1982 P Cr (PLP)

Moinuddin Ahmed for the State. Date of hearing : 25th June, 1981. This Criminal Miscellaneous Application under section 561‑A, Cr. P. C. has been filed for quashment of the proceedings before the trial Court. The applicants have been challaned under section 323/452/. 34, P. P. C. f he applicant No. 1 is the real brother of applicant No. 2 and father of applicant No. 3, whereas applicant No. 4 is a resident of their village. The applicant No. 4, is married to the sister‑in‑law of respondent No.

2. There seems to be marital dispute between the husband and the wife and it has been stated by the learned counsel for the respon dent No. 2 that Zubaida the wife of applicant No. 4, has obtained a decree for dissolution of marriage. This happened after the incident which is the subject‑matter of the present proceedings. It may also be stated that respondent No. 2 is the brother‑in‑law of the wife of applicant No.

4. According to the F. I. R. on 7th June, 1977 the applicants along with respondent No. 2 came to the house of Amiruddin father‑in‑law of applicant No. 4 and respondent No. 2, trespassed into the house and gave beating to Amiruddin and respondent No.

2. The challan was submitted by the Police of Landhi Police Station on 12th July, 1977 in which Sirajud din and Allah Ditta were shown to be under arrest while Ilm Din and Rafiuddin the respondents Nos. 2 and 3 were stated to be absconding. All the respondents are residents of Matli, District Badin. In the challan 10 persons have been cited as witnesses for the prosecution. It seems that the matter remained pending as respondents Nos. 2 and 4 had absconded and after they surrendered in or about June, 1980 the proceeding before the trial Court commenced. The first witness was examined on 18th June, 1980. After 2 P. Ws. were examined the applicants filed an application under section 249‑A, Cr. P. C. The arguments were heard and it was fixed for orders on 18th August, 1980, when complainant made an application for transfer and consequently no order was pronounced. However, on 28th October, 1980, the transfer application was granted with the consent of the advocate for the applicants, and a desire was expressed by him that the Magistrate should be directed to expedite the disposal of the proceedings and dispose of the application under section 249‑A, Cr. P. C. which was pending. However, during the pendency of those proceedings on 31st August, 1980, applicant filed the present application.

2. The learned counsel for the applicants has contended that the entire proceedings have been taken in abuse of the process of law. He has pointed out that it is not probable that the applicants Nos. 1 and 2 who are men of status and are resident of Math will come to Karachi to fight with the complainant. He has further stated that there are certain contra dictions in the evidence of two P. Ws. and consequently the prosecution case cannot stand. And that the complaint was tiled mala fide and in abuse of the process of law. The learned counsel has relied on 1978 P Cr. L J 808, but it has no relevance to the present case as‑ in that case the dispute between the parties was of a civil nature and, therefore, the proceeding was quashed. Reliance has also been placed on 1979 P Cr. L J 924 in which the proceedings were quashed because it was held that the complaint was filed with ulterior motive and the nature of evidence was unbelievable. In that case the nature of evidence was unbelievable which is not so in the present case.

3. Mr. Niaz Ahmad Khan, the learned counsel for the State and Mr. Moinuddin Ahmed, Advocate for the respondent No. 2 have opposed the application. Mr. Niaz Ahmed Khan has stated that as the applica tion under section 249‑A, Cr. P. C. is still pending the application is not maintainable. There is force in this argument: The applicants imme diately after the evidence of two P. Ws. was recorded filed an application under section 249‑A, Cr. P. C. which is still pending. No doubt an order on this application has been delayed due to the transfer application moved by the complainant but the fact remains that the same transfer application which is alleged by the applicants to be in abuse of the process of law has been granted with the consent of the applicants. In these circumstances it does not lie in the mouth of the applicants to, say that it was in abuse of the process of law.

4. Mr. Nawaz A. Jajja, the learned counsel for the applicants has contended that there has been a delay of more than 4 years and no proceed ings worth the name have been taken. The delay can be attributed to the fact that applicants Nos. 2 and 3 were absconding. When they surrendered in June, 1980, it seems the proceedings immediately started and two P. Ws. were examined but an application under section 249‑A, Cr. P. C. was moved followed by a transfer application and the proceedings were stayed. In the circumstances of the case no undue delay seems to have been caused. S. The learned counsel has pointed out to some contradictions in the statements of two P. Ws. and has contended that the prosecution has failed to prove beyond reasonable doubt that the applicants have committed any crime. Without commenting upon this aspect of the case suffice to say that there are eight more witnesses for the prosecution yet to be examined hence the contention is premature. However this contention can very well be examined by the trial Court while deciding the application under section 249‑A, Cr. P. C.

6. The applicants during the pendency of their application under section 249‑A, Cr. P. C. have applied for the quashment of the proceed ings. The main object in exercising the power under section 561‑A, Cr. P. C. is to prevent the abuse of the process of Court or otherwise to secure the ends of justice. Such inherent jurisdiction cannot be invoked as an additional or alternative remedy where a proper and effective pro cedure is provided under the Code and particularly as the same has been resorted to by the applicants. In these circumstances it is not proper for the Court to exercise its jurisdiction under section 561‑A, Cr. P. C. The process of law should be allowed to flow in its own normal course and all such attempts to stifle the prosecution by invoking jurisdiction under section 561‑A, Cr. P. C. should be discouraged unless it is necessary to secure the ends of justice. In the present case the pendency of application under section 249‑A, Cr. P. C. is a sufficient ground for dismissal of this application. In view of this fact and the reasons discussed above it is not proper' to quash or interfere with the proceedings before the trial Court.

7. The application is, therefore, dismissed and the learned trial Court is directed to proceed with the case and dispose it of within a period of two months from the date of this Judgment. Quashment application dismissed.