2001 PLP 1235 (YLR)

Applicant, through this application is seeking quashment of proceedings arising out of Crime No.8- of 2001 of Police Station City Jacobabad (State v: Rajinder Kumar) pending in the Court of learned Civil Judge and F.C.M., Jacobabad. 2. , The facts of the prosecution case as narrated in the F.I.R are that accused Rajindar Kumar was entrusted a sum of Rs.4,00,000 by the complainant/respondent No. 1 and he had promised to return the same in few days. The applicant, however, despite several visits made by the respondent/complainant failed to make payment ultimately the accused tendered two cheques of Rs. Two lacs each to the complainant which were drawn on National Bank of Pakistan, Shahi Bazar, Jacobabad. It is further alleged that when the cheques were presented by the complainant to the bank the same were dishonoured. The complainant, therefore, submitted an application to S.S.P., Jacobabad and eventually an F.I.R under sections 420 and 406, P.P.C was registered against the present applicant.

3. I have heard Mr. Mazhar Ali Siddiqui, learned counsel for the applicant and Mr. Mushtaque Ahmed Korejo, learned counsel appearing on behalf of the State.

4. It has been contended by the learned counsel for the applicant that as a matter of fact it was a matter of civil transaction and there was no criminal liability against the applicant. He further submits that the F.I.R. was delayed by 6 months and that there was no eye-witness of the occurrence. He contends that the F.I.R. has been malafidely registered against the applicant in order to cause undue harassment. It has further been contended that the proceedings against the applicant amount to abuse of process of Court and that this Court, in such circumstances, must exercise its inherent jurisdiction to quash the proceedings. Learned counsel has placed reliance on the authority reported in 1999 PCr. LJ 1221.

5. Learned counsel for the State however, submits that the proceedings have been validly initiated and that no ground has been made out for quashment of the proceedings.

6. Section 561-A, Cr.P.C confers upon this Court inherent powers to make such orders as deemed necessary to give effect to any order under the Criminal Procedure Code or to prevent abuse of process of Court or otherwise to secure the ends of justice. It may, however, be observed that the powers under section 561-A, Cr.RC ought to be exercised to secure ends of justice and to prevent the abuse of the process of the Court but the said proceedings cannot be exercised to interrupt or divert the ordinary course of criminal procedure. It is well-settled that the inherent jurisdiction of High Court is not an alternate jurisdiction or an additional jurisdiction. It is only meant for the purpose of redressing the grievances and ought to be exercised sparingly in the interest of justice.

7. The authority relied upon by the learned counsel for the applicant is not applicable in the instant case as the facts and circumstances in the said case were absolutely different. It may be stated that incident which has been mentioned in the case cited by the learned counsel took place on the election day and the F.I.R. and challan were lying in the Court of Sub-Divisional Magistrate yet no proceedings have taken place. Therefore, learned Single Judge of this Court had ordered for quashment of proceedings. Needless to mention here that no inflexible rule can be laid down in the criminal cases and each criminal case is to be decided keeping in view its own peculiar circumstances.

8. In the case of A. Habib Ahmed v. M.K.G. Scott Christian and 5 others (PLD 1992 SC 353) the Honourable Supreme Court was pleased to observe as under:-- "In addition to the aforestated two points from the respondents' side, all those points which have already been noticed as having prevailed with the High Court would also be presumed to have been advanced from that side. Undoubtedly one primary question which the High Court had to face immediately on entertaining a case like the present one is. Whether, the ordinary course of trial before the Court concerned should be allowed to be deflected through an approach to its special of inherent jurisdiction the writ jurisdiction under Article 199 of the Constitution is one of them. The basic rule was laid down by this Court in the well-known case of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317 and it was ruled that if prima facie the offfence had been committed justice required that it should be enquired into and tried. 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'. On the other hand, if the evidence against the accused discloses a prima facie case then 'justice clearly requires that the trial should proceed according to law'. I was also held that inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction, it is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., it Was 'can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. Undoubtedly the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561-A, Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that the criminal cases were to proceed before the Court concerned in accordance with the normal law. The aforestated view and principle was reiterated by the Supreme Court in other cases as well, which came before it through the jurisdiction of the High Court other than section 561-A, Cr.P.C. They included the revisional and writ jurisdictions. See Abdur Rehman Bajwa v. Sultan and 9 others PLD 1981 SC 522 and Abdul Aleem. v. Special Judge (Customs), Lahore 1982 SCMR

73. The case of Abdul Aleem had arisen out of a similar case. A learned Special Judge/Customs notwithstanding the legal objections raised from, the accused side with regard to the competency of the criminal proceedings before him formally charged the accused. A criminal revision filed by him having been dismissed, he sought relief for quashment of the criminal case through a writ prtition and the same had to be dismissed mainly on the ground that the High Court would not ' in its discretionary jurisdiction short circuit the normal procedure of trial as provided by law'. This Court refused to grant leave to appeal. It was observed as follows: We are of the view that the approach of the learned Single Judge in the High Court in refusing to deflect the normal course of a criminal case through exercise of writ jurisdiction is not - only salutary but also in accord with the principles laid down by this Court in Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317, although the case dealt with therein...

9. In yet another case of Muhammad Khalid Mukhtar v. The State (PLD 1997 SC 275), it was held by the Hon'ble Supreme Court as under:-- "As observed in the case of Asif Ali Zardari (1994 SCMR 798), the powers under section 561-A, Cr.P.C. can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised in mechanically or in every case where there is allegation of false application or of the evidence being false. Exercise of such powers cannot further the ends of justice, if any exercise is undertaken at pre-trial stage to determine whether the prosecution evidence likely to come on record is proved or false. In the case of Raja Haknawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions by exercise _of an extraordinary power which is given for the dispensation or complete justice, in the forms provided by' law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380). Where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court was rightly rejected by the High Court. "

10. Insofar as the facts of the present case are concerned, it may be slated that admittedly the cheques tendered by the applicant were dishonoured. -It can only be ascertained after, recording the evidence as to whether or not there existed element of mens rea, and that whether the accused/applicant knew that there was money in his bank account or not, and/or whether the failure to meet the payment of cheque was accidental and/o? intentional.. In any case determination of guilt or innocence, of the accused depends upon totality -of facts to be revealed during the trial.

11. In my view merely because the transaction also made out a civil liability, is not sufficient for quashing the proceedings. Though there is nothing on record to show that civil proceedings are pending between the parties, yet continuation of civil suit is no bar to criminal proceedings even though both cases may relate to the same subject-matter. As a matter of fact the person defrauded has two I remedies open to him, one to get the accused punished for fraud played by him and the second to recover the amount of which he has been deprived of by the accused. In support of the above view, following case-law can be cited: (1) 1972 SCMR 85, (2) PLD 1973 Kar. 567 (3) 1975 PCr.LJ 28, (4) 1971 PCr.LJ 331, (5) 1973 PCr. LJ 548 and (6) 1974 PCr. LJ 541.

12. Since prima facie an offence has been committed by the applicant and he is facing trial before the Court of competent jurisdiction, if the proceedings are quashed at this stage, it will definitely give an impression of stifling of criminal proceedings, by exercising extraordinary powers, as it would tend to circumvent the process of law.

13. The upshot of the above discussion is that this Criminal Miscellaneous Application is dismissed. These are the reasons for the short order passed on 11-5-2000. H.B.T./R-45/K Application dismissed.