MUHAMMAD KHALID MUKHTAR vs THE STATE through Deputy Director, F.I.A.

1. ' MUKHTAR AHMED JUNEJO, J.---Petitioner, Muhammad Khalid Mukhtar has moved for leave to appeal against a judgment dated 6-11-1996 delivered by a Single Judge of the Lahore High Court dismissing his petition for quashment of criminal proceedings: ' Criminal Case pending against the petitioner is outcome of F.I.R. No,C/37/95, registered by F.I.R. On complaint of Manager, Askari Commercial Bank Limited.

2. Facts of the case are laid down in the F.I.R. Have been summed up in the impugned judgment in the following words: "Dr. Shahid Ahmad and his wife Farah Ahmad of 31-J, Gulberg-III, Lahore, are the proprietors of M/s. Power Installation (Pvt.) Ltd., Lahore. This establishment, in collaboration with a Chinese firm, obtained a sub-contract for construction of bridges and culverts etc. At some specific point of motor way. In order to finance the project they had to obtain some loan from M/s. Askari Commercial Bank Ltd., Lahore. To provide security for this loan they approached the present petitioner for furnishing some documents to the Bank. The petitioner along with others provided some registered sale-deeds which were deposited with the Bank and the amount of Rs,39,843,000 was drawn. Ultimately, when the Bank probed into the genuineness of these documents, they proved to be forged ones. A case was accordingly registered at the instance of the Bank authorities."

3. ' After registration of the case, the F.I.A. Took up the investigation, during the course of which it appeared that the petitioner had provided securities to said bank in the shape of registered sale- deeds which turned out to be forged documents. On the basis of such securities, a huge amount of over Rs,80 lacs was withdrawn from the bank, FIA collected evidence showing that said amount was paid to the petitioner through cheques. FIA also collected oral evidence showing that the petitioner had been accompanying Dr. Shahid Ahmad to said Bank for furnishing securities on various occasions.

4. ' Petitioner moved Criminal Miscellaneous No,179-Q of 1996 in the High Court under section 561-A of Cr.P.C. For quashment of the criminal case pending against him on the grounds that it was a case of no evidence, that he had never played any part in the alleged fraud, that evidence of Nazir Ahmad was of no help to the prosecution and that the entire effort of the FIA to involve him was mala fide. Said petition was dismissed under the impugned judgment. Hence this petition.

5. ' Mian Khurshid Zafar, learned counsel for the petitioner argued that quashment of criminal case can take place at any stage and so also the acquittal under section 265-K of Cr.P.C. That the evidence need not be recorded before quashment of a criminal case or before acquittal under section 265-K of Cr.P.C., if otherwise it calls for such an action as per law. Reliance was placed on the cases of The State v. Asif Ali Zardari and another (1994 SCM R 798) and State through Secretary, Ministry of Interior v. Ashiq Ali Bhutto (1993 SCM R 523). It was also argued that the petitioner was falsely involved in the case and that there was no probability of his being convicted for any offence.

6. Perusal of the impugned judgment shows that there is documentary as well as oral evidence against the petitioner. The evidence collected by FIA is yet to be recorded and appraised. A criminal case cannot be quashed unless it is made out that continuance of such case would amount to abuse of the process of Court. In the instant case besides oral evidence, there is going to be documentary evidence, in view of nature of the allegations against the petitioner.

7. ' In the case of Asif Ali Zardari (1994 SCM R 798) it was observed as below:-- "Section 561-A, Cr.P.C. Confers upon High Court inherent powers to make such orders as may be necessary to give effect to any order under this code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. These powers are very wide and can be exercised by the High Court at any time. Ordinarily High Court does not quash proceedings under section 561-A, Cr.P.C. Unless trial Court exercises its power under section 249-A or 265-K, Cr.P.C. Which are incidentally of the same nature and in a way akin to and co-related with quashment of proceedings as envisaged under section 561-A, Cr.P.C. In exceptional cases 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."

8. ' Dealing with sections 249-A and 265-K of Cr.P.C. a learned Bench of this Court observed in the case of Ashiq Ali Bhutto (1993 SCM R 523) as below: "It is obvious that the Legislature in its wisdom did not leave the question of the recording of the evidence as a condition before taking action under either of the provisions. The use of the expression 'at any stage' of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be later stage as well."

9. As observed in the case of Asif Ali Zardari (1994 SCM R 798) the powers under section 561-A, Cr.P.C.

10. Can be exercised to prevent abuse of the process of any Court or to secure the ends of justice.

11. Such powers cannot be exercised in mechanically or in every case where there is allegation of false implication or of the evidence being false. Exercise of such powers cannot further the ends of justice, if an exercise is undertaken at pretrial stage to determine whether the prosecution evidence likely to come on record is true or false. In the case of Raja Haq Nawaz v. Muhammad Afzal and others (PLD 1967 SC 354), it was held that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions, by exercise of an extraordinary power which is given for the dispensation of complete justice, in the forms provided by law. Similar view was taken in the case of Gian Chand v. State (1968 SCM R 380) where it was observed that determination of the guilt or innocence of an accused, depends on totality of facts and circumstances revealed during the trial, and when such a stage had not been reached, the application for quashment of the proceedings in the trial Court, was rightly rejected by the High Court.

12. In the instant case, learned counsel for the petitioner has not been able to make out that there is no probability of conviction of the petitioner for any offence or that continuance of the criminal case against the petitioner would amount to abuse of the process of Court or that quashment of the case would secure the ends of justice.

13. ' Consequently leave to appeal is declined and this petition stands dismissed.