Inherent power of High Court

Report submitted by City Police Officer revealed that the vehicle in question pertained to case FIR No. 569 of 2020 registered under Ss.457, 380 & 511, P.P.C

Complainant registered the FIR against four unknown accused persons for attempting to commit theft of tower batteries

Later, the complainant nominated "S" as an accused in the FIR

Said fact suggested that "S", to whom a finance facility was extended, was named in the said FIR

Present petitioner was the sole claimant of the vehicle to date, who had the original documents/excise file

Report submitted by the City Police Officer revealed that UBL concerned branch issued a letter stating that on 24.01.2024 a certificate was issued by UBL Bank to DPO, verifying that the vehicle in question was leased to the customer, "S", under the Higher Purchase Agreement (HPA)/Finance Agreement with United Bank Limited

Bank verified that United Bank Limited owned the vehicle

Bank also verified that the original file/excise file and a copy of the registration book were available in the bank record

Original registration book was handed over to the customer

As the vehicle in question, the bank financed the vehicle to the customer for 60th Months" installment plan, which started from April 2017 and matured on March 2022; customer deposited only 41 installments till the month of August 2020, thereafter defaulted in payment of monthly lease rental and at present, an amount of Rs.655,594.90/- was still outstanding against the said vehicle/customer and thereafter it was seized in case FIR No. 569/2020

In the circumstances, the retention of the car in question in police possessions for an indefinite period would mean a completely damaged and deteriorated condition of the vehicle

Neither of the Courts below was justified in refusing the superdari of car in question to the petitioner

Petition was allowed by setting aside the impugned orders, in circumstances.

On the report, submitted by the Judicial Magistrate, the Trial Court imposed costs of Rs. 10,000 each on SHO and other officials of the police station

Validity

In the present case, facts, circumstances, the statements of the delinquent and the reports showed that without a, doubt the two persons were being detained at the police station, without any entry either registered under S.154,Cr.P.C., or in the Station Diary of the said police station, hence without any legal justification

Nothing was brought on record to show that said two detainees were involved in any case or any investigation was pending against them

Fact of recovery of two persons under illegal confinement from the same police station clearly pointed out towards the state of affairs at the said police station, which was being used as a detention center for illegal confinement of these citizens, for whose protection the said police station was actually established

Illegal confinement of a citizen impinged upon his personal liberty and fundamental rights guaranteed under the Constitution of Pakistan, especially when such act was conducted by those who were appointed and duty bound to ensure and protect the life and liberty of the detainees

In the present case, the Trial Court took a very lenient view by imposing costs of Rs. 10,000/- each, thus, no illegality could be pointed out in the order passed by the Trial Court, which order was upheld

Application was dismissed, in circumstances.

Application under S.133, Cr.P.C., was filed by private respondent against applicant, who was alleged to have disposed waste water from its factory which was injurious to health

Such allegations were challenged on the grounds inter alia that the matter was already addressed at various forums

Validity

Perusal of the record reflected that earlier identical applications under S.133, Cr.P.C., were filed against the same Mill of applicant by one "AWA" who later on also approached the High Court under Art.199, wherein Mukhtiarkar Revenue was appointed as Local Commissioner to inspect the site and report from concerned SHO Police Station were also called

Both such reports negated the allegations against the applicant and the petition was accordingly dismissed vide order dated 26.09.2018

Record further reflected that in the present case also, an application for appointment of Local Commissioner to inspect the site was made which was allowed and Report from the concerned SHO was also called, who in his report dated 25.02.2021 reported that no nuisance had been caused by the applicant but there was some dispute between some local community and the applicant over some agricultural land

Concerned Mukhtiarkar also filed his inspection report

Considering the said facts, the application under S.133, Cr.P.C., was dismissed by the Magistrate after hearing the parties

Moreover, it appeared that in the Criminal Revision Application, a statement dated 09.08.2021 was filed by the private respondent for withdrawal of revision application and based whereon vide order dated 09.08.2021 the revision was ordered to be dismissed as withdrawn by the Court

It was alleged by applicant that once the revision application was dismissed as withdrawn, the Sessions Judge had no jurisdiction to pass any further order in the same case, yet the impugned order dated 27.04.2022 was passed

Study of the subject showed that principle of functus officio had been strictly followed in every variety of law, as for instance, a Magistrate became functus officio once the Sessions Court took cognizance of the matter

Upon dropping of proceedings also the Magistrate became functus officio and lacked power to subsequently issue orders for attachment of property under S.145, Cr.P.C.

