Niaz Ahmed vs Arbela Khan and 2 others
This constitutional petition was filed by the petitioner seeking the quashment of FIR No. 153 of 2019, registered under Section 489-F of the Pakistan Penal Code 1860, and the setting aside of an order passed by the Sessions Judge/Justice of the Peace, Jaffarabad, which had directed the registration of said FIR following an application under Section 22-A of the Code of Criminal Procedure 1898. The core legal question was whether the High Court should exercise its inherent powers under Section 561-A of the Code of Criminal Procedure 1898 to quash criminal proceedings when alternative statutory remedies remain available to the accused. The Court dismissed the petition, holding that the inherent power of the High Court is extraordinary and should not be invoked to interrupt the ordinary course of criminal procedure when other remedies exist. The key principle laid down is that quashment proceedings under Section 561-A of the Code of Criminal Procedure 1898 are not maintainable or preferred when the accused has not first exhausted the alternative remedies of acquittal provided under Sections 249-A and 265-K of the Code of Criminal Procedure 1898.
- Can the High Court exercise its inherent powers under Section 561-A of the Code of Criminal Procedure 1898 to quash an FIR when alternative remedies under Sections 249-A or 265-K of the Code of Criminal Procedure 1898 are available?
- Is it permissible for the High Court to interrupt the ordinary course of criminal procedure through quashment proceedings at an early stage of the case?
- Does the trial court have the discretion to acquit an accused at an early stage if there is no sufficient incriminating material?
- Section 489-F, Pakistan Penal Code 1860
- Section 22-A, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 249-A, Code of Criminal Procedure 1898
- Section 265-K, Code of Criminal Procedure 1898
ABDUL HAMEED BALOCH, J.---Through this petition the petitioner assail ed order of Sessions Judge/Justice of the Peace Jaffarabad at Dera Allah Yar and further seek quashment of FIR No. 153 of 2019, dated 29th August, 2019, registered under section 489-F , Pakistan Penal Code (P.P.C.), with Police Station City Dera Allah Yar District Jaffarabad, with the prayer: "Accordingly , respectfully prayed that, this Hon'ble Court may kindly be pleased to set aside the order dated 28.08.2019 passed by Sessions Judge/Justice of Peace Jaffarabad at Dera Allah Yar as well as FIR bearing No. 153/ 2019 of Police Station Dera Allah Yar in the interest of justice."
2. Precise facts of the instant petition are that 29th June, 2019 the respondent No. 1 filed an application within the mandate of section 22-A. Criminal Procedure Code (Cr.P.C) before Sessions Judge/Justice of the Peace Jaffarabad at Dera Allah Yar against the petitioner in respect of dishonoring of cheque No. 0550948 dated 10th January , 2019 of an amount of Rs. 100,00 0/-. The learned Sessions, Judge/Justice of the Peace called report from respondent No. 2 and thereafter vide order dated 28th August, 2019 allowe d the application and directed respondent No. 2 for registration of FIR against the petitioner . On the basis whereof FIR No. 153 of 2019 was registered against the petitioner . Hence the petitioner is before this court.
3. Heard learned counsel for the parties as well as Additional Prosecutor General and gone through the record. The petitioner filed instant constitutional petition for quashment of FIR. The inherent power of this court under section 561-A, Cr.P.C. can be invoked in extra ordinary cases where no offence was made out or there was case of no evidence or any illegality was committed causing grave miscarriage of justice. The power under section 561-A, Cr.P.C. cannot be invoked to interrupt the ordinary course of criminal procedure as laid down in the case. This court can interfere under section 561-A, Cr.P.C. where injustice should be a trivial character , injustice is of clear and there is no other provision of law from which the aggrieved party has sought relief. The power under section 561-A, Cr.P.C. has not to be exercised arbitrary or capricious but should exercise to do real substantial justice.
4. The petitioner has been nominated in the FIR. The trial court has discretion to acquit the accused at any stage of the proceeding of trial if found that there is no sufficient incriminating material. The petitioner seeking quashment of criminal cases without availing alternate remedy provided under sections 249-A/265. K, Cr.P.C. The petitioner firstly approach the trial court. Reliance is placed on the case of this court Muhammad Naeem Kakar v. Sessions Judge, Zhob 2018 YLR 654 , wherein it was held: "8. It has been held in the case titled Ghulam Muhammad v. Muzammil Khan and 4 others reported in PLD 1967 SC 317 that remedy for quashment of proceedings is not available when alternate remedy is available in the shape of sections 265-K and 249-A, Cr .P.C. Honourable Supreme Court has observed that quashment proceedings at early stage is neither permissible nor preferred and every criminal case should be allowed to proceed on its merits.
Reliance is placed on decision given in the cases of Akbar Hussain v. M.M.K.A Zai reported in 1968 SCMR 386, Nasir Ali v. Munshi Mehar Khan reported in PLD 1981 SC 607 and Raja Haq Nawaz v. Muhammad Afzal and 4 others reported in 1971 SCMR 698 ."
In view of above the quashment petition is dismissed.