Quashment Dismissal Judgment

PLJ 2014 Cr.C. (Peshawar) 7

Present: Mrs. Irshad Qaiser, J.

MURAD GUL--Petitioner

versus

STATE through Advocate-General, Peshawar & 3 others--Respondents

Crl. M. Q. P. No. 170-P of 2012, decided on 11.1.2013.

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

----S. 561-A--Inherent powers of High Court--Exercise of jurisdiction--Quashment--Now the question for determination is that whether the facts and circumstances of the present case is of such an extraordinary nature where in the High Court can exercise its preserved jurisdiction under this section to provide such relief to the accused--The apex Court in number of cases has laid down a criteria for the interference of the High Court in exercise of its jurisdiction u/S. 561-A, Cr.P.C.--Since the case has already been put in the Sessions Court for the trial of accused, let the trial Court be allowed to proceed with the case and record the statement of PWs in order to confirm the guilt or innocence of the accused--Moreover accused petitioner has the remedy/right to file an application for his acquittal u/S. 265-K, Cr.P.C. at any stage of the trial--Petition was dismissed.     [P. 9] A & C

Plea of mala fide intention--

----Principle--Plea of mala fide intention cannot be considered for quashment in a slip shot manner without affording an opportunity to the prosecution to prove its case--Because the High Court while exercising inherent powers cannot hold an inquiry as to whether the evidence available en record is reliable or not--Such function is to be performed by the trial Court as the determination of the guilt and innocence of accused depends on the totality of facts and circumstances reveals during trial.       [P. 9] B

2000 PCr.LJ 143, 1993 PCr.LJ 223, PLD 1997 SC 275 & PCr.LJ 1996 Cr.C. (Lahore) 1309, ref.

Sahibzada Riazatul Haq, Advocate for Petitioner.

Mr. Ibrahim Shah, Advocate for Respondents.

Date of hearing: 11.1.2013.

Judgment

The petitioner Murad Gul filed the present petition under Section 561-A, Cr.P.C. for the quashment of case FIR No. 739 dated 18.07.2012 under Section 9-B CNSA, P.S.Pahari Pura, Peshawar.

2.  Brief but relevant facts of the case are that on 18.07.2012 at 23:40 hours complainant alongwith other Police officials were on routine gash at Chughal Pura when they noticed the presence of a person having a black shopping bag in his hand. He was asked to stop but on seeing the Police party, he threw the shopping bag containing 650 grams of chars and succeeded to decamp from the spot. The Police party came to know that the said person was petitioner Murad and he is notorious narcotics peddler. On the basis of recovery of narcotics a case vide FIR No. 739 dated 18.07.2012 under Section 9-B CNSA of P.S. Pahari Pura was registered against the accused petitioner. Against the registration of the case, the petitioner has submitted the present petition for quashment of FIR on the ground of mala fide. That complainant Sartaj Khan with malicious intention lodged the case against the petitioner. There is nothing on record to connect the petitioner with the commission of offence. There is no criminal history of the petitioner and his family member.

3.  I have heard learned counsel for the petitioner and State counsel as well. Learned counsel for the State relied on 1996 SCMR 186 and contended that High Court in exercise of its powers under Section 561-A, Cr.P.C. is not competent to quash the FIR.

4.  It is admitted fact that after the registration of case and completion of investigation, complete challan was submitted in the Court of Sessions Judge, Peshawar on 20.11.2012 and it was entrusted to the Court of learned ASJ-XIII, Peshawar for trial of the accused.

5.  Now the question for determination is that whether the facts and circumstances of the present case is of such an extraordinary nature where in the High Court can exercise its preserved jurisdiction under this section to provide such relief to the accused. The apex Court in number of cases has laid down a criteria for the interference of the High Court in exercise of its jurisdiction under Section 561-A, Cr.P.C. which are summarized as under:--

(i)         The said provision should never be understood to provide an additional or an alternate remedy nor could the same be used to over-ride the express provision of law.

(ii)        The said provisions can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy for the redress of a grievance,

(iii)       The inherent powers can be invoked to make a departure from the normal course prescribed by the only and only in exceptional cases of extra-ordinary nature and reasons must be offered to justify such a deviation, and

(iv)       In the matter of quashing criminal proceedings the trial must ordinarily be permitted to take its regular course envisaged by law and the provision of Section 561-A, CrPC should be invoked only in exceptional cases for reasons to be recorded.

6.  In the present case petitioner has taken the plea of mala fide of the prosecution agency to falsely involve him in the case. It is settled principle of law that plea of mala fide intention cannot be considered for quashment in a slip shot manner without affording an opportunity to the prosecution to prove its case. Because the High Court while exercising inherent powers cannot hold an inquiry as to whether the evidence available on record is reliable or not. Such function is to be performed by the trial Court as the determination of the guilt and innocence of accused depends on the totality of facts and circumstances reveals during trial. Reference in this respect is made to 2000PCrLJ 143 and 1993 PCrLJ 223 and PLD 1997 SC 275, PCrLJ 1996 Cr.C (Lahore) 1309.

7.  Since the case has already been put in the Sessions Court for the trial of accused, let the trial Court be allowed to proceed with the case and record the statement of PWs in order to confirm the guilt or innocence of the accused. Moreover accused petitioner has the remedy/right to file an application for his acquittal under Section 265-K, Cr.P.C. at any stage of the trial.

8.  Keeping in view the above facts and circumstances of the case I hold that there is no force in the petition and the same is hereby dismissed.

(A.S.)   Petition dismissed