2017 P Cr (PLP)

MUHAMMAD SHERAZ KIANI, J.

The captioned application has been filed under section 561-A of Cr.P.C. for quashment of FIR illat No. 30/17 lodged on 13.02.2017 at Police Station Charhoi in offences under sections 109, 511, APC against the applicant.

2. Precise grievance of the applicant in the instant application is that it is averred that on a concocted and fabricated story the case mentioned above, has been registered against the accused to humiliate him in the society whereas the contents of initial report of police do not disclose commission of any offence. It is stated therein that the report has been prepared on the basis of personal rivalry and political influence and the complainant party implicated the applicant with the commission of offence while no piece of evidence has been brought on record which may suggest that the applicant remained connected with commission of offence. It is averred that it is crystal clear from the report that the deceased, Aliza Zaroob, was rusticated by School Principal accused-Sahadat Rafique whereas in the aforesaid report, only the role of making telephonic call has been attributed against the applicant and at that time when the incident took place, he was at Kotli with his close relative. It is craved that the accused-applicant neither made a telephonic call to the deceased nor has any nexus with her. It is contended that the report resulting into registration of case made due to political influence just to bring into disrepute the accused-applicant in the general public, therefore, same is liable to be quashed to meet the ends of justice.

3. On application, the non-applicants were summoned for filing comments vide order dated 13.03.2017, the needful was done by the official respondents on 29.03.2017 wherein the contents given in the application have been refuted entirely and it is stated that the accused-applicant is nominated in the aforesaid case and specific role has been attributed against him and the accused-person is fully implicated with the commission of offence because it appears from the initial investigation, no clue of personal rivalry between the complainant party and the accused-applicant becomes visible and if the proceedings of the case going on are stopped or the investigation is restrained, the complainant party will suffer an irreparable loss and the investigating agency may not reach the real culprits. It is contended therein that the accused-applicant indulged in blackmailing and harassing the deceased, which is corroborated through Mobile Telephonic Prints (CDR) and mobile data record, therefore, the application may be dismissed so that the investigation may be completed and the case be submitted before the competent Court of law. 3(sic.) Learned counsel for accused applicants reiterated the grounds taken in the applications and submitted that from the perusal of the FIR no cognizable offence appears to have been committed. He submitted that FIR was registered after 25 days of occurrence which is clear proof of the fact that the case is false and FIR has been registered with mala fide intentions. The learned counsel further argued that the occurrence in respect of which the complainant has been lodged, is in fact a suicide; therefore, the FIR may be quashed on the ground that the same has been registered illegally against the accused-applicant.

4. On the other side, it was argued that the accused petitioners made telephonic calls to the deceased and teased her, upon which she was depressed and lastly she committed suicide, thus the accused petitioner and others were responsible for her death. The matter is still under investigation. Material brought on record is sufficient to connect the accused petitioner with the alleged offence, and there was no justification to quash FIR, therefore, the application may be dismissed.

5. I have heard the learned counsel for parties and learned Assistant Advocate General representing the State and gone through the record of the case.

6. For having true perception, I would like to reproduce section 561-A, Cr.P.C., which is as under:- "561/A, Cr.P.C. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

7. It is well settled that the inherent jurisdiction of this Court under 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 grievance for which no other procedure is available and that the provision should not be used to obstruct or divert the ordinary course of criminal procedure. Section 561-A, Cr.P.C. confers upon this Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by this Court at any time.

8. Now the question arises that if the story narrated in the police record is presumed to be correct than whether any cognizance offence has been committed or not?

9. The contention of Learned Assistant Advocate General that due to teasing and harassment by the accused Mohsin Hanif and others, the deceased became so depressed that she could not control her senses and thus died due to unlawful and illegal act of the accused persons, and according to his version thus, accused are responsible of her death, does not carry weight because to bring the case of the accused into offence of Qatl-i-amd, Qatl-shibh-i-amd, Qatl-i-Khata, and Qatl-bis-Sabab, necessary factors which are required, are that there must be direct links between act or omission of the accused person and death of the deceased. In simple words cause of death must be attributed towards the accused person. For proper perception it would be useful to reproduce the definition of the above kinds of murders given in the A.P.C. Section 300, A.P.C. "Qatl-i-amd. Whoever, with the intention of causing death or with the intention of causing bodily injury to a person by doing an act which in the ordinary course of nature is likely to cause death, or with the knowledge that his act is so imminently dangerous that it must in all probability cause death. 315, A.P.C. Qatl Shibh-i-amd. Whoever, with intent to cause harm to the body or mind of any person causes the death of that or of any other person by means of a weapon of an act which in the ordinary course of nature is not likely to cause death is said to commit qatl shibh-i-amd. 318, A.P.C, Qatl-i-Khata

