KHUSHI MUHAMMAD AND 4 Others vs THE STATE

ORDER

1. NASIM HASAN SHAH, J.-This petition for special leave to appeal is directed against the order dated 26-8-1978, passed by a Judge of the Lahore High Court, dismissing in limine a petition (Criminal Miscellaneous No. 637-Q of 1978) for quashment of proceedings pending against the petitioners.

2. The facts, briefly stated, are as follows .- A driver of a wagon, Muhammad Nazir, while driving his wagon over--ran a Foot Constable Sultan Ahmad, causing his death. The petitioners here--in were traveling in the same wagon and are alleged to have urged the driver to run away with the wagon as a Constable had been killed instead of stopping him: They have, therefore, been charged under section 201, P. P. C. For abet-- ment, on the footing that after the alleged commission of the offences for rash and negligent driving under section 279/338/304, P. P. C. By Muhammad Nazir, the petitioners told him to disappear with a view to avoiding the punishment for the said offences. .

3. The petitioners moved the Lahore High Court under section 561-A of the Code of Criminal Procedure for quashing the proceedings initiated against them on the ground that no offence was committed by them even on the allegations made and further that their prosecution on these allegations amounted to an abuse of the process of the Court. The quashment petition, however, was dismissed as the learned Judge in the High Court held that it was premature 'to hold that on the allegationsleveled against the petitioners no case was made out against them. Dissatisfied with this order the petitioners have moved this Court.

4. Before us, Mr. Jamil Hussain Rizvi, on behalf of the petitioners, submitted that Abdul Ghani P. W., the only witness on the point that the petitioners had asked Muhammad Nazir Driver not to stop but to run away as a Constable had been killed, had since been examined and he has not at all supported the prosecution case on this point. Hence, there is now absolutely no possibility of the petitioners being convicted and the continua--petition of their prosecution would be highly unjust and an abuse of the process of the Court.

5. At page 14 of the Paper Book the list of witnesses to be examined by the prosecution has been reproduced and we have, with the help of the learned Assistant Advocate-General, gone through it with a view to ascertaining as to the testimony to be tendered by each of the said witnesses. We find that out of thirteen witnesses on the list five have already been examined and Abdul Ghani, who was a passenger of the wagon, is the sole witness who was to depose as to the participation of the present petitioners in the transaction. It is further correct that from the cop of the statement made by Abdul Ghani P. W. Shown to us, he has exonerated the petitioners and it appears, prima facie, that there is no other materials' on the record, nor is any likely to be available, to implicate the petitioners in the transaction. However, the learned Assistant Advocate-General brought to our attention the provisions of section 249-A recently added to the Criminal Procedure Code by Ordinance XXXVI of 1977, which are as under :- "249-A. Power of Magistrate to acquit accused at an stage. Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the -- accused being convicted of any offence."

6. He has also drawn our attention to the following observation made by this Court in Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317)

7. "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but is a jurisdiction preserved in the interest of justice to redress grievances 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 statute."

8. It has been argued that an alternative remedy being available to the petitioners, namely, the provisions of section 249-A, Cr. P. C., the resort could not be made to the provisions of section 561- A, Cr. P. C. There -is some force in this submission and we are inclined to agree with it.

9. We further observe that the order of the High Court was passed on 26-8-1978 and on the material then available on the record no objection could legitimately be taken to the order of the High Court dismissing the quashment petition. It is only on the 20th September 1978, after the statement of Abdul Ghani (P. W. 5) was recorded, that the argument that there is no likelihood of the petitioners being convicted and their continuing prosecution would be an abuse of the process of the Court has become available. The order of the High Court cannot, therefore, be said to be erroneous and liable to be set-aside in the present proceedings.

10. However, under the law, as it now stands, the trial Magistrate can acquit the petitioners under section 249-A, P. P. C. At any stage of the proceedings and in these circumstances the most appropriate remedy for the petitioners appears to be to request the trial Magistrate to consider their case under the above provisions of the law. The learned trial Magistrate D should, thereupon, apply his mind to this aspect of the matter and in the first instance, before proceeding any further with the proceedings, decide whether the petitioners are entitled to be acquitted in terms of section 249-A, Cr. P. C.

11. The upshot is that this petition, with these observations, shall stand dismissed.