MALIK HAQ NAWAZ, J.---The above two petitions filed under section 561-A Cr.P.C, involves same question of law and facts, therefore, both these petitions are being disposed of through this single judgment. The precise facts of the petitions are as under:- Cr. Misc. 83/2016 Ijlal Hussain v. The State
2. The allegations contained in the FIR No, 20/15 against the petitioner/accused are that while employed in the Utility Store No,21, Challat, he embezzled an amount of Rs, 27,41,308/- and after holding an inquiry bearing No, 12/2014, he was found prima facie involved in the commission of offence and accordingly the above FIR was lodged against him.
Cr. Misc. 84/2016 Zain-ul-Ibad v. The State
3. The petitioner/accused was involved in embezzlement of Rs,11,38,720/= while employed with the Utility Store No, 108 Rakaposhi Nagar in the year 2013 and after inquiry he was found prima facie involved in the case and FIR No, 21/2015 was lodged against him at police station FIA Gilgit.
4. Both the petitioners/accused have approached this Court through the petitions under section 561-A, Cr.P.C., for quashment of FIR.
5. The learned counsel for the petitioners Raja Zia-ur-Rahman submitted at bar that the petitioner Ijlal Hussain was employed as a cashier/clerk in Utility Store and petitioner Zain-ul-Ibad was employed as a daily wager, and stricto sensu, they were not "Government Servants" as enumerated in section 21, P.P.C., the very lodging of FIR was not only illegal, unwarranted and without lawful authority and their trial on the basis of a defective FIR, would be nullity in the eyes of law.
6. On the other hand the learned Deputy Attorney General 'submitted that both the petitioners/accused while employed in Utility Stores committed criminal breach of trust and after holding preliminary inquiry, they were found involved in the case. The inquiry has been conducted in.a fair and transparent manner and the petitioners/accused were provided full opportunity to defend themselves. Per learned Special Prosecutor, the petitioners are involved in a case of heinous nature and technical defect, if any should not be exploited in favour of petitioners/accused.
7. After hearing the learned counsel for both the parties and going through the record with their valuable assistance, the learned counsel for the petitioners was asked as to why he opted to resort to this Court and did not avail the remedy available to him under section 265-K, Cr.P.C., the learned counsel submits that since challan of both the cases were not put in the Court, therefore, he has approached this Court for quashment of proceedings.
8. The provisions of section 561-A, Cr.P.C., are extra ordinary and cannot and should not be exercised as and when any alternate remedy is available under law. The powers are only meant to be exercised, when no alternate remedy is available and the Court feels that dictate of justice demand exercise of powers under section 561-A, Cr.P.C.
9. In both of the above cases as conceded by the learned counsel for the petitioners/accused that investigation of both the cases is underway and challan of these cases have not yet been submitted in the Court.
10. The Chief Court in exercise of its powers under section 561-A, Cr.P.C., is not competent to quash the FIR. Where challan of the cases was not submitted in the Court, when the instant petitions were filed in this Court. The Chief Court under its inherent powers may quash judicial proceedings if it comes to the conclusion that proceedings against an accused . Would amount to abuse of process of Court. Since no proceedings were pending by the time the instant petitions were filed, the question of preventing process of any Court did not arise.
11. The language of section 561-A, Cr.P.C., is very clear and after plain reading of the above section it is clear that nothing in the Criminal Procedure Code will curtail or limit the inherent powers of a High Court to make such orders as may be-necessary to give effect to prevent the abuse of process of any Court or otherwise to secure the ends of justice.
12. In the above two cases neither any order was made by any Court or any process were issued, which are pre-requisite for exercise of extra ordinary justification under section 561-A, Cr.P.C. The High Court as already discussed should not quash any FIR on the ground of mala fides or on those grounds, where some legal as well as factual controversies are involved and such matters are left for the trial Court, where both the parties are provided level playing field to plead/prosecute their cases. Where a plain reading of FIR gives an idea about the case and expected evidence and mind of the Court is clear that accused may not be convicted on the basis of such evidence, but when the challan has not been submitted in the Court and if FIR does give such details, which is ultimately to be led against the accused, it would be appropriate for the accused to move/seek remedy in the trial Court at the first instance.
13. The result of above discussion is that both the above petitions are declined being pre-mature and meritless. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.