Zaheer-ud-Din Kakar, J.--In this Constitutional Petition, the petitioner has made the following prayer: "It is therefore, respectfully prayed that keeping in view the submissions made herein-above, this Hon'ble Court may kindly be pleased to quash the impugned order sheet dated 25.3.2017 passed by the learned Respondent No, 1, in the interest of justice, equity and fair play."
2. Precisely stated facts of the case are that one Nazar Khan filed Miscellaneous Application No, 29 of 2016, under Section 491 of the, Cr.P.C.; before the Court of Sessions Judge, Zhob (Respondent No, 1) seeking recovery of three detainees viz his son namely Sarfraz, Hussain Khan and Sabir. After registration of application, Tehsildar along with his reader was called, who did appear along with book of F.LR and on query about illegal detention of three detainees, Tehsildar showed ignorance and denied their illegal detention, statements of Tehsildar and Reader were recorded, while the Respondent No, 1 visited the lock-up of Levies Thana, Zhob along with Tehsildar, Superintendent of Sessions Court and other levies officials, where Muharar of the thana told him that no person has been detained in the lock-up and also produced the Roznamcha. The In-charge of the lockup told the Respondent No, 1 that the above named three persons were kept in lock-up by the In-charge of Special Levies Squad namely Fazil Shah without lodging any F.I.R and the said persons were got released. The Respondent No, 1 summoned the detainees and their statements were recorded, wherein they stated that they had been kept in Levies Thana, Zhob by Fazil Shah for six days. On 21.11.2016, the Respondent No, 1 directed the SHO to lodge F.I.R against Fazil Shah, In-charge of Levies Squad Zhob and Muharar Bahar Shah under Section 220, 342, 109, PPC, after taking application from Nazar Khan. Thereafter, on the application of Nazar Khan, F.I.R No, 129 of a 16 under Section 220, 342, 109, 34, PPC was registered against Fazil Shah.
3. On 25.3.2017, the Respondent No, 1 passed the following order "the impugned order": "Case called. Mr. Saifullah Khan Advocate along with accused Bahar Khan and Fazil Shah on bail are present. Mr. Muhammad Saleem Khatak is also in attendance. On the previous date of hearing, arguments had been heard over the application under Section 265-K, Cr.P.C. filed by the accused Bahar Khan. The same is accepted through separate order and accused Bahar Shah is acquitted of the charge. Furthermore, on perusal of the entire case record and statements of the witnesses namely Hussain son of Allah Dad, Sabir Shah son of Qasim, Salah-ud-din Risaldar Levies Thana, Zhob and Shah Muhammad Head Constable Levies Thana Zhob viz-a-viz the contents of FIR and the alleged Sections 220, 342, 109, PPC; this Court is prima facie of considered opinion that the Deputy Commissioner, Zhob has to be called to face his trial as he has been attributed a role which is akin to the role of the accused before the Court Fazil Shah. Therefore, Mr. Muhammad Azeem Kakar (Deputy Commissioner, Zhob at the time of alleged commission of offence) is hereby called upon to face his trial in the instant case. Let the notice be issued for appearance of Mr. Muhammad Azeem Kakar. To come up on 4.4.2017 for the stated purpose." (underlining is provided by us for emphasis).
4. Feeling aggrieved from above underlined portion of the impugned order, the petitioner filed the instant petition.
5. Learned counsel for the petitioner contended that the impugned order passed by the Respondent No, 1 is contrary to law, facts, as such, the same is liable to be quashed; that by virtue of impugned order, the Respondent No, 1 in slipshod manner has called upon the petitioner to face trial in a criminal case, which otherwise has no nexus with the petitioner. Finally, he prayed for quashment of impugned order.
6. We have heard the learned counsel for the petitioner and have gone through the record. From perusal of the record it appears that on 10.5.2017, the petitioner appeared before this Court and the learned counsel for the petitioner informed this Court that the petitioner has appeared before the trial Court, where bail has been granted in his favour on 5.5.2017. He further stated that charge has already been framed against the petitioner on the same date.
7. In the present case, the petitioner is charged for the offences punishable under Sections 343, 220, 109, 34, PPC. The allegation is that he being public servant wrongfully confined complainant's son namely Sarfraz for six days, prior to 22.11.2016, whereas two of his son's friend namely Hussain Khan and Sabir Khan for nine days prior to the stated date, illegally at Levies Thana Headquarter, Zhob.
Admittedly, the petitioner sought quashment of order dated 25.3.2017, whereby he was summoned to face the trial. In fact he sought acquittal from the charge at a premature stage. Though charge has already been framed, but the evidence is yet to come. Section 265-K, Cr.P.C. placed discretion with a trial Court to acquit an accused at any stage of the case. This section provides to the trial Court co-extensive power available to a High Court under Section 561A, Cr.P.C. and both can be resorted to. Therefore, petitioner seeking quashment of criminal case without availing of the alternate remedy provided under Section 265-K, Cr.P.C. it would be only competent when the petitioner is handicapped in availing of alternate remedy under Section 265-K, Cr.P.C. for acquittal.
The proposition of law that jurisdiction for quashment of criminal proceedings is of an extraordinary nature to be used only in extraordinary cases where no other remedy is available, is beyond controversy. Therefore, when remedy under Section 265-K, Cr.P.C. is available to the petitioner, he could not move this Court to quash the impugned order.
8. It has been held in the case titled Ghulam Muhammad v. Muzammil Khan and 4 other reported in PLD 1967 SC 317 that remedy for quashment of proceedings is not available when alternate remedy is available in the shape of Sections 265-K and 249-A, Cr.P.C. Honourable Supreme Court has observed that quashment proceedings at early stage is neither permissible nor preferred and every criminal case should be allowed to proceed on its merits. Reliance .is placed on decision given in the cases of Akbar Hussain v. M.M.K.A Zai reported in 1968 SCM R 386 + Nasir Ali v. Munshi Mehar Khan reported in PLD 1981 SC 607 and Raja Haq Nawaz v. Muhammad Afzal and 4 others reported in 1971 SCM R 698.
9. For what has been discussed above, the instant petition having no force is dismissed in limine.