MAQBOOL REHMAN vs THE STATE and others

' RANA BHAGWANDAS, J.--Petitioner seeks leave to appeal against the judgment dated 10-8-2000 passed by Sindh High Court ordering quashment of proceedings in a private complaint Case No,367 of 1999, pending in the Court of III Additional Sessions Judge, Karachi-West.

2. Petitioner-husband of Mst. Gui Nasreen, after having ultrasound report and screening from Dr. Fatima of Karachi Lions Medical Centre, SITE, Karachi got his wife registered as twin pregnancy case at Metro Lions Hospital SITE, Karachi. It is said that Mst. Gul Nasreen gave birth to a male child weighing 3-1/2 k.Gs. On 30-9-1997. Caesarean operation was performed by Dr. Rukhsana Sattar, respondent No,2, in presence of a team of seven staff members, including doctors of the Hospital.

On arrival of the patient at the Hospital with complaint of labour pains, she was given labour trial when fetal distress was diagnosed. Petitioner/complainant was called in the labour room and shown the colour of liquor and told that fetus was in danger and in case he wanted the patient to be detained in the Hospital, he had to undertake in writing that in the event of still birth, Hospital Management would not be responsible. Alternatively, it was suggested to him that his wife would have to undergo caesarean section. He was also given an option to shift the patient for such operation to any other Hospital of his choice. Petitioner discussed the matter with wife for about half an hour and later decided for going through the caesarean operation. He furnished undertaking in writing to the Hospital Management for the consequences of the surgery. It is undisputed that Dr. Rukhsana Sattar, after operation having found one child, of her own, sent a letter, dated 3-10-1997 to the City Lions Hospital for review of their ultrasound report, which had proved to be totally incorrect. Dr. Fatima, Sinologist, who , had taken ultrasound, on examination of machine admitted her mistake in writing.

3. Petitioner, however for the first time lodged a complaint with S.H.O. Polke Station Mominabad Orangi Town on 13-10-1997 against the respondents relating to kidnapping and murder of a newly- born child of his wife. During investigation, police examined a number of witnesses and secured relevant documents. Investigating Officer in his report suggested the constitution of a Medical Board to clarify the controversy through expert opinion but Mst. Gul Nasreen did not appear before the Medical Board for this purpose. As the police agency did not take cognizance of the crime, petitioner filed a direct Complaint in the Court of Special Judge Anti-Terrorism, Karachi in relation to offences under sections 364-A, 365, 368, 34, P.P.C. Read with section 302, P.P.C. After a preliminary inquiry, process was issued against the respondents. Whereafter the case was transferred to the file of III Additional Sessions Judge, who framed the charge for the above offences. Respondents, after failing to obtain an order of acquittal in terms of section 265-K, Cr.P.C.

From the trial Court, invoked the inherent jursidiction of the Sindh High Court within the contemplation of section 561-A, Cr.P.C.

4. Learned Judge in Chambers of the Sindh High Court, after hearing the parties' counsel as well as State Counsel, after elaborate discussion of the material on record, came to the conclusion that continuance of the proceedings, before the trial Court would be futile exercise, wastage of time and abuse of process of Court. He held that, in view of the evidence available with the petitioner, no offence had been made out and that the charge on the face of it appeared to be groundless and that there was no probability of conviction. It is pertinent to note that learned counsel representing the State supported the prayer for quashment before the High Court.

5. We have heard Mr. Umar Farooq, learned Advocate Supreme Court for the petitioner and Mr. Azizullah K. Sheikh, learned Senior Advocate Supreme Court for private respondents. Learned counsel for the petitioner vehemently contended that, in law, proceedings could not be quashed after framing of charge by the trial Court; that after the appearance of the respondents, trial Court ought to have been allowed to proceed with recording of evidence and lastly; that the proceedings before the trial Court against the respondents did not amount to abuse of process of law.

Conversely, teamed counsel representing the respondents submitted that it was a cock and bull story; that the prosecution was motivated by elements of blackmail, harassment and mala fides in that Dr. Fatima, who had given a wrong ultrasound report forming the basis of a false and frivolous complaint, was neither cited as accused nor arrayed as witness in the private complaint.

