PLJ 2011 Karachi 148 (DB)
Present: Shahid Anwar Bajwa & Muhammad Ali Mazhar,
JJ.
NANGAR KALHORO--Petitioner
versus
PROVINCE OF SINDH through Secretary Home Department, Sindh Secretariat, Karachi and 6 others--Respondents
C.P. No. D-2547 of 2011, decided on 13.9.2011.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V of 1898), Ss. 249-A
& 265-K--Constitutional petition--Directly approached to High Court for
quashing of FIRs--Question of--Whether before invoking jurisdiction of High
Court under Art. 199 of Constitution, petitioner had approached trial Court
u/Ss. 249-A or 265-K, Cr.P.C.--Validity--A resort to
provisions of Art. 199 of Constitution seeking quashment
of the case is an extraordinary remedy which can be invoked only in extreme
circumstances and provisions can never be exploited as a substitute for
prescribed trial or to decide the question of guilt or innocence of an accused
person--If prima facie, an offence had been committed, ordinary course of trial
before the Court would not be allowed to be deflected by resorting to
constitutional jurisdiction. [P. 150]
A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 561-A--Inherent jurisdiction of High Court--Interest of
justice--Not an alternative jurisdiction or an additional
jurisdiction--Jurisdiction preserved in interest of justice to redress
grievance for which no other procedure was available or had been provided by
Code itself--Power given by S. 561-A, Cr.P.C. can
certainly not be so utilized as to interrupt or divert ordinary course of
criminal procedure. [P. 150] B
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 249-A & 265-K--Constitution of Pakistan, 1973--Art.
199--Constitutional petition--No offence was made out--If quashment
of FIR was sought that charge was groundless or there was the probability of
the accused being convicted of an offence which question cannot be decided
without appraisal of evidence or material placed on record--Where question is
whether facts, as alleged in FIR constitute an offence or not, petitioner would
insist upon to first move an application u/S. 249-A or S. 265-K, Cr.P.C. to trial Court before invoking jurisdiction of High
Court--If quashment of criminal proceeding was sough
that proceedings were ex-facie without jurisdiction and continuation of same
would constitute an abuse of process of Court, High Court can entertain
proceedings without first insisting upon party to approach trial
Court--Petition was dismissed. [P. 151]
C
Mr. Ali Gul Abbasi,
Advocate for Petitioner.
Date of hearing: 13.9.2011.
Order
Muhammad Ali Mazhar, J.--The petitioner
has filed this Constitutional Petition with the following prayer:--
"(a) That this
Honorable Court may be pleased to declare that the FIRs Bearing (1) Crime No.
270/2011 u/Ss. 324, 353, 393, 394, 395, 436, 437, 148, 149 PPC & 7 ATA, (2)
Crime No. 272/2011 U/Ss. 13(d) Arms Ordinance, (3) Crime No. 273/2011 U/Ss.
395, 427, 148, 149, 437 PPC & 7 ATA and (4) Crime No. 274/2011 U/Ss. 395,
427, 148, 149, 436, PPC & 7 ATA registered at Police Station, Pano Akil, are false, fabricated
and based on false and concocted story and the same are liable to be quashed in
accordance with law.
(b) That this
Honorable Court may be pleased to direct the Respondents No. 2 to 5 not to
arrest the accused persons nominated in the FIRs bearing (1) Crime No. 270/2011
u/Ss. 324, 353, 393, 394, 395, 436, 437,148,149 PPC & 7 ATA, (2) Crime No.
272/2011 U/Ss. 13(d) Arms Ordinance, (3) Crime No. 273/2011 U/Ss 395,427,148,149,437
PPC & 7 ATA and (4) Crime No. 274/2011 U/Ss. 395, 427, 148, 149, 436, PPC
& 7 ATA registered at Police Station, Pano Akil, till final disposal of the instant petition.
(c) To award the
costs.
(d) To
grant any other equitable relief, which this Honorable Court deems fit and
proper under the circumstances of the case, in favour
of the petitioner".
