CHAMAN DIN and others vs THE STATE

' HASSAN RAZA PASHA, J.--Chamap Din and eight others, petitioners, have filed this petition under section 561-A Cr.P.C. For quashing of proceedings in a private complaint under sections 452, 506 P.P.C. Filed by Muhammad Bashir respondent No,1 which are pending in the Court of Magistrate 1st Class, Pind Dadan Khan District Jhelum. Preliminary statement of the complainant as well as Zafar Abbas P.W.-2 was recorded and the case was adjourned for one reason or the other and finally vide his impugned order dated 11-4-2009, the learned Magistrate 1st Class, Pind Dadan Khan summoned the accused person by finding a prima facie case against them under sections 452/506, P. P. C .

2. I had issued notice to the respondent No,1 to which he entered appearance through his counsel Malik Ghulam Mustafa Kandwal, Advocate.

3. Raja M. Afsar Asad Ullah Khan, Advocate, the learned counsel for the petitioner has argued that the impugned order dated 11-4-2009 whereby the petitioner had been summoned to face trial in a private complaint is against law and facts of the case; that the petitioner No,3 was in South Waziristan on the day of alleged occurrence; that there is contradiction in the preliminary statements of the witnesses produced by the respondent No, 1 before the learned Magistrate; that the bone of dispute is an Evacuee Trust Property duly allotted to the petitioners and the complaint had been filed just to pressurize the petitioners with a view to compel them to resile from their claim. Learned counsel argued that this court in exercise of its powers under section 561-A Cr.P.C.

Can quash summoning order against the petitioner and that in the peculiar facts and circumstances, no prima facie case under sections 452, 506, P.P.C. Had been made out.

4. Malik Ghulam Mustafa Kandwal, Advocate, the learned counsel for respondent No,1 has vehemently defended the impugned order contending that the same was absolutely legal and had been passed by applicability of judicial mind. He further argued that the petitioners can avail alternative remedy by filing an application under section 249-A Cr.P.C. Before the trial Court.

5. I have heard Raja Afsar Asad Ullah Khan, Advocate, the learned counsel for the petitioner as well as Malik Ghulam Mustafa Kandwal Advocate for respondent No, 1 and have perused the record appended with this petition.

6. It has been observed that the learned Magistrate 1st Class, Pind Dadan Khan, District Jhelum had recorded the preliminary statements of Muhammad Bashir complainant as P.W.-1 and Zafar Abbas as P.W.-2 in details and thereafter he passed the impugned summoning order dated 11-4-2009. A bare perusal of the summoning order shows that the learned Magistrate 1st Class, Pind Dadan Khan had applied his independent judicial mind and had also gone through the statements of the complainant and his witness. If on the basis A of the statements made by the complainant and his witness, the court is satisfied that prima facie case is made out against the accused persons named in the complaint, there is no embargo in summoning such an accused persons. Reference can be made to the case of Qadar Dad v. Sher Muhammad and another (1980 SCM R 843). I would not like to make any further comments on the merits of the case so it may not prejudice either of the sides, however, suffice it to say that keeping in view the statements of the complainant and the witness, it cannot be said that no prima facie case was made out against the accused persons to face their trial. Even otherwise inherent jurisdiction under section 561-A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction rather it is a jurisdiction preserved in the interest of justice to seek redress of grievances for which no other procedure is available. This power can never be utilized so as to interrupt or divert the ordinary course of criminal procedure. B This court is always reluctant to interfere in a case where a Court of competent jurisdiction after examining evidence adduced before it, comes to the conclusion that a prima facie case is made out. Even otherwise this court is generally reluctant to quash proceedings where question of fact are involved which cannot be gone into by the High Court without enabling the trial Court to record evidence. After his appearance before the learned trial Court the petitioner can make an application under section 249-A Cr.P.C. And can take all the pleas which have been raised in this petition. Finding no reason for interference by this Court, this petition is accordingly dismissed.