Sheer Ali Khan vs Haji Atta Ullah

2012 P Cr. L J 630

[Peshawar]

Before Nisar Hussain Khan, J

SHER ALI KHAN and 6 others---Petitioners

Versus

Haji ATTA ULLAH and 2 others---Respondents

Criminal Miscellaneous Quashment Petition No.8 of 2011, decided on 30th November, 2011.

(a)Criminal Procedure Code (V of 1898)---

----Ss. 157, 169, 173 & 561-A---Penal Code (XLV of 1860), Ss.324/148/149---Attempt to commit qatl-e-amd rioting armed with deadly weapon and common object---Quashing of F.I.R.---Scope-Petitioners/accused had been charged for indiscriminate firing on the person of complainant with intention to commit gatl-e-amd---Complainant had made a report with regard to a cognizable offence, for which Local Police was legally bound to register, which Police did so after conducting inquiry under S.157(1), Cr.P.C.---Matter being still at investigation stage, accused could put forward their defence version before the Investigating Officer, who was supposed to dig out the truth, during investigation---If the Investigating Officer would find the allegations in the F.I.R. as fake, he could proceed under Ss.169 and 173, Cr.P.C. and other enabling legal provision in that behalf---Petitioners had sought quashing of F.I.R., which was still under investigation--High Court declined interference in the case when it was at investigation stage, either by exercising constitutional jurisdiction or its inherent powers under 5.561-A, Cr.P.C.---Idea behind such principle was that the Police should be allowed to perform its duty in its own sphere and to reach at a definite conclusion with regard to complicity or innocence of the accused---Investigating Officer and Incharge of Police Station had been vested with powers under Ss.169 and 173, Cr.P.C. to submit their report with their opinion, if evidence in the case was found deficient or there were no reasonable grounds to justify the forwarding of accused for trial---On submission o f . report under 5.173, Cr.P.C. for trial, accused could seek his acquittal under S.249-A or 265-K, Cr.P.C., at any stage from the Trial Court---Provisions of 5.561-A, Cr.P.C. were sparingly invoked, especially when there were no other provisions available to accused---Particularly, at investigating stage of the case---Points agitated, investigation required appreciation and analysis of evidence which exercise could only be undertaken by the Trial Court after full dress trial of the case---High Court, while exercising inherent powers, would only interfere, when there was any jurisdictional defect, patent violation of some provision of law, allegation as contained in complaint or F.I.R., even if believed, no case was made out and continuation of proceedings would amount to sheer abuse of process of the court; or an endeavour was made to enforce civil liability through the machinery of criminal court/law---No such infirmity had been pointed out in the case, which could warrant interference of the court for exercise of its inherent jurisdiction under S.561-A, Cr. P. C. ---Petition was dismissed.

Muhammad Bashir v. SHO, Okara Cantt and others PLD 2007 SC 539 and Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 rel.

(b)Criminal Procedure Code (V o f 1 8 9 8 ) - - .

- - - - S . 56I-A---Inherent jurisdiction of High Court under S. 561-A, Cr.P.C.---Scope---High Court while exercising inherent powers, would only interfere, when there was any jurisdictional defect, patent violation of some provision of law, allegation as contained in complaint or F.I.R., even if believed, no case was made out and continuation of proceedings would amount to sheer abuse o f process of the court; or an endeavour was made to enforce civil liability through the machinery of criminal court/law.

Muhammad Bashir v. SHO, Okara Cantt. and others PLD 2007 SC 539 and Brig. (Retd.) Imtiaz Ahmed v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142 ref.

Ghulam Muhammad Sapal for the Petitioners.

Faridullah Khan Minakhel and Abdur Rashid Khan Minakhel for the Respondents.

Date of hearing: 30th November, 2011.

JUDGMENT

NISAR HUSSAIN KHAN, J.---Through this petition the petitioners seek quashment of F.I.R. No.457, dated 26-7-2011, registered under section 324/148/149, P.P.C., at Police Station Lakki Marwat.

2.The resume of the facts, forming the background of instant petition is that Haji Attaullah Khan son of Haji Khanzada lodged a report before ASI, Maamoor, during patrol duty at Lari Adda, that complainant on the day of occurrence was standing in front, of his Baithak and was waiting for vehicle, so that, he may go to Bazar for purchase of house hold articles. It was 11-00 a.m., when accused Sher Ali son of Mehrab Khan, Saadat Ali, Nisar Ali, Mohsin Ali sons of Sher Ali Khan, -Jamshaid son of Mir Aslam, Muhammad Tariq and Rafiq sons of Noor Aslam, armed with Kalashnikovs came out from the Baithak of Sher Ali and started indiscriminate firing on him. He rushed towards his Baithak/Hujra and took shelter therein, due to fear of accused, and was escaped from the firing. The occurrence was witnessed by the 'people present at the spot. The motive of occurrence is alleged that son of complainant was waylaid by the accused prior to the present occurrence.

