' Maulvi Habibur Rehman complainant was present in his house on 13-5-1989 at 10 a.m. When he heard a bell on the outer door whereupon he went outside and saw four persons, including the two petitioners herein, and on inquiry by the complainant about the purpose of their visit, they wanted to consult a religious problem with him. The complainant expressed his inability on account of his illness but they insisted and forcibly entered the house and all of them started abusing him and threatened him that if he continued talking against 'mirzaiat' he would be done to death. In the meantime Maulvi Azizur Rehman arrived and witnessed the incident. The complainant, apprehending imminent danger to his life, went outside on the main road and seeing Iqbal H.C.
There, narrated the occurrence to him. Other people also gathered there. The petitioners also came out of the house of the complainant and were arrested by the above-named H.C.
' The complainant submitted a written report on the basis of which case F.I.R. No,117 of Police Station Mirpur was registered against the petitioners and their companions under section 452/506/500/34, P.P.C. After the completion of the investigation challan against the accused was put in the Court of Ilaqa Magistrate and notices for their attendance were issued by the Court.
2. The accused-petitioners have come to this Court under section 561-A, Cr.P.C. For the quashment of the proceeding against them and their co-accused on the ground that the offences with which they are charged are not applicable; that there is divergence in the contents of the F.I.R. Lodged by the complainant and the statement of Azizur Rehman, the solitary witness mentioned in the F.I.R., recorded under section 164, Cr.P.C.; that the mens rea of the petitioners to commit the offence was lacking; that the intention of the complainant for proceedings against the petitioners was meant to harass the petitioners and put them to the agony of protracted trial.
3. Learned counsel for the State and complainant on the other hand argued with vehemence that the instant prayer of the accused-petitioner is premature; that the contents of the F.I.R. Prima facie constitute the offences with which the accused-petitioners and their companions are charged; that the statement of Maulvi Azizur Rehman recorded under section 164, Cr.P.C., in the absence of the accused and the complainant, cannot be taken into consideration at this earlier stage; that the visit of the accused-petitioners to the house of the complainant is not denied and in the context of the `khutba' of the complainant in the Juma prayers on the preceding day which was admittedly resented by the petitioners, the criminal intention of the petitioners can safely be presumed and finally that the proper course for the petitioners was to have waited till the time the evidence of the complainant, Maulvi Azizur Rehman P.W. And Iqbal H.C. Were recorded whereafter they could invoke the identical provisions of section 249-A, Cr.P.C. Before the Ilaqa Magistrate.
4. I have anxiously considered the arguments of the learned counsel for the parties, the catalogue of judicial pronouncements produced on either side and have also perused the entire record of the case with their assistance.
5. Much of the time was consumed by the learned counsel for the parties on the propositon whether after the addition of section 249-A, Cr.P.C. In the year of 1979 (Ordinance XXXVI of 1979), the provision of section 561-A, Cr.P.C. Can still be invoked by the aggrieved party for the quashment of the proceedings before the High Court. In this connection the judgment of the Supreme Court in the case of Khushi Muhammad etc. v. The State 1979 SCMR 94 was cited wherein it was held that the alternative remedy having been available to the aggrieved person under section 249-A, Cr.P.C.
Resort could not be had to the provision of section 561-A, Cr.P.C. And the most appropriate remedy in the circumstances is to approach the trial Magistrate under section 249-A, Cr.P.C.
' Another authority of the august Supreme Court in the case of Nasir Ali v. Munshi Mehar Khan PLD 1981 SC 607 was relied upon wherein it was held as follows:-- "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 probability of the accused being convicted of any offence.
The substance of the claim made by the appellant in the application under 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."
' The same point came up for consideration before a Single Bench of the Peshawar High Court in the case of Haji Karim Bakhsh etc. v. The State PLD 1982 Peshawar 20, wherein Mian Burhanuddin Khan, Acting Chief Justice, as he then was, made the following observation: "Thus, I find that the test laid down for interefrence in pending criminal proceeedings is that if the proceedings are allowed to be continued, it would result in grave miscarriage of justice and there would be no other provisions 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.
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 commission 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 allegations in the complaint taken at their face-value and accepted in their entirety should not constitute an offence as alleged.
