Since common question of law is involved in both these applications filed under section 561-A Cr.P.C., they are being disposed of by a consolidated judgment.
2. There is civil litigation between Mr. Bakhtiar Hussain, Divisional Engineer, Telephones on one side, and Mr. Ghulam A.I W. Shaikh, District and Sessions Judge on the other side, over the roof of Bungalow No. 25-B, Lalazar. Karachi occupied by them. On 29-fi-1987, Zulfiqar A.I son of Mr. Ghulam A.I Shaikh, lodged F.I.R. At TPX Police Station for the offence under section 430/506 PPC against applicants Mst. Shamsunnisa Bakhtiar and Razak Ahmad Abdul alleging therein that Mr. Bakhtiar Hussain, husband of Mst. Shamsunnisa came to his father asking him to remove the pipline from the roof, which he declined on the ground that order of maintaining status-quo passed by concerned Civil Court was operating. It was further alleged that on 28-6-1987, both the above applicants called the plumbers and got the pipeline removed, with the result that water supply to the house of complainant was stopped. It was also alleged that on the protest of the complainant threats of dire consequences were given to him by both the applicants. The Police registered the case (Crime No. 127 of 1987), and after usual investigation submitted charge sheet against the applicants in the Court of Vth Additional City Magistrate (West), Karachi, for the said offence. The applicants have, therefore, approached this Court for quashment of proceedings (Cr. Misc. Application No. 101 of 1988).
3. On 1-7-1987 Zubairuddin, a domestic servant of Zulfiquar A.I lodged F.I.R. Against applicant Shaharyar Bakhtiar son of Mr. Bakhtiar Hussain alleging therein that he had entered into the house armed with a revolver and had given threats of killing Zulfiquar A.I. The police registered the case, being Crime No. 133 of 1987, TPX Police Station, and after usual investigation sent up applicant Shaharyar before Vth Additional City Magistrate (West) Karachi. (Case No. 264 of 1987). Applicant Shaharyar Bakhtiar moved an application under section 249--A Cr.P.C. For his acquittal, but the same was dismissed as premature vide order-dated 6-1-19.88. The applicant then approached this Court for quashment of proceedings (Cr. Misc. Appln. No. 100 of 1988).
4. I have heard learned counsel for the parties and Mr. Imam Bux Shaikh, learned counsel for the State, who has opposed these applications.
5. A preliminary objection has been raised by Mr. Gul Zaman Khan, learned counsel for respondents No. 3 and 4, about the competency of Criminal Misc. Application No. 100 of 1988, by stating that subject matter of this application (Crime No. 145 of 1987), is still under police investigation and the same cannot be challenged before this Court under section 561-A Cr.P.C. The applicant has in fact questioned the legality of proceedings pending before Vth Additional City Magistrate (West)
Karachi, (Case No. 246 of 1987), which in fact relates to Crime No. 133 of 1987. It appears that through mistake the facts of Crime No. 145 of 1987, were disclosed in Cr. Misc. Application No. 100 of 1988, as the complainant in both these crimes is the same. The learned counsel for applicant has placed copies of F.I.R. And charge-sheet in Crime No. 133 of 1987, before the Court during the course of address. The mistake which has caused no prejudice to the respondents is, therefore, ignored.
6. It is contended on behalf of the applicants that the facts as disclosed in both the F.I.Rs do not constitute an offence, and there is no likelihood of the trial resulting into the conviction of applicants. A grievance has also been made about the harassment of the applicants at the instance of Mr. Ghulam A.I Shaikh District and Sessions Judge, who according to the applicants is instrumental to their prosecution.
7. The scope of section 561-A Cr.P.C. Was examined by the Supreme Court in M.S. Khwaja vs. The State, reported in PLD 1965 SC 287, and it was observed: "Every prosecution for a criminal offence is to be deemed to have been commenced and continued in the public interest, as a duty of the State. It can only be in a very rare case that a superior Court acting under its inherent power to prevent abuse of the process of any Court or otherwise to secure the ends of justice, would deem it appropriate to act so as to place an alleged offence outside the operation of the criminal law, on incidental grounds, such as that of delay, or for any reasons other than reasons going to the question whether the allegation is sufficient to constitute an accusation of an offence in law."
At page 291, the Supreme Court remarked:-- "To quash a judicial proceeding in order to secure the ends of justice would involve a finding that if permitted to continue, that proceeding would defeat the ends of justice, or in other words, would either operate or perpetuate an injustice. To end an `abuse' it would be necessary to see in the proceeding a perversion of the purpose of the law such as to cause harassment to an innocent party, to bring about delay, or where the machinery of justice is engaged in an operation from which no result in furtherance of justice can accrue and similar perverse results."
8. The case of Ghulam Muhammad vs. Muzammil Khan and 4 others, reported in P. L .D 1967 Supreme Court 317, is again relevant in a situation like this. Following the dictum as laid down in M.S. Khawaja vs. The State, the Supreme Court held as under:-- "The inherent jurisdiction given by section 561-A Cr.P.C. Is not an alternative jurisdiction or-an additional jurisdiction but it is a jurisdiction preserved in the interest of justice to redress grievances for which no other 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. The High Court, as has repeatedly been pointed out in a number of decisions, should be extremely reluctant to interfere in a case where 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."
9. The cases reported as Mohsin A.I and another v. The State (1972 S.C.M.R. 229), Abdul Rehman v.
Muhammad Hayat Khan etc. (1980 S.C.M.R. 311), Marghoob Alam and another v. Shams Din and another (1986 S.C.M.R. 303), and Manzoor Hussain Shah v. The State (1988 S.C.M.R. 265), are also relevant in this behalf. While examining the extent of the jurisdiction of High Court under section 561-A Cr. P.C. In Akhtar Hussain Zaidi v. The State, reported in P. L. D. 1985 Lahore 662, it was observed that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions by exercise of extra-ordinary power under section 561-A Cr.P.C. It was also held in the same authority that mere filing of a civil suit is not a bar to the continuation of criminal case
10. A bare reading of F.I.Rs in both the cases would show that there is prima-facie evidence on record connecting the applicants with these crimes. The extent to which the witnesses can be believed can only be determined by the trial Court after the cases proceed before it. It was, therefore, premature for the applicants to have approached this Court at the initial stage when no evidence in both the cases was recorded.
11. The record further shows that these applications were initially riled against the State. Thereafter three more respondents were added including Mr. Ghulam A.I Shaikh, District and Sessions Judge, who is neither a complainant nor a witness against the applicants. It appears that it was done purposely only to humiliate a member of judiciary. A Judge, who himself administers justice to others cannot be denied justice when asked for. A Judge is a prisoner of his own conventions. He does not get sumptuous salary. To him good name and reputation are the treasured possession which are hard to win and easy to lose. Like every citizen of Pakistan a Judge is entitled to seek remedy before a competent Civil Court, to protect his interest.
12. For the above reasons I am of the view that both these applications filed under section 561-A Cr.P.C. Must fail. They are accordingly dismissed.
M. Z. S./M-386/K.