ABDULLAH JAN vs STATE and 2 others
This criminal petition under Section 561-A of the Code of Criminal Procedure 1898 sought the quashment of criminal proceedings pending before the Special Judge Anti-Corruption, NWFP, Peshawar. The petitioner and a co-accused were charged under Sections 420, 468, 471, and 466 of the Pakistan Penal Code 1860, read with Section 5(2) of the Prevention of Corruption Act 1947, for allegedly forging a date on an application for a certified copy to file an appeal before the Collector. The petitioner argued that the Collector's court was a 'Court' under Section 195(1)(c) of the Code of Criminal Procedure 1898, meaning only that court could initiate proceedings. The Peshawar High Court dismissed the petition, holding that the High Court ordinarily does not exercise its inherent jurisdiction under Section 561-A to quash proceedings unless the trial court has first been approached and has exercised its powers under Section 265-K or Section 249-A of the Code of Criminal Procedure 1898. The petitioner was directed to first seek remedy before the trial court.
- Whether the High Court can ordinarily quash criminal proceedings under Section 561-A of the Code of Criminal Procedure 1898 without the petitioner first approaching the trial court under Section 265-K or Section 249-A?
- Under what exceptional circumstances can the High Court bypass the requirement of a trial court's decision under Section 265-K or Section 249-A to exercise its inherent jurisdiction under Section 561-A of the Code of Criminal Procedure 1898?
- Whether a petitioner must first exhaust the remedy of acquittal before the trial court under Section 265-K of the Code of Criminal Procedure 1898 before seeking quashment of proceedings in the High Court?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 466, Pakistan Penal Code 1860
- Section 5(2), Prevention of Corruption Act 1947
- Section 561-A, Code of Criminal Procedure 1898
- Section 195(1)(c), Code of Criminal Procedure 1898
- Section 476, Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
Mian Jamil Shah Respondent No. 2 moved an application on 14.7.2001 to the Director Anti Corruption NWFP Peshawar for initiating criminal proceedings against the petitioner and his co-accused Respondent No. 3 on the ground that the petitioner in connivance with Respondent No. 3 made forgery in the application for obtaining certified copy for the purpose of filing appeal before the Collector Nowshera, wherein instead of 3.4.1999 the date has been over-written as 3.3.1999, therefore, the petitioner and his co-accused were proceeded against the learned Special Judge Anti-Corruption NWFP Peshawar and framed charge against them on 21.12.2002 for the offences u/Ss. 420/468/471/466 PPC read with Section 5(2) of the PC Act.
2. After framing charge some evidence was recorded, but the learned trial Court stayed the proceedings sine die till the decision of appeal pending between the parties. The petitioner has now moved the application in hand u/S. 561-A Cr.P.C. for quashment of the proceedings pending before the learned trial Court.
3. Mian Muhammad Younis Shah, Advocate the learned counsel for the petitioner argued that the matter is of a civil nature, therefore, the criminal proceedings are liable to be quashed.
4. It was also argued that from the facts and circumstances no case has been made out for forgery etc., therefore, the proceedings against the petitioner and Respondent No. 3 are illegal and not tenable in law.
5. It was also argued that the learned Collector while seized of the appellate jurisdiction in the appeal filed by Abdullah Jan was "Court", therefore, the provisions of Section 195(C) Cr.P.C. were applicable. Reliance in this regard was placed on the following authorities:--
1. AIR 1935 Rangoon 125 and
2. 1992 PSC 885.
6. It was also argued that u/S. 195(C) of the Cr.P.C. the Court of Collector is the only authorized to initiate proceedings against the petitioner and his co-accused and u/S. 476 Cr.P.C. the complaint could be lodged before the Collector, in whose Court the matter was pending, therefore, the whole proceedings vitiated and are liable to be quashed.
7. Mr. Aftab Khan Khubai, Advocate representing Respondent No. 3 adopted the arguments of the learned counsel for the petitioner.
8. In rebuttal Haji Muhammad Alam Khan, Advocate (Mardan) representing the Respondent No. 2 argued that the offence committed by the petitioner and Respondent No. 3 was schedule offence, hence was triable by the learned Special Judge Anti-Corruption. NWFP Peshawar.
9. It was also argued that forgery was committed before filing the appeal and not during the proceedings appeal, therefore, the learned Judge Special Court Anti-Corruption could competently proceed with the matter.
10.I have heard the learned counsel for the parties and perused the available record.
11. The question which requires determination in this case is as to whether the complaint was to be filed u/S. 195(c) Cr.P.C. by the Court of Collector or the complainant can file complaint 'against the petitioner and Respondent No. 3 before the learned Judge Special Court Anti-Corruption and as to whether the learned trial Court could proceed with the matter. In order to resolve these questions the petitioner should have moved an application before the learned trial Court u/S. 265-K Cr.P.C. It is by now settled law that ordinarily High Court does not quash proceedings u/S. 561-A Cr.P.C. unless the trial Court exercises its power u/S. 249-A or 265-K Cr.P.C. which are of the same nature. A similar matter came up for hearing before the August Supreme Court in The State us. Asif Ali Zardari and another (1994 SCM R 798) wherein it was held :-- "Section 561-A, Cr.P.C. confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under Section 561-A, Cr.P.C. unless trial Court exercises its power under Section 249-A or 265-K, Cr.P.C. which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under Section 561-A, Cr.P.C. In exceptional cases High Court can exercise its jurisdiction under Section 561-A, Cr.P.C. without waiting for trial Court to pass orders under Section 249-A or 265-K, Cr.P.C. if the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
12. Resultantly the quashment petition in hand is dismissed. The petitioner may, however, move the learned trial Court u/S. 265-K Cr.P.C. to resolve the above questions and if he is not satisfied with the judgment/order of the said Court, he can approach this Court again.