' ROOH-UL-AMIN KHAN, J.---Through the instant petition under section 561-A, Cr.P.C, the petitioner seeks quashment of FIR No,4 dated 2-1-2014 registered under section 489-F, P.P.C. At Police Station Cantt: D.I. Khan.
2. Short facts giving rise to the instant petition are that Jamal Khan complainant submitted a written application to the District Police Officer, D.I. Khan for registration of a criminal case against the petitioner under sections 489-F/419/420/406/409/468/471, P.P.C., on the allegations that a criminal case under sections 302/34, P.P.C. Was registered against his co-villagers at Serai Mohajir, District Bhakkar for which they had to hire the services of a lawyer for pursuing their bail petition; that the petitioner was engaged as a counsel for them and agreed fee was paid to him. During pendency of bail petition, the petitioner demanded an amount of Rs,2,50,000/- on the pretext that it would be paid to the learned Judge as gratification for granting them relief and stated that till the decision of the case, the Advocate would be the custodian of amount and in case the bail is allowed, the same will be transferred to the learned Judge otherwise, the said amount will be returned to the complainant. After rejection of bail petition, the complainant demanded the amount from the petitioner. On 2-7-2013, however, the petitioner executed an Iqrarnama regarding return of the amount and lastly, on 4-10-2013, delivered a cheque for an amount of Rs,1,50,000/- drawn at United Bank Limited, Circular Road, D.I. Khan which was dishonoured on the ground of insufficiency of funds in the relevant account and difference in the signature of drawer.
3. The application of the complainant was marked to SHO Police Station Cantt: D.I. Khan who conducted inquiry and ultimately, the case FIR mentioned above was registered against the petitioner under section 489-F, P.P.C.
4. The learned counsel for the petitioner contended that the petitioner has been falsely implicated in the instant case., that the petitioner recorded his statement under section 161, Cr.P.0 before the local police wherein he denied the allegations levelled by the complainant and stated that he has nothing to do with the matter; that there is sufficient delay in lodging the FIR, hence the FIR is liable to be quashed.
5. As against that, learned counsel for the respondent contended that after the registration of case, the investigation is in progress and the petitioner has moved the Court of learned Sessions Judge for pre- arrest bail which is still pending and during this period, the instant petition has been filed just to linger on the petition for pre-arrest bail pending before the concerned Court. He contended that the FIR cannot be quashed, as the investigation is yet to be carried out and the petitioner can seek the proper remedy at proper time before the competent Court of law but no case is made out for quashment of FIR.
6. I have considered the arguments of learned counsel for the petitioner and perused the available record.
7. The perusal of record reveals that complainant has come up with certain allegations and justice demands that he may be given an opportunity to prove the same. The quashment of FIR, at the very initial stage is not warranted by law. At present, from available record prima facie case seems to exist against the petitioner. Thus, in the circumstances, ordinary course of trial is not to be deflected by resorting to quashment of the FIR. The inherent powers under section 561-A, Cr.P.C.
Can only be invoked in extraordinary cases, wherein no offence is made out even if the allegations made in the FIR are proved at the trial or when there is a case of no evidence at all or where there is a gross violation of any law or where drastic illegality has been pointed out, causing grave miscarriage of justice. The question of quashing the FIR has been answered by the apex Court in numerous cases particularly in Rana Shahid Ahmad Khan's case (2011 SCMR 1957) and Sher Afgan Niazi's case (2011 SCM R 1813), wherein it has been ruled that the powers under section 561-A, Cr.P.C.
Can certainly not be so utilized as to interrupt or divert the course of ordinary procedure as laid down in the procedural statute. From perusal of the relevant section i,e, 561-A, Cr.P.C. It is manifest that it does not authorize the Court to assume any new jurisdiction, rather can be exercised only where there is any abuse of process of Court. Moreso, during the trial the petitioner can invoke the provisions of sections 249-A or 265-K, Cr.P.C, as the case may be, before the learned trial Court when trial in the case is commenced. At the moment, I see no justification to quash the FIR.
