2015 PLP 218 (YLR)

ABDUS SATTAR ASGHAR, J.

Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Section 561-A, Cr.P.C. seeking quashing of proceedings in case F.I.R. No.510/2007 dated 23-10-2007 in the offence under section 382, P.P.C. registered at Police Station City Arifwala District Pakpattan Sharif pending in the Court of learned Judicial Magistrate section 30 Arifwala.

2. Succinctly facts leading to this petition are that the above referred F.I.R. No.510/2007 was registered on the application of Javed Iqbal/respondent No.1 (the complainant) against the petitioner. In the said F.I.R. attribution against the petitioner is that on 10-4-2007 at about 11:30 p.m. the petitioner armed with pistol along with Mst. Sabina Yasmin, Mst. Shabana Naureen, Muhammad Nasir and Sultan Mehmood came to his house; that the petitioner pointing his pistol towards the complainant directed the inmates of the house to remain silent and caused threat of life and thereafter asked his co-accused to search the house; that the accused took away cash of Rs.52,000, gold ornaments, video camera, 50 British Pounds, mobile phone, identity card, passports of the complainant, his wife and the children; that the petitioner on gun point boarded the complainant in vehicle No.LRD-5394 and took him to Multan and detained him in the premises of Police Station FIA and falsely implicated him in case F.I.R. No.133/2007 in the offences under sections 467, 468, 472, 473 P.P.C. and Sections 17, 18, 22 of Emigration Ordinance 1979.

3. In the police investigation petitioner was found not guilty and cancellation report of the F.I.R. was submitted by the police before the learned Illaqa Magistrate which was not acceded to and consequently police submitted the challan under section 173, Cr.P.C. before the learned Illaqa Magistrate. Soon after submission of the challan petitioner lodged an application under section 249-A, Cr.P.C. before the learned Judicial Magistrate section 30 Arifwala on the ground that he is serving as Inspector in the FIA and the raid was conducted by him on the order of his high-ups; that he rightly arrested Javed Iqbal/respondent No.1 and registered case F.I.R. No.133/2007 against him which is sub-judice in the Court of learned Special Judge Central Multan; that Javed Iqbal/respondent No.1 (the complainant) has got registered the false case F.I.R. No.510/2007 against the petitioner as a counterblast therefore he be acquitted from this case. Keeping in view the pendency of the trial of case F.I.R. No.133/2007 before the learned Special Judge Central Multan, the learned Magistrate section-30 Arifwala vide order dated 28-1-2011 stopped the proceedings in terms of section 249 Cr.P.C. of case F.I.R. No.510/2007 to avoid conflicting judgments. Javed Iqbal/respondent No.1 (the complainant) being dissatisfied of the order dated 28-1-2011 passed by learned Judicial Magistrate section 30 assailed it through a revision petition before learned Additional Sessions Judge Arifwala which was allowed vide order dated 16-9-2011 setting aside the order of learned Magistrate section

30. Petitioner being aggrieved thereof has lodged this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with section 561-A, Cr.P.C.

4. It is vehemently argued by learned counsel for the petitioner that learned Judicial Magistrate Section-30 Arifwala lacks jurisdiction to try the case F.I.R. No.510/2007 as the earlier F.I.R. No.133/2007 lodged against Javed Iqbal/ respondent No.1 (complainant) pertaining to the same occurrence was pending before the learned Special Judge Central Multan; that the attributions alleged by Javed Iqbal complainant in F.I.R. No.510/2007 could have been at the most his defence in the earlier case F.I.R. No.133/2007 which was pending trial against him before the Special Judge Central Multan; that the proceedings in the case before the learned Judicial Magistrate therefore are illegal, without jurisdiction and liable to be quashed.

5. It is resisted by learned counsel for Javed Iqbal/respondent No.1 with the contentions that he has been acquitted of the charge in case F.I.R. No.133/2007 by the learned Special Judge Central Multan vide order dated 9-4-2014. He added that the occurrence alleged against him in case F.I.R. No.133/2007 is altogether distinct and different; that the occurrence alleged by respondent No.1 as complainant of case F.I.R. No.510/2007 with attribution against the petitioner and his co-accused attracting the offence under section 382, P.P.C. is exclusively triable by the learned Magistrate section-30; that the learned Additional Sessions Judge vide order dated 16-9-2011 has rightly set aside the order of learned Magistrate regarding stay of proceedings; that the order dated 16-9-2011 passed by learned Additional Sessions Judge in exercise of revisional jurisdiction does not suffer from any legal infirmity or jurisdictional error therefore petitioner has no case to invoke the constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or inherent jurisdiction of this Court under Section 561-A of the Cr.P.C.

