' This criminal miscellaneous has been filed under section 561-A, Cr.P.C. To seek reversal of order dated 8-1-2005 passed by the learned Sessions Judge, Khushab in criminal revision and quashment of complaint proceedings pending before the learned trial Magistrate Noorpur, District Khushab.
2. The brief facts and background as given in this petition is that in 1999, the petitioner was posted as Assistant Registrar, Cooperative Societies, Noorpur Thal, District Khushab. On 3-2-1999 the petitioners Nos.1 to 4 went to one Muhammad Hayat in connection with recovery of Rs,1,99,920, as he was defaulter of the Society. The said Muhammad Hayat failed to fulfil his liability, hence arrested by the petitioners. While the petitioners were returning along with arrested defaulter, they were attacked by Atta Muhammad son of Muhammad Hussain, Muhammad Din son of Muhammad Yar, Muhammad Siddique son of Muhammad Din, Muhammad Farooq son of Muhammad Ramzan, Ahmad Sher son of Allah Rakha Bhatti, Ahmad Hayat son of Muhammad Hussain to take away the arrested/defaulter Muhammad Hayat from their lawful custody. The above incident was reported to the police, wherefrom F.I.R. No,34 of 1999 under sections 225, 353, 186, P.P.C. Was registered at Police Station Noorpur on the same day at 10-15 a.m.
3. On the same day, accused Muhammad Saddique, another defaulter, submitted a written application to Chairman "Khidmat Committee" against petitioners Muhammad Afzal and Muhammad Ishaq alleging that the petitioners had trespassed into their house, insulted their women and caused injuries. The challan was submitted in the Court in the F.I.R. No,34 of 1999 on 1- 6-1999, charge was also framed on 2-3-2000. However, according to the petitioners accused managed to prolong the case which is still pending.
4. Accused Haji Ahmad, respondent No,1, lodged a private complaint .Under sections 149, 324,.148, 337-A, 337-F, P.P.C. Against the petitioners on 19-1-2004 before the learned Illaqa Magistrate. The learned Magistrate/trial Court summoned the petitioners to face the trial vide his orders dated 30- 9-2004. The petitioners challenged the above order of the learned Magistrate/trial Court by filing a revision petition before the learned Sessions Judge, Khushab. The revision was dismissed vide order of the learned Sessions Judge, Khushab dated 8-1-2005. Against the above orders dated 30- 9-2004 and 8-1-2005, the instant Criminal Miscellaneous No,34/Q of 2005 has been filed under section 561-A, Cr.P.C.
5. The learned counsel appearing for the petitioners has challenged the above mentioned two orders on the following grounds:--- "(A) Impugned order is based upon variations, contradictions i,e,
(i) Injured Muhammad Saddique claims that only two respondents assaulted him and injured him on 3-2-1999, the respondent No,1/complainant claims that injured Muhammad Saddique on hearing arrest of defaulter Muhammad Hayat arrived at the spot and reprimanded the petitioners, the petitioner lost temper and caused him injuries. The complainant gave evidence on oath that in fact the petitioners had come to realize loan from Muhammad Hayat. On the other hand injured Muhammad Saddique claims that in fact the petitioners had come to his house for recovery of loan and insulted their women and caused him injuries.
(B) That both the subordinate Courts erred by ignoring the following aspects of the case:-
(i) That the alleged occurrence had taken place on 3-2-1999 but the complaint has been lodged on 19-1-2004.
(ii) that the complainant came to know on 15-1-2004 that police had sent up challan in the F.I.R.
Case so he filed impugned complaint after lapse of 5 years.
(iii) The above explanation is only cause, narrated by the complainant, for filing the impugned complaint at a belated stage.
(C) The impugned complaint and subsequent proceedings are abuse of process of Court and have resulted into grave miscarriage of justice. The version of the complainant is based on mala fide and it is devoid of any truth.
6. In support of his submissions, the learned counsel for the petitioners has relied upon Rehmat Sindhu and 5 others v. The State 1999 M LD 1632 (Lahore) and The State v. Asif Ali Zardari and another 1994 SCM R 798.
7. In the first cited case a Judicial Magistrate had summoned the petitioners along with others as accused persons in the complaint. In Rehmat Sindhu's case the petitioners, in the first instance, had filed an application under section 249-A, Cr.P.C. Before the learned trial Court which was dismissed vide order dated 10-3-1998. It was noted in the above judgment that petitioners had first attempted to get F.I.R. Lodged but on failure he had filed complaint. In support of complaint, the complainant got herself examined by way of preliminary evidence and also produced two witnesses who supported the complainant in material particulars. The Honourable High Court enumerated grounds which are available under section 561-A, Cr.P.C. For quashing criminal proceedings inter alia are:--
(a) jurisdictional defect;
(b) patent violation of some provisions of law;
(c) the allegations as contained in the complaint or F.I.R. Even if believed, no case is made out and the continuation of the proceedings amount to sheer abuse of process of Court;
(d) when an endeavor is made to enforce civil liability through the machinery of criminal Courts;
(e) in certain cases an inordinate delay amounts to abuse of process of Court.
8. In the instant case, the petition was dismissed by the Honourable High Court while observing as under:- "Respondent No,4 applied his mind to the preliminary evidence produced by the complainant and after due consideration came to the conclusion that prima facie, a case is made out as such process in the form of summons was issued. The petitioners, are, therefore, required under the law to appear before the Magistrate, contest the proceedings and prove their innocence during the trial."
