MUHAMMAD SALEEM JESSAR, J.---Applicant Zameer Bohio is an accused of Crime No,17/2017 registered with Police. Station Hingorja under sections 427, 379', P.P.C.; is aggrieved by the order dated 02.05.2417 whereby learned Magistrate by concurring his opinion with police report viz second investigation has accepted the challan; took cognizance of the case and ordered for issuance of NBWs against absconder accused while notice to present applicant and co-accused Abdul Latif and Nazeer who have been granted bail by the competent Court of law having jurisdiction.
2. The crux of prosecution case, as unfolded by Raheem Bux Sahito in his FIR No,17/2017, are that he has obtained the land on lease in which mustard crop and live trees of acacia are standing. On fateful day he was available at his land where accused Zameer Hussain (present applicant), 2.
Abdul Lateef,
3. Nazeer,
4. Shareef Bhutto along with two unknown accused, duly armed with pistols, were cutting the standing trees of acacia with cutter and hatchets and stolen away by keeping pieces of trees on donkey cart within their sight. Due to weapons the complainant party could not resist and remained mum. Later they noticed three trees were cut off and stolen away and due to falling down of the trees, the standing crop had also sustained damages. The complainant narrated above facts to one Mumtaz Hussain Sahito, Nekmard of his village, who asked that he would try to get stolen trees returned or may hold Faisla but accused did not turn at the call of Nekmard and ultimately on his advise present FIR was lodged.
3. After registration of case police took-up investigation, during the investigation instant case was found false therefore police have disposed of FIR under false 'B' Class with such recommendation, the papers were submitted before learned Magistrate. The learned Magistrate after scrutinizing the investigation papers did not agree with police report and directed the SSP concerned to conduct fresh/second investigation into the allegations contained in FIR by his order dated 29.03.2017. In compliance of his order the matter was reinvestigated and the, charge-sheet dated 26.04.2017in terms of section 173, Cr.P.C. was submitted by the I.O. before the concerned Court having jurisdiction. The learned Magistrate after accepting the challan/charge-sheet took cognizance of the case vide impugned order dated 02.05.2017 and the case against the applicant and others was instituted being Crl. Case No,68/2017 re-State v. Zameer Hussain and others.
4. Learned counsel for the applicant states that the FIR, lodged by complainant, is false one and prior to this he had filed 02 FIRs against the accused in which, he has been acquitted. He further submits that there is civil litigation pending between the parties and therefore instant case is nothing but to exert illegal pressure upon the accused so that they may withdraw from their case.
He further submits that the I.O. had disposed of the FIR under false 'B' Class and recommended for initiation of proceedings under section 182, P.P.C. against the complainant. The second I.O. has found the accused to be offender, submitted challan and after challan, trial Court has taken cognizance of the case. He further prays for quashment of the proceedings culminating from Crime No,17/2017 of Police Station, Hingorj a.
On the other hand learned DPG for the State along with second I.O. Muhammad Ameen Pathan is present and states that the case filed by complainant was genuine one and the applicant was found culprit of three crime as alleged in the FIR, therefore ro. has charge-sheeted him. He further submits that the trial Court has taken cognizance therefore, best course for the applicant is to face trial instead of pressing instant proceedings.
6. I have heard counsel for the applicant and learned DPG for the State and have also gone through the material available on record.
7. At the very outset, I would say that the inherent jurisdiction, as provided under section 561-A, Cr.P.C., is not an alternate or an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress wrong for which no other procedure is available or has been provided by the code itself. Reference may be made to the case of Asfandyar and another v. Kamran and another 2016 SCM R 2084 wherein it is held as: "The remedy under section 561-A, Cr.P.C. is not an alternate or substitute for an express remedy as provided under the law in terms of sections 435 to 439 Cr.P.C. 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 end of justice so as to seek redress of grievance for which no other procedure is available."
I would also add that normally, every case is to be allowed to proceed according to law and resort to the provision of section 561-A, Cr.P.C. should be avoided particularly where the relief, sought through this course, has been provided by the Code itself as it would tend to circumvent the due process of law which has never been the intention of law. However, I would not hesitate in saying. that this remedy however would be available only in exceptional cases i,e, where insisting upon normal procedure/course may amount to continuity of an illegality or may be an injustice such as a case of abduction where abductee himself/herself denies to have been abducted and apprehends arm in approaching to trial Court. Reference may be made to the case of Ghulam Muhammad v. Muzamil Khan and 4 others PLD 1967 SC 317.
"The inherent jurisdiction given by section 561-A, Cr.P.C. is not an alternative jurisdiction or an additional jurisdiction but it is jurisdiction preserved in the interest of justice to redress grievances for which no other procedure is available or has been provided by code itself. The powers given by this Section can certainly not be so utilized as to interrupt or divert the ordinary code of criminal procedure as laid down in the procedural statute. The High Court should be extremely reluctant to interfere in a case here a competent Court has, after examining the evidence adduced before it, come to the view that a prima facie case is disclosed and has framed charges or summoned the accused to appear, unless it can be said that the charge on its face or the evidence, even if believed, does not disclose any offence."
