NOOR MOHIUDIN AHMED Versus State
SYED MUHAMMAD FAROOQ SHAH, J.--- The applicants above-named, through the captioned application under section 561-A, Cr.P.C., have sought the following reliefs:-
PRAYER
"This Hon'ble Court be pleased to:-
A) Suspend/Stay the further proceedings of Criminal Case No.5027/2014, arising out of FIR No. 242/2014, P.S. Darkhashan, pending before the Court of learned Vth Judicial Magistrate, Karachi (South).
B) To call for the R&P of said Criminal Case No. 5027/2014, arising out of FIR No. 242/2014, registered at Darkhshan Police Station, Karachi, pending before the Court of learned Judicial Magistrate Karachi South and after perusing the same, hearing arguments to set-aside the impugned order and quash the said case accordingly.
C) Any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case, though now prayed for herein specifically but the applicants be found entitled thereto may also be granted".
2. Contents of FIR No. 242/2014, dated 01.05.2014, lodged by Respondent No. 02, against the applicants reveals that father of Respondent No. 02, purchased the disputed bungalow and rented out to accused Unaib Malik son of Munawar Malik @ Rs. 2,00,000/- per month by lease/rent agreement executed on 05.08.2013, who paid six [6] months advance and security deposit amounting to Rs. 4,00,000/- and issued two pay orders of Rs. 8,00,000/- each and after passing six months he had issued two other cheques of Rs. 2,00,000/- each in the name of Complainant and his brother, which were bounced. Subsequently, on demand he issued a cheque of Rs. 4,00,000/- from the account of his friend Faisal, which was also dishonored due to insufficient balance in the bank account and on request of the complainant accused Unaib Malik vacated the premises on 25.08.2013. It is alleged that both applicants along with Unaib Malik, Faisal and Hayat @ Suleman, instituted a false case and obtained stay; that on 30.08.2013, the Nazir of this Court restored the possession of aforesaid premises to the applicants and others. The complainant/Respondent No. 02, then approached at P.S. Darkhshan and lodged the FIR.
3. A perusal of record transpires that the dispute in between the applicants and Respondent No. 02, is over alleged sale transaction of Bungalow No. 46, 30th Street, Main Khayaban-e-Mujahid, Phase V, DHA, Karachi. Applicant No. 02, Mst Noor Afshan Ahmad, is claiming her exclusive ownership over the aforesaid property on the basis of sale agreement dated 31.10.2012, and in non-fulfillment of agreement, she filed a Suit bearing No. 1027/2013, in the month of August, 2013, before this Court against Respondent No. 02, regarding specific performance of contract. It is averred that during interim stay granted in the aforesaid suit, the applicants were dispossessed forcibly, hence the applicant No. 02, lodged the FIR No. 479/2013, on 27.08.2013, against the Respondent No. 02. It is further averred that the Respondent No. 02 as a counter blast has also filed Suit No. 1221/2013, on 28.09.2013, against both applicants for cancellation of said sale agreement, which is also sub-judice before this Court. Subsequently, on application of Respondent No. 02, filed under section 22-A, Cr.P.C, the concerned police lodged the subject FIR No. 242/2014, on 01.05.2014, under sections 489-F/406/468/471/448/34, P.P.C., on completion of investigation, charge sheet submitted by the police was accepted by Vth Civil Judge and Judicial Magistrate, Karachi (South), and the case is pending for trial.
4. Documentary material annexed with the instant memo of petition shows that the applicants earlier had filed C.P. No. D-3503/2014, before this Court against the official Respondents without arraying the Respondent No. 02 as a party in it. The said petition was disposed of vide order dated 21.10.2014, with the observation that petitioners may approach the trial Court for redressal of their grievances, if so advised. Record depicts that the application filed under section 249-A, Cr.P.C. by the applicants was also dismissed by detailed order dated 01.08.2015, which is impugned through instant Application under section 561-A, Cr.P.C.
5. Arguments heard. Record perused.
6. The point for determination is that as to whether on dismissal of the application filed under section 249-A, Cr.P.C., the accused may invoke the inherent jurisdiction of this Court under section 561-A, Cr.P.C., without filing revision petition under section 439-A, or that exceptional and peculiar circumstances of the case so warrants. The answer would be in affirmative as the provision of sections 249-A, 265-K and 561-A, Cr.P.C. are concurrent and co-extensive; however this case lacks exceptional and extraordinary circumstances to upset the impugned order passed by the trial Court under section 249-A, Cr.P.C, on following reasons.
7. Admittedly, counter litigations of civil and criminal nature in between the parties are sub-judice before different Courts. Undoubtedly, inherent powers of this Court under section 561-A, Cr.P.C. are meant for dispensation of substantial justice, can be invoked under section 249-A, Cr.P.C., the trial Court can also acquit the accused if the charge is groundless or there is no probability of his conviction. The learned trial Court by passing elaborate impugned order under section 249-A, Cr.P.C., correctly reached at the conclusion that Suit No. 1027/2013, was filed by the applicant Mst. Noor Afsheen in the month of August, 2013, though the agreement of sale bears date of its preparation as of 31.10.2012, and the specific allegation of manipulation of said document or its genuineness and so also bounced cheques was thoroughly probed and investigated by the concerned police and submitted the charge sheet under section 173, Cr.P.C.
