1995 PLP 601 (MLD)

Jahangir Shaikh for Applicant. A. Ghani Shaikh, AA.‑G. for the State. Date of hearing: 20th February, 1994. Applicant Syed Muhammad Awais Shibli has filed this application under section 561‑A of Cr.P.C. for quashment of the criminal case pending against him in Court of Vth Extra Joint Civil Judge and F.C.M., Hyderabad, which is outcome of F.I.R. No.22/89 of P.S. Hussainabad. Said F.I.R. was lodged on an application moved by Waqar Muhammad Khan, D.S.P., Investigation, WAPDA. In his application, complainant Waqar Muhammad Khan stated that on 6‑3‑1989 he parked his official Jeep No.1AX‑5613 outside the house of one Abdul Ghaffar in Unit No.3‑3/4, Latifabad and went inside the house for a while to pick up his wife and his daughter. That he heard sound of firing coming from outside. Responding to the sound of fring Waqar Muhammad Khan went outside the house of Abdul Ghaffar and saw several people standing near a Video Centre. Waqar claimed to have learnt from the people present over there, that two boys including Awais Shibli came there, read registration number of his jeep and then fired three shots with mauser at the jeep and fled away by a Honda Motor‑Cycle. Waqar Muhammad Khan alleged that 2/3 days prior, he was threatened over telephone by Awais Shibli and that on a previous occasion Awais Shibli had quarrelled with Shuaib (son of the complainant) and a case under section 307, P.P.C. was registered against Awais. On the application of Waqar Muhammad Khan, D.S.P. the S.H.O., Hussainabad registered case under sections 336, 506(2) and 427 of P.P.C. After due investigation the appellant was challaned and he is now facing the trial. Mr. Jahangir Shaikh, learned counsel for the applicant argued that the applicant was involved in the case due to political enmity and a false F.I.R. has been lodged against him by a police official. It was also argued that evidence against the applicant was hearsay and continuance of the case against the applicant would be abuse of the process of Court. Mr. Abdul Ghani Shaikh, learned AA.‑G. opposed the application. He argued that before invoking jurisdiction of this Court under section 561.‑A of Cr.P.C. the applicant had not invoked jurisdiction of the trial Court under section 249‑A of Cr.P.C. It was also argued that the applicant was involved in a case punishable under the Pakistan Penal Code and he should face the trial in a normal way. The first point requiring determination is, whether an application under section 561‑A of Cr.P.C. can be moved before moving the trial Court for acquittal under section 249‑A of Cr.P.C. The Supreme Court of Pakistan in the case of Ghulam Muhammad v. Muzammal Khan and others PLD 1967 SC 317 held that the inherent jurisdiction should not normally be invoked where another remedy is available, because inherent powers are preserved to meet a lacuna in the Criminal Procedure Code in extraordinary cases and that the inherent powers are not intended for vesting the High Courts with powers to make any order which they are pleased to consider to be in the interest of justice because the inherent powers are as much controlled by the principles and precedents as are its express statutory powers. In the case of Nasrullah alias Nasra v. State 1987 MLD 1027 a learned Judge of Lahore High Court observed that inherent jurisdiction under section 561‑A is not an alternate jurisdiction or additional jurisdiction and cannot be invoked when an, alternate remedy is available and that the trial Court is empowered to acquit the accused at any stage of the case if it considers the challan to be groundless or finds that there is no probability of the accused being convicted of any offence. In the cited case exception was taken to the fact that the petitioner had come to the High Court at Lahore directly without invoking jurisdiction of the trial Court under section 265‑K of Cr.P.C. It was next observed that the petitioner should move the trial Court in the first instance, if so desired by him. A different view was taken in the case of Mian Munir Ahmed 1985 SCMR 257 where it was held that powers of the trial Court under section 249‑A and section 265‑K of Cr.P.C. are co‑extensive with the similar powers of the High Court under section 561‑A of Cr.P.C. and both can be resorted to but it would be proper to approach the trial Court in the first instance although there is nothing to bar the High Court from entertaining, in appropriate cases an application under section 561‑A of Cr.P.C. directly. In this way there is difference of opinion on the point at issue. Necessity to move the trial Court under section 249‑A, Cr.P.C. arises in the cases where the F.I.R. does not give complete idea, as to what evidence would be adduced against the accused at his trial. If the F.I.R. gives an idea, as to what evidence can come against an accused and if the Court considers that even if such evidence is brought on record, the person seeking quashment cannot be convicted the proceedings against, him are abuse of the process of Court and quashment can be ordered without the person seeking quashment having moved the trial Court under section 249‑A of Cr.P.C. However, where the F.I.R. does not give an idea as to what evidence would ultimately be led against the accused seeking quashment, then it would be proper for the person seeking quashment to move the trial Court first under section 249‑A, Cr.P.C. because in such a situation the trial Court can discuss the evidence that has come on record against the accused or that has yet to come on record and on that basis it can be determined if the case in question requires to be quashed in light of the case‑law on the point. In the present case, the F.I.R. makes it clear that implication of the applicant in the criminal case is on the basis of hearsay evidence. Complainant claimed to have learnt from the passersby that one of the two boys who shot at the jeep, was Awais Shibli. Complainant Waqar Muhammad Khan did not name anybody who told him that one of the two culprits was Awais Shibli. In the circumstances it is very clear that there is no direct evidence against the applicant. In such cases it may not be necessary for an accused to move the trial Court under section 249‑A of Cr.P.C. before moving an application under section 561‑A of Cr.P.C. for quashment. The legal objection raised by learned A.A.‑G. stands overruled. At their face value, the contents of the F.I.R. do not establish any case against the applicant. On such inadmissible evidence nobody can be convicted of any offence. The pendency of the proceedings against the applicant is therefore, abuse of the process of Court. For the foregoing reasons, this application is accepted and the proceedings pending against the applicant in consequence of F.I.R. NO.22 0f 1989 of P.S. Hussainabad are hereby quashed. Such short order was passed on 20‑2‑1994 and these are the reasons for the same. N.H.Q./M-2034/K Proceedings quashed.