P L D 1995 Quetta 76 (PLP)

S. 561-A

Section 561-A, Cr.P.C. confers inherent powers on High Court to act in aid of advancement of interest of justice and to eliminate an action resulting in abuse of the process of Court. Muhammad Ashraf Khan Tanooli for Petitioner. Mir Aurangzaib on behalf of Advocate-General and Mushtaq Anjum on behalf of Dy. Attorney-General for State. Date of hearing: 26th July, 1994. This is petition preferred under section 561-A, Cr.P.C. with the following prayer:-- ` "It is, therefore, most respectfully prayed that this honourable Court may be pleased to call for R & P of the complaint case filed by the respondent against the petitioner pending in the Court of Judicial Magistrate II, Quetta, and after having satisfaction be further pleased to order for quashment of the proceedings, till then the proceedings pending as such may be stayed:" 2. Briefly stated the facts of the case as mentioned in the memo. of petition are that the petitioner is a businessman of high reputation and that in course of business transaction M/s. Ejaz Khan Ixshad Khan and Sons, through its Proprietor Mr. Ejaz Khan resident of Hyderabad executed an agreement with the petitioner's firms, with the name and style of M/s. S. Ehsan Ali Brothers Quetta, for export of Metric 'Ions onion to Iran as Mr. EjaZ was in possession of Export Permit issued in his favour lay the Export promotion Bureau, Government of Pakistan. Mr. Ejaz_ Khan also executed General Power of Attorney in favour of the petitioner besides the agreement as mentioned above. It is alleged that Mr. Ejaz Khan misappropriated huge amount from the 'Bank which resulted in mistrust and consequently the petitioner severed his business relations with Ejaz Khan, who retaliated and got registered a criminal case bearing F.I.R. No. 148/76 under sections 419/420/409 and 109, P.P.C. at City Police Station Quetta. Mr. Ejaz Khan also lodged a complaint to F.IA. which was consigned to record due to want of jurisdiction. There was no progress ire respect of case lodged at Police Station City, Quetta, as it way that of a civil nature. It is also averred that after lapse of 1 ! years Assistant Director F.IA. CBC issued a notice and in response whereof all necessary details furnished, but another notice was issued on 15-10-1993 whereby the petitioner was directed to appear before the Enquiry Officer FIA. C.B.C., Quetta, on 23-10-1993. However, the petitioner contested on the plea that FLA. was having no jurisdiction in the matter already considered and closed. That on 4-1-1994 the petitioner received another notice to appear before the Judicial Magistrate First, Quetta, on 10-1-1994. The petitioner appeared before the abovementioned forum and came to know that a complaint under section 174, P.P.C. was made against him and petitioner was directed by the learned judicial Magistrate on l0-1 -1994 to appear before a Assistant Director, F.I.A. ou 11-1-1994, the needful was done and Assistant Director, FIA. told him to appear on 18-1-1994, but he could not appear due to certain personal reasoning. On 16-1-3994 learned Judicial Magistrate issued a warrant of arrest against the petitioner hence this quashment has been sought. 3. It is urged emphatically by Mr, Muhammad Ashraf Khan Tanooli Advocate, on behalf of the petitioner, that prima facie the matter is that of a civil nature which was already investigated and consigned to record due to want of jurisdiction and furthermore, that the case registered vide F.I.R. bearing No. 148/ t6 was also investigated and finally closed but no report submitted in pursuance of the provisions as contained in section 173, Cr.P.C. It is next contended that the Assistant Director F.IA. is not legally empowered to investigate into a matter already closed and without any legal or moral justification. It is further argued that there is no iota of evidence or incriminating material available against the petitioner to call for further investigation by FIA. It is further pointed out that no F.I.R. was got lodged with FIA. hence the petitioner cannot be forced to appear. It is further contended that initially the matter was pending before Special Railway Magistrate, who is in fact having the jurisdiction which was subsequently transferred to Judicial Magistrate, Quetta, without any lawful basis and now the proceedings are simultaneously being commenced by the Special Railway Magistrate and Judicial Magistrate. It is also argued that the provisions as: contemplated under sections 200, 202, and 204 Cr,P.C. have not been complied with. 4. The abovementioned position has been controverted strenuously by Mir Aurang Zaib, Advocate, who appeared on behalf of learned Advocate -General and submitted that keeping in view the manifold prayer the provisions as contained in section 561-A, Cr.P.C. cannot be invoked. It is also brat a Revision should have been filed before the learned Sessions Judge for the redress of grievance if any. It is further pointed out that in case; no case is made out after submission of challan an application may be moved under section 26-5-K, Cr.P.C. Lastly, it is argued that this Court leas no jurisdiction to entertain application, as challan is yet to be submitted. 