' SHAHNAWAZ TARIQ, J.--- Through captioned miscellaneous application, applicants have impugned order dated 06.03.2015, passed by the Court of learned Ist Additional Sessions Judge, Sukkur, whereby Direct Complaint No,8 of 2015, Re-Muhammad Pannah v. Aijaz Hussain and others, was brought on record and B.Ws. Were issued against each of the applicants.
2. Relevant facts spelt out from instant Misc. Application are that respondent is a financially sound person and running his business in the name and style of Descent Tailors. Parties are on inimical terms and there disputes are going on since long. On 18.01.2015 at about 9-00 p.m., respondent along with his family members, was available in his house, and there was a knock at the door of house and he opened and accused namely Zahid Hussain, Aijaz Hussain, Shahid Hussain, Sajid Hussain and Jan Muhammad duly armed with TT pistols forcibly entered into his house by pushing him and they severely maltreated the respondent and his family members with butts, fists and kicks blows. Accused persons broke the Almirah and robbed Rs,75000/- cash, gold ornaments viz one chain weighing 1-1/2 tola, 2 gold rings of 1 tola each, one golden set weighing about 5 tola and 4 bangles each 4 tola, total worth Rs,3,50,000/-. Accused persons pointed their pistols upon the respondent and his family and also issued threats for dire consequences upon which respondent and his family prayed for mercy and they fled away from the spot. It is further averred that complainant and his family members raised cries, Mohallah people gathered there and they rescued them by opening the door of the room. Subsequently, respondent along with his witnesses approached SHO Police Station 'A' Section, Sukkur, for lodgment of FIR but due to influence of proposed accused, police refused to lodge the same, hence instant direct complaint.
3. Learned counsel for applicants contended that parties are close relatives and inimical over matrimonial affairs; that Mst. Rukia, sister of applicants was married with one Arbab, brother-in-law of respondent, while in exchange Mst. Rehana, sister of said Arbab, was married with applicant Aijaz Hussain; that respondent party had lodged FIRs and direct complaints, which were ultimately disposed of in 'B' and 'C' Class; that FIR No,21 of 2015 on 08.01.2015, regarding commission of the theft of gold ornaments at Police Station Shahra-e-Faisal, against applicants Shahid and Zahid, which was ultimately disposed of in 'B' Class and summary report was accepted by learned Magistrate; that respondent has narrated different false stories in the memo of direct complaint and in his statement recorded by the learned Magistrate; that witnesses have also deposed in contradictory manners, which prima facie proves that instant complaint has been lodged with ulterior motive; that per statement of respondent, after causing maltreatment and robbing articles, accused persons fled away from the spot and subsequently on cries, witnesses were attracted and they opened the door of the room, hence they are not natural eye-witnesses; that houses of respondent and both witnesses are situated in different area of Sukkur, hence neither they are neighbours nor eye-witnesses; that since years, respondent and his relatives are implicating the applicants in different cases by alleging a false stories in order to settle their account of enmity, hence order passed by learned trial Court is liable to be set aside. Learned counsel. Has relied on the case law reported as Noor Muhammad v. The State and others (PLD 2007 SC 9), Muhammad Khalid Mukhtar v. The State through Deputy Director, F.LA (C.B.A) Lahore (1997 SCMR 275), Gul Muhammad v. The State (2015 PCr.LJ 1329), Miraj Khan v. Gul Ahmed and 3 others (2000 SCMR 122), Mst.Marium Tariq and others v. SHO P.S. Police Station Defence and others (PLD 2015 Sindh 382), Muhammad Usman Sabhayo v. Fatuhal Khan and another (2003 YLR 73), Mian Munir Ahmed v. The State (1985 SCMR 257), Muhammad Adam and 2 others v. The State and another (1993 PCr.LJ 504) and. Abdul.
Wahab Khan v. Muhammad Nawaz and others (2000 SCMR 1904).
4. While controverting above submissions, learned counsel for respondent vehemently contended that during preliminary enquiry conducted by learned trial Court, prima facie offence has been proved by the respondent, and direct complaint filed by respondent was brought on record, which is pending for recording of evidence of complainant and his witnesses, hence such order cannot be agitated before the High Court through instant miscellaneous application; that respondent and his witnesses have fully supported the averments of direct complaint, and it is for the learned trial court to record their statements to thresh out the truth regarding the occurrence of incident; that respondent has only lodged one FIR No,21 of 2015 against the applicants, while rest of the cases were lodged by one Abdul Sami. Learned counsel relied upon PLD 1999 SC 375 and PLD 2007 SC 9.
5. Learned APG supported the arguments advanced by learned counsel for applicants and resisted the taking of cognizance by the learned trial Court through impugned order. He further contended that respondent in his statement recorded in the direct complaint, has not stated that accused persons locked the door of room from outer side and simply stated that after robbing articles they fled away from spot, hence witnesses are not eye-witnesses of the incident but they are chance witnesses. He further pointed out that statements of respondent and his witnesses are contradictory to each other regarding total number of accused, raising cries, opening of the door and reaching of the witnesses at the spot. He further emphasis that both the witnesses have deposed in contradictory manners.
