2008 P Cr (PLP)

AMANULLAH KHAN, C.J.-- This petition has been filed by petitioners under section 561-A, Cr.P.C. seeking quashment of private complaint filed by respondent No.1, before the Judicial Magistrate, Ziarat. The facts leading to instant petition are, that on 20-4-2006, an application was submitted before the Sessions Judge, Quetta, by one Fazal Muhammad; with the averments that, on 18-4-2006, he was going to his house to Khan Bungalow Ziarat when he saw that a pick-up crossed him and he suspected that something has happened to his relative Naseebullah, thus, he went to the village where he was informed that Naseebullah has been forcibly taken in the said vehicle to Levies Thana. On the next day he went to Levies Thana and saw his cousin Naseebullah confined in judicial lock-up, who informed him that, he had been forcibly taken in the pick-up and was tortured and thereafter brought in Levies Thana and later has been nominated in a false case. With these averments, request was made for registration of case against the petitioners. The, learned Sessions Judge, after hearing the parties, dismissed the application vide order, dated 28-4-2006. Being aggrieved the respondent No.1, filed a constitutional petition before this Court, which was withdrawn on the ground that respondent No.1, may file a private complaint. In view of such observations; the respondent No.1, filed a complaint before the Judicial Magistrate, Ziarat, for registration of a case against the petitioners under sections 365/506/504/147/148/ 149, P.P.C. After receiving the complaint the learned Judicial Magistrate after taking into consideration the entire evidence, issued notices to the petitioners, who appeared and submitted an application under section 249-A, Cr.P.C. which was rejected vide order, dated 29-7-2006. Being dissatisfied, a criminal revision petition was filed before the learned Sessions Judge, Quetta, who after hearing the parties dismissed the same vide order, dated 22-8-2006. I have heard Mr. M. Zafar, learned counsel for the petitioners, Mr. Abbass Ali Qazalbash, learned counsel for respondent No.1 and Mr. Abdul Ahad Kakar, learned State counsel. Learned counsel for petitioners argued that, Judicial Magistrate fell in error while rejecting the application of petitioners under section 249-A, Cr.P.C. as the learned Sessions Judge, has already refused to register the case and thereafter a constitutional petition was filed, which was also withdrawn. Learned counsel stressed that since the FIR. purported to be lodged by respondent No.1, against petitioners was based on the same facts and grounds, earlier dealt by Sessions Judge, Quetta, therefore, the learned Judicial Magistrate had erred in rejecting the application and further the learned Sessions Judge, has failed to exercise the revisional jurisdiction, which was very much warranted in the instant case. According to learned counsel since earlier refusal to register the case, amounted to acquittal, therefore, the subsequent complaint and proceedings initiated would fall within the definition of double jeopardy. Learned counsel for respondent No.1, contended; that, learned Judicial Magistrate had rightly initiated proceedings against the petitioners, as prima facie, a criminal case was made out against the petitioners on the basis of evidence collected during the course of enquiry and further stated that proceedings under section 249-A, Cr.P.C. are not meant to stifle the prosecution case at the very initial stage. Learned State counsel, also opposed the instant petition. With the assistance of learned counsel for parties, I have minutely examined the record. The contention of learned counsel for petitioners, in my considered opinion, has no substance that, since at the initial stage, the Tehsildar refused to lodge the F.I.R. and thereafter an application under section 22-A, Cr.P.C. was filed before the learned Sessions Judge, who refused to direct for registration of case; amounts to acquittal. It may be noted that such proceedings finally culminated into order, dated 8-6-2006, passed in C.P. No.312 of 2006, wherein the respondent No.1, was allowed to file private complaint and this order still holds the field. Notwithstanding the same, the law itself provides a right of filing a private complaint by a person, before the competent forum, and after conducting enquiry, if the Presiding Officer comes to the conclusion that prima facie, a case is made out, and he issues notices, it cannot be said to be an exercise of jurisdiction, without lawful authority. In the case in hand, after going through the evidence, the learned Magistrate, issued notices to the petitioners and rejected the application, on the grounds that it was premature to decide the case at this stage. There is no cavil to the proposition that, application under section 249-A, Cr.P.C. can be moved at any stage of proceedings, but such application has to be dealt with strictly on merits in the light of relevant provisions of law. It may be mentioned here that, time and again, it has been held by the Honourable apex Court that powers under section 561-A, Cr.P.C. are to be exercised sparingly and in extra-ordinarily circumstances. It cannot be utilized to divert the ordinary course of Criminal Procedure Code and the provisions are not meant to stifle the prosecution case, so as to interrupt or divert course of Criminal Procedure, as laid down in the Procedural Statutes. As observed hereinabove, though the application under section 249-A, Cr.P.C. can be filed at any stage, i.e. before or after recording of evidence, however, while considering the feasibility of the application at any particular stage, the facts and circumstances of the prosecution case have to be kept in view. As in the case in hand, during enquiry under section 200, Cr.P.C. some evidence has been produced which prima facie makes out a case, thus, in such circumstances, the case did not warrant filing of an application under section 249-A, Cr.P.C. at a premature stage, because it would amount to stifling the prosecution case. In this regard reference may be made to the case-law of Bashir Ahmed v. Zafar-ul-Islam and others PLD 2004 SC 298, wherein while dealing with such question, the Honourable Supreme Court has observed as under:-- "(21) As against this, when a High Court decides to proceed under section 561-A, Cr.P.C. the parties get divested of their right to adduce evidence; of their right to cross-examine the witnesses produced by the other side and of their right to discredit the evidence offered to the Court. The result is that the normal course of law is disrupted; the parties get deprived of the precious and valuable rights vesting in them; the trial Court gets deprived of the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full-fledged trial is decided in more than a summary manner and thereby depriving the High Court of the opportunity to determine the issue in the light of proper material. (22) Using the powers under section 561-A, Cr.P.C. to determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable. Extraordinary circumstances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route. Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to stifle the prosecution and to have his guilt or innocence determined under section 561-A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity and the trial Courts as a surplusage. This never was and could never have been the intention of the law maker in adding section 561-A to the Code." In view of the above discussion, it can safely be held that non-registration of F.I.R., by the learned Session Judge, would not place a bar on filing of a private complaint and would not amount to acquittal of petitioner, as there is some evidence and the application under section 249-A, Cr.P.C. was filed at premature stage, and thus, was rightly rejected by the Courts below, as acceptance of application would have amounted to throttling the prosecution case at the initial stage. As a result of the above discussion, the petition being devoid of merits is dismissed. H.B.T./36/Q Petition dismissed.