Sohail Ahmad Mian And 6 Other vs The State And Another

ORDER

MUHAMMAD ANWAR KHAN KASI, J. The petitioners [Sohail Ahmad Mian and 6 others] accused of case F.I.R. No. 119, dated 04.11.2012, under-Sections 341, 353 and 186, P.P.C. PS Lohi-Bher, Islamabad, through captioned Crl. Misc., moved under Section 561-A, Cr.P.C., sought quashment of said F.I.R, mainly on the grounds that the present case is based on mala fide as no such incident had taken place rather the petitioners and others had been lodging a peaceful protest against kidnapping of, a 12 years old girl from Phase-IV of Bharia Town; the F.I.R, does not disclose any motive; PS Lohi Bher, Islamabad has no jurisdiction for any legal action at the place of alleged occurrence as Fawara Chowk Phase-II, falls in the jurisdiction of Rawalpindi Development Authority; no skirmish or quarrel had taken place with the police as is evidence from the fact that the F.I.R, does not mention the name of any police officials who were allegedly mishandled etc.; petitioners are mostly any, government officers, law abiding citizens senior citizens having more than 60-70 years age and cannot even imagine the disrespect of the state or law and that by virtue of Article 4 of the Constitution, it is their right to be deaI with in accordance with law.

2. Learned Standing Counsel, on the other hand, while referring PLD 20I0 Supreme Court 969 submits that challan in the case in hand has already been submitted before the Court, where the petitioners have all alternate remedies to avail, therefore, instant quashment petition is liable to be dismissed.3. After giving due consideration to the submissions advanced by both the sides, I have also gone through the material available on record besides the law on the subject.

4. A Notification dated 18th April, 2012 issued by Chief Commissioner is available on file which shows that Bahria Town Phase 2 to 5 falls within the territorial jurisdiction of PS Lohi Bher, therefore, the ground that the place of occurrence falls within the territorial jurisdiction of Police Station of District Rawalpindi is devoid of force.

5. The allegations against the petitioners are of obstructing public servant in discharge of public functions; wrongful restraint and assaut of criminal force to deter public servant from discharge of his duties.

6. As per contents of F.I.R., petitioners alongwith 15/20 unknown persons were present in the Chowk, who were asked by the police to open the Road but they refused and started scuffling with the police party and thereafter fled away.

7. As per comments/reports submitted by respondents 2 to 5 [SSP, SHO & SI], the petitioners were found involved in the commission of offence, accordingly they were challaned in the instant case, but nothing incriminating was recovered or taken into possession in support of the allegations, It is an admitted position that the petitioners & others were lodging a protest against kidnapping of a 12-years old girl, resident of the same locality. An F.I.R, regarding said incident is also on record.

8. In the case in hand, it transpires that no offence is made out against petitioners as no wrongful loss had been caused to anyone. Mere allegation without proof/evidence cannot be made basis for conviction and in such a situation, High Court have ample powers to intervene.

9. Mere mentioning in the F.I.R, that protestors held scuffling with the police is not enough to constitute offence of Section 186, P.P.C. Obstruction would mean a positive act to interrupt public servant from carrying on his public duties. The physical obstruction and mere threat would not amount to obstructions, It is also an admitted fact that the F.I.R, does not mention the name of any police officials who were allegedly mishandled at the hands of petitioners.

10. In the case-law reported as PLD 2004 Lahore 65 it has been held that nothing can bar High Court for entertaining an application under S. 561-A, Cr.P.C, in appropriate cases in its inherent jurisdiction. Even framing of charge does not debar invoking of the jurisdiction of the section for quashment of the proceedings. See 2009 SCMR 141.

11. In case [1994 SCMR 798] the Hon'ble apex Court held that in exceptional case, 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. It is a general principle that every criminal case has its on facts and circumstances. So keeping this basic criterion in mind, facts and circumstances of the instant case warrant exercise of powers vested under Section 561-A, Cr.P.C, as its intent and purpose is to prevent the abuse of process of law or the process of the Court.

13. In view of above discussion, I accept this petition and in consequence thereof quash the challan case under reference against the petitioners and acquit them.

14. Petition allowed. Proceedings of Challan quashed.