Quashment of proceedings

2018 YLR 654 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S.561-AQuashment of proceedingsJurisdictionScope

Jurisdiction for quashment of proceedings was of an extra-ordinary nature to be exercised only in extra-ordinary cases where no other remedy was available.

2018 PCrLJ 512 PESHAWAR-HIGH-COURT Judicial Precedent

Ss. 20(a), (b)(c) & 24Penal Code (XLV of 1860), Ss. 419 & 420Criminal Procedure Code (V of 1898), S. 561-ACheating by personation, cheating and dishonestly inducing delivery of propertyQuashment of proceedingsScope

Agriculture Inspector raided a basement and had recovered fake fertilizer and a case was registered against the petitioner and others and the basement with fertilizer was sealed

Petitioner (landlord of the basement) moved application to Judicial Magistrate for de-sealing of premises and shifting of fertilizer therefrom, which was dismissed

Petitioner had filed revision petition, which was also dismissed

Validity

Record showed that petitioner was not involved in storing, selling or manufacturing of fake fertilizer nor he had been made accused in the present case

No previous history of petitioner's involvement and indulgence in such like matters was available

Record revealed that main accused had been released on bail and the complainant had not sought for the cancellation of his bail

Fertilizer Inspector could either store the recovered fertilizer in the same building or place or to remove it to any other place

Petitioner was not involved in any manner with the fake fertilizer and he had only rented out the basement to the main accused in the case

To keep the seized fertilizer for indefinite period in the said premises was highly unjustified

Fertilizer Inspector had deprived the petitioner from lawful use of his property as he had no power and authority to seal the premises under the relevant law

Circumstances established that findings rendered by both the courts below were not based on proper appreciation of material available on record of the case, thus warranted interference

Constitutional petition was allowed accordingly.

2017 YLR 288 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 489-F, 420 & 506-BDishonestly issuing cheque; cheating and dishonestly inducing delivery of propertyQuashment of proceedingsStay of criminal proceedings during pendency of civil litigationPermissibilityAccused had been granted bail to the extent of the amount of the dishonoured cheque

Accused was claiming a huge sum of money in the suit with regard to the partnership business and in the written statement, the complainant had not claimed any amount against the accused

Accused had denied issuance of the cheque

Accused had also alleged that he had been forcibly ousted from the partnership business, in spite of the injunctive order issued in the suit, against which a contempt application was pending

Accused had also filed another suit for cancellation of the cheque on the ground that the same contained his forged signatures

Pleadings of the complainant were silent on the fact as to against what claim the accused had issued the cheque

Criminal liability, depended entirely on adjudication of the civil claim, for which the civil litigation was pending, for which the present criminal proceedings could be stayed instead of quashing the same

High Court, therefore, directed the Trial Court to adjourn the criminal proceedings sine die until the said civil suits were finally adjudicated upon and the rights and obligations of the accused were decided

Constitutional petition was disposed of in circumstances.

2016 MLD 175 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 7 & 17Criminal Procedure Code (V of 1898), Ss. 265-K, 200, 201 & 561-APenal Code (XLV of 1860), Ss. 454 & 427

Mischief of causing damage to amount of rupees fifty, lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment, haraabah

Proof of theft liable to hadd

Inherent powers of High Court

Scope

Quashment of proceedings

Power of court to acquit accused at any stage

Private complaint

Locus standi

Examination of complainant and victim

Duty of court

Complainant-tenant lodged FIR under Ss. 454 & 427, P.P.C. against accused, land owners, alleging them to have illegally broken locks of rented premises and stolen valuable articles lying there, which, after investigation conducted twice, was found to be false

Father of complainant filed private complainant under S. 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and S. 201, Cr.P.C. against accused

Accused filed application under S. 265-K, Cr.P.C. for acquittal, which was dismissed by trial court

Held, that complainant of private complaint was neither victim nor he had been given any authority to file the complaint

Trial court, while dismissing application under S. 265-K, Cr.P.C., had not deliberated on violation of S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979

High Court observed that it was duty of trial court to scrutinize contents of private complaint and set aside impugned order, directed Trial Court to decide application under S. 265-K, Cr.P.C. afresh while keeping in view question of law "as to whether provisions contained in S. 7 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 had been violated"

Petition was disposed of accordingly.

