2017 PLP 262 (YLRN)

NAIMATULLAH PHULPOTO, J.

Applicants/accused Muhammad Ayoub Sorathia, Amir Malik and Muhammad Munaf Attara seek quashment of the proceedings of Case No.129/2014, arising out of FIR No.524/2014 of P.S. Gulshan-e-Iqbal, Karachi, under sections 500, 499, 504, 34, P.P.C., pending in the Court of IVth Civil Judge/Judicial Magistrate, Karachi East. Brief facts of the prosecution case as disclosed in the FIR are that complainant Shakeel Qadir works as Manager in Noman Builders and Developers. On 06.10.2014, he was present in his office situated in Gulshan-e-Iqbal, Karachi. On the same date, public notice was published in daily Jang from Mary (Pvt.) Limited, in which Noman Builders and its Director Muhammad Abid Lakhani were defamed. Complainant brought this fact to the notice of management of Noman Builders and Developers. In this regard, complainant consulted with the management of Noman Builders and Developers for initiating legal proceedings against Mary (Pvt.) Limited. On 27.10.2014, he received a written letter from the Board of Directors of Mary (Pvt.) Ltd., namely, (1) Muhammad Munaf Attara (2) Ayub Surathia, (3) Muhammad Yousuf, (4) Ramzan Ali and the secretary of Mary (Pvt.) Limited in which Noman Builders and Developers and its owners were defamed. Thereafter, complainant went to police station with the consultation of the management of the company and lodged his report on 30.10.2014 at 2010 hours. It was recorded vide Crime No.524/2014 under sections 500, 499, 504, 34, P.P.C. at P.S. Gulshan-e-Iqbal, Karachi. During investigation, 161 Cr.P.C. statements of PWs, namely, Farid Ali Khan, Muhammad Abid Lakhani and Noman Abid were recorded. Section 506-B, P.P.C. was added and on the conclusion of the investigation, challan was submitted against applicants/accused under sections 500, 506-B, 34, P.P.C. Case diary of the trial Court dated 13.04.2015 reflects that accused Muhammad Ayoub and Muhammad Amir were present before the trial Court and accused Muhammad Munaf has been declared as proclaimed offender. Applicants/accused above named without approaching the trial Court under section 249-A, Cr.P.C., have filed an application under section 561-A, Cr.P.C. before this Court for quashment of the proceedings, pending before IVth Judicial Magistrate, Karachi East. Mr. Khawaja Shamsul Islam, learned advocate for applicants/accused, mainly contended that from the contents of FIR and 161, Cr.P.C. statements of prosecution witnesses, offences are not made out against the accused. He has further submitted that regarding the same dispute Civil Suit No.1667/2014 is pending before this Court and it is argued that complainant with mala fide intention has converted civil dispute to the criminal case. Lastly, he referred to some documents and argued that accused are innocent, there is no probability of conviction of accused in this case. In support of his contentions he has relied upon the case of Ghulam Mujtaba v. The State (2009 YLR 169), Muhammad Amin v. Master Bashir Ahmed and others (2006 SCMR 969), Dr. Syed Rahatullah v. Deputy Director, Crime Circle, FIA (1999 PCr.LJ 1549), Mian Hamza Shahbaz Sharif v. Federation of Pakistan and others (1999 PCr.LJ 1584), Ghazanfar Abbas v. The State (2009 PCr.LJ 1273), Dr. Ishtiaq Hussain v. Special Judge Anti-Corruption (2004 YLR 716), Shamim v. The State (2013 YLR 305) and Tariq Nazeer Bukhari v. Province of Sindh (2014 MLD 524 [Sindh]). Mr. Muhammad Rehman Ghous, learned advocate for the complainant argued that complainant has implicated applicants/accused in the FIR and PWs in 161, Cr.P.C. statements and offences under sections 500, 109, 504, 506-B, 34, P.P.C. are made out. He has also argued that accused Munaf is fugitive from law and application on his behalf for quashment of proceedings is not maintainable. Lastly, he argued that accused have not approached the trial Court in the first instance for premature acquittal. In support of his contentions he has relied upon the cases of Dr. Sher Afghan Khan Niazai v. Ali S. Habib and others (2011 SCMR 1813), Bashir Ahmed v. Zafarul Islam and others (PLD 2004 Supreme Court 298), Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan (PLD 2013 Supreme Court 401). Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh argued that from the contents of FIR and 161, Cr.P.C. statements of the PWs case against applicants/accused is made out, there is probability of conviction of accused in this case. He has further argued that prosecution may be provided an opportunity to prove it's case before trial Court. After hearing the learned counsel for the parties, I have carefully perused the contents of the FIR, 161, Cr.P.C. statements of the PWs Muhammad Abid, Faraid. Ali Khan, Noman Abid and report under section 173, Cr.P.C. submitted by the investigation officer. Prima facie, it appears that complainant has implicated the accused persons in the commission of offence. PWs Farid Ali Khan, Muhammad Abid Lakhani and Noman Abid in their 161, Cr.P.C. statements have stated that accused persons armed with pistol issued threats to the complainant party on 30.10.2014 in the office of Noman Builders and Developers. During investigation accused were found involved in the commission of offence by the investigating officer and he submitted challan against the accused under the above referred sections. I am unable to agree with the arguments advanced on behalf of the applicants/accused that incident falls within the jurisdictional domain of Civil Court for which a civil suit has been filed for the reasons that initiation of criminal action FIR/case cannot be quashed merely on the ground that civil suit has been filed. In this regard I am fortified by the dictum laid down in the case titled Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813). At this stage, no reliance can be placed upon the documents referred by learned advocate for accused, without providing an opportunity to prosecution for cross-examination of PWs at trial. It is admitted fact that applicants/accused did not approach the trial Court under section 249-A Cr.P.C. and approached this Court by filing an application under section 561-A, Cr.P.C. for quashment of proceedings. Provisions of section 561-A, Cr.P.C. cannot be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law. Jurisdiction under section 561-A, Cr.P.C. is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine. Apparently, there is sufficient material against the accused to substantiate the commission of offence. At this stage, it is not possible for this Court to hold that there is no probability of the conviction of the accused in the case. Deeper appreciation of evidence is the function of trial Court. The law is quite settled now that after taking cognizance of a case by trial Court, FIR/proceedings in that case cannot be quashed and fate of the accused person challaned therein is to be decided by the trial Court itself, as laid down by honourable Supreme Court in the case of Director General, Anti-Corruption Establishment, Lahore and others v. Muhammad Akram Khan (PLD 2013 Supreme Court 401), relevant portion is reproduced as under:

2. After hearing the learned Additional Advocate-General, Punjab appearing for the appellants and the learned counsel for respondent No.1 and having gone through the record of the case with their assistance we have found that through the impugned order the learned Judge-in-Chamber of the Lahore High Court, Lahore had partially quashed the relevant F.I.R. to the extent of respondent No.1 whereas partial quashing of an F.I.R. to the extent of some of the accused persons mentioned therein is a legal impossibility. Apart from that the impugned order had been passed by the learned Judge-in-Chamber of the Lahore High Court, Lahore at a time when a Challan in the relevant criminal case had already been submitted before the learned trial court and the learned Trial court had already taken cognizance of the case. The law is quite settled by now that after taking of cognizance of a case by a trial court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249-A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction. Needless to mention here, if accused persons deem themselves to be innocent and falsely involved in the case, they would be at liberty to avail remedy provided to them before trial Court under section 249-A, Cr.P.C. For what has been discussed above, criminal miscellaneous application is without merit, the same is dismissed. YN/M-82/Sindh Application dismissed.