GHULAM AKBER Versus MUHAMMAD ILYAS

This is an application by one Ghulam Akbar under sections 439 and 561‑A of the Criminal Procedure Code praying that a criminal case now pending against him before the Resident Magistrate, Tando Bago and arising out of a first information report lodged by the first respondent be quashed, the first respondent is the father of the applicant and the State is the only other respondent.

2. The case itself is one of an unfortunate series of litigation between the father and the son, who, despite this very close relationship are clearly on the most acrimonious of terms. In order to appreciate the contentions that have been put forward by both the parties before me it is necessary to state the facts of the case as briefly as possible and, the facts themselves not being very simple, the task of setting them forth concisely has not been made any the easier by the manner in which they have been alleged in the petition before me or in the two statements of the first respondent that I have on‑ record namely the first information report and his subsequent deposition in Court. I am also anxious, in view of the conclusion that I have reached in the present case, to state these with as little an indication as the circumstances will permit of the impression that I have gathered of the case and desire therefore to keep a statement of the facts to very minimum that is possible for the disposal of the present matter. As they are stated by the first respondent in his application to the Superintendent of Police which has been treated as the first information in this case and which is dated the 6th of July 1971, the respondent is a fairly wealthy man owning land in Malir as also in various places in the. District of Hyderabad but is illiterate and, on account of natural love and affection and the trust and confidence which ordinarily a father might well be expected to repose in a grown‑up young son, left much of the management of his own affairs to the petitioner. Some three years before the first information report the respondent asked the petitioner to purchase a Toyota car and gave him money for the purpose and admittedly this car was purchased 'and handed over to the father. Some months before the first information , report the petitioner told him that he himself needed a car very badly since without the use of one he was finding it difficult to travel for the purpose of looking after his father's lands at Malir and suggested that the Toyota car be given to him for his own use and that for the use of the father a new Colt car be purchased. The respondent agreed to the suggestion and paid him a sum of Rs. 21,500 with which a Colt car was indeed purchased and handed over to the father. Thereafter the father came to know that the Colt car had not in fact been purchased outright nor in the father's name but upon a hire purchase basis in the name of the son and that the Toyota car also had been purchased in the name of the son and had since been disposed of and in effect, therefore, the Toyota car or its purchase price had been misappropriated as also the purchase price of the Colt car. Besides this a sum of Rs. 32,000 had been taken from the father for the payment of electric bills and land revenue bills but these had not been paid and that this money also had been misappropriated. Finally it was alleged that he 'has also tampered with certain papers belonging to the father and had mortgaged these without the father's consent and even sold some of them on forged signatures. After investigation the case was ultimately sent up by the police and, although no charge‑sheet has been shown to me nor have 1 been able to find any in the records and proceedings of the trial Court which is before me from that record and proceedings it, appears that the case now bears the No. 540 of 1971 and seems to be under sections 406 and 420 of the Pakistan Penal Code as these sections are mentioned on the cover leaf of the record.

3. When this application was presented to this Court no evidence had been recorded by the Magistrate and indeed it was one of the grievances of the petitioner that the case was being delayed and that no evidence had been recorded. A learned Single Judge of this Court directed that the deposition of the respondent at least be recorded and that the record be sent back to this Court for further examination, as a result of this the deposition of respondent No. 1 has been recorded but there is as yet no other evidence on the record. Besides these two statements of the respondent I have before me only copies of pleadings, application and the like in various other items of litigation between the parties and also an award which had been made between the two. Prominently presented by the learned counsel for the petitioner among these papers was ,an order which I passed in Criminal Revision Application No. 14a of 1971 between 'the same parties and which arose out of a criminal case filed in respect of the Toyota car which was then pending in a criminal Court in Karachi in view of the fact that to keep the custody of the car with the police would, thought tend to lower the value of the car inasmuch as it would probably deteriorate and since it was alleged in that case that the car had been seized from the possession of the applicant I ordered that it should remain' in his possession subject to certain conditions which included the furnishing of security and the requirement that he produce it whenever directed to do so.

