1. TUFAIL H. EBRAHIM, J.---The applicant being aggrieved by order dated 17-7-2010 of the learned Civil Judge/Judicial Magistrate, Karachi-East, in Case No.199 of 2008, dismissing the application under section 249-A, Cr.P.C. Has preferred this Criminal Miscellaneous Application under section 561-A, Cr.P.C. For quashment of the proceedings.
2. The facts of the case as per F.I.R. No.537 of 2008 registered under section 489-F, P.P.C. At Police Station Ferozabad Karachi are as under: That about four years back the complainant had delivered shares of different companies having value of Rs.15,00,000 (Rupees fifteen lac) to the applicant as Trust. The said shares were not returned to the complainant and were sold and invested in the business of the father of the applicant. The father of the applicant Muhammad Ashraf Khan issued a cheque of Rs.8,85000 dated 17-8-2007 drawn at Allied Bank Shahrahe-Faisal Branch which was deposited in the Bank but the same was dishonoured. A request was made to Muhammad Ashraf Khan regarding dishonouring of the said cheque, therefore F.I.R. Was lodged to take action against both father and son. The applicant was produced by the complainant at police station where he was arrested on the same date when the F.I.R. Was lodged and after investigation the case was challaned. Charge was framed against the applicant, which reads as under:-- "That on 19-4-2007 at bank time, you accused given cheque bearing No.9459415 to the accused named above in the sum of Rs.8,85,000 to complainant Shakeel Ahmed which on presentation in the Allied Bank Ltd. Sharah-e-Qaideen Branch, Karachi could not be enchased and bounced.
3. Thereby you have committed an offence punishable under section 489-F, P.P.C. And within the cognizance of this Court".
4. The complainant was examined and cross-examined by the counsel of the applicant. The prosecution witness namely Ali Gohar SIP Investigating Officer was also examined and was cross- examined by the counsel for the applicant thereafter application under section 249-A, Cr.P.C. Was filed by the applicant for the acquittal which was dismissed vide order dated 17-7-2010, which is impugned herein this criminal miscellaneous application.
5. The learned counsel for the applicant has argued that cheque has not been issued or signed by the applicant and as such no offence under section 489-F- has been committed by the applicant.
6. Per learned counsel as per F.I.R. 'the cheque has been issued by the father of the applicant and in the Challan the name of the father is not appearing. Per learned counsel this fact was duly admitted by the complainant as well as SIP. Investigating Officer in their respective examination- in-chief and cross-examination. It was further argued by the learned counsel that section 489-F, P.P.C. Is specific to the person who has issued the cheque and is to be associated with dishonesty.
7. Since the said cheque was never issued by the applicant therefore he could not be alleged to have committed the said offence. Per learned counsel the facts on record and as per deposition of the prosecution there is no ground for the conviction of the applicant and the trial Court has wrongly dismissed the application under section 249-A, Cr.P.C.
8. Per learned APG, the applicant was arrested after few hours of the registration of the F.I.R. It was candidly admitted by the learned APG that the cheque has not been issued by the applicant however applicant has committed offence under section 406, P.P.C. And could be convicted within the meaning of section 237, Cr.P.C. Learned counsel has also argued that the applicant has no right to prefer this application under section 561-A, Cr.P.C. And there is available remedy by filing the criminal miscellaneous application before the Sessions Court against the impugned order. Learned APG has relied upon the case of Bashir Ahmad v. Zafar-ul-Islam and others, PLD 2004 SC 298 has held that:-- "Of late, the incidence of quashing criminal cases which are under trial with the Court of competent jurisdiction by invoking powers under section 561-A, Cr.P.C. Is becoming increasingly frequent. It is time to take stock 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.
9. The correct import of the provision of section-561-A, Cr.P.C. May be summarized as under:
(i) The said provisions should never be understood to provide an additional or do alternate remedy nor could the same be used to override the express provisions of law;
(ii) the said powers can ordinarily be exercised only where no provision exists in the Code to cater for a situation or where the Code offers no remedy for the redress of the grievance;
(iii) inherent powers can be invoked to make a departure from the normal course prescribed by law only in exceptional cases of extraordinary nature and reasons must be offered to justify such deviation; and
(iv) in the matter of quashing criminal proceedings, the trial must ordinarily be permitted to take its regular course envisaged by law and the provisions of section 561-A, Cr.P.C. Should be invoked only in exceptional cases for reasons to be recorded."
10. Learned counsel for the complainant has argued that issuance of cheque has not been disputed which has been given to the complainant for breach of trust on the part of the applicant by way of usurping the shares of companies kept in the trust with the applicant. Learned counsel for the complainant has relied on the argument of the learned APG and states that after recording of evidence the applicant could be convicted within the meaning of section 237, Cr.P.C., under section 406, P.P.C. As the applicant has committed criminal breach of trust and has dishonestly misappropriated and converted to his own use shares deposited by the applicant. Per learned counsel since all the witnesses have not been examined therefore it is premature to say that case against the applicant should be quashed.
