1980 P Cr (PLP)

4. The petitioner instead of appearing before the Court concerned has approached the High Court for the quashment of the proceedings on the ground that the entire proceedings before the learned Deputy Commissioner, Mardan and his entrusting the case to the Magistrate for preliminary enquiry was without any lawful authority. In the alternative it had been stressed that even, if the order for preliminary, enquiry, is proper there is no evidence against the petitioner nor is any other likely to be available for implicating the petitioner in the offences alleged against him in view of what has already transpired in the prelimi nary enquiry. It has further been urged that the proceedings in question are an abuse of the process of the Court in that the whole matter of the grievance of respondent No. 1, if genuine, could only be of a civil nature not warranting any criminal prosecution.

5. A preliminary objection has been taken to the competency of his petition on behalf of the respondent to the effect that as an alternative remedy under section 249‑A of the Code of Criminal Procedure was available to the petitioner for getting acquitted of the charge at any stage of the proceedings, the remedy under section 561‑A for quashment of proceedings would not be available. In this respect reliance has been placed on Khushi Muhammad and 4 others v. The State (1979 S C M R 94).

6. The learned counsel for the petitioner "in order to overcome this preliminary objection has contended that it would not be in all the cases where criminal proceedings are initiated against an accused that the remedy under section 561‑A for quashment of proceedings would not be available. In a case where it would be established from the record itself that the whole proceedings were initiated on mala fide complaint and were nothing but tantamount to an abuse of the process of the Court the jurisdiction under section 561‑A, Cr. P. C. would still be available. Section 249‑A was inserted in the Code of Criminal Procedure by Code of Criminal Procedure (Amendment) Ordinance, 1977 (XXXVI of 1977), which came into force on 30th October, .1977. This newly added section reads as under :‑ 249‑A. Power of Magistrate to acquit accused at any stage.‑Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of an offence." In Zaheer Ahmad and 2 others v. The State (P L D 1979 Kar. 186) which was decided by a learned Single Judge of the Sind High Court on 9th October 1978, after the addition of section 249‑A in the Criminal Procedure Code, it was held that the inherent jurisdiction of the High Court cannot be invoked to quash the proceedings on the ground of delay alone, but such interference is permitted only to limited cases where it is found that proceedings impugned if allowed to continue, would defeat the ends of justice. It was further held that where the prosecution case had no legs to stand and was to end in acquittal, if permitted to continue, such proceedings before the trial Court would be farcical and would only cause harassment to the innocent party to bring about unnecessary and undue delay, which clearly would amount to abuse of the process of the Court. The proceedings were quashed in that case in the exercise of the powers under section 561‑A of the Criminal Procedure Code.