2016 PCrLJ 1144 Gilgit-Baltistan Chief Court Judicial Precedent

Ss. 561-A, 249-A & 265-KQuashment of proceedingsConditions

Criminal proceedings could be quashed when the agency/police who registered the case had no jurisdiction to register the same; when no offence had been made out; when case of civil nature had been turned into criminal proceedings and when there was no probability of conviction and proceedings would tantamount to abuse of process of law and court.

2016 PCrLJ 1144 Gilgit-Baltistan Chief Court Judicial Precedent

Ss. 561-A, 249-A & 265-KQuashment of proceedingsScope

High Court could exercise its jurisdiction under S. 561-A, Cr.P.C. without waiting for an order to be passed by the trial court under S.249-A or 265-K, Cr.P.C. if the facts of the case so warranted so as to prevent abuse of process of court or otherwise to secure the ends of justice

High Court in summary proceedings could not hold that the evidence so collected in the case was true or false when documentary as well as oral evidence against the accused was available

When there was nothing on record that there was no probability of conviction of accused or that continuance of criminal case would amount to abuse of process of court and law

Constitutional petition was dismissed in circumstances.

2012 MLD 1805 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

S. 249-AQuashment of proceedingsNo evidence against accused persons, except their presence at site-No overt act assignedInference of mala fide of prosecutionCase to the extent of co-accused allowed to be withdrawnEffect

Trial Court declined application of accused persons filed under S. 249-A, Cr.P.C, seeking their acquittal, on grounds that case was at a mature stage and because material witnesses were yet to be examined

Validity

Trial Court failed to disclose the material witnesses, which in its opinion were still to be examined

Case to the extent of co-accused persons was allowed to be withdrawn by the prosecution

Recovery of weapon and role of making ineffective firing had specifically been alleged against co-accused persons but they were allowed to go free with permission granted for withdrawal of the case to their extent

F.I.R. did not speak of any recovery of weapons from custody of accused persons nor were they alleged any overt act therein

Inference of mala fide on part of prosecution could easily be drawn

Statement of eye-witness of the incident neither described the presence of accused persons at the site nor described any act on their part in commission of the offence alleged

Statement of police official, who appeared as prosecution witness, was restricted to recovery of empties at the site

Record did not clearly show whether statement of complainant had been recorded

No evidence against accused persons except their presence at the site

No specific act had been assigned to them in commission of offence

No possibility of conviction of accused persons even after recording of entire evidence

Petition was allowed, application of accused persons under S. 249-A, Cr.P.C was allowed and they were acquitted of the charge.

2011 PCrLJ 1086 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 6, 9(c) & 29Anti-Narcotics Force Act (III of 1997), Ss.3 & 5Criminal Procedure Code (V of 1898), Ss.103, 537 & 561-AConstitution of Pakistan, Art.199Quashment of proceedingsConstitutional jurisdiction and powers of High Court under S. 561-A, Cr.P.C.ScopePossession of narcotic drugs etc.

Accused challenged proceedings against them through constitutional petition contending that in the presence of Anti-Narcotic Force, local Police had no authority to register the F.I.R. and investigate the case

Validity

Accused having been allegedly involved in a case registered under Ss.6 & 9(c) of the Control of Narcotic Substances Act, 1997 which provided maximum penalty of death or imprisonment of life, innocence or guilt of the accused could not be determined without conclusion of the trial

Under S.29 of the Control of Narcotic Substances Act, 1997, accused was presumed to have committed the alleged offence until the contrary was proved

Section 103, Cr.P.C. made the presence of two or more respectable inhabitants of the locality mandatory at the time of search made by an officer

Application of S.103, Cr. P. C. was purposely excluded. by the legislature from searches under Control of Narcotic Substances Act, 1997 in order to avoid formalities/complications of S.103, Cr. P. C.

