2009 PLP 1004 (YLR)

RAFIULLAH SULTANI, J.

This application is directed under section 561-A of Cr.P.C. for quashment of F.I.Rs. 23/2007, 24/2007, 25/2007, 26/2007, 27/2007, 29/2007, 107/2007 & 65/2007, registered at police station Dadyal District Mirpur against the petitioners. Brief facts of the case are that F.I.Rs. Nos. 23/20007, 24/2007, 25/2007, 26/2007, 27/2007, 28/2007, 65/2007 under section 13/20/65 A.Os. 13-A 13-B A.O. F.I.R. No.29/2007 under section 3/4 Enforcement of Hudood Prohibition of Narcotics and F.I.R. No.107/2007 under sections 353/186, 506/224, A.P.C. were registered at Police Station Dudyal District Mirpur on the report of police officers against the petitioners. The police, after due course of investigation of the cases, had submitted the challans in the Court of Tehsil Criminal Court Dudyal. The learned Court of Criminal Jurisdiction Dudyal taking cognizance of offences and proceeded against the petitioners/accused in accordance with law and the evidence of prosecution is continue in all the cases. On 22-5-2008, the petitioners have moved the application in hand for quashment of above mentioned F.I.Rs. and challaned cases pending in Tehsil Criminal Court Dudyal. The learned counsel for the petitioners reiterated grounds of the application and further contendeds that the petitioners are noble and respectable citizens of this country and they have committed no offence and all the above mentioned eight F.I.Rs. have been registered against them with mala fide intention just to harass them. He further contended that all the F.I.Rs. are fictitious and no occurrence has taken place and no recovery has been made from the accused/petitioners. He also contended that no civil person is recorded as witness in Qalandra Challan. He also contended that the accused petitioners are acquitted in case under sections 352/A/342/34 A.P.C., 10/18 ZHA. and 13/20/65 A.O. from Shariat Court on 1-10-2008, which was falsely registered against the accused petitioners. He further contended that all the cases have challaned against the law and facts. He further 'contended that proceedings of the aforesaid challans are liable to be quashed. In support of his version, he cited following (case-laws:- PLD 1999 Kar. 121, 1998 PCr.LJ 95, 2002 SCMR 1076, 1991 PCr.LJ 1125; PLD 1997 Lah. 135, 1999 PCr.LJ 99, PLD 1998 Lah. 214, PLD 1995 Kar. 73, PLD 1999 Lah. 50 and NLR 1999 Criminal

98. The learned Additional Advocate-General contended that all the F.I.Rs. in question have been registered according to law and recoveries have been made from the accused and challans have been presented before the competent Court in accordance with law. He further contended that evidence of prosecution is nearly to be completed, due to this reason, the application under section 561-A, Cr.P.C. is not maintainable. He further contended that the petitioners have filed earlier a writ petition before this Court which was withdrawn later on. He further contended that police officials are good witnesses under Code of Criminal Procedure. He further contended that the petitioners are criminal because a lot of F.I.Rs. have been registered against them. I have heard the learned counsel for the parties and gone through the available record carefully. F.I.Rs. Nos. 23/07, 24/07, 25/07, 26/07, 27/07 and 28/07 were registered under section 13/20/65-A.O, 13-A 13-B A.O at Police Station Dudyal on 16-2-2007 while F.I.Rs. Nos. 29/07, 107/07 and 65/07 have been registered at Police Station Dudyal on 18-2-2007, 15-5-2007 and 1-6-2007 respectively. It is admitted fact that police, after due course of investigation; have submitted challans of all the cases in competent Court. The application in hand has been filed by the accused petitioners on 22-5-2008 before this Court after the lapse of period of nearly fifteen months. It is also admitted on the file that the accused petitioners have earlier filed writ petition for quashment of above mentioned F.I.Rs. before this Court I on 21-2-2008, which was later on withdrawn by them on 16-5-2008. It has not been pleaded by the petitioners that why they have moved the application in hand after lapse of long period since, initiation of case. The evidence of prosecution is continued in all the cases. It was held in number of cases by superior Courts that this Court should be reluctant to interfere in a case where a competent Court has taken cognizance and evidence adduced before it, come to the conclusion that a prima facie case is disclosed and proceeding the case in accordance with law and unless it can be said that the evidence adduced if believed does not disclosed any offence. Coming to the cases in hand, except one case F.I.R. No.107/07, in all the other cases recoveries of weapons and narcotics have been made from the petitioners and it cannot be said at this stage that the said recoveries are fictitious. The evidence of prosecution is going to be completed nearly in all the cases. Provision of section 561-A, Cr.P.C. are not meant for purpose of thwarting the criminal proceedings pending before trial Court. It is also held in number of cases by superior Courts that this Court cannot assume the role of investigator. The petitioners have alternate remedy under sections 265-K and 249-A of Cr.P.C. before trial Court and when alternate remedy is available in any case then remedy under section 561-A of Cr.P.C. is not attracted. The accused petitioners should have put their defence version regarding their innocence before trial Court instead of this Court. There is no cogent material available from the accused petitioners' side for the satisfaction of Court that aforesaid F.I.Rs. have been registered with mala fide intention to harass the accused and the continuance of the cases would be an abuse of process of law. It has been also held by superior Courts that remedy under sec tion 561-A of Cr.P.C. is not to be used to divert the ordinary course of Criminal Procedure Code. It was held in case titled Bashir Ahmed v. Zafar-ul-Islam and others, reported in PLD 2004 SC 298 while dealing with the same proposition in following manner: -- "As against this, when a High Court decides to proceed under section 561-A, Cr.P.C. the parties get divested of their right to adduce evidence; of their right to cross-examine the witnesses produced by the other side and of their right to discredit the evidence offered to the Court. The result is that the normal course of law is disrupted; the parties get deprived of the precious and valuable rights vesting in them; the trial Court gets deprived of the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full-fledged trial is decided in more than a summary manner and thereby depriving the High Court of the opportunity to determine the issue in the light of proper material. Using the powers under sec tion 561-A, Cr.P.C. to determine the fate of a criminal case is thus a serious departure from the normal course and needless to say that any deviation from the normal path is always pregnant with risk of being led astray. Such a deviation can, therefore, never be ordinarily advisable. Extraordinary circum stances must always be shown to exist before a choice could be made to abandon the regular course and instead to follow an exceptional route. Mere claim of innocence by an accused person could never be considered sufficient to justify such a departure because if this was so permitted then every accused person would opt to, stifle the prosecution and to have his guilt of innocence determined under section 561-A of the Cr.P.C. The result would be decision of criminal trials in a summary and a cursory manner rendering the trials as a superfluous activity and the trial Courts as a surplus age. This never was and could never have been the intention of the law maker in adding section 561-A to the Code." As a result of above discussion, it can be safely held that the accused petitioners may seek the remedy under sections 265-K and 249-A of Cr.P.C. before trial Court. In view of above, the petition being devoid of force is dismissed. It is no valid legal ground that the petitioners are acquitted in another case by Shariat Court and no account of that proceedings pending before the trial Court in cases in hand to be quashed. Every case depends upon its own facts. H.B.T./4/AJK(H.C.) Petition dismissed.