3.This report of the complainant was recorded in daily diary No.22 of 12-7-2011, in the Police Station. The local Police initiated inquiry under section 157(1), Cr.P.C. and consequently above-mentioned F.I.R. No.457, was registered in the Police Station on 26-7-

4.Learned counsel for the petitioner argued that F.I.R. No.457, has been got registered just to counter F.I.R. No.433, dated 12-7-2011, registered' under sections 324/34, P.P.C. in the same Police Station, against the sons of complainant; that no such occurrence has taken place and the F.I.R. is based on false and concocted allegations; that there is a delay of six hours in lodging of the report, which is unexplained by the complainant; that SHO of the same Police Station has conducted inquiry on application of the petitioners and as a consequence whereof he submitted his report. According to which, the report of complainant was found false. So, it was unwarranted and uncalled for, to register the case on the basis of same report, which was earlier found false by the police. So, this F.I.R. is liable to be quashed in the peculiar circumstances of the case.

5.Learned counsel for the complainant, while controverting the arguments of petitioner's counsel, has submitted that F.I.R. has rightly been registered on the report of complainant as cognizable offence was reported in the Police Station; that a favourable report of SHO was procured by the petitioners, by exerting pressure and influence on the local Police, because accused party is influential.

6.Arguments of learned counsel for the parties and Ahmad Farooq Khattak, A.A.-G. for the State heard at length and record perused with their assistance. .

7.The perusal of the report of the complainant Attaullah Khan, recorded vide daily diary No.22 of 12-7-2011, is reflective of the fact that the accused have been charged for indiscriminate firing on his person with intention to commit Qatl-e-amd. This version of the complainant clearly indicates that he made. a report with regard to a cognizable offence, for which local Police was legally bound to register the F.I.R. Whereas they did so after conducting inquiry under section 157(1), Cr.P.C. The matter is still at investigation stage, so the petitioners/accused can put forward their defence version before the Investigating Officer. Who is supposed to dig out the truth, during investigation and if he finds the allegations in the F.I.R. as false, he may proceed under sections 169 and 173, Cr.P.C. and other enabling legal provisions in this behalf. In this regard I am fortified by the principle laid down by the Hon'ble Supreme Court in case titled, Muhammad Bashir v. SHO, Okara Cantt and others, (PLD 2007 SC 539).

8.The petitioners seek quashment of F.I.R., which is still under investigation. It is settled law that the High Court should not interfere in the case, when it is. at . investigation stage, either by exercising constitutional jurisdiction or its inherent powers under section 561-A, Cr.P.C. The idea behind the principle is that the Police should be allowed to perform its duty in its own sphere and to reach out at a definite conclusion with regard to complicity or innocence of the accused. The Investigating Officer and Incharge of Police Station have been vested with powers under sections, 169 and 173, Cr.P.C. to submit their report with their opinion, if evidence in the case is found deficient or there are no reasonable grounds to justify the forwarding of accused for trial. On submission of report under section 173, Cr.P.C. for trial the accused may seek his acquittal under section 249-A or 265-K, Cr.P.C, at any stage, from the trial Court. Provisions of section 561-A, Cr.P.C. are sparingly invoked, especially when there is no other provision available to the accused. Particularly, it cannot be invoked at investigation stage of the case. In this regard case of Brig. (Retd.) Imtiaz Ahmed v. Govt. of Pakistan through Secretary, Interior Division, Islamabad and 2 others. (1994

SCMR 2142) is relied upon.

9.The points agitated at the bar, require appreciation and analysis of evidence, which exercise can only be undertaken by the trial Court after full-dress trial of the case. While exercising inherent powers, this Court would only, interfere, when there is any jurisdictional defect, patent violation of some provision of law, the allegation as contained in complaint or F.I.R.,. even if believed, no case is made out and the continuation of proceedings would amount to sheer abuse of process of the Court, or an endeavour is made to enforce civil liability through the machinery of criminal Court/law. No such infirmity has been pointed out in the instant case, which may warrant interference of this Court, for exercise of its inherent jurisdiction under section 561-A, Cr.P.C.

10.For what has been discussed above, this petition fails and is hereby dismissed.

H.B.T./299/P Petition dismissed.