7. In the Supreme Court case quoted above, the petitioners were charged under section 201, P. P. C. for the abatement in that the petitioners urged the driver of a wagon, who had over ran a person while driving his wagon, to speed up the wagon and to disappear. Five out of thirteen prosecution witnesses had been examined by the trial Court and one out of them who was the sole witness of alleged instigation by the petitioners had completely exonerated them, the petition was moved to the High Court under section 561‑A, Cr. P. C. for quashment of the proceedings which failed. In these circumstances, their Lordships of the Supreme Court of Pakistan found some force in the contention that the petitioners could, under the newly‑added section to the Criminal Procedure Code, namely 249‑A, asks the Magistrate for their acquittal and thus an alternative remedy being available to them the resort could not be made to the provisions of section 561‑A, Cr. P. C. The question whether with the introduction of section 249‑A of Code of Criminal Procedure remedy for the quashment of proceedings under section 561‑A, by the High Court was barred came before a learned Judge of Lahore High Court in Din Muhammad v. Muhammad Sharif (PLD1979BJ12) it was held . . . The decision in Rashid Ahmad v. Rifat Sultana cited above, is correct to this extent that it desires, as a salutary principle, that an accused should first move the trial Court under section 249‑A, Cr. P. C. for his acquittal, if he considers, that there is no case against him or one which if allowed to continue will ultimately fail, before he moves the High Court in its extraordinary jurisdiction under section 561‑A, Cr. P. C. But if, as suggested by the learned counsel for the complainant, Rashid 4hmad v. Rifat Sultana is intended to lay down the law that the powers of this Court to. quash cases under section 561‑A, Cr. P. C. have now become totally barred, because of the enactment of section 249‑A, Cr. P: C. then I would beg to differ. Every Court, whether civil or criminal; in the absence of any express provision in the procedural law enacted to govern. its working, is deemed to possess inherent powers, within the body of its very constitution, to do complete justice, section 249‑A, Cr. P. C. which has recently been enacted, is only declaratory of the said principle. By virtue of this section, the accused now has a speedy remedy in the original jurisdiction to seek his immediate emancipation from a groundless charge and not face the dilemma of having to pursue far away from the locale of his trial the same relief under section 561‑A, Cr. P. C. which is only avail able from this Court. Both sections 249‑A, Cr. P. C. and 561‑A. Cr. P. C. do not basically lay down any rule of procedure; they are grounded in natural law and recognize the existence of inherent powers possessed by the criminal Courts, within the body of their very constitution, to do right and rid an accused from every ground less charge. However. section 561‑A, is larger in scope and intent than section 249‑A, Cr. P. C. Section 561‑A, Cr. P. C. recognizes the inherent powers of the High Court, both as a Court of record and also in view of its general jurisdiction over all the criminal Courts subordinate to it, to compel the compliance of the Code, or to give effect to any order thereunder, or to prevent abuse of the process of any Court or otherwise to secure, the ends of justice. The power, therefore, to free an accused from a groundless charge in criminal proceedings faced by‑ him is, therefore, co‑extensive both with the trial Court and the High Court. In line with the principle, therefore, that when a power is co‑existence, the litigant must first resort to the remedy in the Court of the lower jurisdiction in ordinary circum stances the accused must first seek his redress from the trial Court. Only in very exceptional cases the accused should seek his remedy from the High Court. The High Court, therefore, has power under section 561‑A, Cr. P. C. to quash cases but it will only exercise this right in extraordinary and exceptional cases where sending the accus ed to the trial Court would only perpetuate, if not further exacerbate the abuse or injustice, rather than eliminate it .. While respectfully agreeing with the above‑quoted exposition of law, it would now have to be seen whether the case of the, petitioner is so excep tional and extraordinary that sending the accused to the trial Court would perpetuate the abuse of the process of Court or injustice as to warrant interference by this Court in the exercise of its inherent powers. This has also been contended oil behalf of the petitioner that the Assistant Commis sioner or for the matter of that Deputy Commissioner were not competent to receive any complaint from the respondent and an application before those officers would not be a "complaint" to warrant any further inquiry. A reference in this regard was made to section 154 of the Cr. P. C. I fail to see any connection with the matter in hand as section 154 of the Code is in respect of information relating to the commissions of a cognizable offence, given orally or in writing, to an officer in charge of a Police Station. The entry and signature of the officer etc. provided in this section relate to a First Information Report and not to a complaint given in writing under section 200, Cr. P. C. The application moved by the respondent before the A.‑C. and then onward transmitted by that officer to the D.‑C. was a complaint and not an F. I. R. It did not require the fulfilment of the formalities laid down in section 154, Cr. P. C. Complaint has been defined under section 4 (1) (h) of the Code as under "Complaint" means the allegation made orally or in writing to a Magistrate with a view to his taking action under this Code, that some person whether known or unknown, has committed an offence, but it does not include the respect of a police‑officer." No exception, therefore, can be taken to the application of the respondent on the ground of non signing by the officer concerned. Now, the question remains whether the A. C. or D. C. are Magistrates for the purposes of receiving a complaint. There is no denying the fact that all the Assistant Commissioners have been conferred magisterial powers on them by the Provincial Government and the D. C. by virtue of his office is the Principle Magistrate of the District and, therefore, called District Magistrate. He is appointed under section 10 of the Code and is by virtue of this section a Magistrate of the first class. The application in question when presented to either of them with the view that action be taken against the accused was for all intents and purposes a complaint. Mere fact that application in question was addressed to the Deputy Commissioner, Mardan and riot to the District Magistrate would not render it incompe tent. A Magistrate, on the presentation of a complaint can either proceed with the inquiry himself by the issuance of the process or direct a Magistrate subordinate to him for ascertaining .the truth of the same, as it provided by section 202 of Code. The District Magistrate was, therefore, fully competent to direct Mr. Qaim Khan, who was a Magistrate subordinate to him to ascertain the truth of the same. It, therefore, follows that no exception could be taken either to the application of the respondent to the A. C. and to the D. C. directing the said Magistrate to enquire further into the matter. Having thus found the chain of action in the proceedings up to this stage valid and in exercise of jurisdiction by the officers concerned, I will now proceed to examine the merits of the complaint itself. It has been alleged in the complaint that petitioner moved an applica tion on behalf of one Mahmood Shah son of Fazal Shah as his general at torney to Deputy Settlement Commissioner, Mardan for the correction of the record of the property transferred to said Mahmood Shah wherein the transferee's name was written as Mahmood Khan instead of Mahmood Shah. The principal Mahmood Shah was alleged to have been murdered in 1965. It has been admitted at the Bar on behalf of respondent that the property in question was actually transferred to Mahmood Shah and that the name of transferee being cited as Mahmood Khan required correction. Thus admittedly no criminal intention could be attributed to the result achieved by that application. There is no allegation of illegal gain obtained by the petitioner or any illegal loss having been caused to any party by this correction of name. No power of attorney is forth coming. The petitioner has denied having moved this application. This application was sent with the specimen signatures of the petitioner to the Director, Forensic Laboratory, N.‑W.F. P., Peshawar for expert opinion. This opinion is now available on record and is in the negative and does not., substantiate the allegation. It may be pointed out that the inquiry was conducted in very exhaustive manner in which both the parties adduced their respective oral and documentary evidence and had also the opportuni ty to cross‑examine each other.