6. In law, section 561-A, Cr.P.C. Does not confer inherent jurisdiction on the High Court. It merely assumes that there is something as inherent jurisdiction" and then it preserves it to enable the High Court to make such orders as may be necessary to give effect to an order under Criminal Procedure Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is true that ordinarily inherent powers of the Court should not be invoked because inherent powers are exercised in extraordinary cases in the interest of justice. It may be pertinent to note that such powers do not extend to uncalled for an unwarranted interference with the procedure prescribed by law, which must always be followed. Normally, High Court does not exercise its inherent jurisdiction unless there is gross miscarriage of justice and interference by the High Court seems to be necessary to prevent abuse of process of Court or to secure the ends of justice. Jurisdiction under section 561-A, Cr.P.C. Is neither alternative nor additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provisions should not be used to obstruct or divert the ordinary course of criminal procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice. It is neither akin to appellate jurisdiction nor to the revisional jurisdiction. The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non-separable incident of a thing or an institution in which it inheres.

Every Court, whether, Civil or Criminal, must in the absence of express provisions in the Code of Criminal Procedure be deemed to possess in its very constitution all such powers are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle "when the law gives a person anything, it gives him that, without which it cannot exist". It would thus, emerge from the resume of various pronouncements by the superior Courts that the High Court has, in view of its general jurisdiction over all the Criminal Courts subordinate to its, inherent powers to give effect to any order of any such Court under the Code and to prevent the abuse of process of any such Court or otherwise to secure the ends of justice.

7. Adverting to the facts of the instant case, we are clear in our mind in observing that basic mischief arose out of ultrasound report given by Dr. Fatima, Sinologist indicating twin child in the womb of the patient. Ultimately however, the petitioner's wife gave birth to a single healthy child wieghing 3-1/2 k.Gs. As a result of caesarean section. Obviously, this therapy was performed in the Operation Theatre of the Hospital under the supervision of Dr. Rukhsana Sattar, in presence of a team of doctors and para-medical staff. Petitioner himself was admittedly available in the Hospital premises outside the Operation Theatre and there appears to be no occasion for removal of one of the children or kidnapping him in order to do away with his life as mala fide and dishonestly alleged after a lapse of 13 days. Obviously, there is no direct or indirect substantial evidence even remotely tending to show that the Hospital Management had any animus or motive to deprive the petitioner of his child and to commit the murder of a innocent child, without any reason or rhyme.

In fact none has been alleged. It was the petitioner himself who had approached the Hospital Management for registration of his wife as a case of delivery and being informed about the condition of the patient, after due consideration and deliberations, he voluntarily executed an undertaking abiding by consequences of the caesarean section. The petitioner was at liberty to accept or decline this course of treatment and to shift the patient to another Hospital for a second opinion. Obviously, he did not opt otherwise.

8. The circumstance that the petitioner deliberately omitted to seek action against Dr. Fatima, whose wrong report, duly admitted by her in writing, gave rise to this controversy, speaks volumes about the bona fides of the case. The fact that, she was neither arrayed as accused nor cited as witness before the Court of law adversely reacts on the case of the petitioner, who appeared to have launched a prosecution without any legal or moral justification.

9. In law, there is no warrant for the argument that since the charge had been framed by the trial Court, proceedings could not be buried by way of quashment. The petitioner appears to be labouring under a misconception of law that in all cases where the accused persons are summoned by a Court of law, it is incumbent upon the Court to record the evidence. There is no invariable rule of law and it will depend on the facts of each case whether to allow the prosecution to continue or to nip in the bud. In the case in hand, we think that the course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice. The grounds, which prevailed with the High Court for exercise of its inherent jurisdiction, are neither artificial nor perverse or shocking. Indeed in the circumstances of the case High Court was under a duty to ensure that the process of law was not allowed to be misused and indeed by passing the impugned judgment it has prevented the mischief and advanced the cause of justice.

10. On a careful and conscious examination of the facts and circumstances of the case from every angle, we are of the firm view that the High Court was perfectly justified in quashing the proceedings, which otherwise amounted to sheer abuse of process of law. Resultantly, this petition fails and is hereby dismissed.