5. Mr. Mushtaq Anjum, Advocate, appeared on behalf of learned Deputy Attorney-General and contended vehemently that a revision petition could have been filed instead of an application under section 56-t-A, CrY.C. It is next contended that enquiry conducted by F.I.A. is yet to be concluded and could not be finalized sue to non-cooperation of the petitioner, who has been deliberately avoiding to attend the F.IA. office in order to get the matter prolonged. It is also pointed out that there was no other alternative available to F.IA. but to file a complaint under section 174, P.P.C. presently pending before Judicial Magistrate-II, Quetta. It is also contended that after the promulgation of offences in respect of Banks (Special Courts) Ordinance, 1984 the F.IA. is competent to enquire into the matter. It is further contended that at this premature stage this petition has been moved to get the matter prolonged and without any lawful basis. 6. 1 have carefully examined the respective contentions as adduced on behalf of the petitioner and for State in the light of relevant provisions of law and available record. I may make it clear at the outset and as it is well established by now that the inherent jurisdiction of this Court as conferred upon it under section 561-A, Cr.P.C. should not normally be invoked, where another remedy is available. The jurisdiction so conferred and the powers so vested ought to be exercised only to prevent abuse of process of Court and in order to promote the interest of justice. Another important aspect which must not escape unnoticed is that the High Court may quash the criminal proceedings initiated on baseless and frivolous complaint which does not contain any definite accusation or where apparently no offence is made out, but where on face of complaint a prima facie case is made out then the question of quashment does not arise when the evidence is yet to be recorded, as it would amount. to stifling of criminal proceedings. In my view the quashment on a premature stage would not be fair which amounts to depriving the complainant from a proper opportunity to establish his complaint. It would also not be desirable to quash the proceedings at initial stage when a prima facie case is made out for the reasons that in such an eventuality the matter falls within the discretional ambit of trial Court to thrash out the evidence to see and decide whether the accusation is having any substance or otherwise For the quashment of criminal proceedings the High Court must be able to come to a clear conclusion that either the accused is innocent or that the conviction is quite impossible (PLD 1975 Karachi 23, PLD 1961 Karachi 220, PLD 1976 Karachi 706). 7. The petition under consideration has been examined in the light of legal position as explained hereinabove. It is to be noted that a case was got registered by the complainant at City Police Station Quetta, which could not be properly investigated and in spite of lapse of many years, the complainant is yet to know the fate of his complaint, which amount to mockery of law. The progress in the case for certain obvious reasons remained negligible for no fault of the complainant. The petitioner first obtained bail before arrest and subsequently got it confirmed. The complainant also approached F.I.A. Authorities, but after a considerable long time the complaint was filed due to want of jurisdiction. It however, reveals from the enquiry report that letter dated 9-9-1,976 was issued by Sub-Inspector of Police, who was not competent to do so. The relevant portion of the said report is reproduced hereunder of ready reference:-- "8. The Director FIA, Quetta Zone, Quetta has directed the Deput: Director FIA, Quetta to confirm/verify the letter, dated 9t1 September, 1976, issued from the Office of the Deputy Director FIA Quetta. The despatcher Mr. Jamal Nasir of FIA Crime Circle, Quetta, has examined the despatch register for the year 1976 and official reported explained that neither the letter in question has been issue from the office of the Deputy Director FIA, Quetta, nor it bears the despatch number. On receiving the remarks of Despatcher of Deput Director FIA, Quetta the letters, dated 20th and 24th October, 199' were submitted to the Assistant Director FIA, Quetta wit] request to take legal action against the alleged person under this rules. This false letter dated 9-9-1976 was issued for some mala fide intention with the abetment of signing authority (Malik Sarwar). Th signing authority was serving as Sub-Inspector/Inspector Legal in FU during the year 1976 and he was not the Deputy Director FIA, Quetta as indicated into false/forged letter dated 9-9-1976. Furthermore, Mi Sarwar Khan was not officially authorized to issue direct letter to the accused in connection with closure of enquiry against him. The signing authority has also directly involved into the criminal offence/case an also abused his official powers in the capacity of Federal Public Servant and defame this Agency. The legal action should also be take against him after obtaining the necessary permission from the competent authority. The Assistant Director FIA, CBC, Quetta also submitted a comprehensive Letter No. AD/FIA/CBCQ/2106-8, date 2nd October, 1993 and suggested for taking legal action under section 174, P.P.C. after approval of FIA, Hqrs., Islamabad. 