6. Heard learned counsel for the parties and perused the available record prudently.
7. Perusal of record reflects that the factum of animosity is reflected from the lodgment of FIRs Nos.181 of 2014, 21 of 2015, Direct Complaint No,3 of 2015, Professional Misconduct Case No,16 of 2015 and Cr. Misc. Application No,1001 of 2014, lodged by the respondent party before the respective forums, which were ultimately disposed of. From perusal of FIRs, direct complaint and Professional Misconduct case it is reflected that respondent and his son-in-law Abdul Sami have leveled series of false allegations against the applicants, which prima facie show their conduct and character, as they are bent upon to implicate the applicants in one or another case only to settle their account of animosity. Perusal of the averments of direct complaint, statement of respondent and his witnesses, it is crystal clear that they have deposed in contradictory manners and failed to corroborate each other. In the averments of direct complaint, respondent has stated that A after commission of alleged offence, accused fled away from the spot and subsequently on the cries of respondent and his family members both the witnesses were attracted and they opened the door of room where allegedly respondent and his family members were confined. Admittedly, respondent is resident of near Markazi Imam Bargah Waritar Road, Sukkur, while witness Muhammad Panjal is residing at Military Road, Bashirabad, Sukkur, and witness Altaf Hussain is resident of Agha Rafiq Hussain Colony, Sukkur, which are situated in different areas of Sukkur City with the distances of kilometers, thus both witnesses are neither neighbours nor natural eye- witnesses nor could attracted on cries raised by the respondent and instant alone aspect is fatal to the entire allegations leveled in the complaint.
8. It is well settled that while taking cognizance in direct complaint, Court must examine entire material, motive and previous animosity going on between the parties while bringing the direct complaint on record, and also keep in mind the lengthy litigation, mental agony and financial constrains being suffered by an innocent person. If complaint reflects malicious, mischievous and ulterior motives on the part of complainant, such pretended, false and frivolous complaints should be buried at their inception which ultimately would be resulted in acquittal of proposed accused. In the case of Abdul Wahab Khan (supra), the honourable Supreme Court has observed that complaint can be dismissed without having preliminary inquiry as no such embargo has been placed on the Court concerned. However, such discretion must be exercised judiciously with diligent application of mind and not in an arbitrary or capricious manner. Provisions of sections 202, 203, and 204, Cr.P.C., if read together would show that proper safeguard has been provided by the Legislature in this regard showing its intention by using the words "if any" and "sufficient grounds for any" in section 203, Cr.P.C. And accordingly the frivolous and vexatious complaints must be buried at their inception where no prima facie case is made out.
9. Section 561-A, Cr.P.C. Confers wide and ultimate inherent powers to High Court to exercise its jurisdiction where such orders of necessary to give effect to any order under Criminal Procedure Code or to preclude misapplication of process of any Court to ensure the dispensation of justice.
' Section 561-A, Cr.P.C. Assigns supervisory role to the High Court to ensure utmost care and caution while exercising such powers when there is apprehension of gross miscarriage of justice or to save a party from harassm ent when registration of case is proved to be mala fide on face of record.
There is no embargo upon the High Court while exercising such authority if, prima facie, reflects that further trial of the case would be a futile exercise and absolutely wastage of time. (Reliance is placed on 1996 SCMR 325 and 1982 SCMR 215).
10. In the case of Mian Munir Ahmed (supra), the honourable Supreme Court has observed that High Court is empowered to exercise its jurisdiction under section 561-A, Cr.P.C. With respect to proceedings pending before any Court, whether subordinate to High Court or not, unless offence being tried is an offence under any law other than Pakistan Penal Code and power has been specifically taken away by any enactment relating to said (Special) Law. In the case of Miraj Khan (supra), the honourable Supreme Court has held that High Court in exceptional cases can exercise jurisdiction under section 561-A, Cr.P.C., if the facts of the case so warrant. Main consideration to be kept in view would be whether the continuance of the proceedings before the trial forum would be futile exercise, wastage of time and abuse of process of Court or not. If on the basis of facts admitted and patent on record no offence can be made out, then it would amount to abuse of process of law to allow the prosecution to continue with the trial.
11. It is significant to mention that disposal of all FIRs and dismissal of direct complaints filed by complainant party reflects that they have been lodging false cases against applicants. In present event, complainant neither approached the police for lodgment of FIR nor filed criminal miscellaneous application under section 22-A Cr.P.C. Before the Justice of Peace for seeking direction to the police for recording his statement under section 154, Cr.P.C. Because he was well aware that during investigation of the alleged incident, real facts and his previous conduct would come out and case would definitely meet with the similar fate, thus he directly preferred a direct complaint against applicants, knowingly that applicants Nos.1 and 2 are advocates by their profession and they are regularly practicing at Karachi. Consequently, mala fides and ulterior motive are clear on the part of the complainant for false implication of the applicants in the alleged incident. Statements of the complainant and his witnesses brought on record, being in conflict with each other, prima facie, established that entire case is lacking any strong base to stand on its legs and bound to end in acquittal of the accused.
12. Indeed, allegations made in the direct complaint clearly seems to be preposterous, ridiculous and appeared to have been added only to justify the filing of the criminal case. No offence even on admitted facts could be made out against applicants, in view of available material as well as lodgment of false cases and complaints by the complainant which, prima facie, established that instant direct complaint has been lodged with ulterior motive and under the wave of animosity.
Considering the entire scenario, it is crystal clear that complainant/respondent has not approached the learned trial Court with clean hands and he has filed direct complaint only to settle his account of previous enmity going on between the parties on matrimonial affairs, therefore, further proceedings in the Trial Court on the basis of impugned direct complaint would have been absolute wastage of time.
13. For the facts and circumstances referred supra, I am of the considered view that learned trial Court has committed serious illegality and material infirmity while taking cognizance in direct complaint while passing impugned order, which calls for interference by this Court. Consequently, order dated 06.03.2015, passed by the Court of learned Ist Additional Sessions Judge, Sukkur, in Direct Complaint No,8 of 2015, is set-aside and all the subsequent events and proceedings arisen out of the impugned order stands quashed.