8. From the inquiry, proceedings it transpires that the bone of contention between the parties is a balakhana over the shops. The deceased Mahmood Shah purchased in open public auction property bearing No. C‑

361. On 3rd November 1962, a P. T. O. was issued his name as Mahmood Khan for this property. Similarly property No. C 362 was transferred to one Mahmood Ali and C. J., 363 to one Saeeda Khatoon. The respondent claims that he has acquired the properties transferred to Mahmood Ali and Mst. Saeeda Khatoon while an uncle of the petitioner has acquired that which was transferred to Mahmood Khan or Mahmood Shah. It is in evidence that the property transferred to Mahmood Shah was declared as a house instead of a shop by Deputy Settlement Commissioner on 8th February 1969. Later on the Deputy Settlement Commissioner, Mardan, vide order dated 23rd October 1969, declared No. C‑361 also inclusive of Nos. C‑364‑1 and C‑364‑2 as one single unit. The Deputy Settlement Commissioner, consequently, on 8th November 1969, corrected the Record of Permanent Transfer Deed and Obtained additional transfer price from the heirs of Mahmood Shah. The respondent admittedly has not gone in appeal or revision against the said correction of record. The respondent had then instituted two civil suits one after another against the petitioner on this dispute and had withdrawn the same. Presently a civil suit by the petitioner is in progress in the Court concerned. The respondent claims that some of the property to Mahmood Ali or the above‑named body has been included in the unit declared by Deputy Settlement Commissioner. If it is so, the proper ;arum for resolving this dispute would be the civil Court. There could be his escape from the conclusion that criminal proceedings in such disputes of Civil nature could only be mala fade with the sole object of harassment to the opposite‑party. In the instant case, I have come to the conclusion hat the whole dispute being of civil nature, the proceedings initiated against the petitioner by the respondent by virtue of this complaint to the A. C. are nothing but an abuse of the process of the Court. These proceedings, which have no leg to stand, if allowed to continue, will only result in prolonging the agony of the petitioner. This state cannot be flowed to perpetuate. For the foregoing reasons, the petition is allowed and the proceedings in the Court of the Sub‑Divisional Magistrate, Mardan on F. I. R. No. 242, dated 30th April 1978, in pursuance of the order of the District Magistrate, Mardan, dated 23rd April 1978, passed on the Report of the Inquiry Officer, dated 13th April 1978, pending against the petitioner are quashed: Petition allowed.