9. As obtaining false/forged letter dated 9th September, 1976 bearing signature of unauthorised person and used for the purpose cheating. In deceiving the Court authorities is sufficient documental proof against the accused person who defrauded Mr. Ejaz Khan an companion, embezzled the huge amount with the abetment of the public servants:' 8. A bare perusal would reveal that how an attempt was made to hush t the matter which ultimately, succeeded but no action whatsoever was initiate against the delinquent. The complainant persued the matter vigorously and consequence whereof the petitioner was directed to appear before FIA whip was not done and legal mechanism was used to get the matter protracted Besides, a letter to F.I.A. to refrain from issuance of any further notice w also sent and moreso a threat was given for lodging a complaint before Hon'ble Chief Justice, Balochistan High Court in case of repetition of such notices. The said example can be termed as .glaring and bold which a sufficient to create hindrance in the smooth process of law. The provisions as contained in section 561-A, Cr.P.C must not be used to obstruct or divert ordinary course of Criminal Procedure (1986 SCMR 483). 9. The premier contention as put forth by Mr.Muhammad Ashraf Khan Tanooli, Advocate, seems to be devoid of merits that the attendance of petitioner cannot be procured by Judicial Magistrate-II Quetta, before whom the complaint was filed by F.I.A. is pending adjudication. The learned Magistrate was fully competent to take cognizance of the matter under section 195(a), Cr.P.C. and as such issuance of notice was within his competency and no irregularity or illegality whatsoever has been committed in doing the needful. The case titled Shahabuddin v. State (AIR 1961 J&K 54-55 = (1961) 2 Cr.LJ 87, can be relied if any reference is required. Another important feature to be kept in mind is that an offence under section 174, P.P.C. is triable summarily and. by any Magistrate. It seems a misconceived notion that a case pending before Railway Magistrate could not be transferred to any other Magistrate for favour of trial by the competent authority. The record is also suggestive of the fact that the petitioner remained absent on various occasions 'i.e. 28-12-1993, 10-1-1994 and 24-1-1994 when the following order was passed:

Instead of compliance the petitioner preferred to file this petition under section 561-A, Cr.P.C. and stay obtained on 13-2-1994. Let me make it clear here at this juncture that no refuge can be taken behind the complex technical procedure and substantial justice is to be done and it must not be lost sight of that ordinarily the guilt or innocence of the petitioner will eventually depend on the totality of facts and circumstances revealed during the trial. It must, however, to be noted that there must be some tangible evidence to show that the proceedings is mala fide before the High Court can quash it. I may point out that proceedings cannot be quashed where the allegations in the complaint on the face. of it disclose a prima facie case and the Court below has done nothing except to summon the accused to answer the allegations which requires to be tested in the light of the evidence to be adduced. (PLD 1967 SC 137). There appears to` be no extraordinary and exceptional reasons to interfere at this premature stage. The power as conferred upon this Court r section 561-A, Cr.P.C. can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute and the High Court, as has repeatedly been pointed out in various cases, should be extremely reluctant to interfere in a case where competent Court of law has just taken the cognizance of the matter. I am deliberately I withholding my comments on the merits of the case lest it may prejudice the case of any of the parties. It would be too premature to give any verdict regarding civil or criminal nature of the case, but suffice it to say that an G aggrieved person may choose any remedy for the redress of his grievances as may be deemed fit and proper and he cannot be compelled to adopt a recourse which he does not prefer. It is well-settled by now that "section 561-A, Cr.P.C. confers inherent powers on the High Court to act in aid of advancement of interest of justice and to eliminate an action resulting in abuse of the process of the Court. It is permissible to exercise inherent powers on the satisfaction that a criminal proceeding or an action initiated in criminal proceedings, if allowed, I would not advance the cause of justice and ultimately would tantamount to abuse of the process of the Court. In absence of such satisfaction, the High Court was- not advised to act merely on conjectures, surmises, artificial suggestions or speculations" (1986 PCr.LJ 2230). It is to be noted that lapse of J long period since initiation of case cannot be considered as ground for quashment (PLD 1967 SC 317).

10. In view of what has been stated above, the petition is dismissed and the petitioner is directed to appear before the learned Judicial Magistrate-11, K Quetta, on 5-9-1994, who shall decide the matter in accordance with law and may issue any direction as may be deemed fit and proper. The observations made hereinabove are tentative in nature and made to dispose of this petition only. N.H.Q./523/Q Petition dismissed.