With respect to powers under S.561-A, Cr.P.C., it had been held that although legislature had equipped the High Court with ample inherent power under S.561-A, Cr.P.C., however after disposal of a criminal matter, it became functus officio; it could not review or sit in appeal against its own orders passed in criminal jurisdiction, except correction of clerical errors

Even under the constitutional jurisdiction this principle was followed that after passing of an order for withdrawal of a petition as not pressed, the Court became functus officio and correction of the same on merits under S.151 or 152, C.P.C, was not permissible

On the other hand, perusal of reports from the concerned Mukhtiarkar and SHO also did not point towards any illegality being committed by the applicant whereas a complete mechanism for protection of environment was also available under the Sindh Environment Protection Authority Act, 2014

Further, it was clearly reported that no particular incidence of nuisance caused due to water ponds or storage of black mud by the mill to any person was found

Petition was allowed, accordingly.

High Court can quash a judicial proceeding pending before any subordinate court under Section 561-A, Cr.P.C., in order to prevent the abuse of the process of that court or otherwise to secure the ends of justice

Expression "abuse of process" used under Section 561-A, Cr.P.C., connotes an unwarranted or irrational use of legal proceedings or process which also includes the presence of ulterior motives for activating the process for unjustified arrest or groundless criminal prosecution

At the same time, this inherent jurisdiction cannot be deemed to be an alternative jurisdiction or additional jurisdiction and cannot be exploited to disrupt or impede the procedural law on the basis of presumptive findings or hyper-technicalities

Instead, it is intended to protect and safeguard the interests of justice and to redress grievances of aggrieved persons, for which no other procedure or remedy is provided in the Cr.P.C

Remedy provided under Section 561-A, Cr.P.C., cannot be construed as an alternate remedy or substitute for an express remedy provided under Section 249-A or 265-K, Cr.P.C., as the case may

Therefore, the ordinary remedy provided under the law cannot be bypassed or circumvented.

Complainant lodged FIR alleging fraud and misrepresentation in transfer of SIM and the petitioner along with others were nominated as accused in the said FIR

Petitioner contended that subject matter of FIR required investigation and adjudication by Pakistan Telecommunication Authority only and in such like cases FIR was barred under such law

Validity

Complete and comprehensive mechanism given in the Pakistan Telecommunication (Re-organization) Act, 1996, has been followed while processing the case of the respondent/complainant of FIR

Change of ownership of SIM is regulated under R.12 of Subscriber Antecedents Verification Regulations, 2015 which authorizes the operators to change the ownership of SIMs if any breach of such regulation is found; such breach is punishable under S.31(1)(a) of the Pakistan Telecommunication (Re-organization) Act, 1996 and under S.31(6) of said Act

If any such violation is committed by a company, every Executive Director, Chief Executive, Principal Officer and Secretary of such Company could be prosecuted in accordance with the provision of Cr.P.C

There is a difference between registration of FIR and taking cognizance; yet FIR could only be registered in cognizable offence and the Pakistan Telecommunication (Re-organization) Act, 1996, does not carry any provision which could label any such act as cognizable offence

As per S.5, Cr.P.C, if the procedure is not given in any special law then one prescribed under Cr.P.C shall be followed

According to Second Schedule of Cr.P.C if an offence was punishable with imprisonment for one year and upward but less than three years, the offence shall be non-cognizable, therefore, on that score FIR for offences under Pakistan Telecommunication (Re-organization) Act, 1996, could not be registered

Pakistan Telecommunication (Re-organization) Act, 1996, being special law has an overriding effect as per S.58 of said Act

Thus, it is to be given space and alleged corresponding sections in P.P.C could not be stretched for registration of FIR, therefore, very registration of FIR was false owing to mistake of law and the Court in its constitutional jurisdiction could quash the same

In such state of affairs, constitutional petition was allowed and FIR was quashed.

