2007 PLP 2126 (YLR)

M. BILAL KHAN, J.

Lt.-Col. (Retd.) Najam Hameed son of Abdul Hameed, petitioner, has filed this petition under section 561-A, Cr.P.C. for quashing of proceedings in a private complaint under sections 499, 501, 502, 502-A, P.P.C. filed by his brother Lt. Col. (Reid.) Shahid Hameed (respondent No.2) which are pending in the Court of Judicial Magistrate Section 30, Faisalabad. On 29-4-2006 the learned Judicial Magistrate Section 30 Faisalabad had observed that the offences under which the complaint had been filed were exclusively triable by the Court of Session, therefore, she transmitted the same to the Court of Session for appropriate orders. The learned Sessions Judge entrusted the complaint to Malik Sanaullah, the learned Additional Sessions Judge, Faisalabad. On 29-4-2006, the learned Additional Sessions Judge, posted the case for 3-5-2006 for recording the preliminary statement of the complainant. Preliminary statement was recorded on 3-5-2006 and the case was adjourned for consideration and orders for 27-5-2006. The case was thereafter adjourned for one reason or the other and finally vide his impugned order dated 24-6-2006 the learned trial Court/Additional Sessions Judge summoned the accused persons petitioner by finding a prima facie case against them under sections, 499, 500, 501, 502, 502-A, P.P.C. It is the said order dated 24-6-2006, which has been impugned before this Court with the prayer that the proceedings before the learned trial Court in the complaint may be quashed in the interest of justice.

2. I had issued pre-admission notice to respondent No.2 (complainant of the case) in response to which he entered appearance through its counsel Rana Waqas Latif, Advocate.

3. I have heard Hafiz Abdul Rehman Ansari, Advocate the learned counsel for the petitioner as also Rana Waqas Latif, Advocate the learned counsel for respondent No.2 and have perused the record appended with this petition as also brought on record by respondent No.2.

4. Hafiz Abdul Rehman Ansari, the learned counsel for the petitioner has argued that the impugned order dated 24-6-2006 whereby the petitioner had been summoned to face trial in a private complaint is against law and facts of the case; that the petitioner could not have been summoned to face trial merely on the basis of sole statement of the complainant; that the learned trial Court ought to have recorded the statement of other witnesses to support the complainant's case; that the complaint had been filed just to pressurize the petitioner with a view to compelling him to withdraw from civil suit pending between the parties; that the complainant (respondent No.2) has already filed a civil suit which is pending at Rawalpindi an in presence of the same recourse could not have been made to criminal action. He heavily relied on the case of Abdul Karim and 5 others v. Abu Zafar Qureshi and 3 others (PLD 2001 Karachi 115) wherein the Honourable Sindh High Court in exercise of its powers under section 561-A, Cr.P.C. had quashed summoning order against the petitioners applicants therein. It was held that the allegation against the accused were of general nature and that in the peculiar facts and circumstances, no prima facie case under sections 499 and 500, P.P.C. had been made out.

5. As against this, Rana Waqas Latif, Advocate, the learned counsel for respondent No.2 vehemently defended the impugned order contending that the same was absolutely legal and had been passed by applicability of judicial mind.

6. I have heard the learned counsel for the parties at some length.

7. It has been observed that the learned Additional Sessions Judge, on 3-5-2006 had recorded the preliminary statement of the complainant in great detail. In his statement the complainant had produced copies of the material on which he was relying and a large number of documents had been got exhibited during the course of his statement. The learned Additional Sessions Judge thereafter passed the impugned summoning order dated 24-6-2006 which is reproduced as under:-- "I have heard the arguments advanced by learned counsel for the complainant and have gone through the preliminary statement of the complainant and incriminating material submitted in preliminary evidence by the complainant through his counsel. I have also perused the record available on the file produced by the complainant. Bare perusal of preliminary statement of the complainant, complaint and its annexure(s), i.e. incriminating material. Prima facie offences under sections 500; 501 and 502, P.P.C. are made out against the accused. Thus, the accused be summoned for 5-7-2006. The complainant is directed to deposit the summon and copies of gist of evidence within four days." A bare perusal of the summoning order shows that the learned Additional Sessions Judge had applied his independent judicial mind and had not only gone through the statement of the complainant but had also reviewed the documents which had been appended with the complaint and had been exhibited during the course of recording of statement of the complainant. From the plain language of section 202, Cr.P.C. whereunder a preliminary inquiry is conducted, no particular number of witnesses are required to be produced during the course of said inquiry. It is also not the requirement of law that entire evidence may be produced during preliminary inquiry. All that is required is the satisfaction of the Inquiry Magistrate or the Court. If on the basis of the statement of the complainant alone the Courts is satisfied that prima facie case is disclosed against the accused person(s) named in the complaint, there is no embargo against him in summoning such an accused person(s). Reference can profitably be made to the case of Qadar Dad v. Sher Muhammad and another (1980 SCMR 843). The case of Abdul Karim and 5 others v. Abu Zafar Qureshi and 3 others (PLD 2001 Karachi 115) proceeds entirely on different facts and does not advance the plea raised by the learned counsel for the petitioner. I would not like to make any further comment on the merits of the case lest it prejudices either of the sides, however, suffice it to say that keeping in view the statement of the complainant and the material which he had brought on record during the course of his preliminary statement it cannot be said that no prima facie case was disclosed against the accused persons to face their trial. Even otherwise inherent jurisdiction under section 561-A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction rather 'it is a jurisdiction preserved in the interest of justice to seek redress of grievances for which no other procedure is available. This power can never be utilized so as to interrupt or divert the ordinary course of criminal procedure. Reference may be made with advantage to Dilawar Hussain v. The State (1996 SCMR 839) and Muhammad Bux v. Sub-Divisional Magistrate, Sub-Division Matli, District Badin and another (PLD 1999 Karachi 366). This Court is always reluctant to interfere in a case where a Court of competent jurisdiction after examining evidence adduced before it, comes to the conclusion that a prima facie case is made out. Even otherwise this Court is generally reluctant to quash proceedings where questions of fact are involved which cannot be gone into by the High Court without enabling the trial Court to record evidence. After his appearance before the learned trial Court the petitioner can legitimately make an application under section 265-K, Cr.P.C. and can arise all the pleas which have been raised in this petition. No ground for interference by this Court has been found to be existing. This petition is accordingly dismissed. H.B.T./N.-49/L Petition dismissed.