1986 P Cr (PLP)

Syed Naqi Mirza for Petitioners. Muhammad Ashraf Kazi for Respondents. Date of hearing: 11th May, 1986. By this application which has been filed under section 561‑A Cr.P.C. the two applicants Syeda Azra Tasneem and Syed Muhammad Zaidi have prayed for quashment of the criminal case pending against them in the Court of III Additional Sessions Judge. Karachi. Briefly stated the facts of the case are that applicant Azra Tasneem who is a lady doctor was married with respondent Syed Nazar Hussain Bukhari on 10‑3‑1980 at Sahiwal. After her marriage the said applicant shifted to Karachi and started living with her husband who was employed in Government service. Somehow the relations between the husband and wife got strained so much so that on receiving such information Syed Itrat Ali, uncle of applicant Azra Tasneem accompanied by the latter's brother, Syed Turab Ali Zaidi came down to Karachi and took her away. On 3‑2‑1983 the respondent Nazar Hussain lodge: F.I.R. with police, alleging therein that applicant Muhammad Zaidi came along with some armed people to his house and took away not only his wife Azra Tasneem but also removed his household articles. The police made the usual investigation, but did not deem fit to challan the case in Court. Being dissatisfied with the police investigation the said respondent filed a direct complaint in the Court. The learned III Additional Sessions Judge Karachi, after preliminary inquiry made be the Magistrate, issued process against both the applicants under section 323/342/392. P.P.C. read with 17(3), Offences against Property (Enforcement of Hudd) Ordinance. 1979, vide his order dated 10th November, 1983. Despite the Court's repeated attempts for over two years to have the process served on the applicants, they remained absent from the trial Court. Instead they have directly approached this Court for quashment of the proceedings pending against them it, the lower Court. I have heard the arguments of the learned counsel for the parties and have also gone through the mass of written material placed of record. Inter alia the following legal points were raised at the Bar:-- (i) That the process against the applicants was issued by the trial Court after holding preliminary enquiry, therefore, the application for quashment is not called for. (ii) that the applicants had to move the trial Court for their acquittal under section 249‑A, Cr.P.C. before approaching this Court for quashment of the case pending against them. (iii) that the applicants being fugitive of law because of their failure to appear in the trial Court in response to the repeated process issued against them, they are not entitled to the relief sought for by them. As for the first contention, it is an admitted position that the criminal case sought to be quashed was started on direct complaint filed by the respondent Nazar Hussain. It is clear from the record that, before issuing process against the applicants, preliminary enquiry was held. Therefore, the argument was raised on behalf of the respondent that obviously the trial Court issued the process after it was convince, from the material produced in course of the preliminary enquiry that prima facie case had been disclosed against the applicants/accused. Accordingly the learned counsel for the above respondent urged that in such a case interference by this Court in exercise of its extraordinary jurisdiction under section 561‑A, Cr.P.C. would not be justified. This argument is not without force. Preliminary enquiry is invariably held to ascertain the truth about the allegations made in the private complaint. If the Court comes to the conclusion that the material brought on record during such enquiry discloses prima facie case against the accused, it issues process against them. In other words after the trial court is convinced that there is some truth in the complainant's allegations, then alone it decides to proceed further by bringing the case on record and issuing process against the accused. In such a case, to say that the charge against the accused is groundless or that the evidence relied upon by the complainant's side is unlikely to lead to conviction of the accused cannot be normally accepted as a good ground for quashment of the case pending in the lower Court. If the Court forms an opinion on the basis of evidence produced during the preliminary enquiry that prima facie case is made out against the accused, it means to say that the evidence brought on record if unrebutted by the accused would lead to their conviction. Therefore, there is a great force in the argument that interference of this Court in such case would be misunderstood as usurpation of the ordinary jurisdiction of the lower Court which is otherwise competent to decide the case. In the instant case the learned counsel for the applicants sought to build the defence of the applicants particularly of Syed Muhammad Zaidi on the ground of alibi. He referred to several documents produced by him to show that the said applicant was not present at the place of occurrence at the relevant time. The question would arise if the documents relied upon in support of the quashment move, can be considered by this Court particularly when they have not been produced in evidence in legal manner nor the other side has been afforded opportunity to challenge the authenticity of the same if so desired. Obviously