Petitioner had filed Criminal Miscellaneous Application against the order passed by Additional Sessions Judge in habeas corpus petition for production of her minor sons, whereby the Court handed over the custody of minors to the applicant, however with some conditions

Petitioner contended that the conditions could not be imposed in the habeas corpus petition, therefore the impugned order was liable to be set-aside

Validity

In the present case, the applicant-mother filed habeas corpus petition before the Additional Sessions Judge and the custody of the minors/detenues was handed over to applicant subject to conditions that she would surrender her and her children's Pakistani and Canadian passports and also execute a P.R Bond in the sum of Rs.500,000/- (Rupees Five Lac Only)

Applicant was further directed not to remove the custody of the minors/detenues from the territorial jurisdiction of the district

So far as the meeting of minors with their father was concerned, the applicant was directed to allow the father to meet with them on alternate days under the supervision of concerned SHO

Both the applicant and respondent were directed to approach the concerned Guardian Court to get custody of the minors

Now the father had applied for custody of the minors before the concerned Guardian Court

It was inappropriate for the Court under S.561-A, Cr.P.C, to encroach upon and arrogate itself the powers of a Guardian Court, which was the Court of competent jurisdiction under the law to decide all matters relating to custody of child(ren)

In the presence of an adequate remedy, the High Court was precluded from exercising jurisdiction under S.561-A, Cr.P.C

Purpose of filing present Criminal Miscellaneous Application had been served as the minors had already been produced before Additional Sessions Judge in habeas corpus Petition and custody had been handed over to the applicant; and conditions so imposed had already been lifted and were no more in the field, thus it could not be acted upon under the circumstances of the case

Prima facie the minors were with the applicant-mother and the issue of permanent custody was under adjudication before the Guardian and Wards Court instituted by the respondent-father for which the Court was first required to see whether it had jurisdiction to adjudicate the matter on the subject issue in the light of law

Issue of jurisdiction must be decided on a priority basis to end the anxiety of the parties for the reason that in cases, concerning the custody of a child, High Court is not required to go into the intricacies/technicalities of the matter in criminal jurisdiction and should confine its findings to the extent of the welfare of the child/minor which is a paramount consideration for which the proper forum is available under the law, which is subject to its jurisdiction

Criminal Miscellaneous Application was disposed of.

Trial Court summoned the applicant through non-bailable warrant in the criminal case, whereas she was neither named in FIR nor in report under S.173,Cr.P.C., but she was arraigned as accused in supplementary challan

Validity

In the present case, two FIRs of the same police station were registered for the same incident, however one FIR was disposed of in "A" Class whereas report under S.173, Cr.P.C., was submitted in other FIR

Judicial Magistrate had taken the cognizance on the final report submitted by the Investigating Officer under S.173, Cr.P.C., and sent the case to Sessions Judge concerned as S.302, P.P.C., was exclusively triable by the Court of Session

Sessions Judge transferred the case to Additional Sessions Judge on administrative grounds for disposal in accordance with law

Trial Court after formal proceedings, framed the charge against the accused

As per record, neither applicant was nominated in the FIR nor her name came on surface in the final report/challan

After submission of final report under S.173, Cr.P.C., Investigating Officer furnished supplementary challan before concerned Judicial Magistrate, who sent the supplementary challan to Trial Court on the ground that he had already taken the cognizance on the report under S.173, Cr.P.C., and now he had become functus officio

Trial Court after receiving supplementary challan had not passed any order and after compliance under S.265-C, Cr.P.C., framed the charge against the accused who were placed on the list of column of accused in the final report forwarded by the Judicial Magistrate under S.173, Cr.P.C.

