2015 P Cr (PLP)

WAQAR AHMAD SETH, J.

Through the instant petition under section 561-A, Cr.P.C. the petitioner seeks quashment of FIR No.364 dated 25-12-2013 registered under section 188/34, P.P.C. at Police Station Mattani, District Peshawar.

2. Short but essential facts of the case are that Jehanzeb respondent No.1 instituted a declaratory suit against Arshad Khan petitioner and others. Along with the plaint he has also filed an application for temporary injunction and the civil Court issued status-quo order subject to notice for 7-1-2014; that respondent No.1 on 25-12-2013 went to the Police Station, produced a copy of notice issued by the Civil Court and lodged report to the effect that he has got stay order from the Court with regard to property bearing Khasra Nos.1060, 1005 and 1062; that on the said day at 09.00 hours he (respondent No.1) along with his son Gul Zeb went to the fields, found Hassan Faqir and others including the petitioner herein, busy in doing work in the disputed property despite status-quo order, hence the FIR No. 364 was registered against the petitioner and others under section 188, P.P.C. That in pursuance of the aforesaid FIR, the petitioner was arrested on the same day i.e. 25-12-2013 and produced before the Judicial Magistrate-V, Peshawar on the next day where he was discharged from the accusation levelled against him but subject to furnishing bail bonds. Hence the instant petition for quashment.

3. The record shows that before registration of the present FIR i.e. 364 dated 25-12-2013 under section 188, P.P.C., the respondent No.1 had also filed a suit in the civil Court for declaration and permanent injunction against the petitioner and others. Along with that suit respondent No.1 has also filed an application for temporary injunction and vide order sheet No.3 of the said suit on 23-12-2013 it was ordered that status-quo be maintained till date subject to notice to the defendants for 7-1-2014. Record further reveals that the respondent No.1/complainant with regard to the same disputed property registered the alleged FIR against the petitioner. Thus the factum of the pendency of the civil suit in the Court of Civil Judge, Peshawar with regard to the same subject-matter clearly shows that the respondent No.1/complainant made an attempt to circumvent the civil remedy if any into a criminal case. The object of section 561-A, Cr.P.C. whereby inherent powers are conferred upon this Court is to do the real and substantial justice and to prevent the abuse of the process of the Court. To secure the ends of justice powers of this Court are very wide. In the case of "Meraj Khan v. Gul Muhammad and 3 others" (2000 SCMR 122) it was observed by the apex Court "that the main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no case can be made out then it would amount to abuse of process of law to allow the prosecution to continue with the trial. If the facts of the case are scrutinized on the touchstone of the above criteria then it would be obvious that the further proceedings in the Court on the basis of the impugned FIR would be sheer wastage of time". Even otherwise, civil court has adequate powers to enforce and ensure implementation of its orders/injunctions by taking recourse to the provision of Order XXXIX, R. 2(3), C.P.C. In addition to this, according to section 188, P.P.C., which provides disobedient to order duly promulgated by civil servant but section 195, Cr.P.C., provides a complaint in writing of the public servant for an offence punishable under sections 172 to 188 of Pakistan Penal Code. Admittedly no such complaint has been filed by the civil judge to their subordinate nor an application in this behalf was made before the civil judge by respondent No.1, therefore, the FIR cannot be lodged against the petitioner. The dispute is basically and totally of civil nature, which is apparent from the FIR and the same cannot be initiated as it has been done.

4. The upshot of the above discussion is that this petition is allowed and the impugned FIR No.364 dated 25-12-2013 registered under section 188/34, P.P.C. at Police Station Mattani District Peshawar is quashed and C.M. No.55-P of 2014 is allowed by deleting the name of respondent No.6. HBT/485/P FIR Quashed.