' SYED HASAN AZHAR RIZVI, J.---This is an application under section 561-A, Cr.P.C. For quashment of proceedings pending against the applicant before the Court of learned IVth Additional Sessions Judge Karachi (East) initiated on the basis of F.I.R. In Crime No,2 of 2011 dated 1-1-2011 of Police Station Ferozabad, Karachi under sections 320/34, P.P.C.
2. Brief facts of the case as alleged in the F.I.R. Lodged by complainant Muhammad Naeem Qureshi wherein he stated that on 1-1-2011 at 0045 he received information at home that his son Muhammad Suleman along with his companion Muhammad Jamil met with an accident with Car bearing Registration No,ALB-376 near Signal Allama Iqbal Road, Sir Khalid Bin Waleed Road, Block-2, PECHS, Karachi when they were on the way on Motorcycle bearing No,KDV-3056. He requested that case be registered against Car Driver namely Muhammad Ishaq for driven the car in a rash and negligent manner in which two young people lost their lives.
3. The applicant filed application under section 265-K, Cr.P.C. In the Court of IV Additional Sessions Judge Karachi (East), which was dismissed vide order dated 18-8-2011 on the ground that veracity of the witnesses of prosecution cannot be ascertained without recording of evidence.
4. I have heard Messrs Rasheed A. Razvi and Mehmood A. Qureshi, learned counsel for the applicant, Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor-General, Sindh and, Mr. Muhammad Akber Khan, learned counsel for the complainant.
5. Mr. Rasheed A. Razvi, learned counsel for the applicant has contended that applicant was driving Car bearing No,ABL-376 and while he crossing the signal of Khalid Bin Waleed Road approaching towards Bahadurabad, suddenly a motorbike having two riders in high speed and very rashly appeared from Allama Iqbal-Road, hit the car at the driving side door and fell down. He contended that deceased were habitual criminals and various F.I.Rs, were registered against them in different police stations. He also contended that during the night of incident they committed robbery and this fact can be verified from the investigation in F.I.R. No,1 of 2011 wherein the Investigating Officer concluded that the two deceased had committed a robbery at Society Pan House and after looting money were on their way on motorcycle running in a high speed hit the car. He contended that on personal search looted money Rs,6,200 of the complainant of F.I.R. No,1 of 2011 and T.T. Pistol with two live magazines were recovered from the deceased Salman Qureshi. He further contended that the main ingredients and element which constitute the offence in a road traffic accident is the right of way, rash and negligent driving. He urged that according to the prosecution the path of driving is in favour of the applicant and the element rash and negligence in driving is attributed to the deceased, as they were in hurriedly running while carrying the looted money and hit the motorcycle with vehicle from the driving side, which shows that the deceased who were on motorcycle hit the car as evident from the first and third reports and therefore case was declared as 'C' class.
6. Learned counsel urged that there is mere allegation in the F.I.R. Registered by the father of one of the deceased who was not eye-witness. However, the alleged eye-witnesses most of them are relatives/friends of the complainant and residents of the place far from place of incident recorded their statements under section 161, Cr.P.C. After delay of 23 days. He further urged that two Investigating Officers have ruled out any mistake of the applicant rather the deceased after committing the robbery in haste driving the motorcycle rashly and negligently which hit the applicant's car from the right side, therefore, the applicant could not be put to criminal trial as has been concluded by the Investigating Officers. He submitted that the applicant is innocent and has been falsely implicated by the complainant with mala fide intentions and ulterior motives as no sufficient evidence of reasonable suspicion against the applicant exists and find out to connect the applicant with the alleged offence. He also submitted that in the facts and circumstances there is no likelihood in conviction of the applicant and the proceedings of the trial Court would be nothing except the agony for the applicant, who is a student having bright future. He submitted that under section 265-K, C.P.C. The Courts have concurrent powers to acquit the accused at any stage of the proceedings even before framing of charge. He, therefore, 'prayed that proceedings pending against the applicant may be quashed. Learned counsel in support of his submissions has placed reliance upon the following cases:--
(2) 1996 PCr.LJ 380
(3) 2010 SCMR 584
(4) PLD 1960 SC 223
(5) 1976 SCMR 236
(6) 1984 SCMR 930
(7) 1993 SCMR 550
7. Mr. Muhammad Iqbal Awan, learned Assistant Prosecutor-General Sindh has opposed the grant of application and has stated the F.I.R. Was lodged properly by Muhammad Naim Qureshi, the father of one of deceased Salman Qureshi. He further argued that delay in recording statement under section 161, Cr.P.C. Has been fully explained by the prosecution witnesses. He submitted that investigation of the incident took place three times, out of which two Investigating Officers submitted their reports in 'C' class and one I.O. Namely Muhammad Iqbal recommended the trial of the case. He placed reliance on the case of BASHIR AHMED v. ZAFAR-UL-ISLAM (PLD 2004' SC 298), wherein it was observed that 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 exceptional cases and not as a matter of routine. He, therefore/contended that the innocence of the applicant can only be determined after recording of evidence.