9. It may be noted that in the above reported case, before filing petition under section 561-A, Cr.P.C., an application under section 249-A, Cr.P.C. Was filed and after dismissal of the same, the High Court was approached whereas no such application has been filed in the instant case.
10. In the second case cited by the learned counsel for the petitioners, a leave was sought from the Honourable Supreme Court of Pakistan against judgment of Sindh High Court whereby criminal miscellaneous petition filed under section 561-A, Cr.P.C. Was allowed whereby proceedings against respondents under sections 420, 468, 471, P.P.C. And section 5(2) of the Prevention of Corruption Act of 1947 were quashed. In the above-cited Supreme Court case, evidence of 6 prosecution witnesses was recorded during the trial, at that stage, 2 accused-respondents filed an application under section 249-A, Cr.P.C. For their acquittal. After hearing the parties, the trial Court dismissed the application. Against dismissal of application under section 249-A, Cr.P.C. By the trial Court, an application/petition under section 561-A, Cr.P.C. Was filed in the High Court for quashment of proceedings which was allowed.
11. One of the arguments of learned Advocate-General, Sindh before the Honourable Supreme Court was that High Court should have directed respondents to file another application under section 249-A, Cr.P.C. As during the pendency of application under section 561-A, Cr.P.C. More witnesses had been examined but the Honourable Supreme Court did not agree with the learned Advocate-General, Sindh that High Court should not have decided itself application/petition under section 561-A, Cr.P.C. On the ground that the High Court had given valid reasons for not directing filing of another application under section 249-A, Cr.P.C. Again before the trial Court, for fresh consideration, in the light of additional .Evidence of three witnesses. For the reason that it would make no material difference as the fresh evidence would not improve upon deposition of Ch. Ehsan-ul-Haque on whose evidence the case depended against the main accused.
12. In the instant case, pending before this Court; circumstances are absolutely different as no application under section 249-A, Cr.P.C. Was filed. In the above-cited two cases by the learned counsel for the petitioners, applications under section 249-A, Cr.P.C. Were dismissed by the trial Court and the High Court were approached thereafter.
13. In the State v. Asif Ali Zardari and another, the Honourable Supreme Court held that in exceptional cases High Court can exercise its jurisdiction under section 561-A, Cr.P.C. Without waiting of trial Court to pass orders under section 249-A, Cr.P.C. Or under section 265-K, Cr.P.C. If the facts of the case so warrant to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Such exceptional circumstances do not exist in the instant case, moreover as observed above, even in the above cases trial Court was approached first under section 249-A, Cr.P.C. Whereas, no such move has been made by the petitioners in the present case. It has been further held in The State v. Asif Ali Zardari and another that "section 249-A, Cr.P.C.
Empowers the Presiding Officer of the trial Court to acquit accused, at any stage of the trial, and the only requirements to be fulfilled are, firstly that hearing is to be given to the prosecutor and counsel of accused and, secondly reasons are to be recorded in support of conclusion that charge is groundless or that there is no probability of accused being convicted. It is very clear that application can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application is to be filed after. Evidence of all the witnesses is recorded".
14. Therefore, in view of the above decision of the Honourable Supreme Court of Pakistan, there is no bar upon the petitioners to approach trial Court to seek the same remedy for which the High Court has been approached under section 561-A, Cr.P.C. Section 249-A, Cr.P.C. Provides adequate remedy to the petitioners. The provisions of section 561-A, Cr.P.C. Cannot be used to obstruct or divert ordinary Courts of criminal procedure as it is provided under section 249-A, Cr.P.C. For further guidance a reference,may be made to Mehr Din and others v. Khushi Muhammad and others 1976 SCM R 473. In a very latest judgment the Honourable Supreme Court has held that provisions of section 561-A, Cr.P.C. Cannot be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law. Reference may be made to Bashir Ahmad v. Zafar-ul-Islam PLD 2004 SC 298.
15. The learned counsel has stressed that complaint has been filed after several years, therefore, proceedings should not be allowed to proceed and the same should be quashed. Delay has been explained in the impugned order of the learned Sessions Judge. In any case, the delay by itself is no ground to quash proceedings. In this context, I refer to Rehmat Sindhu and 5 others v. The State 1999 M LD 1632 (Lahore), the above judgment has also been relied by the learned counsel for the petitioner. In the above judgment findings of the Supreme Court were followed. Reference is made to the State v. Gulzar Muhammad and others 1998 SCM R 873.
16. Normally the superior Courts of the country encourage that prosecution should be given full chance to prove its case, interference at pre-trial stage has not been considered favorably. Khalid Iftikhar v. The State PLD 1997 SC 275 may be referred to in the above context.
17. In view of the above discussion, I am afraid that I would not like to stifle or guillotine proceedings pending before the learned trial Court. As noted above, the petitioners may like to move trial Court under section 249-A, Cr.P.C. The trial Court will decide the same on its merits. It is further directed that, in any case, the proceedings in complaint case as well as in F.I.R. Case must be decided within 6 months positively as the matter has already been prolonged for years unnecessarily. This criminal miscellaneous is dismissed at limine stage with above direction/observations.