1998 P Cr (PLP)

Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775; Rao Muhammad Jamil Khan v. The State 1996 MLD 13 and Khushi Muhammad and 4 others v. The State 1979 SCMR 94 ref. Sardar Muhammad Aslam Sukhera for Petitioner. Muhammad Amin Lone, Asstt. A.-G. for Respondents. Date of hearing: 30th July, 1997. This writ petition has been filed by Sajid Iqbal and Atif Faro petitioners-accused under Article 199 of the Constitution, 1973 and under section 561-A of the Code of Criminal Procedure for the quashment of t proceedings initiated against them in a Crime Case No.374 registered on 26-1-1996 at Police Station Urban. Area, Sargodha under section 392/41 P P.C. and under Article 20 of the Offences Against Property (Enforcement Hudood) Ordinance, 1979. The facts of the case are that on 26-11-1996 at about 10-30 p.m. complainant Muhammad Irshad Zubairi was present in his hot situated in Iqbal Colony, Sargodha. He heard a bell call and, accordingly, went towards the gate where he saw two persons standing there. They told him (complainant) that one person commonly called as Khatak Sahib of Multan had sent them for negotiating business of cigarettes and as such, they wanted to discuss the business matter with him. He made those two persons to sit in the drawing room of his house and served them with tea. Thereafter, complainant Muhammad Irshad Zubairi again heard a bell call. He went towards the gate of his house again but none was present there, when he came back both the persons stood up and they asked to hand them over cash and ornaments etc. at pistol point. The culprits took him to his bed-room forcibly and after opening his Almirah, cash amount of Rs.16,000 and 6 bangles of gold weighing about 7-1/2 Tolas worth Rs.45,000 were extorted. The accused then went outside the gate of house. The complainant raised the alarm and from upper storey of his house, Muhammad Shabbir, his business partner, came there and they went outside the gate. They saw four persons running. Both of them followed the accused and at a short distance, one of them, namely, Babar Khan, who served in their company as driver of vehicle, was apprehended whereas rest of them managed to flee away in their white car parked nearby. On query, Babar Khan accused informed them about his accomplices who were traced as Aamir Ali, Sajid Iqbal and Atif. On his way to police station arrested accused, namely Babar Khan succeeded in running away from the clutches of complainant party.

2. The investigation of the case was conducted. Both the petitioners accused were arrested on 8-12-1996 who were sent to the judicial lock-up. The identification parade of Sajid Iqbal and Atif Farooq petitioners was conducted on 31-12-1996 under the supervision of a Magistrate 1st Class in the premises of Central Jail, Sargodha when Irshad Zubairi and Muhammad Shabbir P.Ws. could not identify both of them. After completion of the investigation they were declared as innocent. A move was made by the concerned police to get the accused persons discharged. However, the Area Magistrate did not agree with the same and sent the accused persons to the judicial lock-up who were later on released on bail. The challan has been submitted in the Court of the Area Magistrate wherein both Sajid Iqbal and Atif Farooq petitioners-accused have been placed in column No.2 of the challan indictment who have been placed at the mercy of the Court.

3. Without moving the trial Court under section 249-A of the Code of Criminal Procedure for their acquittal due to the absence of the material against them and with the contention that their conviction cannot be recorded, they have directly filed this writ petition before this Constitutional Court for the quashment of the proceedings.

4. In the comments the police has admitted the facts mentioned in the writ petition under disposal by expressing that the names of the petitioners were not mentioned in the F.I.R., that nothing has been recovered from them and that they were not identified during the identification parade.

5. Learned Assistant Advocate-General appearing for the State has contested this matter on the ground that it is incumbent upon the petitioners accused to first move the Court of lowest grade under section 249-A of the Code of Criminal Procedure for their acquittal.

6. I have heard the learned counsel for the petitioners-accused as well as learned Assistant Advocate-General and gone through the record before me. Learned counsel for the petitioners has argued that in the absence of the material against the petitioners which fact has been admitted by the police in the comments sent to this Court, there is no need to file an application before the trial Court. According to him the continuation of the proceedings before the trial Court is simply the harassment of the petitioners. He relied on Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775 and argued that in very exceptional cases the accused can seek his remedy directly from the High Court-under section 561-A of the Code of Criminal Procedure for the quashiment of the case.

7. On the contrary, the contention of the learned Assistant Advocate General is that the general rule must prevail which is to this effect that the Constitutional jurisdiction of this Court should be invoked after availing the efficacious remedy and that the matter for quashment should not directly be disposed of. He referred to Rao Muhammad Jamil Khan v. The State 1996 RLD 1368 wherein it has been held that when alternate remedy is available to an accused under section 249-A of the Code of Criminal Procedure, resort cannot be had to the provisions of section 561-A of the Code of Criminal Procedure. In this case the ruling published as Khushi Muhammad and 4 others v. The State 1979 SCMR 94 was relied upon. My view is that in judicial hierarchy a petition to obtain the proposed relief has to be first of all moved before and disposed of by the Court of the lowest grade. The wisdom behind is that on announcement of final order aggrieved party is not deprived of assistance of the next Appellate/Revisional Court or even of the Constitutional Court. In the instant matter the challan has been submitted against the petitioners-accused who have been placed in Column No.2 of the challan indictment and have also been placed at the mercy of the Court. The factual aspect of the matter about the non existence of the material against the petitioners-accused for their conviction can also be analysed and adjudicated by the Court of the Ilaqa Magistrate. I, therefore, agree with the learned Assistant Advocate-General and hold that this matter should not be processed with and that it is in the fitness of the matter that the petition under section 249-A of the Code of Criminal Procedure is moved by the petitioners before the learned Ilaqa Magistrate who is also the trial Court. I am told that the previous Ilaqa Magistrate stands transferred. The present Ilaqa Magistrate/trial Court can appreciate the matter without feeling - prejudiced by any of the orders passed by his learned predecessor.

8. With my aforesaid observations, this writ petition is dismissed. N.H.Q./S-134/L Order accordingly.