11. I have heard the learned counsel of the applicant, the complainant and the learned APG and perused the documents and reported case relied by them.
12. Admittedly the cheque has not been issued by the applicant and is not in the name of the complainant. However, from the available record it is established (subject to all just exceptions) that the cheque had been issued by the father of the applicant. The Bank Manager or any other prosecution witness who are yet to be examined will at the best only confirm that the cheque was issued by the father of the applicant. It is a foregone conclusion that on the basis of cheque issued by the father of the applicant the applicant cannot be convicted within the meaning of section 489-F, P.P.C. And it would be a fit case of quashment of the proceedings.
13. In Maqbool Rehman's case reported in 2002 SCM R 1076, cited by the learned counsel of the applicant it has been held by the Bench comprising of Rana Bhagwandas, Syed Deedar Hussain Shah and Hamid Ali Mirza, JJ as under:- "In law, section 561-A, Cr.P.C. Does not confer inherent jurisdiction on the High Court. It merely assumes that there is something as "inherent jurisdiction" and then it preserves it to enable the High Court to make such orders as may be necessary to give effect to an order under Criminal Procedure Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is true that ordinarily inherent powers of the Court should not be invoked because inherent powers are exercised in extraordinary cases in the interest of justice. Such powers do not extend to uncalled for and unwarranted interference with the procedure prescribed by law, which must always be followed. Normally, High Court does not exercise its inherent jurisdiction unless there is gross miscarriage of justice and interference by the High Court seems to be necessary to prevent abuse of process of Court or to secure the ends of justice. Jurisdiction under section 561-A, Cr.P.C. Is neither alternative nor additional in its nature and is to be rarely invoked only to secure the ends of justice so as to seek redress of grievance for which no other procedure is available and that the provisions should not be used to obstruct or direct the ordinary course of criminal procedure. This kind of jurisdiction is extraordinary in nature and designed to do substantial justice.
14. It is neither akin to appellate jurisdiction nor to the revisional jurisdiction. The source of the inherent jurisdiction of the Court is derived from its nature as a Court of law. What is inherent is a non- separable incident of a thing or an institution in which it inheres. Every Court, whether Civil or Criminal, must in the absence of express provision in the Code of Criminal Procedure be deemed to possess in its very constitution all such powers as are necessary to do right and to undo a wrong in the course of administration of justice. This concept of law is based on the principle 'when the law gives a person anything, it gives him that, without which it cannot exist". The High Court has, in view of its general jurisdiction over all the . Criminal Courts subordinate to it, inherent powers to give effect to any order of any such Court under the Code and to prevent the abuse of process of any such Court or otherwise to secure the ends of justice. --------- Complainant had launched the prosecution without any legal or moral justification-High Court was not debarred to quash the proceedings under section 561-A, Cr.P.C. In cases where either the charge had been framed by the Trial Court or the accused were summoned by a Court of law---Course of action adopted by the High Court was neither illegal nor arbitrary or opposed to the settled principles of law for dispensation of justice---High Court was under a duty to ensure that the process of law was not allowed to be misused and by passing the impugned order it had prevented the mischief and advanced the cause of justice---Proceedings amounted to sheer abuse of process of law and the same had been rightly quashed---Leave to appeal was refused to complainant by Supreme Court accordingly. ---S. 561-A---Quashing of proceedings---Scope---Proceedings can be quashed even after framing of charge in the case---Not incumbent upon Court to record evidence in all cases, wherein accused are summoned---Question as to whether to allow the prosecution to continue or to nip in the bud depends on the facts of each case."
15. However, there is a catch in the case. In the F.I.R. The offence stated is said to be of section 489-F, P.P.C., but on plain reading of F.I.R. It appears that there is also allegation against the applicant for criminal breach of trust as per the statement of the complainant as reflected in the F.I.R. It has been alleged that the complainant had handed over some shares of public limited companies in trust to the applicant and the applicant had dominion control over the said shares of the complainant, which he has dishonestly misappropriated and subject to all lawful exceptions, the trial Court after examining the material and evidence placed before it could charge the applicant for an offence under section 405, P.P.C. Within the ambit of section 237, Cr.P.C.
16. For the aforesaid reasons and discussions the application under section 561-A, Cr.P.C. Is hereby dismissed. However, the trial Court is E directed to conclude the trial within a period of two months on merits, strictly in accordance with law and on the basis of evidence adduced by the parties.
17. Office is directed to immediately send the R & P of the case to the trial Court along with a copy of this order.