2005 PLP 103 (YLR)

2. The brief facts, giving rise to this petition, are that Mst. Parveen Bibi complainant came to the police station on 6-2-2004, at 1700 hours. At the time, she was accompanied by her neighbour Mst. Gulzar Bibi. The complainant' lodged a report that her husband Sabir Sultan is serving at Karachi. Similarly, the husband of Mst. Gulzar Bibi is also settled there. On the night of occurrence, they were sleeping in their homes. At about mid-night, somebody knocked at the outer door, on which, Mst. Ayesha Bibi aged about 16/17 years, the daughter of the complainant, went out to the door. When she opened the door, she saw that accused Abid son of Nazir and Junaid son of Sultan were standing outside, who threatened the complainant and her daughter with dire consequences, if they resisted and took away her daughter. Similarly, they also took away the daughter of her neighbour, namely, Mst. Shafia aged about 16/17 years, who is petitioner herein. On the hue and cry of the complainant and her neighbour, Ghulam Mustafa, who is the husband of her sister came out. They chased the accused but in vain.

3. It is alleged in the petition that after recording the statements of the eye witnesses and getting the two abductees medically examined, the prosecution is of the view that as the two abductees are pregnant they were, therefore, consenting parties to the abduction. Accordingly, the petitioner has been arrayed as an accused instead of a witness. She has, therefore, prayed for the quashment of the proceedings against her and arraying her as a witness instead of an accused.

4. I have heard Khan Afsar Khan, the learned counsel for the petitioner, as well as Qazi Abdul Jalil, the learned counsel appearing on behalf of the State and have also perused the record.

5. In support of the petition, the learned counsel for the petitioner contended that as by arraying the petitioner as an accused instead of a witness not only the prosecution case will become weak but there is no evidence in support of the prosecution version that the petitioner was a consenting party to the abduction.

6. On the other hand, the learned counsel appearing on behalf of the State contended that as to whether the allegations of the prosecution are true or false could only be determined at the trial and the present application is pre-mature. In support of his argument, the learned counsel appearing on behalf of the State placed reliance on 1998 PCr.LJ 1323. The argument of the learned counsel for the State is not without force. In the case relied upon, their Lordships of a Division Bench of Honourable Sindh High Court, it was observed:-- "The powers under section 561-A, Cr.P.C: can be exercised to prevent the abuse of process of any Court or to secure the ends of justice. In a case where there is allegation of false implication or of the evidence being false, the powers under section 561-A, Cr.P.C. cannot be exercised considering that if an exercise is undertaken at pre-trial stage to determine whether the prosecution evidence likely to come on record was true or false, it would lead to a finding without recording evidence. Reference may be made to Muhammad Khalid Mukhtar v. State PLD 1997 SC 275 wherein their Lordships have observed at p.279:-- "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 implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz 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 of 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." (ii) Sheikh Mahmood Saeed and others v. Amir Nawaz Khan and another 1996 SCMR 839:-- "We have decided to refrain from making any observations on the alleged compromise lest it should adversely affect the respective claims of the parties. Suffice it to say at this juncture that the ground urged before us hardly furnishes a valid ground for the quashment of the proceedings under section 145, Cr.P.C. Even otherwise, normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A, Cr.P.C. should not be lightly made; as this would tend to circumvent the due process of law. This was the principle laid down by this Court in Ghulam Muhammad v. Muhammad Khan PLD 1967 SC

317. Nonetheless, we may express a word of caution that each case must be judged on its own special facts and circumstances. We are of the considered view that power vests in the High Court to quash criminal proceedings, if it is satisfied that a false complaint had been brought and the process of Court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessary harassment. We are convinced that the present case is not of that nature and, consequently, the order passed by the learned Single Judge calls for no interference by this Court. No doubt, under section 561-A, Cr.P.C. the High Court has got vast powers to pass any order to prevent the abuse of the process of any Court or to secure the ends of justice but in a case where certain allegations are leveled by the prosecution against the accused and the accused sets up a plea that these allegations are wrong or false, then the matter would require recording of evidence and in the absence of evidence no finding could be given on the plea of the accused. Therefore, such proceedings against an accused cannot be quashed under section 561-A, Cr.P.C. because the continuance of such proceedings would neither amount to any abuse of the process of the Court nor by quashing the same any ends of justice could be secured.

8. Moreover, ordinarily every case should be allowed to proceed according to law and resort to the inherent powers of the High Court under section 561-A, Cr.P.C. should not be made because it would amount to circumvent the, process of law. It is never the intention of law that under the A inherent powers of the High Court under section 561-A, Cr.P.C. the normal course of trial before a Court of law should be diverted or process of investigation should be hampered against the spirit of law. Reference in this connection could be made to 1999 PCr.LJ 258. 8-A. As in the present case the plea of the petitioner that she was not a consenting party to her abduction would require recording of evidence, therefore, in the light of the observations made above the present proceedings against her cannot be quashed under section 561-A, Cr.P.C.

9. As a result, this petition fails and is hereby rejected. H.B.T./259/P Petition rejected.