8. Mr. Muhammad Akbar Khan, learned counsel for the complainant has vehemently opposed for quashment of the proceedings and states that due to over speed and negligent on the part of the applicant two young persons had lost their lives. He denied the assertions of the .Applicant that motorcycle hit the car but stated . That in fact applicant hit the motorcycle due to high speed. In order to strengthen his submission, he has placed on record number of photographs of damaged car and motorcycle- and submitted that it is sufficient proof to establish that the car hit the motorbike. He further argued that applicant has not challenged the order of the. Magistrate before any Court. As regards, recovery of T.T. Pistol, looted money and CNIC of Farzal Laiq are concerned, he stated that the deceased has valid arms license with permission to carry the same and remaining recovery of money and CNIC were foisted by the police upon the deceased in collusion with the applicant. He also supported the arguments of learned Assistant Prosecutor-General Sindh and as well as the impugned order passed by IV-Additional Sessions Judge Karachi (East).
He further urged that the cases cited by the learned counsel for. The applicant are not attracted and distinguishable from the case in hand. He submitted that exercise of powers under section 561-A, Cr.P.C. Can be exercised to prevent abuse of the process of any Court or to secure the ends of justice but cannot be exercised mechanically or in every case where there is allegation of false implication or of the evidence being false. He also submitted that exercise of such powers by High Court at pre-trial stage cannot further the ends of justice, if undertaken to determine whether the prosecution evidence likely to come on record is true or false. In support of his submissions, the learned counsel has placed reliance upon the cases of MUHAMMAD KHALID MUKHTAR v. THE STATE (PLD 1997 SC 275), NAIK MUHAMMAD v. NASEEBULLAH (2008 PCr.LJ 11), ABDUL JABBAR and 2 OTHERS v.
NIZAM KHAN and ANOTHER (1993 PCr.LJ 1), SYED TAHIR HUSSAIN MEHMOODI v. THE STATE (PLD 1995 Quetta 76), MST. ZOHRA ALAM v. THE STATE (1993 PCr.LJ 1450) and BASHIR AHMED v. ZAFAR-UL-ISLAM (PLD 2004 SC 298).
9. I have given due consideration to the arguments advanced by the learned counsel for the parties, perused the material available on record and the case-law cited at the bar. There is no denial of the fact that this Court has the powers under section 561-A, Cr.P.C. To quash any proceedings pending before any subordinate Court, but this can be done only to prevent an abuse of the process of Court or to secure the ends of justice when there is no other alternate remedy available. In exercising such powers the Court can also take into consideration the material which is available on the record. In the case in hand, the applicant stated that the deceased were dacoits and after committing robbery they were escaping on a motorbike in a very fast speed and hit the car driven by applicant on driver side resulting in death of bath the riders. A cursory look of the accident vehicle appeals the mind whether a locally manufactured unique motorbike in high speed can damage the 1600 CC Car in the like manner as apparent in the photographs placed, on record by both the parties. The simple answer is Not. However, assuming the version taken by the applicant that deceased were dacoits and after committing robbery they were escaping on a motorbike in a very fast speed and hit the car of applicant is correct, which is also supported by the first and third reports of two Investigating Officers but it cannot be ignored that two young persons have lost their lives in such incident. Additionally, I.O. Muhammad Iqbal in his report stated that motorcycle riders were going towards Allama Iqbal Road and the car hit the motorcyclist and he recommended the matter for trial. Further, the first report submitted by the I.O. Under 'C' class has not been accepted by the learned Magistrate and ordered for re-investigation.
10. There is no cavil to the proposition that application under section 265-K, Cr.P.C. Can be moved at any stage of proceedings, but such application has to be dealt with strictly on merits in the light of relevant provisions of law. It may be mentioned here that time and again, it has been held by the Hon'ble Apex Court that powers under section 561-A, Cr.P.C. Are to be exercised sparingly and in extraordinary circumstances. It cannot be utilized to divert the ordinary Courts of Criminal Procedure Code and the provisions are not meant to stifle the prosecution, case, so, as to interrupt or divert Court of Criminal Procedure as laid down in the Procedural Statutes. Though the application under section 265-K, Cr.P.C. Can be filed at any stage i,e, before or after recording of evidence, however, while considering the feasibility of the application at any particular stage, the facts and circumstances of the prosecution case have to be kept in view.
11. It is noticed that the incidence of quashing criminal cases which are under trial with the Courts of competent jurisdiction by invoking .Powers under section 561-A, Cr.P.C. Is becoming increasing frequently, It is time to take stop of this tendency and to remind ourselves of the correct principles governing the subject so that the powers meant to prevent the abuse of law are not abused themselves.
12. Indeed, it is a matter of record that two young persons have lost their lives in a road accident and it is yet to be determined that who was at fault depends on the totality of facts and circumstances revealed during the trial after, recording of evidence of witnesses. Moreover, the assertion of the applicant that deceased were dacoits and have previous F criminal record has no nexus with road accident as robbery is a separate offence and punishable under the law. Needless to observe that this Court in its limited jurisdiction under section 561-A, Cr.P.C., will not embark upon an inquiry to ascertain the innocence or otherwise of the accused.
13. Under these circumstances, I am of the view that quashment on a premature stage would not be fair which amounts to depriving the complainant from a proper opportunity to establish his complaint. Applicant's counsel also failed to convince me that the contents of the F.I.R. Do not constitute an offence, therefore, I do not feel that it is a case where extraordinary-relief should be allowed to the applicant. The Criminal Miscellaneous Application being meritless is dismissed and the trial Court, who is seized, of the trial, is directed to -conclude the trial expeditiously.
' Needless to observe that the observations in this order are tentative in nature and the case should be disposed of by the trial Court without being influence by these observations.