P L D 2009 Lahore 8 (PLP)

ZUBDA-TUL-HUSSAIN, J.

At the instance of the petitioner Sharafat Ali a case F.I.R. No. 236 of 2008 dated 8-4-2008 under sections 148, 149, 337-F(i) and 337-F(ii), P.P.C. was registered at Police Station Hujra Shah Moqeem, Tehsil Depalpur, District Okara against respondent No.3 and his co-accused wherein after investigation the accused were challaned by the police. Allegedly the accused of the aforesaid F.I.R. also put up their version before the police which as per their contention was not adverted to by the police and as such .one of them namely Gohar Ali who is respondent No.3 in the instant petition invoked the jurisdiction of the Ex-Officio Justice of Peace/the learned Additional Sessions Judge Depalpur under sections 22-A, 22-B, Cr.P.C. for a direction to the police to record the version of the accused also.

2. The said application was disposed of by the Ex-Officio Justice of Peace with the following observations: "Admittedly case vide F.I.R. No. 236/2008 under section 337-F(i), (ii), P.P.C. has been registered against the petitioner and others, wherein it is alleged that the said occurrence has taken place on 5-4-2008. In the instant petition, the petitioner's contention is that cognizable offence has been committed by the respondents Nos.2 to 9 on the same day. He intends to get his version recorded. Respondent No.1 has undertaken that he shall get the version of the petitioner recorded in the case diary. He is directed to proceed with the matter strictly in accordance with law. The petition stands disposed of accordingly."

3. It has been agitated by the learned counsel for the petitioner that the order of the Ex-Officio Justice of Peace for recording the cross-version was bad in law because it was based on a mala fide application filed belatedly only to thwart the case of the petitioner while on a report obtained by the Ex-Officio Justice of Peace, the police had given an opinion that the petition of the respondent No.3 under sections 22-A, 22-B, Cr.P.C. was baseless and was meant for saving himself from the case lodged by the petitioner. Through the instant petition it has been prayed that a direction may be issued to the respondent-No.2 to cancel the version dated 22-6-2008 recorded by the respondent No.3.

4. It is vested right of every person against whom a cause has been raised or a criminal case has been registered to defend himself in the manner provided by the law. As is obvious from the facts, a criminal case was registered against respondent No.3 and his co-accused on the complaint of the petitioner. The respondent or the accused is entitled not only to defend himself or to show that cause/complaint against him is false but can also bring on record such other facts as may be relevant to the version of his matter. If he has a grievance that he has been falsely implicated in the case and that the aggression was imposed upon him, he can lawfully and rightfully put forward his own claim or, as it may also be termed, his own version of the occurrence/matter, to show that he was aggressed upon by the complainant. This is in fact, one form of right of defence, which of course is inalienable and undeniable.

5. Where the claim or version of an accused is reported by him before the police, under the law the police is required to bring it on record and then to proceed therewith in accordance with law. If this right is defied by the police/the Investigating Officer, the remedy available under section 22-A, Cr.P.C. cannot be jeopardized merely because previously an F.I.R. has been recorded and has been investigated. It is true that the defence can be pleaded during the trial but that alone will not by itself bring the accused of the cross-version before the court to face the trial.

6. The quashment or cancellation of the cross-version shall be subject to the same legal and factual limitations as are relevant for the quashment of the formal F.I.R. The Criminal Procedure Code has laid down exhaustive procedure for the registration and investigation of the cases as well as their trial after submission of the challan before the Court. The scheme of the law proceeds on prescribed principles, the progress whereof should not be allowed to be hampered against the procedure laid down in that behalf. What the law envisages is that the investigation, in so far it adheres to the law, should not be allowed to be jeopardized.

7. The primary object of quashment or cancellation of the judicial and administrative criminal proceedings is to secure the ends of justice. The achievement of this end would involve a finding that if the proceedings are allowed to continue, the same would defeat the ends of justice and as a result would perpetuate injustice. The abuse of process of law is to be deprecated by all possible legal measures. At the same time it cannot be ignored that where, prima facie, offence seems to have been committed, the justice would require its inquiry and. trial. The constitutional jurisdiction of the High Court or even for that matter the provisions of section 561-A, Cr.P.C. cannot be used to stifle the prosecution but the intention thereof is to prevent the abuse of process of law or the process of the Court. The jurisdiction in this behalf cannot be so utilized as to interrupt or divert the ordinary course of criminal provisions. This is what precisely was the dictum of Younas Siddiqui v. The State 2001 PCr.LJ 1331.

8. It was also held in the case of 2003 PCr.LJ 192 that before proceeding with the quashment of the case the conclusion has to be arrived at that the impugned proceedings, if continue would defeat the ends of justice and result in perversion of the administration of justice and harassment to an innocent party.

9. It also cannot be disputed that the power under Article 199 of the constitutional jurisdiction can be used for qaushment of the proceedings only in exceptional cases where the proceedings are likely to cause unnecessary harassment. Such provisions are however, not to be resorted to if a prima facie case is made out against the person.

10. In the case of Ch. Pervez Ilahi v. Federation of Pakistan through Secretary Ministry of Interior, Islamabad and 3 others 1995 MLD 615 the relevant issue was dilated upon and it laid down the broad basis and grounds on which a criminal case could be quashed by the High Court in exercise of its constitutional jurisdiction. The precise inference drawn in the case was that the cancellation could be directed when the case was of no evidence; when the very registration of the case was proved to be mala fide on the face of the record; when the case was of purely civil nature; when there was serious jurisdictional defect; and when there was unexceptional delay in the disposal of the case causing deplorable mental, physical and financial torture to the person proceeded against.

11. It was also authoritatively laid down in the case of Haji Sardar Khalid Salem v. Muhammad Ashraf 2006 SCMR 1192 that if prima facie an offence has been committed the ordinary course of trial before the court should not be allowed to be deflected by resorting to the constitutional jurisdiction of the High Court. The procedure as provided by law is not to be deviated while exercising the equitable jurisdiction, which may not be in consonance with the law. It is especially so because an alternate remedy to raise objection at the time of framing the charge by the Trial Court or thereafter during the trial can be availed of by the accused.

12. On the touchstone of the above judgments, the impugned order does not call for interference for its quashment/cancellation in exercise of the constitutional jurisdiction of this court. Accordingly the petition is not sustainable in law. The same is, therefore, dismissed. M.B.A./S-102/L Petition dismissed.