4. Now, although this application is headed as being under sections 439 and 561‑A of the Criminal Procedure Code, substantially it is, really under the latter section that I am being asked to act for there is no specific order of the Court which could be set aside in revision and which would have the result of quashing these proceedings unless it be the: order taking cognizance upon the police charge‑sheet. As I have said. the charge‑sheet has not been shown to me and no argument whatever was addressed upon it and, indeed, I do not see what argument could have been addressed upon that question. I could have interfered with the cognizance taken on the charge‑sheet if something had been shown to me by reason of which it could be said that it was not a charge‑sheet within the meaning of~ the law or that for some other reasons cognizance had not been validly taken but such is not the case. The argument that has been addressed before me entirely is that the case is so manifestly false that to permit it to continue would be an abuse of the process of the Court inasmuch as it would involve the unnecessary harassment of the, petitioner who is innocent or at any rate against whom a conviction cannot possibly be recorded. ' Now no doubt the powers of this Court under section 561‑A are not limited by definition and, indeed, strictly none are even conferred, it only being provided that nothing in the Code is to be deemed to limit or affect the inherent powers of the Court. These inherent powers deemed already to exist must however be such power$ as are "necessary to give affect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.` There is no question in the present case of giving an effect to any order made under the Code and the case must come, if at all, under the remaining. part of the section that is to prevent abuse of the process of the Court or otherwise to, secure the ends) ;if justice. Expressly therefore the powers are not limited but quite. clearly, and it has been held in several cases before, these powers must be very sparingly used and only when, their exercise is clearly called for. As illustrations of the approach which the High Court must adopt in considering matters of this kind I propose therefore to quote a passage each from only two judgments but these are of the highest and*binding authority. I refer first to the case of M. S. Khawaja v.. State (PLD 1965SC287) where their Lordships said :‑

"With reference to the last quoted observation, we should point out that abuse, as attracting the inherent power of the Court,‑ must be "abuse of the process of any Court" and "the investigation stage", is, generally speaking, outside the purview of the Court, and really involve employment of any Court process. Further, "the ends of justice" to secure which the inherent power may be invoked, have reference to the purpose which the judicial process is intended to secure, and it is difficult to include the actions of investigating agencies within the scope of judicial process. On the other hand, it is possible to agree with the observation that the circumstances of each case, in which the inherent power is invoked, must be examined with care to determine whether the judicial proceedings is really intended to "secure the ends of justice" or is really "an abuse of the process of the Court". To quash a judicial proceeding in order to "secure the ends of justice" would involve a finding that if permitted to continue the proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To find an "abuse", it would be necessary to see in the proceeding, a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue, and similar perverse results."

5. A little later in the judgment while agreeing that certain matters which had weighed with the High Court in a different case were certainly sufficient. to support the quashment that had been ordered in that case, their Lordships went on to observe :

"We say so in order to emphasise that each case of the present kind must rest on its own peculiar facts and circumstances."

6. Then again in the case of Ghulam Muhammad v. Muzamal Khan (PLD1967SC317). His Lordship the present Chief Justice delivering the judgment of the Court observed :

If, in fact, an offence had, been committed justice required that it should be enquired into and tried. If the respondents are not guilty they have a right to be declared as honourably acquitted by a competent Court On the other hand, if the evidence against the respondents discloses a prima facie case then justice clearly requires that the trial should proceed according to law. The mere fact that a long period has expired since the initiation of proceedings is no ground for quashing the criminal proceedings as was pointed out in the case of M. S. Khawaja v. The State.