6. Arguments heard. Record perused.

7. Prosecution case in F.I.R. No.133/2007 Police Station FIA/CC Circle Multan lodged on 10-4-2007 on the application of Mst. Shabana Naureen was that she lodged an application to the Deputy Director FIA Multan on 10-4-2007 alleging that Javed Iqbal/respondent No.1 along with one Usama Zubair Tahir have extorted a sum of Rs.4,00,000 including passport and identity card from the complainant's brother with a promise to send him to London whereupon petitioner as Inspector FIA conducted a raid at Qayyum Seed Corporation where Javed Iqbal having sight of the raiding party boarding into his Cultus Car No.SWL-3366 decamped who was chased and apprehended at Lorry Adda Burewala Road; that raiding party conducted search of the car and recovered fake stamps of Emigration as well as of National Bank of Pakistan and other documents from a bag which were taken into possession through recovery memo.

8. Contrary to the above Javed Iqbal complainant of case F.I.R. No.510/2007 alleged that petitioner along with co-accused Mst. Shabana Naureen and others on 10-4-2007 at about 11:30 p.m. trespassed into his house and on gun point looted the cash amount, gold ornaments and other valuables; that they boarded the complainant in vehicle No.LRD-5394 and took him to Multan and falsely registered the case F.I.R. No.133/2007 against him.

9. Bare reading of both the F.I.Rs. therefore makes it crystal clear that place of occurrence in both the F.I.Rs. is different. Offences in both the cases are also distinct and distinguishable. Contents of F.I.R. No.510/2007 prima facie make out penal offence under section 382 P.P.C. exclu-sively triable by the learned Magistrate whereas offences under sections 467, 468, 472, 473 P.P.C. and Sections 17, 18, 22 of Emigration Ordinance 1979 pertaining to case F.I.R. No.133/2007 were different and exclusively triable by the learned Special Judge Central wherein Javed Iqbal/respondent No.1 has been acquitted of the charge. In view of above the plea of the petitioner that the learned Magistrate lacks jurisdiction to try the offence under section 382 P.P.C. in case F.I.R. No.510/2007 is devoid of any force and thus repelled.

10. Besides it is pertinent to mention that validity of the order of learned trial Magistrate was examined on judicial touchstone by the learned Additional Sessions Judge Arifwala in exercise of his revisional jurisdiction therefore in the absence of any legal infirmity or jurisdictional error in the impugned order passed by learned Additional Sessions Judge Arifwala writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is not maintainable against a revisional order passed by a court of competent jurisdiction. Reliance is made upon: (i) Badaruddin v. Mehr Ahmad Raza, Additional Sessions Judge Jhang and 6 others (PLD 1993 SC 399) (ii) Muhammad Fiaz Khan v. Ajmer Khan and another (2010 SCMR 105).

11. There is no cavil to the proposition that under section 561-A, Cr.P.C. High Court has got inherent power to quash the criminal proceedings if it is satisfied that a false case has been brought with mala fide intention and the process of the court is being abused not to advance the cause of justice but to subject the adversary to unnecessary harassment. In the instant case attributions against the petitioner and his co-accused prima facie make out a cognizable offence under section 382, P.P.C. which is exclusively triable by the ordinary court of learned Magistrate. Plea of malice or harassment is not substantiated through any speck of material. I do not find any legal infirmity or jurisdictional error in the impugned order dated 16-9-2011 passed by learned Additional Sessions Judge Arifwala. Therefore petitioner has no case to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 or under inherent juris-diction of this Court under section 561-A Cr.P.C. Reliance is made upon: (i) Ghulam Muhammad v. Muzammil Khan and 4 others (PLD 1967 SC 317) (ii) Bashir Ahmad v. Zafar-ul-Islam (PLD 2004 SC 298).

12. For the above reasons this petition having no merit is dismissed. ARK/M-209/L Petition dismissed.