Whoever, without any intention to cause the death of, or cause harm to a person, causes death of such person, either by mistake of act or by mistake of fact, is said to commit qatl-i-Khata. 321, A.P.C, Qatl-Bis-Sabab. Whoever, without any intention to cause death of, or cause harm to, any person, does any unlawful act which becomes a cause for the death of another person, is said to commit qatl-bis-Sabab.

10. According to the definition of murder there must be an intention to kill someone and an act which in ordinary course of nature can cause death or the offender himself should have a knowledge that his act is so imminently dangerous that in all probabilities it would result in the death of the victim. For qatl-bis-sabab, there must be unlawful act which could be direct cause of death of the deceased but in the present case if it is presumed that the accused persons have teased or harassed the deceased (Aliza Zaroob) and from their alleged acts she became so depressed, resultantly she herself jumped down in the deep ditch/chasm and died. From these facts one can say that due to unlawful act of the accused person she suffered from depression but her death cannot be related with these acts and it cannot be said that her death was caused due to alleged act of the accused person. From the facts narrated in the FIR, intention to kill the deceased cannot be gathered, neither it can be said, even prima facie, that if a person is teased or expelled from school/college, he would commit suicide consequently. For qatl -bis-sabab, even, the unlawful act of the offender must be a direct cause of the death of a person though intention is not necessary in that case. Needless to say that suicide is committed by a person due to any mental disorder (anxiety, depression etc) and cause of depression can be determined by a psychologist/psychiatrist, just to presume that a specific incident is a cause would not be legally justified. Even for the sake of argument, if it is presumed that the attributed acts of the accused persons were the cause of her anxiety, even then one can say that due to their alleged acts she became so depressed, and thereafter she committed suicide. So it could be the cause of depression not of death and to constitute a cognizable offence of qatl one must be attributed an act which would be a direct cause of death which is missing in the present case. If such practice is allowed every suicidal death would be converted into a murder case by the Police by roping in the other people socially connected with the deceased. It is clear from the Police record that victim (Aliza Zaroob) committed suicide. If the facts of the case do not disclose or constitute any offence, then to allow the proceedings to continue amounts to abuse of process of the Court and its pendency cannot be allowed to be used as an instrument of harassment or coercion for attainment of unlawful purpose. In the instant case FIR had been lodged after about 25 days of the occurrence. It is clear that registration of FIR has been resorted as vehicle of oppression and coercion against the petitioner/accused which will cause abuse of process of the Court.

11. The FIR has been registered under sections 511/109, A.P.C. The both sections applies in case of abetment or attempt to commit, if made out. The learned counsel for the complainant could not be able to point out what offence was abetted or attempted. According to column 3 of schedule II given in Criminal Procedure Code, the both offences (abetment and attempt) becomes cognizable only when the main of fence(attempted or abetted) is cognizable, when there is no mention of any abetted or attempted offence (murder etc) then to register case under sections 511/109, A.P.C. is without lawful authority. Thus in these circumstances the offences as alleged in the FIR are not made out against the accused and continuance of the proceedings in the case in hand, would amount to abuse of the process of the Court and would be a futile exercise and wastage of time. 11(sic.) As no cognizable offence is made out, but as far the alleged acts of the accused that they teased, harassed or abused the deceased during her life time, is concerned, it can constitute some non cognizable offence and in view of section 155(1), Cr.P.C. the Police can forward the complainant to the concerned magistrate or he can file a private complaint against the accused persons. If any investigation is required, that can be done by Police under subsection (2) of section 155, Cr.P.C. after obtaining permission of the competent Magistrate that too without power of Police to arrest the accused. Therefore, in this view of the matter, I accept this petition and the FIR illat No.30/2017 registered at police station Chrohi on 09.03.2017 in offences under sections 511/109, A.P.C. is hereby quashed. HBT/23/HC(AJ&K) Petition accepted.