ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Cr. Misc. Appln. No.S-54 of 2010.
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DATE OF HEARING |
ORDER WITH SIGNATURE OF HON’BLE JUDGE |
12.04.2010.
For Katcha Peshi.
Mr. Anwar Ali Shaikh, advocate for the applicant.
Mr. Altaf Hussain Surahio, advocate for respondent No.1.
Miss Rubina Dhamrah, State Counsel.
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Through this criminal miscellaneous application, the learned Counsel seeks quashment of criminal case No.33/2010, State v. Shameem & others, arising out of crime No.201/2009, registered for offence falling under Sections 365, 427, 148, 149, PPC, of Police Station Khanpur.
The brief facts of the prosecution case as written in the F.I.R. are that on 8.10.2009, at 1100 hours, accused persons, namely, 1)Shamim Pathan with T.T. Pistol, 2) Saifur Rahman Punjabi with T.T. Pistol, 3) Hanif Punjabi with repeater, 4) Iqbal Punjabi with T.T. Pistol, and 5) Mumtaz Hussain Khoso with repeater, all employees of Mobilink Jazz, were found by complainant Abdul Hakeem Pahore laying the underground cable of their company and four unidentified persons not previously known to the complainant but would be identified if seen again, were digging in the lands of Abdul Jabbar Pahore, the harap land of Nooruddin Naseerani and also in the land of complainant, whereby the standing paddy crop of complainant, Abdul Jabbar Pahore and Nooruddin were spoiled. Complainant, Abdul Jabbar Pahore and Nooruddin Naseeruddin restrained the accused, on which they attacked upon them and on the force of weapons they abducted Abdul Jabbar Pahore and Nooruddin. Consequently, such F.I.R. was lodged by the complainant, which was disposed of in “B” class during investigation, but the learned Magistrate did not agree and passed order under Section 173, Cr.P.C and directed for challan of the case, hence this application is filed.
The learned Counsel for the applicant contended that the case is false and there is no probability of the accused being convicted of any offence if the case is challaned. He further contended that this is a futile exercise if the case proceeds and this Court has got jurisdiction under Section 561-A, Cr.P.C to quash the proceedings pending in the Court of law. He has relied upon the case of Hussain Ahmad v. Mst. Irshad Bibi, 1997 SCMR 1503, Muhammad Ramzan Balouch v. The State, 2001 P.Cr.L.J. 1538 and Muhammad Rafi Raza v. Station House Officer, 2006 P.Cr.L.J. 207. In the light of citations the learned Counsel contended that this is a fit case in which this Court can exercise inherent powers contemplated under Section 561-A, Cr.P.C.
On the other hand, Mr. Altaf Hussain Surahio, learned Counsel for the respondent No.1/complainant contended that the applicant at the first instance has not approached the learned trial Court under Section 249-A or 265-K, Cr.P.C. He contended that at the first instance the applicant has to avail the remedy available under Section 249-A or 265-K, Cr.P.C. He has relied upon the case of Bashir Ahmad v. Zafar-ul-Islam, PLD 2004 SC 298, Muhammad Khalid Mukhtar v. The State, PLD 1997 SC 275, Muhammad Saleem Bhatti v. Safdar Ali Rizvi, 2006 SCMR 1957 and A. Habib Ahmed v. M.K.G. Scott Christian, PLD 1992 SC 353, and contended that at the first instance the applicant has to approach the trial Court. He further contended that the application under Section 561-A, Cr.P.C directly moved in this Court is not maintainable.
Miss Rubina Dhamrah, learned State Counsel, supports the contention of Mr. Altaf Hussain Surahio and contended that at the first instance the applicant has to avail the remedy from the trial Court.
I have considered the submissions of the learned Counsel appearing for the respective parties and have perused the material available on record.
In the case of A. Habib Ahmed (supra), the Hon'ble Supreme Court has held as under :-
“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 can certainly not be so utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.”
In the case of Muhammad Saleem Bhatti (supra), the Hon'ble Supreme Court observed as under :-
“As observed in the case of Asif Ali Zardari (1994 SCMR 798), the powers under Section 561-A, Cr.P.C can be exercised to prevent abuse of the process of any Court or to secure the ends of justice. Such powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal & others (PLD 1967 SC 354), it was held that quashment or proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCMR 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court.”
In the case of Bashir Ahmed (supra), the Hon'ble Supreme Court observed as under :-
“19. Of late, the incidenceof quashing criminal cases which are under trial with the Courts of competent jurisdiction by invoking powers under section 561-A, Cr.P.C is becoming increasingly frequent. It is time to take stock of this tendency and to remind ourselves of the correct principles governing the subject so that the powers means to prevent the abuse of law are not abused themselves.
20. According to the scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused person is a serious business which commences with a pre-trial exercise to be judicially carried out by a competent Magistrate under Section 190 of the Cr.P.C. If these allegations levelled and the evidence collected are found worth a trial, then cognizance is taken of the case and the accused is summoned to face the trial. Chapters XX and XXII-A of the Cr.P.C. then prescribe a detailed inquiry and a thorough probe into the matter where the prosecution has the fullest right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and reliability of the evidence produced by the prosecution where the accused then has the right to explain different pieces of evidence offered against him by the prosecution; where the accused can make a statement on oath in disproof of the allegations levelled against him and finally where he can produce his own evidence to discredit the prosecution case against him. What could, therefore, be at stake at a criminal trial are, on the one hand the invaluable rights of life, liberty, freedom and even of property of an accused person and on the other hand the demand of the society to be rid, permanently or temporarily, of a person who is a threat and a menace to it. The law commands a detailed inquiry as envisaged by the above mentioned Chapters XX and XXII-A of the Cr. P.C. so that a correct decision is reached by the trial Court after due consideration of the totality of facts and circumstances brought out before it. This is then the normal procedure prescribed by law for the purposes of finding out whether the person accused of the commission of a crime was or was not guilty of the same.
21. As against this, when a High Court decides to proceed under Section 561-A, Cr.P.C. the parties get divested of their right to adduce evidence; of their right to cross-examine the witnesses produced by the other side and of their right to discredit the evidence offered to the Court. The result is that the normal course of law is disrupted; the parties get deprived of the precious and valuable rights vesting in them; the trial Courts gets deprived of the jurisdiction conferred on it by law and a matter which was required to be determined after a detailed and a full-fledged trial is decided in more than a summary manner and thereby depriving the High Court of the opportunity to determine the issue in the light of proper material.”
The case of Hussain Ahmad v. Mst. Irshad Bibi (supra) is on different footings. In the case of Muhammad Ramzan Balouch, this was a case of Single Bench. This Court is not bound to follow the dictum laid down by a Single Bench. The case of Muhammad Rafi Raza (supra) the learned Lahore High Court held that if the case is found to be fit under Section 561-A, Cr.P.C then the powers availed under Section 561-A, Cr.P.C may be invoked. The law laid down by the Hon'ble Supreme Court of this Country is that when the case is pending in the competent Court of law then the parties be given a chance to adduce evidence and if the complainant and accused be given a chance to prove their case or their innocence. Invoking the powers under Section 561-A, Cr.P.C that is to divert the procedural law which cannot be permitted under Section 561-A, Cr.P.C. Considering the law laid down by the Hon'ble Apex Court I have come to the conclusion that this criminal miscellaneous application is not maintainable and is consequently dismissed. Let the case proceeded before the trial Court. Order accordingly.
JUDGE