1983SCMR775 (PLP)

‑‑ Art. 185(3) read with Criminal Procedure Code (V of 1898), Ss. 439 & 561‑A‑ Quashment of proceedings‑Complainant's case based on facts not spelt out from those mentioned in petition and case intended merely to harass accused respondent‑Held, case not one where respondent should be brought before a Court of law to suffer indignities of being an accused in a criminal case‑Leave to appeal against order of quashment of proceedings passed by High Court refused. Agha Aziz Ahmad Khan, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Naazar Khan Advocate‑on‑Record for Respondent. Date of hearing : 11th October, 1982. M. BURHANUDDIN KHAN, J.‑This petition is filed against the judgment and order of the‑ Lahore High. Court, Rawalpindi Bench dated 10‑4‑1982 whereby Criminal Miscellaneous Petition No. 29/8/81 was allowed and proceedings before the trial Court were quashed.

2. According to the petitioner, the respondent's daughter was married to the petitioner's son who died on 24‑3‑1980 and after that she lived with the petitioner till 27‑7‑1980 ; that during the period aforementioned the respondent stole jewellery with the help of his daughter in respect of which the petitioner lodged a protest ; that on 27‑7‑1980 respondent's daughter left for Lahore accompanied by her mother, sisters and father ; that soon after leaving petitioner's house, the respondent started vicious campaign against the petitioner and started defaming him, and wrote a letter dated 5‑9‑1980 to syed Agha Sabir Ali Shah ; that petitioner instituted a complaint under section 500, P. P. C. on 2‑7‑1981 and after recording the preliminary evidence, the trial Court summoned the respondent vide order dated 11‑8‑1981 the respondent never submitted to the jurisdiction of the trial Court and moved an application under section 561‑A, Cr. P. C. on which the impugned order has been passed by a learned Single Judge of the Lahore High Court in Criminal Miscellaneous No. 29‑Q/1981.

3. The learned counsel contended that the learned Judge while exercising power under section 561‑A, Cr. P. C. could not without the respondent's having submitted to the jurisdiction of the trial Court and without having sought ordinary remedy provided under section 249‑A, Cr. P. C. have allowed the petition seeking quashment of the proceedings before the trial Court. The learned counsel referred to Khushi Muhammad and 4 others v. The State (1979SCMR94) wherein it was held that when alternative remedy was available under section 249‑A, resort could not be had to provisions of section 561‑A, Cr. P. C. and most appropriate remedy in the circumstances, was to approach the trial Magistrate under section 249‑A and the trial Magistrate was bound to apply his mind to such aspect of the matter in first instance and decide whether petitioner is entitled to be acquitted in terms of the said section. In the second case Nasir Ali v. Munshi Mehr Khan (PLD1981SC607) cited by the learned counsel, it was observed by the learned Judges that substance of claim made by the appellant in application under section 561‑A was exactly the same on which he could claim acquittal under section 249‑A. The learned Judges had further observed that .if the appellant is prosecuted it is not without his own fault because the allegations as made in the complaint and yet to be proved are that he acted dishonestly, fraudulently, cheated and defrauded the complainant.

4. On going through the facts of the first cited case we find that the petitioners moved the High Court for quashment of the proceedings under section 201, P. P. C. pending before the trial Magistrate. The learned High Court refused quashment of the proceedings under section 561‑A. The petitioners then moved petition for leave which was refused on the ground inter alia that the High Court passed the impugned order on ,26‑2‑1978 and on the material then available on the record, no objection could legitimately be taken to the order of the High Court dismissing the quashment petition. It was only on 20‑9‑1978, after the statement of prosecution witness (Abdul Ghani, P. W. 5) was recorded that the argument that there is no likelihood of the petitioners being convicted and their continuing prosecution would be an abuse of the process of the Court, had become available. The order of the High Court, could not therefore, be said to be erroneous and liable to be set aside in these proceedings.

5. In the second case, referred to by the learned counsel, there was a question of complicated nature regarding bouncing of a , cheque which involved the principles of fraud and cheating and the learned Judges had to consider, many cases and the question called for decision was whether a cheque which vas dishonoured with the remarks refer‑to drawer amounts to fraud or cheating. Thus it is clear that the facts of this case are not fully attracted t o the facts in the present petition.

6. In Din Muhammad v. Muhammad Sharif and another (P L J 1979 Cr. C. (Bahawalpur) 6Q8) it was observed by the learned Judge of the Lahore High Court that the submission of the respondent's counsel that the petition (Accused) had not moved the trial Court under section 249‑A, Cr. P. C. or the acquittal of his client and that, therefore, the proceedings before the High Court were barred. It was held that the power, to free an accused from a groundless charge in criminal proceedings faced by him is co‑extensive both with the trial Court and the High Court. In line with the principle, therefore, that when a power is co‑existent, the litigant must first resort to the remedy in the Court of the lower jurisdiction, in ordinary circumstances the accused must first seek his redress from the trial Court. Only in very exceptional cases the accused should seek his remedy from the High Court. The High Court, therefore, has power under section 561‑A; Cr. P. C. to quash cases but it will only exercise this right in extraordinary and exceptional cases where sending the accused to the trial Court would only perpetuate, if not further exacerbate the abuse or injustice, rather than eliminate it.

7. Jurisdiction of the High Court is wide and its revisional jurisdiction is, in its real purpose; not a mere power but a duty. This duty cannot effectively be discharged unless the High Court sees to it that the subordinate criminal Courts conduct their proceedings strictly in accordance with law. The provisions of the procedural law are intended to achieve the principal purpose of the administration of criminal justice viz. that all infractions of the criminal law are duly and properly investigated and inquired into. It will be, therefore, startling proposition that the High Court should be disabled from discharging this very necessary duty simply because a party who could and should have appealed, makes the mistake of filing a revision or a party who is adversely affected by the result of the proceedings has no right to invoke the revisional jurisdiction of the High Court.

8. We have examined the points raised by the learned counsel. There is no doubt that the revisional jurisdiction of the High Court is very wide and that it may be exercised whenever facts calling for its exercise are brought to the notice of the Court and it matters little as to how and by whom these facts are brought to the notice ‑of the Court. We consider that the impugned order of the High Court is not in accordance with the principles relating to the powers of the High Court on the revisional side. We are also of the view that the original order of acquittal of the accused was not passed in accordance with the principles governing section 265‑K, Cr. P. C. which reads as follows :‑ "Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case if after hearing the prosecutor and the accused and for reasons to be recorded, it con siders that there is no prohability of the accused being convicted of any offence."

9. In the present case the facts would show that the complainant's case is based on the facts which are not spelt out from those mentioned in the petition, and the case is intended merely to harass the respondent. Thus it would not be a ‑case where the respondent should be brought before a Court of law to suffer other indignities of being an accused in a criminal case. This petition is, therefore, without merit and is accordingly dismissed. Leave refused