8. It is not out of context that the provisions of section 195(1), Cr.P.C. debar a litigant in a civil matter from lodging a criminal complaint regarding alleged manipulation of document, which is subject matter of the proceedings, as the law had provided that such complaint be lodged by the concerned Court only after it would come to the conclusion that the document in question was forged. However, it is a matter of common knowledge that if some forgery is committed during the pendency of a suit, the party aggrieved does have the remedy of civil nature regarding manipulation of document, which is subject matter of the proceedings. Issuance of dishonored cheque is a controversy, which requires detail deliberation and without resolving such controversy, it is difficult to make observations of non-probability of conviction of accused on conclusion of the trial, more particularly, such exercise had only been undertaken by the concerned investigation officer by submitting final report under section 173, Cr.P.C. Admittedly, the High Court in exercise of inherent power under section 561-A, Cr.P.C. can quash the criminal proceedings even at initial stage, if no criminal case is made out or that there is no possibility of conviction of the accused or that malicious prosecution is floating on the record. The parameter of this Court's jurisdiction on the.aforementioned point has been dilated upon by the Apex Court of India in the following two cases:-
Khawaja Nazir Ahmed's case (AIR 1945 PC p.18):-
"The functions of the judiciary and the police are complementary nor overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then".
Hazari Lal v. Rameshwar Parsad (AIR 1972 SC 484)
"The inherent power of the High Court under section 561-A of the Criminal Procedure Code has been considered by this Court in R.P. Kapur v. State of Punjab, (1960) 3 SCMR 388 =(AIR 1960 SC 866) and State of West Bengal v. S.N. Basak (1963) 2 SCMR 52 = (AIR 1963 SC 447). In exercising jurisdiction under section 561- A of the Criminal Procedure Code, the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is "reliable or non". Where again, investigation into the circumstances of an alleged cognizable offence of the Criminal Procedure Code, the High Court does not interfere with such investigation because it would then be impeding investigation and jurisdiction of statutory authorities to exercise power in accordance with the provisions of the Criminal Procedure Code. The High Court was correct in dismissing the applications under section 561-A of Criminal Procedure Code. The appeals are therefore dismissed".
9. Dicta laid down by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Mansha v. Station House Officer (PLD 2006 SC 598), the view reiterated in Ghulam Mustafa v. State (2008 SCMR 76) are reproduced as under:-
Muhammad Mansha v. Station House Officer
"This Court has been repeatedly reminding all concerned that determination of the correctness or falsity of the allegations leveled against an accused person; the consequent determination of the guilt or innocence of such an accused person and the ultimate conclusion regarding his conviction or acquittal, was an obligation cast on the Court prescribed by the Code of Criminal Procedure for the purpose on the basis of legal evidence led at the trial after a proper opportunity to both the parties to plead their causes. It is a principle too well-established by now that a resort to the provisions of section 561-A, Cr.P.C, or to the provisions of Article 199 of the Constitution seeking quashment of a criminal case was an extraordinary remedy which could be invoked only in extraordinary circumstances and the said provisions could never be exploited as a substitute for the prescribed trial or to decide the question of guilt or innocence of an accused person on the basis of material, which was not admissible in terms of Qanun-e-Shahadat Order of 1984".
Ghulam Mustafa v. State
"The Courts have right to interpret the law and the High Court had no jurisdiction whatsoever to take the role of the investigation agency. There are several pronouncements of this Court that learned High Court has no jurisdiction to quash the FIRs, while exercising constitutional power under Article 199 of the Constitution or section 561-A of Cr.P.C., unless and until there are very exceptional circumstances existed."
10. Suffice it to say that in view of pronouncement of Hon'ble Apex Court, this Court has no jurisdiction to quash the proceedings while exercising constitutional jurisdiction under Article 199 of the Constitution or section 561-A, Cr.P.C., unless and until there are very exceptional circumstances existed facts of the instant case indicate that cognizance has already been taken by the learned Magistrate on final report submitted under section 173, Cr.P.C., wherein allegation leveled ex-facie made out a case. Learned Counsel for the applicants could not show any circumstance or any piece of evidence, which warrants quashment by invoking the provisions under section 561-A, Cr.P.C. It is settled law that each and every case is to be decided on its own peculiar facts and circumstances as held in the case of Rai Ashraf and others v. Muhammad Saleem (PLD 2010 SC 691) - M. Saleem's case (1994 SCMR 2213) and Mushtaq Ahmed's case (PLD 1973 SC 418). In the instant case authenticity or genuineness of instruments viz. cheques available on the record have neither been questioned nor denied, therefore, at this premature stage there remains no reason or plausible cause to discard the contention of Respondent No. 02.
11. In view of whatever mentioned above, more particularly, the dictum as laid down by the Hon'ble Supreme Court of Pakistan, titled application is dismissed having no merits for consideration. The learned trial Court is, however, directed to proceed and decide the case expeditiously but without unnecessary haste.
MH/N-40/Sindh Petition dismissed.