8. Reference may also be made to Muhammad Khalid .Mukhtar v. The State through Deputy Director F.I.A. (PLD 1997 SC 275) and Shaikh Mahmood Saeed and others v. Aamir Nawaz Khan and another 1996 SCM R 839 on the point that this Court would be reluctant to quash the proceedings under section 561-A, Cr.P.C. unless the Court is approached for, that exercise of it's powers under section 249-A or 265-K, Cr.P.C. which are incidentally at the same nature and in a way akin to and co-relating with quashing of proceedings and that resort to the provisions of section 561-A, Cr.P.C. should not be lightly made as same would tend to circumvent the due process of law. Reference can be taken from the case of Shevo v. Regional Police Officer Hyderabad Region Hyderabad and 15 others (PLD 2009 Kar. 24) and the dictum laid down by Honourable Supreme Court in case of Director City Circle GEPCO Ltd. and others v. Shahid Mir and others (PLD 2013 SC 403).
9. In the instant case, the applicant's counsel has neither mentioned nor stated that before approaching this court under section 561-A, Cr.P.C. he has approached the trial Court for getting his early acquittal under section 249-A, Cr.P.C. which remedy is analogous to the one, sought through the instant petition. The applicant should have approached trial Court and thereafter, criminal revisional Court if no relief was granted by the trial Court in the first instance under the code of criminal procedure before approaching High Court directly which in the circumstances of case could not be said to be proper as it would amount to diverting and interrupting ordinary course, provided by the Code of criminal procedure.
10. The crux and upshot of above discussion is that since after second investigation challan has been submitted by the I.O. and learned Magistrate has taken cognizance of the case therefore quashment of proceedings directly by this Court would tantamount to interruption in ordinary legal course particularly in presence of alternate remedy available to. the applicant in terms of section 249-A, Cr.P.C. I would also add here that second investigation is not barred under the law and difference of opinion (s) of I. Os. of two investigation alone cannot be a ground for an early acquittal but it shall always be the material, so brought onto the record by the Investigation because the Courts should not be influenced from ipse dixit of police which otherwise is not binding upon Magistrate as well trial Court. Thus, recommendation of the case for its disposal under false 'B-class' was/is is no legal weight when the same stood changed by Investigation authority itself. Reference may be made to the case of Raja Khurshid Ahmed v. Muhammad Bilal and others 2014 SCM R 474 wherein it is held as:-- "5. It would be seen that as per settled law there is no bar to the reinvestigation of a criminal case and the police authorities are at liberty to file a supplementary challan even after submission of the final report under section 173, Cr.P.C. However, this cannot be done after the case has been disposed of by the learned trial Court.
Further, there has been placed nothing on record which could be taken as an exception for allowing deviation to normal procedure. The plea (s) of pending civil litigation and even lodgment of criminal cases against each other are not the grounds to plainly declare an allegation as false but may well be taken as defence which too at proper stage of trial. While exercising inherent jurisdiction this Court never dresses itself as that of trial Court but can well be exercised where continuity of a complained proceedings prima fade, without much deliberation, appears to be on illegality or injustice. The allegations contained in FIR cannot be properly threshed out as controversy requires evidence hence cannot be resolved by this Court through instant proceedings. I would now add that insist to adopt normal procedure has been for a reason because inherent jurisdiction of this Court under section 561-A, Cr.P.C. is not analogous to that of trial Court or Magistrate concerned who otherwise are competent to examine all the available material while this Court only has to see prima facie illegality resulting or likely to result into injustice. The legal position of the case is that it is primarily domain of learned trial Court who took cognizance and can properly adjudicate upon the factual controversy emanating from the allegations mentioned in the FIR which is ultimate and proper forum for finally deciding the case on its own merits. Thus, the honourable Supreme Court in a case of Director General, Anti-Corruption Estt. v. Muhammad Akram Khan PLD 2013 SC 401 categorically has held as:-- "2 ....The law is quite settled by now that after taking of cognizance of a case by a trial court the FIR registered in that case cannot be quashed and the fate of the case and of the accused persons challaned therein is to be determined by the trial court itself. It goes without saying that if after taking of cognizance of a case by the trial court an accused person deems himself to be innocent and falsely implicated and he wishes to avoid the rigours of a trial then the law has provided him a remedy under sections 249A/265-K, Cr.P.C. to seek his premature acquittal if the charge against him is groundless or there is no probability of his conviction.
11. The applicant has prima fade bypassed the ordinary legal course available to him, provided under the criminal procedure code, and since there has been placed no exceptional circumstances to justify departure from normal course hence in absence thereof inherent powers under section 561-A, Cr.P.C. cannot be exercised which otherwise would amount to interrupt and divert the ordinary code of criminal procedure. The applicant can agitate, the same plea before the trial court. In the circumstances, this criminal miscellaneous application is incompetent, which is hereby dismissed leaving the applicant to agitate his remedy before the trial Court which (trial Court) would pass an appropriate order within four corners of law.