1. This is an application under section 561-A, Cr. P. C. For the quashment of criminal proceedings pending before the Court of Sessions against the petitioners under section 302/34, P. P. C.
2. According to the application, a report (F. I. R. No. 384) was lodged in the police station by Safdar Ali son of Sultan Muhammad Khan, resident of Mohallah Marviha, Peshawar City, against the petitioners charging them for committing the murder of Javid Muhammad, husband of petitioner No. 2, by administering poison to him in food. A case was registered under section 302/34, P. P. C.
3. And petitioners were arrested but later on they were admitted to bail. The Magistrate sent the case for trial to the Court of Session and 31-5-1981 was fixed for attendance of the accused and the witnesses.
4. In the F. I. R. Safdar Ali has alleged that Javid Muhammad was his real brother who had married Mst. Nargas, daughter of Tila Muhammad, resident of Bazar Kalan, Peshawar City in February, 1980 that on 13th April, 1980, the deceased went to the house of his father-in-law and took evening meal there and when returned to his house he started vomiting with convulsion and before any medical aid could be given to him, he expired, that complainant Safdar Ali was not present in his home town during those days and on his return he got information that the wife of deceased, Mst. Nargas, has left the house of her deceased husband with bags and baggages and was living in the house of her parents ; that a conspiracy was hatched up by the housed/petitioners who called the deceased to their house for meal on the night of occurrence and administered him poison in the food. The complainant also requested the authorities to exhume the dead body of the deceased and an inquiry be made into the matter.
5. The Police held inquiry under section 156(3), Cr. P. C. Be exhuming the dead body of the deceased in the presence of Magistrate and took some pieces from his stomach etc. And sent to the chemical examiner. The chemical examiner reported that insecticide belonging to chlorinated hydrocarbon group was found in items mentioned at Serial Nos. 5, 6, 7 and 8, containing parts of his stomach, liver, spleen and kidney.
6. The learned counsel for the petitioners contended that deceased Javaid Muhammad died sometime in the month of April, 1980, whereas the case was registered on 8th October, 1980, i.e. After about six months; that there is no evidence worth-the-name to connect the accused/petitioners with the commission of offence ; that it cannot be believed that the food which was taken jointly by other members of the family of the petitioners, the deceased could be the only victim of poison as alleged by the prosecution ; that literally there is no ocular, circumstantial or corroborative evidence to believe that the accused /petitioners had any hand in causing the death of the deceased ; that other members of the family of the deceased were present when the deceased returned from the house of his father-in-law and had there been any reason for a foul-play, they would have reported the matter to the Police, but no such evidence is forthcoming on the record.
7. The learned counsel for the petitioners also referred to case-law. He relied upon 1981 P Cr. L J 614 (Karachi, June Part) to show that the petitioners have been dragged in Court with a view to harass them. The facts of that case are that the complainant owned land in village Taluka Digrim, District Tharparkar. He was returning from the watercourse along with 20/22 persons and while he passed by the land of the petitioners, the latter gave him beating with hatchets and lathis etc. A message was sent to the father of the complainant and his father Abdul Ghaffar accompanied by other persons reached the spot. They were also beaten with fists and kicks as well as lathis. That earlier to this incident, the father of complainant had filed a civil suit against the petitioners which was pending in the Court of Civil Judge, Mirpurkhas. It was observed by the learned Judge that the existence of the case against the petitioners was a clear cut abuse of the process of Court which had been filed to cause harassm ent to the petitioners and thus, in the opinion of the learned Judge, no result in furtherance of justice could be secured if the proceedings were allowed to be continued. He therefore came to the conclusion that the petitioners had been dragged in the Court only with a view to pressurize them in the matter for which a civil suit had already been filed. In that case, the contention of the learned counsel for the respondent was that the petitioners had not approached the trial Court under section 249-A, Cr. P. C. And further there was another remedy opened to them by filing a revision application which also had not been availed of by them and thus the application was liable to be dismissed.
8. The learned counsel for the petitioners next relied upon an authority from the Supreme Court of Azad Jammu & Kashmir reported in PLD 1981 Azad J & K 110 wherein it was held that the inherent powers of the High Court are wide and under section 561-A, Cr. P. C. The High Court, in the absence of an express provision in the Code, is empowered to meet the requirements of a particular case and pass any order as the ends of justice may require and that under the said section the High Court is also empowered to interfere even at interlocutory stage of criminal proceedings to prevent abuse of powers of any Court, because these powers are very wide, extraordinary in nature and limitless, but the High Court must be careful to see that its decision is based on sound general principles of criminal jurisdiction and is not in conflict with them and that such powers can be exercised to do real and substantial justice and prevent abuse of the process of the Court, but where another remedy is available, the inherent jurisdiction should not normally be invoked.
9. Sahibzada Akhtar Munir, the learned Assistant Advocate-General, however, contended that in view of section 265-K, the present application is not competent, as this section says that "nothing in Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if after hearing the prosecutor and the accused and for reasons to be recorded, it considered that there is no probability of the accused being convicted of any offence.