these documents can be produced and proved in accordance with the rules of evidence. The proper forum for doing so is the trial Court where the opposite party also gets the opportunity to produce evidence in rebuttal thereof. However, the applicants have directly approached this Court instead of appearing in the trial Court. The process was issued against the applicants as far back as 10th November 1983. The diary of the trial Court shows that since then the repeated attempts were made to serve the process on the applicants but without any result. It was on 2‑4‑1985 i.e. after nearly one and half years since issuance of the process that the applicants filed the present quashment application. It was submitted by the learned counsel for the applicants that the process issued by the trial Court was never served on the applicants and as soon as they came to know about the issuance of process against them, they rushed to this Court for quashment of the case pending in the trial Court. One of the applicants is a lady doctor and the other one is a practising lawyer. Thus they are well‑known people obviously residing at fixed address. It is therefore, difficult to believe that, unless the applicants themselves have avoided service of process issued against them from time to time, the police were so helpless that despite their best efforts they did not succeed in serving the process in more than one and half years time. Even according to the applicant's own showing they came to know about the pendency of the case in the lower Court by the time they filed the present quashment application. As stated above the present application was filed in April 1985, but still they have not surrendered before the trial Court upto the 11 May, 1986 when their counsel submitted his arguments in support the quashment application. That is to say that in spite of knowing about a year back that warrants for their arrests have been issued they have not cared either to surrender or furnish surety in the trial Court. The learned counsel for the applicants argued that even then they could not be regarded as fugitives of law nor the relief due toy them by way of quashment of the proceedings pending against them in the lower Court could be denied to them on that ground. In the opinion of the learned counsel unless action is taken under sections 87 and 88 Cr.P.C. against the applicant, they cannot be bracketed with absconder or fugitives of law. I am afraid I am not persuaded by this argument. In my opinion the applicants can be appropriately termed as fugitives of law. On one hand they obviously avoided service of process issued against them for over one and half years and on the other hand even after coming to know about the case; according to their own admission they did not surrender themselves before the trial Court nor furnished any surety for their attendance in the said court. Accordingly as held in Hayat Bakhsh and others v. The State P L D 1981 S C 265, as they are fugitive from justice, and have defied orders of Court for surrender and have thereby abused the process of Court they are not entitled to, relief they have sought in this Court. Apart from above, the applicants had to avail the ordinary remedy admissible to them before coming to this Court. If they could not wait for conclusion of the trial in the lower Court, nothing prevented them from moving application under section 249‑A ,Cr.P.C. in the trial Court for their acquittal. Admittedly they have not yet appeared in the trial Court even once, what to say of moving application in the said Court. It has been repeatedly held by superior Courts that section 561‑A, Cr.P.C. does not provide additional or alternative jurisdiction but confers extraordinary jurisdiction on this Court to intervene in exceptional case: when no remedy is available to the party. In this connection reference may be made to Ghulam Muhammad v. Muzammal Khan P L D 1967 S C 317 wherein it was held: "The inherent jurisdiction given by section 561‑A, is not an alternative jurisdiction or an additional jurisdiction but is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute." The superior Courts have also invariably declined to interfere if the party has not availed the ordinary remedy by moving application under section 249‑A, Cr.P.C. In support of this assertion reference tray be made to the case of Khushi Muhammad and 4 others v. The State 1979 S C M R 94 wherein it was held:‑ "However, under the law, as it now stands, the trial Magistrate can acquit the petitioners under section 249‑A, Cr.P.C. at any stage of tire proceedings and in these circumstances the most appropriate remedy for the petitioners appears to be to request the trial Magistrate to consider their case under the above provisions of law. The learned trial Magistrate, should, thereupon, apply his mind to this aspect of the matter and in the first instance, before proceeding any further with the proceedings, decide whether the petitioners are entitled to be acquitted in terms of section 249‑A , Cr.P.C." In the above reported case even though the solitary witness against the accused had exhonerated him, yet the Supreme Court refused to interfere as no application under section 249‑A, Cr.P.C. was moved in the trial Court. For above reasons, I see no justification for the quashment application, which is accordingly dismissed. M.Y.H. Petition dismissed.