ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Misc. Application No.198 of 2008
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Order with signature of Judge
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For hearing.
26.03.2009.
Mr. Mehmood A. Qureshi, advocate for the Applicants.
Mr. Muhammad Bux Awan, advocate for the State.
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MRS. QAISER IQBAL-J: Through this Cr. Misc. Application the Applicants have invoked Section 561-A Cr.P.C seeking quashment of FIR bearing No.287/2007, under Section 324 PPC registered at Police Station Kalakot, Karachi.
Succinctly the facts leading to the case are that one Junaid lodged a Report No.17, entered in the daily diary of the Police Station Kalakot, statement under Section 154 Cr.P.C was recorded by ASI Malik Mahammad Riaz at Surgical Ward No.6, Bed No.13, Civil Hospital, Karachi stating therein that on 29.12.2007 he was sleeping in his house. At about 11.00. a.m. his maternal cousins (Applicants) entered in his house raised cries, the Complainant got up on hearing commotion. The Applicants entered into his room. Applicant Shahzad was armed with pistol while Arshad caught hold his arms Shahzad fired a shot from pistol, which hit on his thigh from front side and exited from back side. Victim was rushed to Civil Hospital by his cousin Aqeel where treatment was provided to him. On the basis of above report, the Applicants were connected in the charged offence. Challan was submitted and case was sent up for trial.
Learned counsel for the Applicants has contended that on appraisal of the contents of FIR bearing No.322/2007, registered at Police Station Chakiwara, shows that on fateful day the incident had taken place, when the Complainant Junaid was brought to Hospital in injured condition, as he had received injury at the hands of miscreants, who were engaged in firing in Chakiwara. Complainant was examined on 29.12.2007 by Medicolegal Officer after his arrival at Hospital at 11.00 a.m., narration of the incident depicted in FIR No.287/2007 is whimsical based upon fabricated facts as the report was lodged after delay of two days for which no explanation has been set forth. It is next urged that no evidence is available against the Applicants to connect them in the commission of crime, under the exceptional circumstances, proceedings launched against them are liable to be quashed.
Learned counsel for the State, alongwith Complainant Junaid present in Court, has vehemently refuted the contentions of Applicants’ counsel, contended that the proceedings pending before learned trial Court, ought to be allowed to be proceeded and after recording the evidence the fate of the FIR shall be determined. It is next urged that exceptional circumstances are not spelled out requiring interference at this juncture by way of quashment of FIR.
I have considered the arguments advanced by the learned counsel for the parties, perused the record of the case.
Learned counsel for the Applicants in support of his contentions, that extraordinary circumstances at this juncture requires interference by virtue Section 561-A Cr.P.C, has relied upon the case of Maqbool Rehman vs. The State (2002 SCMR 1076). Relevant portion is reproduced herein below:-
"In law, section 561-A, Cr.P.C does not confer inherent jurisdiction on the High Court. It merely assumes that there is something as "inherent jurisdiction" and then it preserves it to enable the High Court to make such orders as may be necessary to give effect to an order under Criminal Procedure Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is true that ordinarily inherent powers of the Court should not be invoked because inherent powers are exercised in extraordinary cases in the inherent of justice. It may be pertinent to note that such powers do not extend to uncalled for an unwarranted interference with the procedure prescribed by law, which must always be followed. Normally, High Court does not exercise its inherent jurisdiction unless there is gross miscarriage of justice and interference by the High Court seems to be necessary to prevent abuse of process of Court or to secure the ends of justice. Jurisdiction under Section 561-A Cr.P.C is neither alternative nor additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice. It is neither akin to appellate jurisdiction nor to the revisional jurisdiction. The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non-separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provisions in the Code of Criminal Procedure be deemed to process in its very constitution all such powers are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist". It would thus, emerge from the resume of various pronouncement by the superior Courts that the High Court has, in view of the its general jurisdiction over all the Criminal Courts subordinate to its, inherent powers to give effect to any order to any such Court under the Code and to prevent the abuse of process of any such Court or otherwise to secure the ends of justice."
In the case of the State vs. Asif Ali Zardari (1994 SCMR 798), while considering the similar dictum laid down is that the High Court inherent powers 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. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under Section 561-A Cr.P.C unless trial Court exercises its power under Section 249-A or 265-K Cr.P.C, which are incidentally of the same nature and in akin to and co-related with quashment of proceedings as envisaged section 561-A Cr.P.C. In exceptional cases High Court can exercise jurisdiction under Section 561-A Cr.P.C without waiting for trial Court to its orders under Section 249-A or 265-K Cr.P.C if the facts of the case so warranted to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
In the case of Allah Rakhio vs. The State (2001 P.Cr.L.J 551), the rule has been allowed under Section 561-A Cr.P.C, which was also taken into consideration as abuse of the process of law would be taken as rule when no case is made out on the basis of facts admitted and patent on record, then allowing the prosecution to continue with the trial would amount to abuse of process of law.
Perusal of record shows that incident had taken place on 29.12.2007, consequence thereof on the basis of Complainant’s statement recorded under Section 154 Cr.P.C, FIR No.287/2007 was registered, however, the FIR bearing No.322/2007, which is the result of the incident of 29.12.2007, the said FIR was registered on following day. The Complainant has implicated the Applicants and levelled serious allegations against them connected in causing injuries on his thigh while co-accused had participated in the commission of crime.
The record further reveals that the Complainant was rushed to Hospital where he was medically examined and remained admitted as injured for about four days. In the cases cited herein above the rule initiated is that continuance of proceedings before trial Court would be futile exercise, wastage of time and abuse of process of law on the basis of record available that proceedings can be quashed, scrutinizing the case of the Complainant on touchstone of the above criteria, I am of the view that no exceptional circumstances does exist requiring the quashment of proceedings lodged by the Complainant at this stage, I am not inclined to interfere the proceedings pending before the learned trial Court. The learned trial Court is directed to expedite the matter for safe administration of criminal justice.
In view of the above facts and circumstances, Cr. Misc. Application is hereby dismissed.
JUDGE
MUBASHIR