Case was fixed for recording evidence when legal heirs of deceased had pointed out that before proceedings further Trial Court had to pass order on the supplementary challan and Trial Court after hearing the parties had passed the impugned order by issuing Non Bailable Warrant against the applicant

Applicant had been implicated by the Investigating Officer after collecting evidence against her as she had played role for disappearing evidence in connivance with accused, who was husband of the applicant, which required adjudication

So far as the points raised by the applicant that neither she was nominated in the FIR nor her name was mentioned in the report under S.173, Cr.P.C., as accused, charge was framed against co-accused and Trial Court was not competent to take cognizance at belated stage were concerned, Trial Court could take cognizance in view of the provisions of S.193(1),Cr.P.C., on receiving the supplementary report from Judicial Magistrate concerned

No any illegality was found while taking cognizance of offence by Trial Court against the applicant

However, instant criminal miscellaneous application was converted to bail and applicant was admitted to protective bail for a period of Seven (7) days

Operation of Non Bailable Warrant issued against the applicant was suspended for that period

Petition, disposed of accordingly.

During the trial of a criminal case, on 01.01.2025, applicant got recorded his examination-in-chief, exhibited a sale agreement and WhatsApp chats but during cross-examination on 07.01.2025, it was discovered that the original examination-in-chief including the sale agreement had been removed from the Court file and replaced with a tampered version with the WhatsApp chats incorrectly marked

The applicant had taken pictures of the original examination-in-chief on 01.01.2025, confirming the tampering, and the Court admitted altering the record

Applicant filed a transfer application before the High Court, which transferred the case on 11.02.2025 without addressing the tampering allegations

Validity

In the present case, there was no record indicating that the applicant raised any objections or denied any part of the evidence when it was read back to him

Furthermore, the applicant did not submit any application before the Trial Court seeking correction of any portion of the evidence

Upon careful review of the record, it appeared that the applicant's evidence was incompletely recorded

Examination-in-chief was conducted on 01-01-2025 and partial cross-examination was recorded on 07-01-2025

As such, the Trial Court retained the authority to re-examine the applicant under S.540,Cr.P.C., provided he filed an application meeting the conditions outlined in that provision

Additionally, the applicant had the option of re-examination, subject to fulfilling the requirements under Arts.132(3) and 133(3) of the Qanun-e-Shahadat, 1984

Given the existence of comprehensive legal provisions, such as S.540,Cr.P.C, and Arts.152(2) & 133(3) of the Qanun-e-Shahadat, 1984, the present Criminal Miscellaneous Application was not maintainable before the High Court under ordinary circumstances

Moreover, the applicant had failed to demonstrate exceptional circumstances that would warrant discarding the previously recorded evidence by invoking the powers under S.561-A, Cr.P.C., in the ongoing proceedings

Application was disposed of.

Judicial Magistrate on final report submit by the Investigating Officer in a case registered under Ss.353, 186, 269, 270 & 34, P.P.C, directed that the report under S.173 Cr.P.C be returned to the Investigating Officer for presentation before the Intellectual Property Tribunal

Validity

Under the law, the Magistrate cannot ask the SHO/Investigation Officer to submit the report under S.173, Cr.P.C. in a particular manner, i.e. against the persons he desired or in respect of such offenses that he wishes

However, if Magistrate finds that the Investigating Officer has not investigated the case on the subject point involved in the matter, he may direct the Investigating Officer to conduct further investigation and submit a report after its conclusion

Directly saying that the matter pertained to particular jurisdiction without taking cognizance and framing the point of determination, did not align with Ss.173 and 190, Cr.P.C., therefore, the impugned order dated 26.06.2024 to the extent of returning the report under S.173, Cr.P.C. to Investigating Officer for presentation before the concerned forum/Court was set at naught

Criminal Miscellaneous Application stood disposed of with directions to the Trial Court having jurisdiction to proceed with the case and decide the fate of the case in accordance with law.

