This order deals with and disposes of two applications by the accused for quashment of order/ proceedings in a complaint case under sec--tion 307, etc , P. P. C. Pending on the file of learned Sessions Judge, Kasur and an application by Mr. Sarfraz Khan, Inspector, Crimes Branch, Lahore concerning apprehension of the accused two of whom (Nazir Ahmad and Muhammad Iqbal) were set at liberty by learned Sessions Judge on 4th of July 1979.
2. Shorn of unnecessary details, the facts relevant to the disposal of these applications are a case for the offences under section 302/307/34, P. P. C. In respect of murder of Rashid and attempted murder of his sister Mst. Sharifan was registered at Police Station, Pattoki, District Kasur on 2nd of May 1977 under F. I. R. No. 253/77 on the report made by Khushi Muhammad a real breather of the deceased and the injured witness. The accused were arrested and sent up for trial. Investigation was on a representation made by the accused to the higher authorities reopened and inquiry afresh was entrusted to Crimes Branch, Lahore. Muhammad Hanif and his father Haji Rehmat Ullah who is said to have passed away about a week back were adjudged innocent by Mr. Muhammad Sarfraz Khan, Inspector Police. Accordingly, supplementary challan was filed wherein both these accused were shown as suspects in column No. 2 of the report. Trial in this case has reached concluding stages.
Mst. Khurshid Begum daughter of Muhammad Shafi son of Qaim Din had also sustained serious injuries caused by fire-arm during the incident subject-matter of charge against the accused in the case of murder. Muhammad Shafi lodged a complaint implicating Khushi Muhammad informant in the case of murder, Muhammad Shafi, Nazir Ahmad, Muhammad Iqbal, Muhammad Amin and Muhammad Tufail for the offences under section 307/324/325/148/149, P. P. C. The preliminary inquiry into allegations made in the complaint under section 202, Cr. P. C. Was entrusted by learned Sessions Judge, Kasur to learned Magistrate Section 30, Chunian who in his turn reported that prima facie charges were made out against all the six accused named in the complaint. The report was accepted partly by learned Sessions Judge in that he ordered issuance of process against Muhammad Tufail, Muhammad Amin and Nazir Ahmad under section 204, Cr. P.
C. For the offences under section 307/324/ 34, P. P. C. And against Muhammad Iqbal for the offence under sec--tion 506, P. P. C. BaiLahle warrants for appearance of the accused in Court on 5th of April, 1979 were also issued. The complaint thus stood dis--missed against Khushi Muhammad and Muhammad Shafi. Revisional application for setting aside order of learned Sessions Judge declining to summon Khushi Muhammad and Muhammad Shafi was dismissed by this Court.
Application for grant of bail to the accused filed before learned Sessions Judge was disposed of on 24of April, 1979. Muhammad Iqbal alone was allowed bail but the order was withdrawn by learned Sessions Judge as all the four accused had slipped away when the case was called for announcement. The accused have filed petition under section 561-A, Cr. P. C. For quashment of the order of learned Sessions Judge for their arrest (Cr. Misc. No. 475/Q/79) inter alia on the rounds that the trial was commencing on 25 of June, 1979 and there was no justification to push the applicants behind the bar at this stage. Learned Sessions Judge had initially issued baiLahle warrants for attendance of the petitioners. The order for their arrest was, therefore, not justified. The petitioners had never made any application before learned Sessions Judge for grant of bail. The application may have been manipulated by the accused in the murder case. This petition was admitted to hearing on 25th of June 1979 and operation of the order for arrest of the petitioners was suspended.
3. The Police have also filed challan against the petitioners in Cr. Miscellaneous No. 475/Q/79 as well as Khushi Muhammad and Muhammad Shafi for the offences under section 307/148/149, P. P.
C. And warrants for their arrest were obtained from Mr. Khizar Mehdi, Magis--trate, Lahore. Nazir Ahmad and Muhammad Iqbal were arrested by Mr. Sarfraz Khan on 4 of July, 1979 within the premises of Sessions Court, Kasur. Learned counsel for the accused represented to learned Sessions Judge that in view of interim order in Cr. Miscellaneous 475/Q-79 the accused could not be arrested. Learned Sessions Judge ordered their release immediately without having apprised himself of the circumstances necessitating arrest of the accused. As it was brought to his notice that the accused were arrested in a separate case in which challan had been filed, learned Sessions Judge observed: "learned counsel for the accused has given undertaking that all the six accused will be produced by him tomorrow in the High Court at 8-00 a. m.".....`The police may proceed against the accused party according to law". It may be stated here that Nazir Ahmad and Muhammad Iqbal when summoned by learned Sessions Judge immediately after they were ordered to be released had again slipped away and none of the petitioners had appeared before this Court on 5th of July, 1979". The order recorded by learned Sessions Judge on the said date viz. 5July, 1979 ends with the remarks "the matter is to be agitated by the accused in the High Court on 7th of July, 1979. Therefore it is not proper for me to give any opinion about it. The accused should be produced on 8th July, 1979, by their counsel". This queer order as I may say so restrainedly had engendered further litigation between the parties entailing waste of time and unnecessary ex--penses to both sides. Learned Sessions Judge should have passed an appropriate order after it was brought to his notice that interim order in Cr. Miscellaneous No. 475- Q/79 did not perhaps afford protection to the petitioners from arrest in challan case. He could have ordered their arrest or their release on interim bail, etc.
