1. ' MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal has been sought from judgment dated 14-4-1980 of the High Court of Baluchistan, whereby prayer of the petitioner for quashment of the proceedings in a criminal case was refused.
2. ' According to the facts stated in the petition, Sher Muhammad, respondent No, 1, was involved in two murder cases ; one registered at Police Station Rato Dero, District Larkana and the other at Police Station Taju Dera, District Jacobabad, in the province of Sind. He was proclaimed as an absconder. Said Sher Muhammad was avoiding arrest and at the relevant time was "hiding himself iu Jhat-Pat District Nasirabad", in the province of Baluchistan, therefore in order to arrest him, a police party including the petitioner went there, arrested him at Jhat-Pat and brought him to the Saddar Police Station, Jacobabad on 23-1-1980. However, he was released by the Superintendent of Police, Jacobabad, at the intance of the Police of JhatPat. Assertion has also 'been made in the petition that "the detailed entries were made in the Roznamcha of the police station (and relevant extracts) giving time and date to prove that the respondent was hiding himself and arrested in a lawful manner by the Police party." On 24-1-1980 Sher Muhammad respondent filed a complaint in the Court of S. D. M. Jhat-Pat against the petitioner and several other persons of the police force and a civilian for offences under sections 116-B, 148/323/364/386 and 506(2), P. P. C. Read with section 149, P. P. C. After recording his statement the Sessions Court sent the case for preliminary inquiry to S. D. M., Jhat-Pat. He transmitted the papers to the learned Sessions Judge with his report that a prima facie the above noted offence had been committed. The learned Sessions Judge vide his order dated 16-2-1980, after perusal of "the complaint, the statement of the complainant recorded under section 200, Cr. P. C. And the statements of the witnesses examined during the inquiry" prima facie observed that offence under section 147/148/323/364/506(2) read with section 149, P. P. C. Had been committed. Accordingly, he directed the issuance of non-bailable warrants of all the accused including the petitioner.
3. ' It is stated that some of accused have been arrested and that they have not been allowed bail so far. The petitioner, it is further stated by his learned counsel, has not been arrested nor has he himself surrendered. The learned Advocate-General has informed that the remaining accused including the petitioner are fugitives from law.
4. ' It is necessary at this stage to take note of the allegations made by Sher Muhammad in his complaint. His case, as disclosed in the complaint. Is that on 23-1-1980, he and his brother Shah Nawaz were working at their shop, a medical store in Jhat-Pat City. At about 10/11 a. m. Armed police in two jeeps reached there ; one jeep belonged to Jacobabad police and the other to Shah Muhammad Bhutto, Head Moharrir, Police Station Jacobabad. Chandio the civilian accused, was driving this second jeep as a taxi. The policemen entered the shop and started giving beating to the complainant and his brother and then after rendering the petitioner helpless he was dragged and thrown in the taxi jeep while his brother was dragged to the police jeep. This incident was witnessed by several persons who had gathered there. The jeep with complainant in it was sped away towards Jacobabad side while the other with Shah Nawaz, his brother, adopted another route. When the jeep carrying the complainant was proceeding towards Jacobabad, one Muhammad Ali Khosa came in front of it and cried to the police officials that they should, in the first instance, go to the Police Station, Jhat-Pat and report the matter there. The police officials pointed their rifles towards Muhammad Ali and told him to get aside otherwise he would face death. He accordingly went aside and the jeep was taken to the P. S. Saddar Jacobabad. The complainant further stated that he was tortured and also that his mouth and throat had constantly been pressed so that he might not be able to raise alarm. He asserted that at the time of filing the complaint there were marks of voilence and injuries on his body, with regard to the other jeep and alleged abduction of Shah Nawaz, the brother of complainant, it was stated in in the complaint that when it was passing in front of P. S., Jhat-Pat, Shah Nawaz raised hue and cry ; whereupon Mr. Khan Muhammad D. S. P. Came in front of the jeep stopped it and made inquiry from Shah Nawaz who informed him that they (he and his brother) were being abducted for murdering them. On this, the said D. S. P. Got Shah Nawaz released. On account of this incident the residents of Jhat-Pat flared up and went on general strike. The higher authorities then intervened and the complainant was released by Jacobabad Police. He went to Civil Hospital Jacobabad where in the Outdoor Department he was given first aid for his injuries.