Petitioner alleged that Justice of Peace had no jurisdiction to direct the investigating agency for adding or substituting any particular offence, but he did

Validity

Justice of Peace could not give directions to the investigating agency for insertion of a particular offence

Though Justice of Peace had the authority to give certain other directions but had no jurisdiction to issue such type of direction as given in the instant case

Petition was allowed and impugned order was set-aside.

Petitioner (mother) had filed application for restoring interim custody of the alleged detenue/ minor, who was forcibly removed from her custody by grandfather, but said application was turned down

Validity

As per record the minor was removed from the natural guardianship of the petitioner­­­

High Court under S.491, Cr.P.C, could not sit over the matter to decide the custody of the minor permanently as it was within jurisdictional domain of the Guardian Court, however as a stopgap measure High Court in the interest of minor, keeping in view his welfare, could decide his interim custody

Grandfather could not be preferred over natural guardian i.e. mother

In such like eventuality when father was also abroad, mother would be in better position to maintain and look after the child and provide him proper livelihood particularly when the mother (petitioner) took the plea that respondent had removed the custody of minor forcibly

Mother of the minor properly maintained the minor and after her marriage with another person whether she had lost her right of custody and also what was in the interest and welfare of the minor required thorough evidence to be recorded which could only be done before a Guardian Court

Minor was produced before the Court, and his grandfather, who was a man of old age also appeared in person

Seemingly the minor was under pressure and frightened and prior to any reply he was looking at the face of his grandfather

So far as the stance of the respondent that the petitioner herself had waived/quit the right of custody through an out of Court agreement, was not tenable in law

It was a matter of enforcement of constitutionally guaranteed rights of minor who under the law was to be given in the custody of mother as a natural guardian (until the Guardian Court finally decides the matter of legal custody of the minor)

Age of minor was approximately 5/6 years and his father was admittedly abroad

Both parents were natural guardians of the minor and entitled for interim custody, but in the absence of one of the natural guardian/father a minor of tender age should not usually be given in the interim custody of someone else other than mother

Depriving a minor from the custody of one of the natural guardians in guise of any agreement to give him in the custody of someone else other than natural guardians was improper

Thus, Court was inclined to give the minor in the interim custody of the real mother as a natural guardian

Petition was disposed of accordingly.

Restriction on hunting, killing or capturing animals in wildlife reserve, acts restricted in a National Park, restriction on killing or capturing of protected or game animals, controlled hunting areas, unlawful possession of animals

Quashing of proceedings

Inherent power of High Court

Scope

Petitioner found a snow leopard cub in an injured and unconscious condition, he provided proper medication and after saving its life, handed over the cub to Conservator Wildlife

Later District Forest Officer Parks and Wildlife issued summon to the petitioner directing the petitioner to appear before him and explain as to why the expenditures involved in soft release of the snow leopard cub should not be charged on the petitioner

Validity

In the matter in hand, after perusal of proceedings taken by the respondents and allegations narrated in the contents of impugned summon issued by the Forest Magistrate against the petitioner, it transpired that the respondents through the instant proceedings intended to recover the expenditures involved in the release of snow leopard cub

Perusal of the Gilgit Baltistan Wildlife Protection Act, 1975, showed that no such provision was available

Furthermore, it was admitted fact of affairs available on record that the petitioner/accused rescued a snow leopard cub, found in injured and unconscious condition, and after proper treatment and recovery the same was handed over to the respondents

Video clip shown in Court and statement of the petitioner recorded by the respondents transpired that the Conservator Wildlife had taken the custody of the cub which was now in custody of the department

Thus, the allegations regarding commission of offences under S.8, 10, 22, 24 & 29 Gilgit Baltistan Wildlife Protection Act, 1975, against the accused/petitioner were not made out