' In the circumstances of the instant case, it was submitted that the petitioners should have waited for the commencement of the proceedings. 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."
' The august Supreme Court in a later judgment in case of Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi etc. 1983 SCMR 775 improved upon their earlier view and held as follows:-- "Jurisdiction of the High Court is wide and its revisional jurisdiction is, in its real purpose, not a mere power but a duty. This duty cannot effectively be discharged unless the High Court sees to it that the subordinate Criminal Courts conduct their proceedings strictly in accordance with law. The provisions of the procedural law are intended to achieve the principal purpose of the administration of criminal justice viz. That all infractions of the criminal law are duly and properly investigated and inquired into. It will be, therefore, startling proposition that the High Court should be disabled from discharging this very necessary duty simply because a party who could and should have appealed, makes the mistake of filing a revision or a party who is adversely affected by the result of the proceedings, has no right to invoke the revisional jurisdiction of the High Court is very wide and that it may be exercised whenever facts calling for its exercise are brought to the notice of the Court and it matters little as to how and by whom these facts are brought to the notice of the Court."
' The latest authority on the point is reported as 1985 SCMR 257 in case of Mian Munir Ahmad v. The State wherein it was held that the powers of the trial Court under sections 249-A, Cr.P.C. And 265-K; Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to. It was further observed that the proper course is to approach the trial Court in the first instance but there is nothing to bar the High Court from entertaining any appropriate application under section 561-A, Cr.P.C. Directly.
6. The controversy is thus set at rest by the august Supreme Court by holding that both the remedies are co-extensive and can be availed of by the aggrieved person according to the exigencies of the situation. There may be cases in which the accusations made, on the face of it, may not constitute any offence or, in other words, the ingredients of section of law with which accused is charged may be totally lacking in which case the aggrieved person, apprehending that the trial Magistrate may not subscribe to his view, can seek his remedy under section 561-A, Cr.P.C.
For quashment of the proceedings. However, if the charge is such which may necessitate the recording of evidence without which no positive conclusion can be drawn, the proper course for the aggrieved person would be to wait till the material evidence is recorded and then press for his acquittal under section 249-A, Cr.P.C. Or 265-K, Cr.P.C.
7. Keeping the above yardstick in view it is to be considered whether the instant case is a lit one for exercising the powers under section 561-A, Cr.P.C. By this Court or not. The petitioner is charged with offences under section 452/500/506/34, P.P.C. The ingredients of section 452, P.P.C. Are house- trespass, having made preparation for causing hurt to any person or for assaulting any person or for wrongfully restraining any person or for putting any person in fear of hurt, or of assault, or of wrongful restraint, section 500, P.P.C. Provides for punishment with (rigorous) imprisonment for a term which may extend to two years or with fine or with both, whereas section 506, P.P.C. Provides for punishemnt of criminal intimidation. Admittedly F.I.R. Is not a substantive piece of evidence and Criminal Courts have to base the conviction of the accused charged with particular offence on the statement on oath of the complainant coupled with the statement on oath of the witnesses produced in support of the allegations by the complainant. At the moment both the parties admit that the complainant Maulvi Habib-ur-Rehman had said something in a `khutba of Juma prayers against the accused-petitioners and their companions which caused annoyance to them resulting in their visit to the house of the complainant, with what intention, is yet to be determined from the evidence to be produced in the case by both sides. The learned counsel for the petitioners stressed that Maulvi Azizur Rehman who was named as solitary eye-witness in the F.I.R. Has not supported the complainant in his statement under section 164, Cr.P.C. So far as the charges of criminal trespass, defamation and criminal intimidation are concerned. It is not advisable for this Court to express any opinion on this assertion one way or the other lest it may prejudice the parties at the trial. Sufffice it to say that the contents of the FIR prima facie constitute the offences with which the petitioners are charged and it cannot be held at this stage that the charges are either groundless or levelled with sole mala fide intention to harass the accused-petitioners. The petitioners after recording of the material evidence can press for their acquittal by invoking the provisions of section 249-A, Cr.P.C.
8. The uphsot of the above discussion is that there is no merit in the instant application for quashment of the proceedings and the same is accordingly dismissed. However, the trial Court is directed to record the material evidence in the case as early as possible.