10. The learned Assistant Advocate-General in support of his argument cited 1979 SCMR 94 by which the Hon'ble Judges of the Supreme Court upheld the order of a learned Single Judge of the High Court dismissing application for quashment of criminal proceedings against the accused. The contention of the learned counsel for the accused before the Supreme Court was that as the only prosecution witness has already been examined and he has not supported the prosecution case, there is absolutely no possibility of the accused being convicted and the continuation of their prosecution would be highly unjust and an abuse of the process of the Court. The Hon'ble Judges of the Supreme Court repelled this contention and observed as under :- " . . . We find that out of thirteen witnesses on the list five have already been examined and Abdul Ghani, who was passenger of the wagon is the sole witness who was to depose as to the participa- -tion of the present petitioners in the transaction. It is further correct that from the copy of the statement made by Abdul Ghani P. W. Shown to us, he has exonerated the petitioners and it appears, prima facie, that there is no other material on the record, nor is any (other) likely to be available, to implicate the petitioners in the transaction. However, the learned Assistant Advocate- General brought to our attention the provision of section 249-A recently added to the Criminal Procedure Code by Ordinance XXXVI of 1977, which are as under :- 249-A. Power of Magistrate to acquit accused at any stage.---Nothing in this Chapter shall be deemed to prevent a Magistrate from acquitting an accused at any stage of the case if, after hearing the prosecutor and the accused and for reasons to be recorded, he considers that the charge is groundless or that there is no probability of the accused being convicted of any offence."
11. He has also drawn our attention to the following observations made by this Court in Ghulam Muhammad v. Muzammal Khan :- "The inherent jurisdiction given by section 561-A is not an alternative jurisdiction or an additional jurisdiction but is a jurisdiction preserved in the interest of justice to redress grievances 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 state.
12. It has been argued that an alternative remedy being available to the petitioners, namely, the provisions of section 249-A, Cr. P. C., the resort could not be made to the provision of section 561-A, Cr. P. C. There is some force in this submission and we are inclined to agree with it."
13. It was further observed :- "However, under the law, as it now stands, the trial Magistrate can acquit the petitioner under section 249-A, Cr. P. C. At any stage of the proceedings and in these circumstances the most appropriate remedy for the petitioners appears to be to request the trial Magistrate to consider their case under the above provisions of the law. The learned trial Magistrate should thereupon, apply his mind to this aspect of the matter and in the first instance, before, proceeding any further with the proceeding decide whether the petitioners are entitled to be acquitted in terms of section 249-A, Cr. P. C."
14. In another case reported in PLD 1980 Kar. 49 it was held :- "The upshot of the above discussion is that jurisdiction of the High Court under section 561-A, Cr. P.
15. C. Is available as it is not expressly barred by the Customs Act, 1969, and is co-extensive with the powers of the trial Court under the said Act under section 265-K, Cr. P. C. And first resort may be made to the remedy available in the Court of Special Judge and only in exceptional and special circumstances High Court would exercise jurisdiction under section 561-A, Cr. P. C."
16. The learned Judges for the reasons stated in the judgment held that the application under section 561-A, Cr. P. C. Is dismissed as premature with a direction to the learned Special Judge to record evidence of the material witnesses proposed to be produced by the prosecution in support of the charge within 15 days from the date of this order and it is open to the applicant to apply for remedy available in the trial as permitted under law, if so advised.
17. Thus I find that the test laid down for interference in pending criminal proceedings is that if the proceedings are allowed to be continued, it would result in grave miscarriage of justice and there would be no other provision of law by which the aggrieved party would seek relief. The inherent jurisdiction of the High Court should not normally be invoked where another remedy is available.
18. The inherent powers ought to be exercised only to prevent abuse of the process of the Court and in order to advance the interest of justice. The High Court may quash proceedings which do no contain any definite or clear accusation or the accusation made does not disclose the commission of any offence, otherwise the quashment of proceed--ings at an early stage where no evidence has been recorded would give a impression of stifling of criminal proceedings. If the allegations made in the case do not disclose any offence, it is for the trial Court to weigh the evidence and determine whether the allegations are true or false. The proceedings cannot be quashed simply for the reason that the accused ha claimed that the allegations against him are false and fantastic.
19. The test laid down also is that the allegations in the complaint taken at their face-value and accepted in their entirety should not constitute an offence as alleged.
20. In the circumstances of the instant case, it was submitted that the petitioners should have waited for the commencement of the proceedings. It was also argued that the provisions of section 561-A, Cr. P. C. Are exceptional and are not meant to be used as a substitute for the provision regarding other remedy existing in the Code. The extraordinary powers in this section, as far as possible, ought to be reserved for and exercised in real exceptional cases and ought not to be used usually when there is another remedy.
21. On going through the facts of the case, I agree with the learned Assistant Advocate-General that this application is premature. The trial Court seized of the matter has vast powers under sections 249-A and 265-K, Cr. P. C., but these powers should be used judiciously. It would apply its mind to the facts of the case and the points if so raised by the defence, and thereafter take a decision either to proceed with the case or act according to the provisions of the aforesaid two sections.
22. This application is accordingly rejected. Record of the case is sent back to the Court with the direction to decide the case expeditiously.