4. The accused have come up with another application (Cr. Miscellaneous 504-Q/79) for quashment of proceedings in the challan case mainly on the ground that the police were not competent to interfere with the matter which was already sub judice before learned Sessionsth th th th Judge, that the arrest and their prosecution in challan filed by the Police was violative of the provisions in Article 13 of the Constitution and that Police had acted mala fide in procuring warrants of arrest against them. The accused have also applied for initiation of proceedings under the Contempt Act against Police authorities and Muhammad Hanif accused in murder case who is in the lock-up which is being dealt separately. Lengthy arguments were addressed in support of this application which mainly centred round the point that the Police was not competent to launch upon investigation and file challan against the accused under section 307, P. P. C. When learned Sessions Judge had already taken cogni--zance of the case under F. I. R. No. 253 out of which this cross-case flows and had also taken cognizance of the case against the petitioner on a complaint made by Muhammad Shafi father of Mst. Khurshid Begum except by permission of .The Court.
Reliance was placed on the judgments in Din Muhammad Shakir v. Deputy Superintendent Police.
Ichhra, Lahore (PLD 1978 Lah. 731), Muhammad Khan v. Inspector-General of Police Punjab, Civil Secretariat, Lahore and 2 others (PLD 1977 Lah. 180) and Muhammad All and 12 others v. District Magistrate, Faisalabad and 3 others (PLD 1978 Lah. 1325). Learned counsel for the petitioners also contended that the complainant side could now only ask for permission to examine additional evidence under section 540, Cr. P. C. Submission of challan was an abuse of process of law.
Reference was made to the judgment in State v. Mr. Zulfikar Ali Bhutto (PLD 1978 Lah. 523). Learned, counsel further contended that proceedings against Khushi Muhammad and Muhammad Shafi on the basis of challan will be a mockery of law as learned Sessions Judge had declined to summon them and revision against the order of learned Sessions Judge was dismissed in limine. Judicial orders should undoubtedly take pre--cedence over mala fide opinion of the Investigating Office.
Lastly, having based himself on the Judgments of Supreme Court in Shahid Arshad v. Muhammad Taqi Butt (1976 SCMR 360) and Muhammad Hanif and others v. Khushi Muhammad and others (1979 SCMR 235). Learned counsel also urged that the petitioners should not be refused bail as case had already been set down for trial.
5. Mr. Tanveer Ahmad Khan, learned Assistant Advocate-General and Mr. Wasim Sajjad learned counsel for the respondent (complainant) contended to the contrary with equal vehemence that the Police had un--restricted powers for multiple investigations. The number of investi--gations is not limited by law. Police could reopen the case although court may have taken cognizance of the case on the basis of earlier report filed by the Police or even after the accused was on the report submitted by the Police itself discharged and the case was cancelled against him by the Magistrate by means of administrative order under section 173, Cr. P. C. Reliance was placed on the judgments in Atta Muhammad v. Inspector----General of Police, West Pakistan, Lahore and others (PLD 1965 Lah. 734) and Muhammad Tayyab Shah v. Syed Fayyaz Hussain and others (1975 P. Cr. L J 120). These judgments have been noticed in the case of Muhammad Khan (PLD 1978 Lah. 731) cited on the side of the petitioners. Learned counsel for the State/respondent also maintained that the cases relied upon by learned counsel for the petitioners did not in the least advance the proposition canvassed by him. It was also not necessary that a separate first information report should have been recorded for investigation and submission of Challan for counter version of the incident subject-matter of the first information report No. 253/77. Under section 157, Cr. P. C. An Officer Incharge of a Police Station can start investigation either on information or otherwise. The words "or otherwise" are were enough to include every source of in--formation other than that furnished and recorded under section 154, Cr. P.C. The statements recorded by the Investigating Officer during investigation which had led him to the view that the petitioners were guilty of charge under section 307, P. P. C. Were statements under section 161, Cr. P. C. And could not be used as first information report, as contemplated in sec--tion 154, Cr. P. C. Reference was made to a recent judgment of Division Bench of this Court in Ghulam Siddique v. S. H. O., Dera Ghazi Khan and 3 others (PLD 1979 Lah. 263).
