1980 P Cr (PLP)

The applicants herein, by this application under section 561‑A of Cr. P. C. have sought the quashment of the pending proceedings, instituted against them, on the basis of the two F. I. R. Nos. 64 (Non. Cog) and 85 of 1977, for which the charge‑sheet has been submitted by the police, for offences under sections 341, 363, 504, 323, P. P. C. in the Court No. V (East) of the A. C. M., Karachi.

2. The brief facts of the‑case are that on 23rd July 1977, at about 11‑15 p. m., the Respondent No. 2, complainant Qaiser Azhar Ali Syed, alongwith his mother, father Syed Barkat Ali and two sisters, were returning home, in Mohammad Ali Housing Society, from a visit to their relatives, near Sabzi Mandi. As soon as, they came in front of the main gate of their house. they found a Volkswagon Car, bearing No. KCD 8131 coming fast ant? "copped in front of their car. Mst. Huma aged about 12/13 years, got out of the car and ran to open the gate, when the four occupants, in the car, including the two applicants (Sanaullah Barni and Mukhtar Hussain), came out of their car and while abusing, best Syed Barkat Ali father of the complainant, and also caused injuries to his mother. The applicant No. 1 and his friend Mukhtar Hussain applicant No. 2, forcibly dragged Mst. Huma, sister of the complainant and put her in their car and drove away, in spite of her screaming for help. The car of the applicants was followed by the complainant, who was driving the car. His father, another and sister. had also accompanied him. They were chasing the car of, the applicants, shouting for help. The passersby, on the road, joined in the chase and followed applicants in their cars and scooters: They were followed by the Respondent No. 2 and his father, mother and sister, in their car. The car of the applicants was overtaken and stopped at the crossing of Shaheed‑e‑Millat and Bahadur Shah Zaffar Roads. With the help of the public men, Mst. Huma, a minor girl, was rescued. The .applicants had abused and beaten Syed Barkat Ali and his wife, the father and mother of the complainant. Syed Barkat Ali being an old heart patient, had fainted there. The applicants had escaped from there. The complainant had lodged the report at the police station, which was first entered in the no‑cog. Register and the complainant was directed to have recourse in the Court of law. Then a written report was lodged by, the complainant and a case under sections 341, 323, 363, 511, P. P. C. was registered on 25th July 1977,. at about 02‑00 a. m. after completing the investigation, the case was challaned in the Court.

3. Between the. applicant No'. 1, Sanaullah Barni and Syed Barkat Ali, father of the complainant, the civil litigation, is already pending in the Court. A civil suit was filed in the Court of Senior Civil Judge' No. VI, respect of the custody of the minor Syeda Sultana under the Guardianship Act, in which Mst. Ijaz Fatima, maternal grandmother of Syeda Sultana, it the plaintiff and the defendants are Syed Barkat Ali, and another. Syed Barkat Ali is the paternal uncle of Mst. Syeda Sultana, The leaned VIth Senior Civil Judge, Karachi, had ordered the production of the minor, through the police, for handing her over to the plaintiff, by the order dated 25th February 1977. Appals were also filed against the said order in the High Court, as well as the Supreme Court and the same were dismissed.

4. For the motive, the complainant has alleged that due to the litigation between the parties, the applicants had come to their house and had‑kidnapped his sister Mst. Huma and had attacked his father and had committed the alleged offences.

5. I have heard the learned counsel for the applicants. Mr. S. Nasiruddin, and Mr.

1. H. Zaidi for respondent No. 2 and Mr. Ghulam Agha A. G. for the State.

6. The learned counsel Mr. S. Nasiruddin has taken me through the orders passed in the Civil suit, as well as, statements of the witnesses recorded by the police under section 161, Cr. P. C. in the police case. He has argued that the non‑cog report which was lodged first in point of time; did not make any mention of kidnapping. Later en, a written report was filed on the basis of which the police had registered the case, for an attempt to kidnap Mst. Huma, and other offences under sections 341, 263, 511, 34, P.P.C. It was next argued that the applicant Sanaullah Barni had also filed a report No. 62 at Bahadurabad police station, on 24th July 1977 at 12‑05 a. m. alleging that he had obtained. a warrant under section 100 from the Court No. VI of the Civil Judge Karachi, for the recovery of the minor Mst. Syeda Sultana, which was delivered for service at Ferozeabad Police Station. In order to ascertain about the service of said warrant, he was , accompanied by his family members and had‑ .gone in his car No. KCD 8131. He was directed to contact the police, on the next morning On his return to his house in Mohammad Ali Housing Society, when he crossed Miran Mohammad Shah. Road and Tepo Sultan Road, going towards Bahadurabad, he saw. the 'car of the complainant, carrying his father Barkat Ali and his mother Mst. Ruqaiya. They stopped their car, in front of the car of the applicant Sanaullah Barni by blocking the road. The respondent No. 2 complainant is alleged to have come outside of his car and attacked the applicant Sanaullah. The Respondent No. 2 is alleged to have kicked him and fisted him on the face. The mother of the Respondent No. 2 complainant who is an old lady, is also alleged to have given fist blows to the wife of Sanaullah Barni and abused her. At the intervention of the people, the parties were separated. It was therefore, contended that the F.

