P L D 1994 Peshawar 141 (PLP)

This order in the instant Criminal Miscellaneous No. 12/1994 shall also dispose of the connected applications No.13/1994, 14/1994, 15/1994 to 19/1994 which involve a common question of law.

2. Cases under sections 161, P.P.C. read with section 5(2) of the Prevention of Corruption. Act, 1947 are pending before the learned Special Judge, Anti‑Corruption, N.‑W.F.P., Peshawar, which proceedings are sought to be quashed through the present petitions under section 561‑A, Cr.P.C. on the ground that in view of the evidence on record no case is made out against the accused‑petitioners.

3. It appears from the record that material part of evidence stands recorded in the trial Court before which the petitioners had submitted applications under section 249‑A, Cr.P.C. relating to acquittal at any stage of the trial. These applications are pending decision which is not yet made in writing and about which it is alleged that the learned. trial Judge had expressed an opinion orally to the effect that it was not a stage for proceedings under section 249‑A, Cr.P.C.

4. It has now become a common practice that the real purpose of section 561‑A, Cr.P.C. is confused with section 249‑A or 265‑K of the Cr.P.C., in that, a relief which is not obtained in the above sections is, in turn, sought from the High Court.

5. It is a matter for proper appreciation that an abuse of process of the Court is to be viewed only when in the given set of facts no case at all is made out against the accused under any law but still he is dragged into litigation. It is only then that the High Court should interfere under section 561‑A, Cr.P.C. On the other hand, if in given circumstances and under the alleged set of facts a prima facie case is made out for trial, the High Court should not interfere under the section invoked, on the ground that there is no evidence on record for the conviction of accused. In case there is no evidence, it is for the trial Court to see and to pass an order either under section 249‑A or 265‑K, Cr.P.C. against which further remedy is also provided in law.

6. In the instant case, the material evidence stands recorded qua the F.I.Rs. which were registered in the year 1991. Had the accused been under the impression that no case at all is made out under the given circumstances, they could have moved for quashment far back in the year 1991 when the cases were registered. Thus the instant one is not at all an occasion to interfere under the inherent powers of this Court.

7. The accused should first obtain an order from the trial Court under section 249‑A, Cr.P.C. and then proceed in accordance with law. Moreover, if they are under the impression that the trial Court has expressed its opinion, the remedy is still available to rile a transfer application, if advised.

8. In the circumstances, all the petitions alongwith connected applications are hereby dismissed in limine, with a direction for the trial Court to decide the applications of the accused under section 249‑A, Cr.P.C. within a week from the receipt of this order. N.H.Q./1528/P??????????????????????????????????????????????????????????????????????????????????? Petitions dismissed.