would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in, law. To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that e proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an "abuse" it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, of Mitre the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue." It was further urged before the Honourable Supreme Court, that in the said case the High Court has not ‑only acted in disregard of these principles but has, indeed, by interfering at this intermediate stage with the usual course of the administration of criminal justice in the manner provided by the Criminal Procedure Code interrupted the course of justice and set up a wrong precedent by which the cause of justice instead of being advanced has really been stifled: The Honourable Supreme Court, o served as follows:‑ "Inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they C are pleased to consider to be in the interests of justice. These powers are as much controlled by principles and precedents as are its express statutory powers. The Honourable Supreme Court further observed that:‑‑ "If, in fact, an offence had been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court. On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal .proceeding as was pointed out in the case of M.S. Khawaja v. ThF State." The Honourable Supreme Court further held as under:‑‑ : "The inherent jurisdiction given, by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it 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 so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the .E charge on its face or the evidence, even if believed, does not disclose any offence." The Honourable Supreme Court allowed the appeal and the order of High Court quashing proceedings was set aside. The case was directed to be proceeded and disposed of by the trial Court. The issue again came for consideration before Honourable Supreme Court in the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others PLD 1992 SC

353. In this case a judgment of Sindh High Court was assailed whereby the proceedings pending before Presiding Officer, Special Court of Sindh (Banks), Karachi ‑was quashed. In the said case cognizance was taken by the Special Court (Banks), on a direct complaint to the effect that the Manager of the, Bank secretly and surreptitiously sold the shares of the complainant, which were deposited with the bank as security at lower price as a result of manipulation and conspiracy on the part of Bank's Manager, the Stock Exchange Broker and the purchaser. A Division Bench of this Court quashed the proceeding. The Honourable Supreme Court observed as follows:‑‑ "Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is: whether, the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special or inherent jurisdiction, the writ jurisdiction under Article 199 of the Constitution is one of them. The basic rule was laid down by this Court in the well‑known case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and it was ruled that if prima facie the offence had been committed justice required that it should be enquired into and tried. If the accused are not as a result of the trial found guilty they have a right to be declared as honourably acquitted by a competent Court'." On the other hand if the evidence against the accused discloses a prima facie E case then "justice clearly requires that the trial should proceed according to law". It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561‑A, Cr.P.C., it was held can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute". Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption .y the High Court under section 561‑A, Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was, set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law. The afore-stated view and principle was reiterated by the Supreme Court in other cases as well, which came before it through the jurisdiction of the High Court other than section 561‑A, Cr.P.C. They included revisional and writ jurisdictions. See Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Abdul Aleem v. Special Judge (Customs), Lahore 1982 SCMR

73. The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge Customs notwithstanding the legal objections raised from the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A criminal revision tiled by him having been dismissed he sought relief for quashment of the criminal case through a writ petition and the same had to be dismissed mainly on the ground that the High Court would not "in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law" This Court refused to grant leave to appeal. It was observed as follows:‑‑ "We are of the view that the approach of the learned Single Judge in the High Court in refusing to deflect the normal course of a criminal case through exercise of writ jurisdiction is not only salutary but also in accord with the principles laid down by this Court in Ghulam Muhammad v. Muzammal Khan and 4 others PLO 1967 SC 317 ...." In a very recent case which had arisen out of the same law relating to Offences in Respect of Banks (Special Courts) this Court again emphasized the same principle. See Muhammad Aslam v. The State 1991 SCMR 600, para. 26:‑‑ "All the points which have been noted above are such which the Special Court (Banks) could have decided and if it would have decided then the subject‑matter involved herein fell within its jurisdiction. This decision by itself would not have been without jurisdiction because if such decision is wrong it does not mean that it is necessarily without jurisdiction. In this particular case there is an additional support for this view; namely, that section 4(6) of the Ordinance (No. IX of 1984) provides that in the course of the trial before the Special Court if it is of the opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence the Court shall record such opinion and try the accused only for such offence, if any, as a scheduled offence. Therefore, if the Special Court would have been allowed by the High Court, without interrupting the normal course of the case, to proceed with it, there was no bar to the respondents to have invoked the power under subsection (6) of section 4 to seek the same remedy from the trial Court as was sought from the High Court." The order of High Court whereby the criminal case pending before Special Court (Banks), was quashed, was set aside by the Honourable Supreme Court and it was directed that the accused/respondent shall be tried by the Special Court (Banks) for offences under the Banks (Special Courts Ordinance (IX of 1984). A learned Single Judge of this Court has examined the issue in a recent case, Syed Zeshan Hussain Kaznu v. The State 2000 PCr.LJ 645, and after referring to a large number of rulings has held that section 561‑A, Cr.P.C. is not meant to stifle the prosecution but is intended to prevent the abuse of process of Court. It has been held further that the Court for quashing the proceedings has to consider the allegations made against the accused on their face value and if a prima facie case is made out, Court can refuse the prayer for quashment. The learned Single Judge has further held that the High Court under section 561‑A, Cr.P.C. cannot assume the role of trial Court and evaluate the evidence present on record or yet to be recorded, to determine the guilt or innocence of an accused by way of a detailed enquiry‑‑Accused may have a good defence but it has to pass the test of cross‑examination and appreciation of defence evidence is also the duty of the trial Court in the light of the statutory provisions and the dictums laid down by the superior Courts. It has been held that powers under section 561‑A, Cr.P.C. are wide, but they are not supposed to be exercised to override the express provisions of law. In another Single Bench judgment of this Court in the case of Muhammad Bux v. S.D.M. PLD 1999 Kar. 366, it has been held that the inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it 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 so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. We fully subscribe to the views expressed in two Single Bench judgments of this Court, cited above. As observed earlier, all the prosecution witnesses have been examined by the trial Court in this case and now the case is fixed for the statement of accused and defence if any. The learned counsel for the applicant seeks that we should assess and evaluate the prosecution evidence recorded by the trial Court. We are of the considered opinion that the contention is not acceptable because it would amount to stifle the normal course of proceedings provided in law. It will also amount to usurp the Jurisdiction vested in the trial Court and to pre‑empt the finding of a Court of competent jurisdiction. We are not able to find any reason for interfering with the jurisdiction of trial Court at this fag‑end of the trial and the learned counsel for the applicant is not able to satisfy us, as to how we can assume the role of trial Court by assessing and evaluating the worth of the prosecution evidence recorded by the trial Court and how the course sought to be adopted shall secure the ends of justice. We have already referred to the observations of Honourable Supreme Court in the case of Khan Asfandyar Wali PLD 2001 SC 607 that the High Court shall exercise the Constitutional jurisdiction under Article 199, in rare and exceptional cases. We are of the opinion that when the trial Court has already held that there is a prima facie case against the applicant, it would not be in the interest of justice to substitute our finding and thrust the same on the trial Court which can never be the intention of preserving the inherent jurisdiction of the High Court under section 561‑A, Cr.P.C. For the foregoing reason, it is held that it would be appropriate if the law is allowed to take its normal course and the trial Court is allowed to exercise its jurisdiction vested in it by law and give the finding on merits after a proper assessment and evaluation of the prosecution evidence already recorded by it. For the foregoing reasons, the application under section 561‑A, Cr.P.C. is dismissed in limine, alongwith listed applications, After hearing learned counsel for the applicant on 10‑5‑2001, the application was dismissed by a short order. These are the detailed reasons in support thereof. M.B.A./Y‑19/K Application dismissed.