MUHAMMAD FEROZE Versus THE STATE

ORDER

The petition is addressed for quashment of criminal proceedings in exercise of inherent powers of this Court, under section 561‑A, Cr.P.C.

2. Muhammad Feroze is facing trial alongwith other accused persons on the charge of murder of Fazalur Rehman deceased. A case was registered on the report of Abdul Rashid. According to the allegation, Fazalur Rehman was a political worker of Jammu and Kashmir Muslim Conference. During the last general elections, he fully devoted to the cause of the party and earned spectacular position among the workers of the party and area. Muhammad Feroze, petitioner and Abdul Qayum accused who equally belonged to the same party and weilded influence, felt jealous of the position earned by Fazalur Rehman, as such conspired to eliminate him from the scene. In furtherance of their conspiracy, both the accused who are father and son, accompanied by Abdul Ghaffar, the principal accused, started chasing Fazalur Rehman. On June 22, in consequence of their planning, Abdul Qayum, Muhammad Feroze, petitioner and Abdul Ghaffar picked up quarrel with Fazalur Rehman but the same was finished on the intervention of Muhammad Anwar, a shopkeeper. Next day, i.e. June 23, while Fazalur Rehman was going home from Barnala Bazar, the accused persons already present near the Girls Middle School, Jand Pir. attempted a quarrel with him but the same was avoided by the efforts of Muhammad Sharif. These incidents were disclosed by Fazalur Rehman to Abdul Rashid, a night prior to the incident of murder. Next morning, the day of incident, Fazalur Rehman accompanied by Abdul Rashid went to Barnala Bazar and purchased cigarettes from the shop of Muhammad Yusuf where Muhammad Siddique, Walayat Khan, P.Ws. were present. The moment he came out of the shop, he was ambushed by Abdul Qayum, Abdul Ghaffar, Muhammad Shafi, Saghir and Muhammad Rafique, armed with 12‑bore guns and sticks. Abdul Ghaffar fired at Fazalur Rehman who received a fatal injury on left armpit. Abdul Qayum also fired but instead of Fazalur Rehman, one Muhammad Siddique, P.W. was injured at his left hand. The other accused armed with sticks kicked Fazalur Rehman to ensure his death. According to the prosecution, Fazalur Rehmen was murdered in consequence of a conspiracy hatched to remove him from the political scene. The murder was alleged to have been caused to vindicate the political jealousy between the parties. The case is at the stage of examination of the accused persons under section 342, Cr.P.C.

3. It was argued that in case the prosecution version is accepted correct to its entirety, even then, Muhammad Feroze, petitioner was not likely to be convicted. In absence of evidence connecting Muhammad Ferozes with the murder, it was contended that in order to avoid abuse of the process of the Court; it was fair to quash the criminal proceedings relating to the petitioner. The contention was opposed by the learned counsel for the opposite side as in their estimation, Muhammad Feroze, petitioner not only abetted: rather hatched the conspiracy of murder of Fazalur Rehman. According to the prosecution, therefore, in case the proceedings in respect of Muhammad Feroze, petitioner are quashed, prosecution's case was liable to be prejudiced. The learned counsel for the parties cited various authorities in support of their respective stands.

Section 561‑A, Cr.P.C. confers inherent powers on the High Court to act in aid of advancement of interest of justice and to eliminate an action resulting in abuse of the process of the Court. It is permissible to exercise inherent powers on the satisfaction that a criminal proceeding or an action initiated in criminal proceedings, if allowed, would not advance the cause of justice and ultimately would tantamount to abuse of the process of the Court. In absence of such satisfaction, the High Court was not advised to act merely on conjectures, surmises, artificial suggestions or speculations.

4. At this stage, the present case is to be examined on the aforesaid test. It is accepted that prosecution evidence so far collected and placed before the trial Court is the only material for appreciation of the proposition. In such a position, in order to avail the inherent powers under section 561‑A , Cr.P.C. it is essential to be satisfied that on acceptance of the accusation, in the light of the evidence collected by the Investigating Officer, the petitioner shall not sustain arty conviction. Unless this was satisfied, in my estimation. the inherent powers could not be invoked. The main accusation listed in the F.I.R. is that Muhammad Feroze and Abdul Qayum who are father and son, primarily nursed a grudge and jealousy against Fazalur Rehman on account of his acquisition of respectable position and tacos during the last elections, among his party members and in the 'ilaqa'. The accused‑petitioner who otherwise enjoyed influence and was a member of the same political party, could not bear it out and decided remove Fazalur Rehman permanently from the scene to put an end to his rivalry. The accusation does not end there as it is further alleged that to accomplish the object, Muhammad Feroze alongwith Muhammad Yaqub, his son and Abdul Ghaffar, tried to pick up a quarrel twice en June 22 and 23 but could not succeed on account of intervention of the witnesses. According to the prosecution, Fazalur Rehman was murdered in consequence of planning of Muhammad Feroze and the previous two incidents occurred in the same direction. It is rightly pointed out by Mr. Riaz Akhtar, that at this stage, an expression of opinion in favour of innocence of Muhammad Feroze, was likely to damage the foundation of prosecution's case. The authorities cited by the learned counsel for the petitioner, in view of the distinguishable facts, are not helpful to him. Suffice it to say that none of those authorities is found closely applicable to the present proposition.

5. One of the suggestions made by Ch. Muhammad Taj, the learned Counsel for the petitioner, was that the investigating officer also arrived at the conclusion favourable to the petitioner end it was in the light of evidence of the Investigating Officer that the name of Muhammad Feroze was placed in column No. 2 of the challan and was given the benefit of section 169, Cr.P.C. It was argued that in presence of finding of the police, it was safe to quash the proceedings in question. The suggestion finds no force particularly when the accused has been summoned by the trial Court after taking due cognizance of offence ascribed to accused‑petitioner. The report of the Investigating Officer under section 173, Cr.P.C. does not exonerate him for lack of evidence. The petitioner, rather, in view of the Investigating Officer, was found responsible for instigating and abetting the other accused persons to murder Fazalur Rehman. The entry of the name of Muhammad Feroze was deleted under the signature of the Investigating Officer and instead the name of Abdul Qayum, absconder was entered. It suggests that the name of Muhammad Feroze, petitioner was entered inadvertently in column No. 2 of the challan. Apart from that, it is an accepted rule that the 1E Court is not bound by ipsi dixi of police.

6. On analysis of the total facts of the case, as available at this stage, I am not persuaded to allow the request. There is no force in the petition. It is, therefore, dismissed.

M.Y.H. Petition dismissed.