The inherent jurisdiction given by section 561‑A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which , no other procedure is available or has beer provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in‑a case where a com petent Court has after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or, summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence. This the High Court has' not found in the present case but has merely proceeded on an erroneous conception that in a cash where a complaint has ,been filed the police has no jurisdiction to investigate into any other offence which comes to its notice in the course of the investigation of the complaint, particularly, if the offence' disclosed is of a non‑cognizable nature. The High Court itself has referred to a Full Bench authority bf the Madras High Court where a contrary view was taken but has not quoted any other authority in support of its own view. We are in agreement with the views expressed by the Madras High Court, for, we can see no legal bar to the police submitting a challan in respect of offences other than those mentioned in the first information report, if the same should come to its notice during the course of the investigation on the basis of the complaint except in the cases mentioned in sections 196 to 199, Cr. P. C. Section 190(1)(6) of the Code of Criminal Procedure clearly gives jurisdiction to the Magistrate mentioned therein to take cognizance of an offence on the basis of a police report whether the offence be cognizable or non‑cognizable. In the present case, the Magistrate was an Additional District Magistrate and one of the offences in respect of which the challan was submitted was under section 408, P. P. C. which was cognizable. Thus even the obstacle posed by section 155(2), Cr. P. C. did not stand in the way. The challan submitted by the police was, therefore, lawfully submitted and legally enquired into."

7. Without attempting to lay down a list of the various circumstance under which this Court will be justified in quashing a proceedings pending in a criminal Court, as I think it is neither feasible nor desirable that I should attempt to do, it seems to me that in, a case of the present kind at least this Court must be able to come to the clear conclusion without any manner of doubt that the accused persons are innocent and/or that in any view of the matter their conviction is quite impossible. It could then logically follow that to permit the trial to proceed can only result in the harassment of a party whose innocence or whose conviction cannot in any case be achieved and, for the purposes of a criminal trial, there is hardly any difference between a person who is in fact acquitted and one Who cannot be convicted. For this purpose, I think a distinction must be drawn between proceedings which result from a complaint and those which are initiated upon a charge‑sheet submitted by the police. In the former case, if the complaint itself does not disclose any fact which would constitute an offence it. could, with justification, be said that the pro ceedings are an abuse of the. process of a Court. Moreover, in those cases cognizance might well be said to have been invalidly taken inasmuch as such a document, even though purporting to be a complaint, does not within the meaning of the law, amount to a complaint upon which cognizance could betaken. In the case of a charge‑sheet however, although the first information report must necessarily be a document which discloses not merely a crime but a cognizable crime it by no means follows that the entire case against the accused persons is that which is contained in the first information report, much less does it follow that the only evidence which is available against him is that which is mentioned in the first information report. An investigation has taken place thereafter and ‑ it must be in very rare cases indeed that the Court can come to the conclusion that the prosecution have no evidence which if produced and believed could result in a conviction. By itself this would have been sufficient reason for me to refuse this application because admittedly the only evidence that now is on record is that of the father. No doubt complaint has been made by the petitioner that the respondent is delaying the trial of the case but on the other hand it is argued before me that in fact the delay has been due primarily to the record having been summoned by this Court and that the case diary will show that even before the order of this Court requiring the respondent to be examined he was always in attendance for that purpose. I do not propose to go into this any further except to say that when this trial recommences as a result of my present order I expect the learned Magistrate to proceed with this case as expeditiously as the other work in his Court will make practical it to do so.

8. I, nevertheless proceed to examine prima facie the allegations that have been made in this case and the contentions of both sides upon each of them. There are four matters in the main of which the respondent complains and the first of these is the allegations that the Toyota Car was purchased by the petitioner in his own name and that he kept the papers with himself though he physically handed over the car to his father against this the petitioner argues that the Toyota was in fact in the father's possession and when taken by the son it was, on the father's own showing, with his consent. He argued that it is quite unlikely that he would not, (luring the long time that the car remained in the possession of the father be able to find out that the car was not in fact then registered in his own name. Now, I cannot see, why this should be necessarily improbable. According to the case of the father all his papers remained with the son and admittedly when the Toyota car was in the father's possession the father and son were on cordial terms and I can see, therefore, 'nothing grossly improbable in the father mot having been able to find out earlier. la any case the car would remain the property of the father even after he allowed his son to use it and there is an allegation it is not for me to say just now whether it is true or false that the son has since disposed it of and it is nobody s case that this sale, if it has taken place, is with the consent of the father or that the sale proceeds have been accounted for to him.