Exclusion of role of local Police from investigating narcotic case would negate the provisions of S.21 of the Control of Narcotic Substances Act, 1997

High Court had ample powers under Art.199 of the Constitution and S.561-A, Cr.P. C. to quash the proceedings which were ex facie illegal or where the court had arrived at a positive conclusion that the proceedings were ex facie coram non judice

High Court could exercise jurisdiction in exceptional cases without waiting for the Trial Court to pass orders under S.249-A or 265-K, Cr.P.C.

Where no offence was made out by facts on record, allowing prosecution to proceed with the trial would amount to abuse of the process of law

Assumption of jurisdiction without lawful authority could be quashed in constitutional jurisdiction

Section 537, Cr.P.C. provided that no finding, sentence, order passed by a court of competent jurisdiction would be reversed or altered on account of any error, omission or irregularity in the complaint, report by Police Officer under S.173, Cr.P.C. summons, warrant, charge, proclamation, order, judgment or other proceedings before or during trial or any inquiry or other proceeding under the Criminal Procedure Code

Police had not violated any law by arresting the accused

Petition was dismissed accordingly.

2010 YLR 2168 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 561-APenal Code (XLV of 1860), Ss.452 & 506House-trespass after preparation for hurt, assault or wrongful restraint and criminal intimidationQuashment of proceedingsJurisdiction of S. 561-A, Cr.P.C.Scope

Magistrate 1st Class had summoned the accused to face trial after recording preliminary statements of the complainant and prosecution witness during pendency of private complaint

Petitioner/accused contended that order of Magistrate was against law, therefore, proceedings were liable to be quashed

Validity

Magistrate 1st Class had applied his independent judicial mind after going through the statements of the complainant and his witness

When the court was satisfied that prima facie case . had been made out against accused persons, there was no bar on summoning such accused persons' to face trial

Inherent jurisdiction under S.561-A, Cr.P.C. was not an alternative or additional jurisdiction but a jurisdiction preserved in the interest of justice to seek redress of grievances for which no other procedure was available

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

High Court would be reluctant to interfere in a case where a court of competent jurisdiction had come to the conclusion that a prima facie case was made out after examining the evidence adduced before it

Petitioner, if so advised, could make an application under S. 249-A, Cr.P.C.-Petition under S.561-A, Cr.P.C. was dismissed in circumstances.

2010 PCrLJ 368 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 173, 190(a)(c) & 561-APenal Code (XLV of 1860), Ss.452/354/506-BQuashment of proceedingsHouse trespass, out raging modesty of woman and threat to cause death or grievous hurt

Recording of statements of prosecution witness by first Investigating Officer and taking into custody torn shirt of complainant's wife

Transfer of investigation to second Investigating Officer, who prepared report under S.173, Cr.P.C. and recommended such matter as "B" class

Approval of such matter as "A" class by higher officers and submission of such report to the Magistrate

Order of Magistrate taking cognizance of offence after converting such report into Challan and registering case with direction to Investigating Officer to supply list of witnesses

Application for quashment of such proceedings

Validity

Complainant's wife and servant in their statements recorded by first Investigating Officer had clearly implicated petitioner by supporting what was in F.I.R.

Magistrate was competent to take cognizance of an offence, if upon considering not only report under S.173, Cr.P.C., but also material collected during investigation came to conclusion that a cognizable-offence had been made out

First Investigating Officer had collected material, which was not referred to by second Investigating Officer in his report

Magistrate had scrutinized all such material

High Court dismissed such application and directed police authorities to take departmental action against second Investigating Officer for having ignored statements recorded earlier.

2002 PCRLJ 544 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 409/471/477-A/34Prevention of Corruption Act (Il of 1947), S.5(2)Criminal Procedure Code (V of 1898), S.561-AQuashing of proceedings

Main accused in the case had been absolved from the proceedings and allegations being proceeded against the present accused were of similar nature, rather his case was on better footings than that of the main accused

No fruitful result would come out it' the accused was subjected two further litigation

Reading of the charge-sheet showed that no offence under Ss.409, 471 & 477-A, P.P.C. was made out against the accused for misappropriation, falsification of accounts and using of forged documents Proceedings pending against the accused in the Special Court, Anti-Corruption, were quashed in circumstances.

