IMDAD and 3 otherss vs THE STATE and 2 others
This criminal miscellaneous application was filed before the Sindh High Court seeking the quashment of proceedings in F.I.R. No. 35 of 2002 registered under Section 379 of the Pakistan Penal Code 1860, Section 14 of the E.H.O., and Section 3 of the Cutting of Trees Act 1975 at Police Station Chachro, District Tharparkar. The core legal question was whether the High Court can directly entertain an application to quash criminal proceedings under Section 561-A of the Code of Criminal Procedure 1898 without the applicant first exhausting the alternate remedy of seeking acquittal before the trial court under Section 249-A of the Code of Criminal Procedure 1898. The Court held that the application was misconceived and not maintainable as the applicants bypassed the statutory remedy available under Section 249-A of the Code of Criminal Procedure 1898, and that extraordinary powers under Section 561-A cannot be used to circumvent normal legal remedies. The Court laid down the principle that the inherent jurisdiction under Section 561-A of the Code of Criminal Procedure 1898 is an extraordinary remedy to be exercised sparingly, and parties must first exhaust available remedies such as Section 249-A before approaching the High Court.
- Can an accused directly approach the High Court for quashment of criminal proceedings without first availing the remedy under Section 249-A of the Code of Criminal Procedure 1898?
- Whether the extraordinary jurisdiction under Section 561-A of the Code of Criminal Procedure 1898 can be used to override express provisions of law or as an alternate routine remedy?
- What is the appropriate legal recourse if an application under Section 249-A of the Code of Criminal Procedure 1898 is dismissed by a Magistrate?
- Section 379, Pakistan Penal Code 1860
- Section 3, Cutting of Trees Act 1975
- Section 249-A, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 439-A, Code of Criminal Procedure 1898
ORDER
1. ' MUNIB AHMED KHAN, J.--- On 11-8-2004 applicant and his counsel were absent and counsel for private respondents as well as Additional Advocate-General pressed for dismissal of matter for non-prosecution but as a matter of last chance case was adjourned with specific direction that in case no appearance is made on behalf of applicant on next date then appropriate order will be passed.
2. ' On 19-4-2006 counsel for applicant requested for adjournment on the ground that he was not well. Today none is present for the applicant.
3. ' This criminal miscellaneous application has been filed with the prayer that the proceedings in F.I.R.
4. No,35 of 2002 lodged under section 379, P.P.C. Read with section 14, E.H.O. And section 3 of the Cutting of Trees Act, 1975 of Police Station Chachro District Tharparkar may be quashed.
5. ' From the facts, it appears that the proceedings before the Judicial Magistrate Chachro is pending and challan has been submitted on 27-5-2003 but no development took place in that case due to stay granted by this Court in the present proceedings.
6. ' Today Syed Madad Ali Shah and Mr. Rasheed Qureshi Assistant Advocate-General are unanimous on the ground that this criminal miscellaneous application, is misconceived and not maintainable as the applicant has not availed remedy provided under section 249-A, Cr.P.C. And they have directly jumped to this Court in criminal miscellaneous application. Both have cited PLD 1997 SC 275 and PLD 2004 SC 298 on the ground that without availing remedy provided under section 249-A, Cr.P.C. The accused cannot approach the High Court. In PLD 2004 SC 298 it has been observed as follows:- "--,S.561-A---Legislative history and.Purpose which was sought to be secured through incorporation of S.561-A, Cr.P.C. In the Code and its true import---Provision of S.561-A, Cr.P.C.
7. Cannot be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent' the normal course of law---Jurisdiction under S.561-A, Cr.P.C. Is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptional cases and not as a matter of routine-- -Principles."
8. ' By virtue of above authority it appears that provision of section 561-A, Cr.P.C. Can be utilized in rare circumstances as even if the application under section 249-A, Cr.P.C. Is dismissed by the Magistrate then recourse. To 561-A, Cr.P.C. Will not be applicable and a revision is to be filed under section 439-A, Cr.P.C. Syed Madad Ali Shah has further relied upon 2005 SCM R 1544(d) which authority also give guideline that a proceedings in a criminal case to be decided on merit after recording prosecution evidence and shortcut provided under section 249-A, Cr.P.C. Is to be avoided.
9. ' In the above circumstances criminal miscellaneous application stands dismissed and the stay granted by order, dated 9-10-2003 is B recalled. The applicants are not present today, therefore, the trial Court is directed to proceed with the matter in accordance with law.