1. The facts leading up to this application briefly stated are that the respondent No was as Oil Delivery Clerk in Maqbool Company Limited , S.I.T.E., Karachi. He was away on leave to India from 9-5-1970 to 22-5-1979 and during his absence a conspiracy was made to dispense with his services by the- petitioners of whom the petitioner No. 2 has died during the pendency of the proceedings. They levelled false charges of theft and mis--appropriation of oil against him. They alongwith other employees of the Company won over respondent No. 6 Hyder Zaman on their side and he reported deficiency of oil and the management conducted inquiry in the matter as pre-planned by them.
2. Hyder Zaman alleged before the Inquiry Officer that respondent No.1 Nizamuddin alongwith few other employees of the Company had been stealing and misappropriating the oil for quite some time. They procured other witnesses also against him to see that the services of respondent No.1 were dispensed with. A news-item was also managed in "Daily News" of 27.6-1979 to the effect that fraud was being committed in Maqbool & Company for quite some time and had now been detected. On 30-6-1979, all those against whom Hyder Zaman in his false report levelled the charges were directed through a letter to appear before S. A. Qayoom Inspector F. I. A. The respondent No. 1 did not appear before him as he was on leave. The F. I. A. Conducted inquiry in the matter. On 4-7-1979, Hyder Zarnan made a statement before the Inspector F. I. A. That the office bearers of the union had compelled him to make false report against reason--dent No.1 and his companions of theft and misappropriation and in fact no such theft or misappropriation was ever committed by any one. Thereafter, F. I. A. Found respondent No. 1 and others not guilty of the charges. Despite that the respondent No.1 and others were transferred from the factory to distantly located Oil Depots. The respondent No.1, therefore, allegedly suffered in reputation amongst his friends and relatives as such he was being looked down as a thief and used to be called out as such in gatherings and meetings. He, therefore, filed a complaint against the petitioners under sections 120-A, 211 and 500, P. P. C. In the Court of District Magistrate, Karachi (West) who forwarded it to the Magistrate Ist Class, Site, Karachi. The learned Magistrate after holding preliminary inquiry ordered issue of process against the petitioners alongwith others in the shape of bailable warrants with the result that this application under section 561-A Cr. P. C. Has been filed for quashment of the proceedings.
2. I have heard Mr. Waheed Farooqi, the learned counsel for the petitioner No. 1 and Mr. Abdul Faheem Khan for respondent No. 1 and Mr. A. K. Jatoi for the State. Mr. Waheed Farooqi has mainly contended that on the face of the complaint no offence has been made out at ail and that the petitioner No. 1 being a public servant, in absence of sanction for his prosecution under section 197, Cr. P. C. No prosecution would lie against him, Messrs Abdul Faheem Khan for the respondent No. I and A. K. Jatoi for the State have at the very outset contended that since the petitioners have also an alternate remedy available to them under section 249-A, Cr. P. C. Resort to section 561-A, Cr. P.
3. C. Cannot be made, and, therefore, the apple--cation is liable to be dismissed on that score alone.
4. They have placed reliance on the cases of Sanaullah Burney v. The State and others (1980 P Cr. L J 981), Khushi Muhammad and 4 others v. The State (1979 SCMR 94), Nasir Ali v. Munshi Mehr Khan (PLD 1981 SC 607) and Haji Karim Bux and another v. The State (PLD 1982 Pesh. 20) in support of their proposi--tion 3. The admitted position is that this application under section 561-A, Cr. P. C. Has been filed, before the learned Magistrate was moved under section 249-A, Cr. P. C. For acquitting the petitioners on the ground that there was no probability of their being convicted of any offence.
5. The provision of section 249-A recently added to the Cr. P. C. By Ordinance XXXVI of 1977 reads as under "Section 4 9-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 prosecution and the accused and for reasons to be recorded, he con--siders that the charge is groundless or that there is no probability of the accused being convicted of any offence."
6. It has been argued that alternate remedy being available to the applicants namely, the provisions of section 249-A, Cr. P. C. Resort could not be made to the provisions of section 561-A, Cr. P. C.
7. In P Cr. L J Kar. 981, it was held as under :- "13. Since the applicants have also an alternate remedy available to them under section 249-A, Cr.
8. P. C. Resort to section 561-A of Cr. P. C. Cannot be made. The inherent jurisdiction of the High Court under section 561-A, Cr. P. C. Is not an alternate 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.
14. Under the circumstances, I am of the opinion that no case for quashment of the proceedings is made out. The application is accordingly dismissed."
9. In 1979 SCMR 94, it was observed as under : - "He has also drawn our attention to the following observation made by this Court in Ghulam Muhammad v. Muzammal Khan (PLD 1967 SC 317) :- The inherent jurisdiction given by section 561-A is not an alternate jurisdiction or an additional jurisdiction but is a jurisdiction preserved in, the interest of justice to redress grievances for which no others, procedure is available or has been provided by the Code itself. The power given by this section can certainly not be so utilised as to interrupt or divert the ordinary course of criminal procedure as laid down in the procedural statute.
10. It has been agreed 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 provisions of section 561- A, Cr. P. C. There is some force in this submission and we' are inclined to agree with it."
11. In PLD 1981 SC 607, it was observed as under "There is another aspect of the matter. There is a remedial provision which has been introduced in the Criminal Procedure Code by Law Reforms Ordinance, 1972. It is section 249-A. It enables an accused facing trial to obtain an order of acquittal from the Magistrate if at any stage the charge is found to be groundless or there is no proba--bility of the accused being convicted of any offence. The substance of the claim made by the appellant in the application tinder section 561-A, Cr. P. C. Is exactly the same on which he can claim an acquittal under section 249-A namely that the charge is groundless and that there is no probability of the accused being convicted of any offence. This is a relief still available to the appellant not in any manner in curtailment of the power possessed by the Court under section 561-A, Cr. P. C. Or in derogation of it."
12. In PLD 1982 Pesh. 20, the learned Judge relying on 1979 SCMR 94, observed as under :- "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.
13. 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 not contain any definite or clear accusation or the accusation made does not disclose the com-- mission of any offence, otherwise the quashment of proceedings at an early stage where no evidence has been recorded would give an 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 has claimed that the allegations against him are false and fantastic. The test laid down also is that the allegation in the complaint taken at their face value and accepted in their entirety could not constitute an offence as alleged.
14. In the circumstances of the instant case, it was submitted that the petitioners should have waited for the commencement of the proceed--ings. 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 provisions 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.
15. On going through the facts of the case, I agree with the learned Assis--tant Advocate-General that this application is premature. The trial Court seized of the matter has vast powers under section 249-A and 265-K, Cr. P. C. But these powers should be used judicially. 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 provisions of the aforesaid two sections."
16. In view of the above position of law, since the applicants have an alternative remedy available to them under section 249-A, Cr. P. C. Resort to section 561-A, Cr. P. C. Cannot be made.
4. Accordingly this application is premature and is dismissed. The record of the case be sent back to the lower Court with the direction to decide it as expeditiously as possible.