1. ' IMAM BUX BALOCH, J.---Through this criminal miscellaneous application, applicant seeks quashment of F.I.R. No, 52 of 2011 of. Police Station Site area Sukkur registered for offence under sections 392, 34 P.P.C.
2. ' Learned counsel for the applicant submitted that criminal miscellaneous application moved before learned Civil Judge and J.M.Sukkur has no number. He further submitted that in the F.I.R.
3. Date and time of commission of offence is shown as 19-4-2011 at 6 p.m. Whereas in the application dated 25-5-5011 offence is shown to have been committed on 19-5-2001 at 5 p.m. He submitted that learned Magistrate without applying his judicial mind has passed the order directing the S.H.O.
4. Police Station Site to register F.I.R. Of respondent No,1, he further submitted that as the F.I.R. Is based on mala fide and no such incident had taken place. Date and time shown in the F.I.R. Is contradictory to the version of application submitted by the respondent No,1 to learned Magistrate.
5. He submitted that under section 561-A, --- Cr.P.C., this Court has ample powers to quash the F.I.R.
6. Or proceedings pending in the Court of learned Magistrate as the same are abuse of process of law. He submitted that pendency of such proceedings will highly prejudice the applicant and such futile exercise would be abuse of process of law.
7. ' On the other hand, learned counsel for respondent No,1 submitted that after thorough investigation case has been challaned end pending for adjudication before the competent court of law. He submitted that proper course for the applicant is to move application under section 249-A or 265-K, Cr.P.C. Application before the trial Court. He placed his reliance on the case of Amir Sultan v. The State (1999 M LD 946) and Ashiq Hussain Thahim v. The State (1999 M LD 535) and submitted that jurisdiction under section 561-A, Cr.P.C. Is not an additional alternative jurisdiction and if alternative remedy is available then such application under section 561-A, Cr.P.C. Cannot he entertained. He submitted that inherent powers of this Court under section 561-A, Cr.P.C. Are very wide but they are not supposed to be exercised to override express provision of law.
8. ' Learned D.P.-G. For the State supported the contentions of learned counsel for the respondent No,1 and submitted that proper course for the applicant is that at the first instance he should approach the trial Court under section 249-A or 265-K, Cr.P.C.
9. I have considered the submissions- advanced at bar and also perused the case law. Normally every case should be allowed to proceed according to law and resort to the provisions of section 561-A, Cr.P.C. Should be lightly made, as the same would tend to circumvent the due process of law Nonetheless. I may express a word of caution that each case must be judged on its special facts and circumstances. I am of the considered view that power vests in this Court to quash criminal A proceedings if it is satisfied that a false complaint had been brought and the process of court is, therefore, being abused not to advance the cause of justice but to subject the accused persons to unnecessary harassm ent. In the instant case after a thorough investigation case has been challaned and is pending in the Court of law. If any authority is needed one can refer to case of Shaikh Mahmood Saeed and others v. Amir Nawaz Khan (1996 SCM R 839).
10. I am also of the view that determination of guilt or innocence of -accused depends on the totality of facts and circumstances revealed during the trial and an application for quashment of proceedings before such a stage has reached, is liable to be rejected, as observed in the case of Muhammad Khalid Mukhtar v. The State through Deputy Director, F.I.A. (C.B.A.) Lahore, (PLD 1997 SC 275).
11. ' If prima facie the offence had been committed the ordinary course of trial before the Court was not to be allowed to be deflected through an approach to special revisional or inherent jurisdiction of High Court as has been held in case of A-Habib Ahmed v. M.K.G. Scott Christian (PLD1992 SC 353).
12. The relevant observations of Hon'ble Supreme Court are as under:-- "It was also held that the inherent jurisdiction of the High Court is not an alternative jurisdiction or additional jurisdiction. It is only in the interest of justice to redress grievances for which no other procedure is available. The power given by section 561-A, Cr.P.C., it was held can certainly not be so utilized as to inherent or divert the ordinary course of criminal procedure as laid down in the procedural statue. Undoubtedly, the case of Ghulam Muhammad had come before the Supreme Court through an interruption by the High Court under section 561-A, Cr.P.C. The order of the High Court quashing the proceedings before the trial Court was set aside and it was directed that criminal cases were to proceed before the Court concerned in accordance with the normal law"
13. ' In the instant case, prosecution evidence is to be recorded and without any evidence on record as that was still to be examined by the trial Court, if inherent powers under section 561-A, Cr.P.C. Are invoked, it means that proper course of trial is to be diverted as held in the case of The State v. Asif Ali and another (PLD 2001 SC 536). The relevant observations are as under:-- "It is thus clear that it was not possible for the learned Judge to resolve this divergent controversy in exercise of power under section 561-A, Cr.P.C., without any evidence on record as that was still to be examined by the trial Court. It is admitted fact that the trial was going on when the impugned order was passed. This has been emphasized time and again that powers under section 561-A, Cr.P.C.
14. Are not meant to stifle the prosecution case but instead it is to be allowed opportunity to prove it.
15. The present is not the type of case in which the controversy can be resolved from facts patent on record and admitted by both the sides to exist as in such a case the dispute can he determined on admitted facts and if no offence is constituted on the facts appearing on record and not disputed by the parties then power under section 561-A, Cr.P.C. Can be exercised. The learned Judge has passed the impugned order in haste and at a time when the parties were still to prove the correctness of their version".
16. ' Provision of section 561-A, Cr.P.C. Cannot be used to override the express provision of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law.
17. Jurisdiction under section 561-A, Cr.P.C. Is an extraordinary one preserved only for extraordinary situations which power must be exercised sparingly with utmost caution only in exceptions cases and not as a matter of routine. According to scheme prescribed by the Code of Criminal Procedure, determination of guilt or innocence of an accused person is a serious business which commences with a pre-trial exercise to be judicially carried out by the competent Court of law under section 190, Cr.P.C. If these allegations levelled and the evidence collected are found worth a B trial, then cognizance is taken of the case and the accused is summoned to face the trial, which the prosecution has the fullest right to adduce its evidence to establish the guilt of the offender and where the accused has a comprehensive right to impeach the credibility and the reliability of the evidence produced by the prosecution where the accused, then has the right to explain different piece of evidence offered against him by the prosecution; where the accused can made a statement on oath in disproof of the allegations levelled against him and finally where he can produce his own evidence to discredit the prosecution case against him as has been held in case of Basher Ahmad v. Zafar-ul-Islam (PLD 2004 SC 298).
18. ' In view of law laid down by the Hon'ble Supreme Court, I am of the considered view that extraordinary powers under section 561-A, Cr.P.C. Are to be invoked in exceptional cases where Court finds continuation of proceedings is abuse of process of law. Prosecution be given a chance to adduce its evidence and bring relevant record on Court file whereas the accused has a chance to discredit the prosecution evidence. The accused has right to invoke the provisions of section 249-A or 265-K Cr.P.C. If sufficient material has not been produced by the prosecution during trial.
19. Applicant has invoked inherent jurisdiction of this Court directly which could be invoked in exceptional cases but there is no exception for invoking the inherent powers under section 561-A, Cr.P.C. Consequently, this criminal miscellaneous application was dismissed by a short order dated 30th June, 2011; these are the reasons for the same.