2002 MLD 561 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss.561-A & 403Constitution of Pakistan (1973), Art. 13Penal Code (XLV of 1860), Ss. 302/34 & 324/34Quashing of proceedings

Accused was tried by the Anti-Terrorism Court and was acquitted and his acquittal,- was not challenged either by the State or by the complainant although he was vigilant enough as he had challenged the order of remand passed in appeal before Supreme Court

Complainant, thus, was never aggrieved of the acquittal of accused by the Trial Court

2002 PLD 115 KARACHI-HIGH-COURT-SINDH Judicial Precedent

S. 561-APenal Code (XLV of 1860); Ss.153-B, 166, 499, 500, 504 & 506Quashing of proceedingsApplication for

Allegations levelled by the complainant against the applicant/accused in complaint were that the minor, children of the complainant who were studying in school, were made to attend a peace rally according to the policy of Government which rally was arranged under the orders of the applicant/accused who at the relevant time was serving as District Education Officer

Notice was served by the complainant on the applicant which was replied by the applicant

Further allegation was that the complainant who was enjoying good reputation, respect and honour in the town, had been defamed by the applicant by certain comments made by the applicant in his reply given by him in response to legal notice of the complainant

No allegation existed in complaint against the applicant that he had induced the students to take part in any kind of political activity

Contents of the complainant had revealed that no intentional insult had been caused to the complainant and there was also no criminal intimidation on the part of the applicant

Trial Magistrate took cognizance under provisions of P.P.C. which were incorporated by the complainant in his complaint without determining the applicability of the said provisions

No allegation existed in the reply of the notice which could constitute the offence under Ss. 499 & 500, P.P.C and there was absolutely no insult, threat or abuse whatsoever in order to constitute any offence under Ss.504 & 506, P.P.C.

Other provisions had also been misapplied

Prosecution having proved to be motivated by malice and the Magistrate having acted in unlawful manner and in colourable exercise of powers, proceedings against the applicant/accused were quashed, in circumstances.

1990 MLD 497 SUPREME-COURT-INDIA Judicial Precedent

Quashment of proceedingsAbuse of process of CourtF.I.R. on its face value not constituting any offenceCriminal proceedings instituted on its basis

Liable to be quashed.

1983 SCMR 775 SUPREME-COURT Judicial Precedent

Art. 185(3) read with Criminal Procedure Code (V of 1898), Ss. 439 & 561-A- Quashment of proceedings-Complainant's case based on facts not spelt out from those mentioned in petition and case intended merely to harass accused respondent-Held, case not one where respondent should be brought before a Court of law to suffer indignities of being an accused in a criminal case-Leave to appeal against order of quashment of proceedings passed by High Court refused.

1982 SCMR 988 SUPREME-COURT Judicial Precedent

S. 561-A read with Penal Code (XLV of 1860), Ss. 420 & 467- Quashment of proceedings-Dispute between parties over agricultural land-Civil litigation in respect of dispute pending-Criminal complaint instituted by appellant-Held, should remain stayed during pendency of civil litigation between parties on same subject-matter-Order of High Court quashing criminal proceedings modified accordingly.

1981 SCMR 1095 SUPREME-COURT Judicial Precedent

S. 561-A-Quashment of proceedings

.High Court while quashing proceedings making observations not necessary for passing order-Held, such observations have no binding effect upon petitioner.-[Quashment of proceedings].

1979 SCMR 437 SUPREME-COURT Judicial Precedent

S. 561-A-Quashment of proceedings-Contention that since genuineness of agreement in question was being adjudicated upon in civil Court, criminal proceedings with respect to same document on allegation of its being forged should be quashed-Held: Contention could have some relevance if question were whether proceedings before Criminal Court be stayed-Petitioner having prayed for quashment of proceedings only and not for stay and there being no bar in law to civil and criminal actions continuing at same tithe, contention without force Petitioner, however, could apply again for quashment of proceedings if in course of evidence recorded during proceedings matter transpired to raise a question of civil liability only and proceedings before criminal Court be an abuse of process of Court.