2014 PLP 429 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

The Petitioner named above, instead of directing appeal against the judgment and decree dated 27-3-2010, passed by VIIIth Civil/Family Judge, Karachi (West), in Family Suit No. 91 of 2010, invoked the Constitutional jurisdiction of this Court, with a prayer to set aside the judgment and decree referred hereinabove. Simultaneously, in prayer clause (b) of the captioned petition, the petitioner has prayed for quashment of proceedings of Criminal Case No. 891 of 2010, pending in the Court of learned 2nd Judicial Magistrate at Karachi (West).

2. Succinct facts of the case in hand as averred in the memo of the instant petition are that Mst. Shazia Bibi/ respondent No. 3 filed Family Suit No. 91 of 2010, for recovery of maintenance, dower articles and dower amount against the petitioner. She has also filed Guardians and Wards Application No.92 of 2010 against the petitioner for custody of minors and has also lodged F.I.R. No. 336 of 2010 at Police Station Surjani Town for offences punishable under sections 354/337A(i)/34, P.P.C., for which the petitioner sought bail and is facing trial in Criminal Case No.891 of 2010; that during pendency of the cases, the respondent No. 3 entered into compromise with the petitioner and promised to withdraw the civil and criminal cases. In the meanwhile, by an order dated 17-5-2012, passed under section 249, Cr.P.C., the proceedings of criminal case were stopped; however, the execution application filed in Family Suit No. 91 of 2010 was allowed and the petitioner filed undertaking to pay the instalments of decretal amount.

3. Perusal of the record brought on the file by the petitioner transpires that on presentation of captioned petition, by an order dated 25-7-2013, the counsel for the petitioner was put on notice to satisfy the Court about the maintainability of the petition as the judgment and decree of Family Court are appealable. Petitioner, without explaining the reasons of not availing the remedy of appeal, if any, available to him and without adverting to the non-maintainability of the petition, knowing the consequences of the instant petition, has filed appeal against the judgment in Suit No. 91 of 2010 and submitted a copy of appeal along with statement and order dated 10-9-2013 passed thereon, which shows that the appeal preferred against the impugned judgment of Family Court has been dismissed by the Appellate Court being time-barred. It appears that petitioner has adopted two different forums against the impugned judgment; firstly, he has directly approached this Court by way of filing the captioned constitutional petition and subsequently filed the Family Appeal No.32 of 2013 before the Appellate Court, after when the petitioner was put on notice to satisfy this Court on maintainability of the petition, which is itself a sufficient proof that the prayer clause (a) is not maintainable. Consequently, the prayer clause (a), whereby the petitioner has sought relief to set aside the judgment and decree dated 27-3-2010 and writ of attachment is declined, being not sustainable in law.

4. So far as the quashment of proceedings of Criminal Case No. 89 of 2010 is concerned, the petitioner without showing any illegality, gross irregularity or infirmity in the order dated 17-5-2012, whereby the proceedings of the Criminal Case No. 891 of 2010 were stopped under section 249, Cr.P.C, approached this Court. From perusal of the order under section 249 Cr.P.C, announced on dated 17-5-2012, in Criminal Case No. 891 of 2010, it appears that due to non-appearance of complainant and other witnesses, the learned Magistrate has observed that the accused Bashir Ahmed (petitioner) and others were facing trial in an offence with mental agony and a sword was hanging on their head about the fate of case; the learned Magistrate has also observed that in our Criminal justice system there is no provision to compensate the accused causing delay on behalf of the State; thus, in the attending circumstances, it seems that the complainant/prosecution has lost interest in this case, therefore, looking into the nature of the case, the proceedings of the case were stopped till the appearance of witnesses; the bail bonds of accused including petitioner were cancelled and sureties discharged. Learned counsel for the petitioner was found totally unaware to show any illegality in the order passed under section 249, Cr.P.C. in favour of the petitioner. Neither in the contents of petition nor in worthy contentions of learned counsel, there is any justification to make a prayer for quashment of Criminal case, in which the proceedings against petitioner have been stopped under section 249, Cr.P.C. In such view of the circumstances, the relief sought in prayer clause (b) for quashment of proceedings of Criminal Case No. 891 of 2010 is not tenable in law.

5. It is not out of context to mention here that quashment in criminal proceedings is available under section 561-A, Cr.P.C, reproduced hereinbelow:-- "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 the process of any Court or otherwise to secure the ends of justice". The aforementioned provision of Criminal Procedure Code clearly indicates that quashment in criminal proceedings may be sought when the case is of no evidence, OR the registration of case is mala fide, OR the case is purely of civil nature, OR there is serious jurisdictional defect, OR there are patent violation of some provisions of law and continuation of proceedings would amount to sheer abuse of the process of the Court as the object of section 561-A, Cr.P.C. is to secure the ends of justice. It need not to iterate that Constitutional jurisdiction under Article 199 of the Constitution of Pakistan may be exercised for quashment of proceedings only in exceptional cases. Undoubtedly, in exercise of its inherent jurisdiction under section 561-A, Cr.P.C, this Court has ample power to quash the proceedings, if it finds that even after recording the entire evidence, the accused would not be possibly convicted and further that he invoked the Constitutional jurisdiction after exhausting the alternate remedy available to him under section 249-A, Cr.P.C., as powers under section 561-A, Cr.P.C. are to be used sparingly and only when there appeared to be abuse of process of law or when it was necessary to prevent ends of justice from being defeated. Inherent jurisdiction of this Court is not an alternative or additional jurisdiction, particularly while exercising the powers under section 249, Cr.P.C., the learned Magistrate has not committed any illegality to stop the proceedings after recording plausible reasons and thereupon release the accused/petitioner. Moreso, there is no cogent material that prosecution was launched for improper motive to harass the accused as powers under section 561-A, Cr.P.C. cannot be utilized as to interrupt or divert ordinary course of criminal procedure as laid down in the procedural statutes. Crux of the aforementioned discussion is that case against the petitioner is not an exceptional, where it is apparent that to stop the proceedings would amount to ends of justice, in which by exercising powers under Article 199 of Constitution of Pakistan, petition may be converted into application under section 561-A, Cr.P.C. Resultantly, the relief sought in the prayer clause cannot be acceded to.

6. Above are the reasons of short order, dated 9-10-2013 whereby the petition was dismissed in limine by us, being not maintainable in law but with no order as to costs. AG/B-18/K Petition dismissed.