9. In regard to the Colt the contention that is put forward before me by the petitioner is that admittedly the car has been purchased by the son in his own name and therefore, he and he alone is responsible for its payment since, again admittedly, the car has been purchased on hire instalments basis. The argument is entirely misconceived for the father paid a cash sum of Rs. 21,500 for its purchase and certainly never authorised the purchase in the name of the son. Even if therefore, one separates tine purchase by the son from the money he has misappropriated Rs. 21,500 and if the two be kept together then he has without authority purchased the car in his own name and committed at least temporary misappropriation of the sum of money paid to him for the purpose.

10. As to the electricity and land revenue bills it is said that these have in fact been paid and that the properties in respect of which they are paid belongs to the son. Photographic copies of bills have been indeed placed before me and since all the electricity bills relate to one period but different meter numbers there must be several connections and probably the place in respect of which they are due is a farm including a house where several connections are needed or possibly they may relate even to separate properties. This point was not clarified before me but on the other hand the case of the father is that these properties merely stand in the name of the son and that he is the real owner. So far from the allegation of the father being incredible or impossible there are circumstances which give it plausibility. The allegation was made by the petitioner himself at one time that the father wanted the sons (that is to say the petitioner, and his brothers and step‑brothers) to give up their claims in the property as the father wanted either to make a redistribution or give them to the sons of ‑a lady whom he then intended to marry. I may mention in passing that the petitioner alleges and the respondent also admits that he has married several times and that probably the basic reason for the animosity between the father and the son is the preference which the father might be showing to one or the other set of children, but with this I am not really concerned. According to the father the bills have not been paid and although, according to the son they have been paid and are in his possession, as I said, all that have been produced before me is a very limited number. The more important reason however, why I think there is some plausibility in 'the case of the father is that although the son claims that these properties are his own, he has no where asserted that they are purchased from money which he has earned from his own exertions or that he has inherited it from some source other than his father, who of course is alive. The allegation therefore, that the ownership is merely benami may possibly be true.

11. in regard to the allegation that lands have been mortgaged without the permission of the father and that some have been even sold without his authority, the only contention of the petitioner that the father has not specified these. In the context not of a complaint but of a charge‑sheet for reasons which I have earlier mentioned, this contention is hardly of any very pursuasive value. It was then argued that there have been several suits filed and indeed there has been an award and that, at the very worst, I must take the view that there are matters which' properly are within. the jurisdiction of the civil Courts and that the criminal Courts ought not to be used for this kind of litigation. On the other hand Mr. Nasim Farooqi appearing .for the respondent stated that the award which he admitted, was in favour of the father and it was after the award that the son first filed the suit on the original side of this Court, where after the father filed one. He was willing to substantiate this by reference to the documents but, the dates being admitted, I saw no reason, why I should go further into this matter. Finally in the petition it is alleged that the father ‑ is "in the habit of indulging into litigation" and several cases including those. against the petitioner are thereafter mentioned. This is hardly a ground for quashing the proceedings. ;

12. Reliance was last placed upon. my own order to which I have earlier made reference but clearly that order was merely intended for the interim custody of the car and cannot be relied upon for the purpose of establishing any of the facts which the petitioner must establish before this petition can succeed.

13. In these circumstances, I have come to the conclusion that it would not be right to allow this petition which I consequently dismiss. I should, however, like to make it clear that, reluctantly as I have gone into the allegations it has not been my purpose at any point to give a finding upon any of the allegations and any remarks that I might have made upon the merits of the matter were intended purely to illustrate .the difficulty of reaching any conclusion rather than as an indication of my having actually reached any conclusion. Nothing, therefore, that I have said .in the course of this order, should prejudice the assessment of the evidence before‑the trial Court.

K. B. A. Petition dismissed.