1995 PLP 567 (MLD)

Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; Muhammad Anwer v. The State 1980 PCr.LJ 823 and A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353 ref. Jahangir Shaikh for Applicant. A. Ghani Shaikh, A.A.‑G. for the State. Date of hearing: 20th February, 1994. Applicant Syed Muhammad Awais Shibli has filed this application under section 561‑A, Cr.P.C. for quashment of the criminal case pending against him in Court of Extra Joint Civil Judge and F.C.M., Hyderabad. Said criminal case is the outcome of F.I.R. 103 of 1989 of P.S. "A" Section, Latifabad, Hyderabad. According to the F.I.R., on 18‑10‑1989 at 11‑15,~P.m. applicant Awais Shibli and one Tanzeem came in front of Allah Wali Mosque in Unit No.12, Latifabad on a motorcycle and attacked complainant Nadeem living in House No.120, Ferozabad Colony, Unit No.12, Latifabad, Hyderabad. P.Ws. Naimatullah, Muhammad Ibrahim and other persons came to rescue the complainant on hearing his cries. Seeing this, the applicant and co‑accused Tanzeem stopped asking the complainant for anything and opened fire with a pistol like weapon. Awais Shibli and Tanzeem were allegedly joined by Shuaib Shibli and Irfan alias Guddo and they allegedly opened fire at the people and then fled away towards `Khuda Hafiz' Board by a motorcycle and a Lancer car. Such F.II.R. was lodged by Nadeem. After investigation of the case the same was challaned. Now it is pending in Court of the Vth Extra‑Joint Civil Judge and First Class Magistrate, Hyderabad. Mr. Jahangir Shaikh, learned counsel for the applicant argued that there was abuse of the process of Court, as the trial had taken abnormally long time and that the applicant has been falsely involved in the case due to political enmity. It was also argued that the applicant was involved by the police for harassing him and for keeping him behind bars for ulterior motive. The application was opposed by Mr. Abdul Ghani Shaikh, learned AA.‑G. who argued that before moving this Court, the applicant had not moved the trial Court for acquittal under section 249‑A of Cr.P.C. The Supreme Court of Pakistan in the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 held that the inherent jurisdiction should not normally be invoked where another remedy is available, because inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and that the inherent powers are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice because the inherent powers are as much controlled by the principles and precedents as are its express statutory powers. A learned Single Judge of this Court took slightly different view in the case of Muhammad Anwar v. The State 1980 PCr.LJ

823. He was of the view that section 249‑A of Cr.P.C. is not designed for quashment of proceedings where the challenge is made on basis of mala fides but it is designed to secure an acquittal for the accused where the charge is groundless on merits. In the case of A. Habib Ahmed v. M.K. G. Scot Christian PLD 1992 SC 353 a question arose whether the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special inherent jurisdiction. Dealing with this question, the Supreme Court of Pakistan observed that the basic rule was laid down by the said Court in the case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and it was, that if prima facie offence had been committed justice required that it should be enquired into and tried. In the said case it was reiterated that inherent jurisdiction of the High Court is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available. Necessity to move the trial Court under section 249‑A, Cr.P.C. arises in the cases where the F.I.R. does not give complete idea as to what evidence would be adduced against the accused at his trial. If the F.I.R. gives an idea as to, what evidence can come against an accused and if the Court considers that even if such evidence is brought on record the person seeking quashment cannot be convicted and the proceedings against him are abuse of the process of Court then quashment can be ordered without the person seeking quashment having moved the trial Court under section 249‑A of Cr.P.C. However, where the F.I.R. does not give an idea as to what evidence would ultimately be led against the accused seeking quashment, then it would be proper for the person seeking quashment to move the trial Court first under section 249‑A, Cr.P.C. because in such a situation the trial Court can discuss the evidence that has come on record against the accused and on that basis it can de determined if the case in question requires to be quashed in light of the case-law on the point:- In the present case the maximum that has been alleged against the applicant is, that he and Tanzeem attacked Nadeem. Admittedly Nadeem did not receive any injury as he was not referred to any Medical Officer. Even the complainant in his F.I.R. did not state if he was caused any injury by the applicant or by Tanzeem. He did not allege if he was given any threat. Section 506 of P.P.C. would apply only if there is "criminal intimidation" as defined by section 503 of P.P.C. Section 503 of P.P.C. reads as below: "Criminal intimidation.‑‑‑Whoever threatens another with any injury to his person, reputation or property or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation." In the present case, there is no allegation in the F.I.R. if the complainant was threatened by the applicant for causing any injury to his person, reputation or property or to the person or reputation of any one in whom the complainant was interested. Hence the offence of criminal intimidation punishable under section 506 is not made out. Offence under section 336 is made out when somebody causes Itlaf‑i‑Salahiyyat‑i‑Udw which means doing of any act with the intention of causing hurt to any person or with the knowledge that he is likely to cause hurt to any person. In the instant case there is no allegation if Awais or Tanzeem did any act with the intention of causing hurt to the complainant or ‑any other person. Said persons allegedly attacked the complainant. But it is not specified, as to whether attack was with any weapon or empty‑handed. Intention to cause hurt appears to be silent at least in so far as Awais is concerned. Hence even the offence under section 336 of P.P.C. is not made out. In this way pendency of the criminal case against the applicant would be abuse of process of Court. For the aforesaid reasons, criminal proceedings against applicant Syed Muhammad Awais Shibli which are outcome of F.I.R. No.103 of 1989 of P.S. "A" Section, Latifabad, are hereby quashed. Such short order was passed on 20.‑2‑1994 and these are the reasons for the same. N.H.Q./M‑2033/K Proceedings quashed.