6. Of judicial propriety alone I have mentioned the contentions and precedent cases cited on either side. The petitions stand pegged on a short ground of law to be stated presently. The petitioners could apply to learned Sessions Judge for recall of order dated 24th of April, 1976 for their arrest as application on which the order was passed was manipulated by the other side and they should remain on bail. The petitioners could also apply to learned Sessions Judge for summary dismissal of challan under section 307, P. P. C. And for their acquittal forthwith in this case under section 265- K, Cr. P. C. The proposition of law that jurisdiction under section 561-A is of an extraordinary nature to be used only in extraordinary cases where there is no other remedy available is beyond controversy. These powers are not usually invoked when there is another remedy available. The limits within which inherent jurisdiction under section 561-A, Cr. P. C. Should be exercised by the High Court have been outlined in the judgment of Supreme Court in Ghulam Muhammad v.
Muzamal Khan (PLD 1967 SC 317). It was ruled in that case that it is generally accepted that inherent jurisdiction should not normally be invoked where another remedy is available. Inherent powers are reserved to meet the lacuna in the Cr. P. C. In extraordinary cases and are not intended for vesting the High Court with powers to make any order which they are pleased to consider in the interest of justice. The inherent jurisdiction given by section 561-A, Cr. P. C. Is not an alternative jurisdiction or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievance 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 utilized as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute. A recent judgment of Supreme Court in Khushi Muhammad and 4 others v. The State (1979 SCMR 94) may be cited as a striking instance to show that the rule laid down in the above judgment has to be applied rigorously without any exception whatever. In the case of Khushi Muhammad the application for quashment of proceedings against the accused was turned down notwithstanding the fact that the solitary witness who had to depose against the accused had exonerated them and there was no further evidence to support the charge against the accused. It was held by their Lordships that the most appropriate remedy for the accused was to request the trial Magistrate to consider their case under section 249-A, Cr. P. C. The provisions in this section and section 265-K, Cr. P. C. Are identical. Learned Sessions Judge can dismiss the challan forthwith, if it is found that the fresh investiga--tion could not be held by the Police without permission of the Court for the reason that learned Sessions Judge had -already taken cognizance of the complaint in respect of the same occurrence and the prosecution had closed their evidence in the murder case under F. I. R. No. 253/77 on the basis of which challan under section 307 was filed against the petitioners. Learned counsel for the petitioners tried to meet the situation with the argument that learned Sessions Judge had said that he had already passed order and had also observed in his order dated the 5th of July, 1979 that the matter is to be re-agitated before the High Court implying thereby that he could not act in the matter or he had declined to exercise his jurisdiction. Learned counsel for the petitioners was also of the view that order for "acquittal" of the accused mean that something needed consideration for orders by the Court. Order for quashment means that there is no legal basis for the proceedings. I am not impressed favourably by this argument. No formal application was made to learned Sessions Judge for appropriate orders. I have already commented upon the merits of a thoughtless order passed by learned Sessions Judge and the consequences thereof. He had merely contented himself with a misplaced idea that the petitioners will be produced before the High Court next day and the matter will be re-agitated there Section 265-K shall equally apply if the very basis for proceeding against the accused was vitiated with illegality which warranted order for dismissal of the charge. Learned Sessions Judge shall have to take up simultaneously, the complaint case and the now challan against the petitioners and pass proper orders before proceeding to examine evidence whether we will proceed with the challan case also. If so, will he also proceed against Khushi Muhammad and Muhammad Shafi.
7. In the result, the applications for quashment are dismissed leaving the petitioners to seek necessary remedies before learned Session Judge through appropriate applications.
However, it will be unfair to blink over the case of Khushi Muhammad and Muhammad Shall which stands on a different footing for the reason that learned Sessions Judge had declined to issue process against them and order of learned Sessions Judge was upheld in revisional application.
They shall not be arrested subject to their furnishing security in the amount of Rs. 5,000 with two sureties each with personal bonds in the like amount to the satisfaction of learned Sessions Judge.
The case of Muhammad Iqbal also merits special consideration. As said above, he was summoned to answer the charge under section 506, P. P. C. According to allegations made in the complaint and statements of witnesses during preliminary inquiry held before learned Magistrate Chunian, the offence allegedly committed by him falls under first part of section 506, P. P. C. Which is bailable. In the case of bailable offences, the accused had indefeasible right to grant of bail irrespective of his conduct howsoever reprehensible it may be. He is also allowed bail in the sum of Rs. 3,000 with one surety with personal bond in the like amount to the satisfaction of learned Sessions Judge. Law shall have its due course against the remaining three accused, namely Nazir Ahmad, Muhammad Tufail and Muhammad Ali unless interrupted by orders of a competent Court No orders are required to be passed on the application (Cr. Miscellaneous 618-M/79) made by Mr. Muhammad Sarfraz Khan with reference to order dated 4th of July, 1979 of learned Sessions Judge.