1995 PLP 532 (MLD)

Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317; Muhammad Anwer v. State and another 1980 PCr.LJ 823; A. Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 35 and Mian Munir Ahmed v. State 1985 SCMR 257 ref. Shuaib Shibli for Applicant. A. Ghani Shaikh, AA.‑G. for the State: Date of hearing: 20th February, 1994. Applicant Syed Muhammad Awais Shibli has moved for quashment of Sessions Case No.355 of 1987 pending against him in Court of the Bird Additional Sessions Judge, Hyderabad, which is outcome of F.I.R. No.225 of 1987. According to the F.I.R. on 8‑7‑1987 Inspector Chand Muhammad, S.H.O., Latifabad P.S. with his staff left his P.S. at 10‑25 a.m. for patrol. While the Police party headed by S.H.O. Chand Muhammad reached WAPDA Officer Unit No.9‑3/4 of Latifabad at 11‑00 a.m., they saw a crowd of 15/20 persons, who had set on fire certain articles at the road. On seeing Police, the crowd dispersed. Police party proceeded to the Post Office in Unit No.9‑3/4, Latifabad, where a crowd of 10/15 persons was seen, with some articles having been set on fire at the road. Persons in the crowd escaped except one person who disclosed his name to be Fayaz and he was arrested. Police party saw 15/20 persons near the branch of Allied Bank of Pakistan where window panes of the building housing the bank were found broken. Muhammad Ishaque who was Chowkidar of the bank, was found injured and bleeding from his injuries. Muhammad Ishaque told the police that the crowd tried in vain to snatch rifle from him. Muhammad Ishaque disclosed that one of the persons in the crowd gave him blow over his head with butt of revolver. Again the people in the crowd escaped on seeing police but one of them namely Mansoor Ali was caught and arrested. Applicant Awais Shibli was named to be one of the fleeing persons. Police party also saw a Car No.224‑170 having been set on fire. Glass panes of the car were found broken. Police party proceeded further to Raja‑Ki -Kothi, Unit No.12, Latifabad, where again 15/20 persons were found with Suzuki No.6201 set on fire: Said persons escaped on seeing police but one of them namely Muhammad Sharif was caught, and arrested. Such F.I.R. was lodged by the S.H.O., Latifabad on the same day at 3‑30 p.m. After registration of the case, it was investigated and then challaned. The offence punishable under section 436 of P.P.C. is triable by the Court of Session and hence the case was sent to said Court. Mr. Jahangir Shaikh, learned counsel for the applicant argued that name of the applicant was given in the F.I.R. but nothing was alleged against him and no any role was attributed to him so much so that even overt act was not attributed to him. It was further argued that pendency of the case against the applicant would result in abuse of the process of Court. It was also argued that all the witnesses against the applicant were police officers. Mr. Abdul Ghani Shaikh, learned AA.‑G. opposed the application and argued that before invoking jurisdiction of this Court under section 561‑A, Cr.P.C. the applicant had not moved the trial Court under section 249‑A of Cr.P.C. No doubt moving of the trial Court for acquittal before moving the High Court for quashment is necessary in view of the observations made in the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 where it was held that it is generally accepted that the inherent jurisdiction should not normally be invoked where another remedy is available. In the same case it was observed that inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interests of justice. It was also observed in the same case that inherent jurisdiction given by section 561‑A, Cr.P.C. 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 Criminal Procedure Code itself and that such power can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. In the case of Muhammad Anwar v. State and another 1980 PCr.LJ 823 the view taken was that section 249‑A of Cr.P.C. is not designed for quashment of the proceedings where challenge 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. Scott Christian PLD 1992 SC 35 it was held that if prima facie the offence had been committed justice required that it should be enquired into and tried and if the accused are not as a result of the trial found guilty, they have a right to be declared as honourably acquitted by a competent Court. In the said case reliance was placed on the case of Ghulam Muhammad PLD 1967 SC 317 and approval was expressed in respect of an observation made in the case of Ghulam Muhammad to the effect that power given by section 561‑A, Cr.P.C. can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. In the case of Mian Munir Ahmed v. State 1985 SCMR 257 it was held that provisions of section 249‑A, Cr.P.C. do not interfere with the inherent jurisdiction of the High Court and that the powers of the trial Court under sections 249‑A, Cr.P.C. and 265‑K, Cr.P.C. are co extensive with the similar powers of the High Court under section 561‑A of Cr.P.C. and both can be resorted to, but it would be proper to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining in appropriate cases, an application under section 561‑A of Cr.P.C. directly. 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, the proceedings against him are abuse of the process of Court and 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 or that has yet to come on record and on that basis it can be determined if the case in question requires to be quashed in light of the case‑law on the point. In such circumstances it may not be necessary for an accused to move the trial Court for acquittal, before moving the High Court under section 265‑K, Cr.P.C. In the instant case the F.I.R. makes it clear as to, what is the evidence against the applicant. In the F.I.R. it is mentioned that the applicant was one of the persons who escaped on seeing police. It was not at one place but at 3/4 places that police saw crowd of persons who dispersed on seeing them. Even if the applicant did so, that would not amount to his having ‑committed any offence. Nothing is alleged against the applicant except his running away on seeing police. There is no allegation if the, applicant set on fire any vehicle or any other object. In the circumstances, pendency of said criminal case against the applicant would amount to abuse of the process of Court. For the foregoing reasons, this application is accepted and the proceedings pending against the applicant in consequence of F.I.R. No.225 of 1987 are hereby quashed. Such short order was passed on 20‑2‑1994 and these are the reasons for the same. N.H.Q./M‑2031/K Proceedings quashed.