5. ' The motive alleged in the complaint is that Muhammad Yaqoob, Muhammad Hussain and Muhammad Havat accused mentioned in the complaint, two of whom are Head Constables, bore a grudge against the complainant ; because the complainant alongwith others is accused of having committed murder in their family. He was granted bail before arrest in that case by the Sessions Court. It was further alleged that the accused policemen at the instance of and conspiracy with the aforementioned three persons wanted to murder the complainant and his brother and thus take revenge, without trial. The victims however, escaped after suffering only a beating. The complainant had also asserted in the complaint that on way from Jhat-Pat to Jacobabad, the accused were talking about murdering him and that the failure of the police group in the other jeep had saved his life as als9 of his brother. Further allegation was made that the complainant's revolver and its license was snatched by Muhammad Hussain accused. It was later on retrieved by Khan Muhammad D. S. P., Nasirabad.
6. ' The complainant also accused Zafar Farooqi, S. H. 0 , P. S. Jacobabad of having told him on his arrival at P. S. Saddar Jacobabad that he was of no position before him as he had done away with, several important persons. He also chastised the other accused (police officials) for having brought the complainant to the P. S. Alive saying as to why he had not been gunned down on the way ; whereupon Muhammad Hussain accused explained that perhaps, the jeep alongwith police officials had been captured and for that reason the complainant was brought alive so that there should be no further trouble. {{URDU TEXT}} From this also the complainant further asserted, he had judged that the accused wanted to murder him. Thereafter the S. H. O. While giving further threats to the complainant went away towards Jhat-Pat.
7. ' The complainant filed with the complaint a list of 11 witnesses. Amongst others Shah Nawaz, Muhammad Ali and Dr. Bashir Ahmad. Medical Officer, Civil Hospital, Jhat-Pat are mentioned in that list as P. Ws. Copies of statements made by 5 witnesses before the Inquiry Magistrate have been placeu on record. The copies of the entries in the Roznamcha of P. S. Saddar Jacobabad relating to that occurrence have also been placed on record. The version contained therein is that the Jacobabad police had received ad information on 23-1-1980 at 10.05 a. m. That Sher Muhammad absconder (complainant) had gone to Jacobabad to purchase medicines and that Muhammad Hussain A. S. I. (one of the accused) took along with him some duly armed police officials to arrest the absconder. Muhammad Hussain purportedly wrote the return entry at 11 O'Clock stating that on their way the police party received another information that the absconder had left Jacobabad for Jhatpat. Accordingly they left for Jhat-Pat in a Government jeep which was driven by Qadardad petitioner. On reaching the medical store at Jhat-Pat they apprehended Sher Muhammad but the people of Jhat-Pat surrounded the police jeep. The police of Jhat-Pat including the D. S. P. Also reached and this party was taken to P. S. Jhat-Pat. However after avoiding law and order situation Sher Muhammad was brought in police custody to P. S. Saddar, Jacobabad, in a private jeep. After some entries the S. H.
0. Is purported to have made another entry at 2-45 p.m. Stating therein that the hither police officers of Jhat-Pat and Jacobabad having establishad contact he (the S. H.
8. 0.) took the bail order of Sher Muhammad complainant to the S. P., Jacobabad. The S. H.
0. Purported to have made another entry at 3.15 p. m. Stating therein that on submission of bail order to the S. P., Jacobabad he directed the release of Sher Muhammad complainant.
9. ' The Jhat-Pat authorities were making efforts to arrest the remaining accused including the petitioner, who presumably apprehending that if arrested, might not be released on bail, challenged the issuance of non-bailable warrants and the proceedings on the complaint, in the High Court of Baluchistan through a petition, purported to have been moved under section 561-A read with 439, Cr. P. C. The same having, been dismissed by the learned Chief Justice of the High Court, he has sought special leave to appeal.
10. ' The learned counsel for the petitioner has contended; that by virtue of section 58 read with section 54 of Cr. P. C. And section 23 of the Police Act read with the relevant Police Rules the Police of Jacobabad, was within its competence rather it was duty bound, to "pursue" Sher Muhammad even if they had to cross the district and provincial boundaries ; that the version given by Sher Muhammad in his complaint is false it should not have been given preference over the entries made by the accused in the daily diary of Police Station Saddar, Jacobabad ; that in any case the evidence led by the complainant during the preliminary inquiry did not include the statement of the. Medical Officer who is alleged to have rendered him first aid in the Outdoor Department of the hospital and lastly that the learned Chief Justice in the High Court was influenced by another unconnected incident in which S. D. M. Jhat-Pat was allegedly arrested by the Jacobabad Police.