1. The learned counsel for
the petitioner argued that the aforesaid FIRs have been illegally lodged with
mala fide intention and the story set out therein is quite unbelievable. It was
further contended that the petitioner and other accused persons; nominated in
the FIRs, are respectable citizens and it is the duty of the State to protect
the life, liberty and other privileges of the citizens and in order to cover up
or protect illegalities of the police, they have got registered above FIRs
against the petitioner through their hired persons.
2. To a query asked by this
Court, whether, before invoking the jurisdiction of this Court under Article
199 of the Constitution of Pakistan, the petitioner has approached and filed
application in the trial Court under Section 249-A or 265-K Cr.P.C.,
the learned counsel contended that no such application has been moved but the
petitioner has directly approached this Court for quashment
of the aforesaid FIRs on the ground that same are false, fabricated and mala
fide.
3. After hearing the
arguments of learned counsel for the petitioner, we have no hesitation in our
mind to hold that a resort to provisions of Article 199 of the Constitution
seeking quashment of the case is an extraordinary
remedy which can be invoked only in extreme circumstances and said provisions
can never be exploited as a substitute for the prescribed trial or to decide
the question of guilt or innocence of an accused person. If prima facie an
offence has been committed, ordinary course of trial before the Court should
not be allowed to be deflected by resorting to constitutional jurisdiction.
Reference can be made to judgment authored by one of us (Muhammad Ali Mazhar J), reported in 2011 MLD 1155 (Rubina
Kausar vs. District Police Officer). At this
juncture, we would further like to put forward another judgment reported in
2006 SCMR 1192 (Haji Sardar
Khalid Saleem vs. Muhammad Ashraf)
in which, the Honorable Supreme Court has held that if prima facie offence has
been committed, ordinary course of trial before the Court should not be allowed
to be deflected by resorting to constitutional jurisdiction. By accepting the
constitution petition, the High Court erred in law to short circuit normally
procedure in law as provided by law while exercising equitable jurisdiction
which was not in consonance with the law laid down in the case of Habib Ahmed vs. M.K.G. Scott Christian (PLD 1992 SC 353).
In the case of Habib Ahmed (supra), it was held that
if 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 "honorably 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".
4. The inherent
jurisdiction of this Court under Section 561-A, Cr.P.C.
is not an alternative jurisdiction or an additional jurisdiction but it is a
jurisdiction preserved in the interest of justice to redress grievance for
which no other procedure is available or has been provided by the Code itself.
The power given by this section can certainly not be so utilized as to
interrupt or divert the ordinary course of criminal procedure as laid down in
the procedural statue. The High Court should be extremely reluctant to
interfere in a case where a competent Court has, after examining the evidence
adduced before it, come to a view that a prima facie case is disclosed and has
framed charges or summoned the accused to appear, unless it can be said that
the charge on its face or the evidence, even if believed, does not disclose any
offence.
5. None of the grounds
raised in the memo. of petition attracts or justifies
at this point in time to hold that from the allegations raised in the FIR, no
offence is made out. If quashment of criminal case is
sought on the ground that charge is groundless or there is no probability of
the accused being convicted of an offence which question cannot be decided
without appraisal of evidence or the material placed on record or where
question is whether facts, as alleged in the FIR constitute an offence or not, the
petitioner should insist upon to first move an application under Section 249-A
or 265-K Cr.P.C. to the trial Court before invoking
the jurisdiction of this Court. However, if quashment
of a criminal proceeding is sought on the ground that proceedings are ex-facie
without jurisdiction and continuation of the same will constitute an abuse of
process of the Court, this Court can entertain proceedings without first
insisting upon the party to approach the trial Court.
6. The upshot of above
discussion is that there is nothing available on record to show that the
aforesaid FIRs are ex-facie without jurisdiction and continuation of same will
constitute abuse of process of law, therefore, this Constitution petition is
dismissed in limine. However, petitioner is at
liberty to move proper application in the trial Court in accordance with law.
(R.A.) Petition dismissed.