1. Rs. Nos. 64 and 85 were filed as a counter blast. Mr. Nasiruddin further contended that there is no evidence in support of. the allegations, except the interested witnesses, who are related to the complainant. He has argued that those independent . witnesses, who have been, cited in the charge‑sheet, .were chance witnesses.. Therefore, they, should not be believed. ' He has finally submitted that. though the charge sheet was filed on the Court on 18th August 1977, the case is not proceeding and there is delay in the disposal of the case. He has relied upon the cases reported in Aun Saieed Hashmi and another v. The State and 2 others (P L D 1976 Kar.706) and Superintendent of Police, Federal Investigation Agency, Lahore v. Akhtar Hussain Bhutta (P L D 1978 S C 193).

7. I have gone through these cases and they. are; however, distingu ishable on the facts from the instant case. "

8. Where as the learned counsel appearing .for respondent No. 2 Mr.‑

1. H. Zaidi has submitted that the case was challaned in the Court on .28th August 1977. This application for quashment was filed in February 1978: The order for stay of the proceedings in the trial Court was also granted. Therefore,. the proceedings in the lower Court could not take place.

9. It is next contended that the motive being the civil litigation; between the parties, is admitted. The incident, as alleged is also, more or less established from the Police Reports, lodged by both ‑the parties, to the extent of the facts narrated in their respective Reports. He has there fore argued that it is premature, without recording of any evidence, to determine. that the proceedings of the case are in abuse of the process of the Court, when there is direct and reliable .evidence, collected by the police; which is further corroborated by the independent eye‑witnesses who were driving on the .road and bad come .to the rescue of the com plainant and his parents and had got Mst. Huma recovered.

10. The learned counsel for the State Mr. Agha Ghulam Ali has opposed the application and has contended that it is premature. He has relied upon the case reported in Haq Nawaz v. Muhammad Afzal (P L D 1967 S C,354), Haq Nawaz v. Muhammad Afzal (1968 S C M.R 1256), Zohran v. Abdus Sattar (1972 S C M R 234), Khushi Muhammad v. State (1979 S C M R 944).

11. On perusal of the. F. I. R. and the statements recorded by the police under section 161, Cr. P. C. which‑ are annexed to the application and the counter F.

1. R. lodged by the applicant No. 1, facts go to show that Prima facie, offences, as alleged, are indicated. Without any evidence on the record, it is rather premature, at this stage, to say that there is absolutely no possibility of the applicants being convicted ; and allowing the proceedings to continue, would amount to an abuse of the process of the Court, unless sufficient material is brought, in evidence by the defence, to show that the charge against the. applicants is false, and the process of the Court, was, therefore, being abused, and was not to advance the interest of justice; but to subject the applicants to unnecessary harassment.

12. After the evidence, in support of the prosecution case, is recorded, and if it is established that no offence is made out, it would be open to the defence to file an application under section 249‑A of Cr. P. C. for the acquittal of the accused. Section 249‑A of Cr. P. C. reads :‑ "Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there , is no probability of the accused being convicted of any offence."

13. Since the applicants have also an alternate remedy available to' them under section 249‑A ‑of Cr. _P. C. resort to section 561‑A of Cr. P. C. cannot be made. The inherent jurisdiction of the High Court under section 561‑A of Cr. P. C. is not an alternate jurisdiction of an additional jurisdiction, ‑ but is a jurisdiction preserved in the interest 'of justice to redress grievances, for which no other procedure is available. .

14. Under the circumstances, I am of the opinion that no case for quashment of the proceeding is made out. The application is accordingly dismissed. Application dismissed,