11. ' It was held by this Court in Ghulam Muhammad v. Muzammal Khan (1) that the inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where a competent Court ha:, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence." In this case the learned Sessions Judge while passing the order on 16-2-1980 noted that he had perused the complaint, the statement of the complainant and the statements of the witnesses examined during the preliminary enquiry. We have also
(1) PLD 1967 SC 320 ' perused the same. It cannot be said that a prima facie case was not disclosed) in the said material, for requiring the accused to face trial. The argument of the learned counsel that all the evidence including the doctor was not produced before the Inquiry Magistrate is of no help to the petitioner ; because firstly, it is not necessary under the law that the complainant shout produce the entire evidence during the preliminary inquiry and secondly, in the circumstances of this case enough material was produced before th Inquiry Magistrate to show that the allegations made in the complaint prima facie constituted at least some of the offences specified in the complaint, if not all. Moreover it is mentioned in the complaint that the complainant had visible marks of violence on his person and that he received treatment in the Outdoor Department of the Civil Hospital, Jacobabad. The name of the doctor is mentioned as one of the witnesses in the list attached with the complaint. He would be examined in Court in due course. The complainant does not seem to have any intention of withholding the medical evidence in the case.
12. The version given in the daily diary of Saddar Police Station, Jacobabad which it appears contains the defence of the petitioner and his co-accused is totally different from what was asserted in the complaint and in the D evidence produced during preliminary inquiry. For example there is no mention in the diary of abduction of Shah Nawaz brother of the complainant and while there is allegation in the complaint that the complainant was subjected to voilence, the diary is silent about it. With regard to the "pursuit" also there is noticeable difference. While according to the complainant Sher Muhammad, he was working in his medical store when the accused raided the same and abducted him as also his brother, the version in the diary is that the complainant was in Jacobabad and that he was pursued from there to Jhat-Pat immediately before the occurrence that took place at the medical store. It would not be out of place to mention here that the version regarding the complainant's visit to Jacobabad, an attempt to arrest him there and "pursuit" from Jacobabad to Jhat-Pat, it seems, was not made the basis of the petition filed in the High Court nor has it been taken as a specific ground in the petition filed in this Court. On the contrary, in pare. 7 of the petition it is specifically mentioned that Sher Muhammad was "hiding himself" in Jhat-Pat District Nasirabad therefore in order to arrest him a police party including the petitioner "proceeded there", arrested and brought him to Saddar Police Station, Jacobabad. It is not necessary for the disposal of this petition to make any further comment on this aspect of the matter. It might prejudice the case of one or the other party. It is however observed that there is nothing in the defence version contained in the entries in the diary to prefer the same in these proceedings over the prosecution version contained in th complaint as also in the complainant's evidence. It would be for the trial Court to examine the merits of both the versions and decide the case in accordance therewith and the law. This case squarely falls within the rule B laid down by this Court in the case of Ghulam Muhammad v. Muzammal Khan. The order of refusal by the High Court to interfere under section 561-A and/or 439, Cr. P. C. Does not suffer from any infirmity, legal or otherwise.
13. ' The mere circumstance that the learned Chief Justice of the High Court noticed in the impugned order the submission of the learned Advocate-General in connection with the arrest of the S. D. M., Jhat-Pat would not render the said order as unlawful or otherwise, on this account alone liable to be set aside, in appeal by this Court.
14. ' On the view we had taken on the merits of the case it is not necessary to examine the question raised by the learned counsel with regard to the petitioner's claim that it was the right and duty of the Police to arrest the complainant and pursue him across the district and provincial boundaries.
15. In any case there is no such plea with regard to Shah Nawaz.
16. ' Learned counsel for the petitioner also explained that the accused who have already been arrested have not been allowed bail and that if the petitioner is arrested or he himself surrenders, he would not be released on bail. The question of bail is not before us. We do not share the apprehension of the learned counsel that the question of bail would not be considered in accordance with the merits and the law.
17. ' This petition is without any force and the same is dismissed.