Syed Mushtaq Hussain Shah vs Illaqa Magistrate etc.

Petition. No.7-Q/2014

Syed Mushtaq Hussain Shah Qamar Zaman Tarrar, etc 17.02.2014. Syed Qaiser Gillani, Advocate.

The petitioner, Syed Mushtaq Hussain Shah through instant petition filed under Section 561-A of Cr.P.C., read with Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeks quashment of the proceedings pending adjudication before the learned trial court in case FIR. No.405, dated 01.09.2010, registered under Sections 420, 468, 471 PPC, at Police Station, Cantt, District, Sargodha.

2.Briefly the facts giving rise to the instant petition are that petitioner being attorney of Mst. Abbas Begum had alienated the land measuring 03-Marlas situated in khewat No.323, Khatoni No.323, Khasra Plot No.16/28, 21/1, 74/62 as well as land measuring 01-Marla situated in khewat No.333, khatoni No.333, khasra No.16/21/27 and got transacted total land measuring 04- Marlas from the above stated khatas whereas Mst.Abbas Begum was expired on 08.08.2010 but the petitioner presented documents for registration before the Sub-

Registrar, Sargodha along with an affidavit on the basis of the registered power of attorney, which was expired due to demise of Mst.Abbas Begum and by this way, he committed fraud.

3.During the trial, the petitioner submitted an application under Section 249- A Cr.P.C. for his acquittal, which was dismissed by the learned trial court vide order dated 08.12.2010 whereas petitioner being aggrieved from the said order, filed a criminal revision, which was accepted by the learned Revisional Court on 20.04.2012 and case was remanded back to the learned trial court to decide the application under Section 249-A Cr.P.C. afresh after hearing the parties. After post remand proceedings, the learned trial court vide his order dated 20.12.2013 dismissed the application under Section 249-A of Cr.P.C.

4.I have heard the learned counsel for the petitioner and perused the record.

5.Admittedly the petitioner submitted an application under Section 249-A Cr.P.C before the learned trial court which was dismissed vide order dated 20.12.2013 whereas the petitioner instead of assailing said order through a revision petition under Section 439-A of Cr.P.C, approached this Court. The Hon’ble Supreme Court of Pakistan has held in the case of “Bashir

Ahmad v. Zafar-ul-Islam and others” (PLD 2004 SC 298) which reads as under:- “The accused persons had made an application before the learned trial Magistrate praying for their acquittal under Section 249-A, Cr.P.C. This application was dismissed through an order dated 20.02.2001. The Code offered a specific remedy to a person aggrieved of such an order by seeking revision of the same under Section 439 or 439-A of the Cr.P.C. We have not been able to find any reason in the impugned decision as to why the aggrieved persons were permitted to invoke the inherent powers of the High Court under Section 561-A, Cr.P.C., when a remedy was available to them under Section 439 or Section 439-A of the said Code. Supposing the above mentioned application under Section 249-A, Cr.P.C., had been allowed as a result whereof the accused persons had been acquitted. Could the aggrieved person in such a situation be permitted to approach the High Court under Section 561-A, Cr.P.C.. instead of filing an appeal against acquittal under Section 417 of the said Code. If the answer be in the negative, then how could a person aggrieved of the order of dismissal of such application under Section 249-A, Cr.P.C. be permitted to invoke the provisions of Section 561-A and not invoke the provisions of Section 439 of the Code. We would, therefore, hold that where an application under Section 249-A of the Cr.P.C, is dismissed by the trial Court then the proper remedy for the aggrieved person is under Section 439 or 439-A of the Cr.P.C as the case may be and not under Section 561-A of the said Code because, as has been

mentioned above, the provisions of Section 561-A, Cr.P.C are not meant to provide an additional or an alternate remedy. For this reason also the jurisdiction exercised by the Hon’ble High Court was legally untenable.”

6.The power of quashing the criminal proceedings has to be exercised very sparingly and with circumspection. The court can not be justified in embarking upon an enquiry as to the genuineness or otherwise of allegations made in the FIR. However, the Court under its inherent powers, can neither intervene at uncalled for stage nor can decide the disputed question of fact at a crucial stage of proceedings.

7.Moreover, the Hon’ble Supreme Court of Pakistan in a case reported as “Dr.Sher Afgan Khan Niazi v. Ali S. Habib and others” has held as under:- “The general practice of learned High Court which is well entrenched seems to be that no proceedings should be quashed ordinarily in view of the powers as conferred upon it under Section 561-A, Cr.P.C. unless the trial court exercises its power under Section 249-A, Cr.P.C. or Section 265-K, Cr.P.C. However, in exceptional cases, the power as conferred upon High Court under Section 561-A, Cr.P.C. could have been exercised. If any reference is required, the case titled “State v. Asif Ali Zardari” (1994 SCMR 798), “Muhammad Khalid Mukhtar v. State” (PLD 1997 SC 275) can be referred. “In the light of what has been discussed herein above and in view of the various complicated questions of facts availability of alternate/adequate

remedies and premature stage, no interference should have been made by the learned High Court in exercise of its Constitution Jurisdiction as conferred upon it under Article 199 read with Section 561-A, Cr.P.C. The Intra Court Appeal, however, has rightly been rejected in view of the dictum laid down by this Court in titled “Nawazul Haq Chowhan v. State” (2003 SCMR 1597).

7.The inherent jurisdiction of High Court is not an alternate jurisdiction. The basic object of Section 561-A, Cr.P.C is to redress grievance for which no remedy or procedure is available in statute.

8.For the foregoing reasons, I see no merits in this petition in view of law laid down by the august Supreme Court f Pakistan, referred above. Consequently, I find no substance is this petition, which is accordingly dismissed in limine.

(Aalia Neelum) Judge

Approved for reporting.

Judge.

A.S.Khan.