ORDER SHEET
IN THE HIGH COURT OF SINDH
AT KARACHI
C.P.No.D-3444 of 2013
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DATE ORDER WITH SIGNATURE(S) OF
JUDGE(S)
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For Katcha Peshi.
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Date
of Hearing : 03.09.2013
Mr. Sharafuddin
Jamali, Advocate for the Petitioner.
Mr. Sher
Muhammad Shaikh, Additional Advocate General Sindh a/w SIP Akram
Rind, ASI Noor Muhammad and ASI Muhammad Ismail Qureshi
of P.S. Bilal Colony, Karachi
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NAIMATULLAH
PHULPOTO, J.-
Through
the instant Constitution Petition, Petitioner Nek Muhammad seeks the following
reliefs:-
a) To transfer the
investigation to any other fair, honest, impartial police investigating officer
of any other district of Karachi under the supervision of police officer at
least to rank of SP other than district central because accused above named
have greased the palms of respondents No.5 to 7 by paying much bribe.
b) To quash proceedings of
F.I.Rs. Nos.134 of 2013 and 126 of 2013 Police Station Bilal Colony
pending against petitioner’s father and brother illegally and unlawful through
false and fictitious and ill founded FIRs.
c) To restrain the
respondent No.5, 6 and 7 from register false, fictitious and ill founded cases against petitioner, his brother and
father except prior permission of this Honourable Court and extending threats
for dire consequences so in collusion and in connivance with the above named
accused persons and their relatives maliciously and to achieve ulterior
motives.
d) To direct the
respondent No.1 to 4 to take stern and strict action against the respondents
Nos.5, 6 and 7 for receiving illegal gratification and destroying the
investigation and falsely involving the father and brother of petitioner.
e) Any other relief which
this Honourable Court may deem fit and proper in the circumstances be awarded.
f) Cost of the petition.
2. Notice was issued to the Respondents Nos.4
to 7 as well as learned Advocate General Sindh.
3. Comments have been filed by S.H.O. Police
Station Bilal Colony in which it is stated that a case bearing F.I.R.
No.134/2013 under section 302/34 PPC was lodged on 21.06.2013. He made all
possible efforts to arrest the nominated accused but he could not arrest them
and submitted challan against the accused under section 512 Cr.PC.
4. Mr. Sharafuddin
Jamali, learned advocate for the petitioner submitted
that investigation was mala fide and proceedings arising out of F.I.R.
No.134/2013 and 126/2013 registered at police station Bilal Colony, pending
against petitioner’s father and brother may be quashed. Lastly he argued that
proceedings would be abuse of process of law.
5. Mr. Sher
Muhammad Shaikh, learned Additional Advocate General Sindh, strongly
opposed the submissions made by the learned counsel for the petitioner and
argued that cases have been investigated, there is sufficient material against
the accused nominated in the F.I.R., trial of the cases would be for just
decision of the cases. Lastly it is argued that accused have not approached
Trial Court and petition is not maintainable.
6. We have carefully heard the learned
counsel for the parties and perused the contents of the F.I.R. No.134/2013
under sections 302/34 PPC and F.I.R. No126/2013, under section 392/34 PPC,
registered at police station Bilal Colony.
7. From the
contents of the F.I.Rs. bearing Crimes Nos.134/2013 and 126/2013 registered at
P.S. Bilal Colony, Karachi, prima facie, alleged offences are made out.
Petitioner and other accused nominated in the F.I.R. did not join the
investigation and challan was submitted against them under Section 512 Cr.P.C.
Petitioner has also been implicated by the P.Ws in 161 Cr.P.C
statements. At this stage, there is sufficient material to connect the
petitioner in the commission of the offences. Determination of correctness or
falsity of the allegations leveled against petitioner/accused in prosecution
cases, the consequent determination of the guilt or innocence of accused and
ultimate conclusion regarding his conviction or acquittal is an obligation casts
on the trial Courts on the basis of evidence likely to be produced at the trial.
The
Honourable Supreme Court in the case of
A-Habib Ahmed V/s MKG Scott Christian and five others
reported in PLD 1992 SC 353 held as under:-
“Undoubtedly one primary question which
the High Court had to face immediately on entertaining a case like the present
one is: whether, the ordinary course of trial before the court concerned should
be allowed to be deflected through an approach to its special of inherent
jurisdiction -– the writ jurisdiction under Article 199 of the Constitution is
one of them. The basic rule was laid down by this Court in the well kwon case
of Ghulam Muhammad v. Muzammal Khan PLD 1967 SC 317
and it was ruled that if prima facie the offence had been committed justice
required that it should be enquired into and tried. If the accused are not as a
result of the trial found guilty they have a right to be declared as “honourably acquitted by a competent Court”. On the other
hand if the evidence against the accused discloses a prima facie case then
“justice clearly requires that the trial should proceed according to law”. It
was also held that the inherent jurisdiction of the High Court is not an
alternative jurisdiction or additional jurisdiction. It is only in the interest
of justice to redress grievances for which no other procedure is available. The
power given by section 561-A, Cr.P.C., it was held can certainly not be so
utilized as to interrupt or divert the ordinary course of criminal procedure as
laid down in the procedural statue.” Undoubtedly, the case of Ghulam
Muhammad had come before the Supreme Court through an interruption by the High
Court under section 561-A, Cr.P.C. The order of the High Court quashing the
proceedings before the trial Court was set aside and it was directed that the
criminal cases were to proceed before the Court concerned in accordance with
the normal law.”
A resort to the provisions of Article
199 of the Constitution, seeking quashment of criminal
case pending in the competent court of law, is an extraordinary remedy which
can be invoked only in extraordinary circumstances and the said provisions
could never be exploited as a substitute for the prescribed trial or to decide
the question of guilt or innocence of accused person(s) on the basis of
material. Accused have also not exhausted alternate remedy by approaching trial
court in the first instance. Therefore, at this stage quashment
of proceedings amounts to throttle the prosecution hence, while relying upon
above cited authority, we have no hesitation to hold that there is no merit in
the abovementioned petition. The same is dismissed. Trial Court is directed
to proceed with cases expeditiously.
These are the reasons for our short
order announced on 03.09.2013.
JUDGE
JUDGE
Dated: ___.09.2013
Gulsher/PA