2007 PLP 2513 (YLR)

TALAAT QAYYUM QURESHI, J.

Mian Jamil Shah respondent No.2 moved an application on 14-7-2001 to the Director Anti-Corruption N.W.F.P., Peshawar for initiating criminal proceedings against the petitioner and his co-accused respondent No.3 on the ground that the petitioner in connivance with, respondent No.3 made forgery in the application for obtaining certified copy for the purpose of filing appeal before the Collector Nowshera, wherein instead of, 3-4-1999 the date has been over-written as 3-3-1999, therefore, the petitioner and his co-accused were proceeded against by the learned Special Judge, Anti-Corruption N.-W.F.P. Peshawar and framed charge against them on 21-12-2002 for the offences under sections 420/468/471/466, P.P.C. read with section 5(2) of the PC Act.

2. After framing charge some evidence was recorded, but the learned trial Court stayed the proceedings sine die till the decision of appeal pending between the parties. The petitioner has now moved the application in hand under section 561-A, Cr.P.C. for quashment of the proceedings pending before the learned trial Court.

3. Mian Muhammad Younis Shah, Advocate the learned counsel for the petitioner argued that the matter is of a civil nature, therefore, the criminal proceedings are liable to be quashed.

4. It was also argued that from the facts and circumstances no case has been made out for forgery etc., therefore, the proceedings against the petitioner and respondent No.3 are illegal and not tenable in law.

5. It was also argued that the learned Collector, while seized of the appellate jurisdiction in the appeal filed by Abdullah Jan was "Court", therefore, the provisions of section 195(c), Cr.P.C. were applicable. Reliance in this regard was placed on the following authorities:-- AIR 1935 Rangoon 125 and PLD 1992 SC 353.

6. It was also argued that under section 195(c) of the Cr.P.C., the Court of Collector is the only authorized to initiate proceedings against the petitioner and his co-accused and under section 476, Cr.P.C., the complaint could be lodged before the Collector, in whose Court the matter was pending, therefore, the whole proceedings vitiated and are liable to be quashed.

7. Mr. Aftab Khan Khubai, Advocate representing respondent No.3 adopted the arguments of the learned counsel for the petitioner.

8. In rebuttal Haji Muhammad Alam Khan, Advocate (Mardan) representing the respondent No.2 argued that the offence committed by the petitioner and respondent I No.3 was scheduled offence, hence was triable by the learned Special Judge Anti-Corruption N.-W.F.P. Peshawar.

9. It was also argued that forgery was committed before filing the appeal and not during the proceedings of appeal, therefore, the learned Judge Special Court Anti-Corruption could competently proceed with the matter.

10. I have heard the learned counsel for the parties and perused the available record.

11. The question which requires determination in this case is as to whether the complaint was to be filed under section 195(c), Cr.P.C. by the Court of Collector or the complainant can file complaint against the petitioner and respondent No.3 before the learned Judge Special Court Anti-Corruption and as to whether the learned trial Court could proceed with the matter. In order to resolve these questions the petitioner should have l moved an application before the learned trial Court under section 265-K, Cr.P.C. It is by now settled law that ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. unless the trial. Court exercises its power under section 249-A or 265-K, Cr.P.C. which are of the same nature. A similar matter came up for hearing before the august Supreme Court in The State v. Asif Ali Zardari and another (1994 SCMR 798) wherein it was held:-- "Section 561-A, Cr.P.C. confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C.??????? unless?? trial?????? Court exercises its power under section 249-A or 265-K,. Cr.P.C. which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. In exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. without waiting for trial Court to pass orders under section . 249-A or 265-K, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

12. Resultantly the quashment petition in hand is dismissed. The petitioner may, however, move the learned trial Court under section 265-K, Cr.P.C. to resolve the above questions and if he is not satisfied with the judgment/order of the said Court, he can approach this Court again. H.B.T./131/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.