P L D 1997 Peshawar 177 (PLP)

This petition for quashment of the F.I.R. is the outcome of case registered vide F.I.R. No.231 dated 2‑5‑1996 at P.S. Cantt., D.I. Khan under section 324/34, P.P.C.

2. Dr. Muhammad Ajmal complainant made a report at Emerpency Ward in Civil Hospital, D.I.Khan, wherein he charged accused‑petitioners Jehangir, Muhammad Arshad son of Slier Shah and their two body guards namely Muhammad Ramzan and one gunman of Muhammad Arshad subsequently named as Sikauidar Shah for indiscriminate tiring at him and his attorney Abdul Qayyum as a result of which, said Abdul Qayyum was injured while complainant Dr. Muhammad Ajmal escaped unhurt.

3. At the very outset the learned counsel for the petitioners submitted that he is seeking quashment of the F.I.R. to the extent of Muhammad Arshad accused petitioner and in support of his contention vehemently argued that as per medico‑legal report of injured Abdul Qayyum charring has been ascribed on the solitary wound sustained by the victim Abdul Qayyum while this is not the case of the prosecution as put forth in the F.I.R. According to the contents of F.I.R. when the complainant alongwith his Mukhtar (Attorney) the injured came out of (lie Officers Club, they saw two vehicles parked near the gate of the Club and the accused‑petitioners came out of their respective vehicles and started tiring at the complainant and his attorney.

4. Statement of the injured witness was recorded at 8‑15 p.m. i.e. after two hours of the occurrence by the I.O. wherein he attributed effective fire only to accused petitioner Muhammad Arshad and as such detracted from the version given in the F.I.R. The learned counsel further submitted that medico‑legal aspect of the case has totally contradicted the ocular account. The learned counsel mainly stressed on the plea of alibi agitated by the accused‑petitioner Muhammad Arshad and seeking the quashment of the F.I.R. against the said petitioner on this score as it is alleged that on the very day of occurrence, the petitioner has filed a private complaint under section 506, P.P.C. against one Dr. Babar Amin in the Court of Illaqa Magistrate, Lahore and the investigating Officer has collected the documentary evidence in this behalf, which is available on the record. In short the learned counsel is of the view that entire prosecution case is contradicted by the medical evidence and the ocular account and therefore the F.I.R. should be quashed to the extent of accused petitioner Muhammad Arshad.

5. Learned counsel for the respondent strongly refuted the arguments of the learned counsel of the petitioner and submitted that accused petitioner was arrested on 25‑8‑1996 while the occurrence is of 2‑5‑1996 'and till then the accused petitioner remained absconder. Further submitted that if plea of alibi was available to the petitioner then why did he keep mum till 25‑8‑1996 for four months? The plea of alibi taken by the petitioner was not accepted by the Investigating Officer for three reasons:‑‑ (i) Direct charge. (ii) Two employees of the Officers Club namely Gul Khan and Shah Jehan who were examined by the I.O. on the same day of the occurrence, have seen the accused petitioner in the Club just before the occurrence and P. W. Shah Jehan has served him with cold drink at the instance of one Ziaullah. (iii) The said Ziaullah was when examined by the I.O. he also corroborated the statement of Shah Jehan. The learned counsel strongly rebutted the plea of alibi taken by the petitioner and further rebutted the grounds taken by the petitioners' counsel for quashment of the F.1.R. .

6. I have carefully considered the arguments made by the learned counsel for the parties.

7. Quashment is sought mainly on the plea of alibi taken by the petitioner. This Court in exercise of its powers under section 561‑A, Cr.P.C. cannot act as trial Court so as to see the genuineness or correctness of the evidence on the plea of alibi. Quashment of an F.I.R. would mean the close of prosecution case and the instant petition therefore, merits outright dismissal. In the instant case the a challan of the case has not yet been submitted to the Court and the case at present is with prosecution and therefore in the circumstances no judicial proceedings have yet commenced. No occasion has yet been arisen to prevent the abuse of process of the Court as contemplated in section 561‑A, Cr.P.C. which reads as under:‑‑ "561‑A.‑‑Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice." The guilt and innocence of an accused requires detailed scrutiny of the entire evidence collected by the prosecution after affording the opportunity to an accused to cross‑examine the prosecution evidence and thereafter, appraisal of the material collected by the prosecution against an accused could properly be assessed. The evidence collected by the prosecution in this case is yet to be recorded and appraised.

8. No doubt under section 561‑A, Cr.P.C. the High Court under its inherent powers can make such orders as may be necessary to prevent abuse of process of any Court or otherwise to secure the ends of justice but usually High Court does not exercise its inherent powers unless there is a grave miscarriage of justice and interference by High Court deems to be necessary to prevent abuse of the process of any Court or to secure the ends of justice.

9. The upshot of my above discussion is that the learned counsel for the petitioner has not been able to make out a case, where a glaring miscarriage of justice has been caused which amounts to abuse of the process of Court or the quashment of the F.I.R. would secure the ends of justice. The petition being devoid of merits is, therefore, dismissed. H.B.T./2167/P Petition dismissed.