8. To seek interference under section 561-A, Cr.P.C, three conditions are essential to be fulfilled; that the injustice which came to light; should not be of a trivial character; that the injustice which was noted was of a clear and palpable character and not of a doubtful character and that there existed no other provisions of law by which the party aggrieved could have sought relief. The power under section 561-A, Cr.P.C. Is extraordinary in its nature which could be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specially laid down by section itself, as its application in frequent and light manner would tend to circumvent the due process of law. The principles for invoking the inherent provision of section 561-A, Cr.P.C. Have been enunciated by the honourable Supreme Court of Pakistan in case titled Bashir Ahmad v. Zafrul- Islam (PLD 2004 SC 298) which are binding in nature. Such power ought not to be exercised capriciously or arbitrarily, but should be exercised (ex debito justitiae) to do real and substantial justice for the administration of which alone Courts exist. The 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 but should not be used to obstruct or direct the ordinary course of Criminal Procedure. Such jurisdiction is designed to do substantial justice and the same is neither akin to appellate jurisdiction nor to the revisional jurisdiction. Such powers do not extend to uncalled for and unwarranted interference which the procedure prescribed by law, which must always be followed.
9. I deem it appropriate to refrain from making any observations about the merits of the case, lest it may prejudice the case of either party during the trial, suffice it to say, that the grounds urged here hardly furnish any justification for quashment of the FIR in exercise of the inherent jurisdiction under section 561-A, Cr.P.C. By now, law is settled by the apex Court that if, prima facie, an offence has been committed, the ordinary course of trial, before the competent Court, is not to be deflected by resorting to exercise of inherent jurisdiction.
10. The jurisdiction under section 561-A, Cr.P.C. Is only to fill in lacunae, existing in the Code of Criminal Procedure, in the matters, for which no specific provision or remedy has been provided. It would not be frequently applied for determining the guilt or innocence of an accused at premature stage. The august Supreme Court of Pakistan, through various pronouncements, has disapproved stifling and thwarting of Criminal Procedure, as it is against the scheme provided by the Criminal Procedure. In this respect, wisdom may be derived from the judgment in Rana Shahid and Sher Afgan cases (supra) .
11. For the reasons mentioned above, the instant petition being C bereft of any merit and substance is -hereby dismissed.
12. Before parting with the judgment, I deem it obligatory to lay emphasis on the profession of law which ordains high level of ethics as much in the means as in the ends. Justice cannot be attained without the stream being pellucid throughout its course and that is of great public concern, not merely professional care. The canons of ethics and propriety for the legal profession totally taboo conduct by way of soliciting, advertising, scrambling and other obnoxious practices, subtle or clumsy for betterment of legal business. Law is no trade, briefs no merchandize and so the leaven of commercial competition procurement should not vulgarise the legal profession.
13. The central function of the legal profession is to promote the administration of justice. If the practice of law is thus a public utility of great implications and a monopoly is statutorily granted by the nation, it obligates the lawyer to observe scrupulously and with great conscientiousness those norms which make him worthy of the confidence of the community in him as a vehicle of justice- social justice. Lawyers are officers of the Court and they are responsible to the judiciary for the propriety of their professional activities. Within that context, the legal profession has been granted powers, of self-government. Self-regulation helps maintain the legal profession's independence from undue government domination. The lawyer cannot behave with doubtful scruples or strive to thrive on litigation. Canons of conduct cannot be crystalised into rigid rules but felt by the collective conscience of the practitioners as right. It is necessary to stress that courage, intellectual honesty and moral independence ought to be chief ornaments of the advocate's personality.
14. Here it would not be out of place to mention that lawyers are not sold by executing power of attorney, they act under the authority to present the client's cause to the best of abilities but one who intends to sell lawyer's office by executing power of attorney in negative way obviously it is professional misconduct entailing punishments provided by Legal Practitioner and Bar Council Act, Pakistan Penal Code etc. I deem it appropriate, rather my obligation to quote an American jurist, who portrayed the lawyer on the following sentiments:--- "I love our common profession, and love all who honour it. I regard it as the great ornament and one of the chief defences and securities of our institutes. It is indispensable to and constructive of public liberty. I honour it from the bottom of my heart. If I am anything it is the law, that notable profession, that sublimes science, which we all pursue, that has made me, what I am. It has been my ambition, nay with my youth to be thought worthy to be ranked under the banner of that profession."
15. Learned counsel for the respondent pointed out that the petitioner is not a practicing lawyer, anyway, I would not go into that controversy. However, copy of this judgment be sent to Chairman, Khyber Pakhtunkhwa Bar Council through Registrar of this Court for information and further necessary action, if any, at that end.