Record of the case suggested that the petitioner should be given a letter of appreciation for his efforts made for saving a precious wildlife but instead, the respondents had initiated criminal proceedings against him which was not justified

Object of S.561-A,Cr.P.C., whereby inherent power was conferred upon the High Court was to do real and substantial justice and to prevent the abuse of the process of Court

Thus, it was to be first determined whether the facts alleged in the complaint disclosed commission of any criminal offenceon the part of applicant/accused or whether the criminal proceedings had been initiated with malafide intentions or to coerce the applicant

Proceedings against the petitioner/accused as contained in the complaint even if believed, no case was made out and continuation of the proceedings amounted to sheer abuse of process of Court which amounted to abuse of process of law

Petition was allowed by quashing all the impugned proceedings.

Shajjah-i-hashimah, rash and negligent act, criminal trespass, attempt to commit offence, mischief causing damage to the amount of fifty rupees, rioting and unlawful assembly

Inherent power of High Court

Quashing of conditional order

Scope

Trial Court while declining post arrest bail to the petitioner on merits, ordered for his release on bail by extending benefit of S. 337-N(2), P.P.C., subject to deposit of "arsh" amounting to Rs.2,35,000/-

Validity

As per subsection (4-A) of S. 401, Cr.P.C, Criminal Court can pass conditional order to restrict the liberty of any person or to impose any liability upon him or his property

Obviously, bail is the matter which restricts the liberty of a person, therefore, if the circumstances warrant, a condition can be imposed while granting bail to an accused but such condition should not be illegal or unreasonable, it must be accepted and be one to be fulfilled by him or one independent of his will

Imposing a condition while granting bail is rooted in the system and occasionally helps the parties to avoid rigors of criminal process or facilitates them to settle their issues privately through Alternate Dispute Resolution process and that process is the need and demand of the time

Revision petition was dismissed accordingly.

High Court has no power under Section 561-A, Cr.P.C. to quash an FIR or an investigation proceeding, however, the High Court can quash a judicial proceeding pending before any subordinate court under Section 561-A, Cr.P.C.

Section 561-A, Cr.P.C. conferred wide and ultimate powers to High Court to exercise its jurisdiction where such orders were necessary to give effect to any order under Cr.P.C. or to preclude misapplication of process or to assure dispensation of justice.

Disputed questions of fact and law, requiring proper probe, investigation and evidence of parties could not be resolved by the High Court in exercise of its inherent power under S.561-A, Cr.P.C.

Where an offence prima facie, had been committed, the ordinary course of trial before the competent court could not be allowed to be deflected by resorting to exercise of inherent jurisdiction of the High Court

Section 561-A, Cr.P.C could not be frequently applied for determining the guilt or innocence of an accused at a premature stage

Stifling and throttling criminal proceedings was against the scheme provided by Cr.P.C

Section 561-A, Cr.P.C could not be applied lightly as the same would tend to circumvent the due process of law

Extraordinary powers of the High Court under S.561-A, Cr.P.C were only to be invoked in exceptional cases where the court found that continuation of process would amount to abuse of the process of the court.

Section 561-A, Cr.P.C should never be understood to provide an additional or alternate remedy nor could the same be used to over-ride the express provision of law

Section 561-A, Cr.P.C could ordinarily be exercised only where no provision existed in Cr.P.C to cater for a situation or where Cr.P.C offered no remedy for the redress of a grievance

Inherent power of High Court under S.561-A, Cr.P.C could only be invoked to make a departure from the normal course prescribed in exceptional cases of extraordinary nature and reasons must be offered to justify such a deviation.

Inherent jurisdiction conferred upon High Court pursuant to provisions of S.561-A, Cr.P.C. was neither alternative nor additional in its character and it was to be rarely invoked only in the interest of justice so as to seek redress of grievance for which no other procedure was available

Provisions of S.561-A, Cr.P.C. could not be used to obstruct or divert the ordinary course of criminal procedure.