1. ' Applicant Rana Muhammad Younus through this Criminal Misc. Application has sought the quashment of F.I.R. No. 368 of 2002 for an offence under section 448/34, P.P.C.. Of Police Station Gulzar-e-Hijri.
2. ' Briefly stated the facts of this case are that on 2-10-2002 one Saifullah lodged First Information Report alleging therein that his sister Shaheen Habib owned two Plots bearing Nos. 373, 374 in Block No.12 Gulistan-e-Johar, Karachi, KDA Scheme No.36. His sister was settled at Abu Dhabi and he used to look after the said plots. On 18-2-2002 he went to these plots and found that applicant Rana Muhammad Younus was occupying the said plots. The latter informed him that the aforesaid plots belonged to him. The complainant went to Police Station Gulistan-e-Johar and lodged F . I . R .
3. ' After registration of F.I.R., police conducting the investigation in respect of aforesaid Crime No.368 of 2002.
4. ' It is contended by learned counsel for applicant that he has been falsely implicated due to enmity with complainant party. The F.I.R. Is lodged by one Saifullah who has no locus standi to lodge the F.I.R. As he was not owner of the disputed plot. He submitted that the F.I.R. Is false and the same is malafidely lodged, therefore, the same may be quashed.
5. ' Mr. Rana M. Shamim learned counsel for respondent No.2 argued that application under section 249-A, Cr.P.C. Was moved by the applicant in the trial Court which was dismissed on 11-1-2003. It is stated that the challan in this case was submitted by police in the trial Court on 1-4-2003. Since the application under section 249-A, Cr.P.C. Was moved before submission of challan, therefore the same was rightly dismissed by the trial Court holding therein that the cognizance was not taken by the trial Court and the application under section 249-A, Cr.P.C. Was not maintainable. He submits that the applicant should move a fresh application as by now the proceedings are pending in the trial Court and the cognizance is taken by the Court. It is further submitted that F.I.R. During investigation cannot be quashed under section 561-A, Cr.P.C. Reliance has been placed upon the case of Ahmed Saeed v. The State and another (1996 SCM R 186).
6. ' Mr. Javed Akhtar learned counsel appearing for State submits that since the impugned order was passed prior to taking of cognizance by the trial Court and the application under section 249-A, Cr.P.C. Was premature. He states that the impugned order is quite legal and needs no interference.
7. ' I have gone through the record. The applicant has prayed of the following relief:-- "It is, therefore, humbly prayed that this Hon'ble Court may be pleased to cancel/quash the proceeding bearing F.I.R. No. 368 of 2002 under section 448/34, P.P.C. Of Police Station Gulzar-eHijri pending in the Court of XIIth Judicial Magistrate, Karachi (East) in the interest of justice."
8. The prayer to the effect that proceedings in the Court of XIIth Judicial Magistrate, Karachi South may be quashed is misconceived. The impugned order shows that there were no proceedings before the Judicial Magistrate when the impugned order was passed.
9. ' The order was passed by XIIth Judicial Magistrate, Karachi East on 11-1-2003 wherein it was held that the police had Tun submitted challan in the Court and the Court as such had not taken cognizance of an offence. He further dismissed application under section 249-A, Cr.P.C. On the ground that no proceedings were pending in the Court at that time. The record further shows that challan has been submitted by the police on 1-4-2003.
10. ' It is manifest on record that when application under section 249-A, Cr.P.C. Was moved in the trial Court no proceedings were pending but only the F.I.R. Was being investigated by the police. The F.I.R. And the investigation cannot be quashed under section 561-A, Cr.P.C. As held in the case of Ahmed Saeed v. The State and another (1996 SCM R 186) (supra). The Hon'ble apex Court has held as under:-- "We have carefully attended to the arguments raised by the learned counsel for the parties. We feel persuaded that the High Court, in exercise of its powers under section 561-A, Cr.P.C., was not competent to quash the F.I.R. We find that the investigation was not complete and no challan had been submitted in the Court when petition for quashment of F.I.R. Was filed in the High Court. The High Court, under its inherent powers, may quash judicial proceedings, if it was of the view that the proceedings amount to an abuse of the process of Court. Since no proceedings were pending in the Court by the time the quashment petition was filed in the High Cowl, the question of preventing the abuse of process of any Court did not arise in this case. A plain reading of section 561-A, Cr.P.C., shows that nothing in the Criminal Procedure Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Criminal Procedure Code; o.r to prevent abuse of process of any Court or otherwise to secure the ends of justice. In the instant case neither any order was made by any Court nor any process was issued by any Court. So, the question of making such orders as may be necessary to give effect to any order of Court does not arise. We are afraid that the High Court under section 561-A, Cr.P.C. Could not quash F.I.R. On the ground of mala fide or on the ground that F.I.R. Discloses civil liability. Since we have held that the High Court had examined correctness of the reason given by it for quashing F.1. R." .
11. This quashment application, in the above circumstances, could not be maintained which stands dismissed.
12. ' However the defence may repeat its application under section 249-A, Cr.P.C. In the trial Court if he so, desires, which shall be decided on its merits in accordance with law. Quashment of F.I.R.
13. Declined.