It is desirable to state briefly certain facts giving rise to this litigation.
2. On 21-4-1986, one Muhammad Ismail lodged F.I.R. (Crime No.128 of 1986) Kalakot Police Station, under section 420/406, P.P.C. Stating therein that in the year 1978 he was allotted 45 acres of land by Government of Sindh for a housing project. He appointed one Kaleemullah of Kalim Associates as under--writer, who in turn appointed Races Ahmed, the present applicant, as broker. In 1981 Muhammad Ismail was called by Martial Law Authorities and was produced before Col. Usman where he came to know that 63 persons had made complaint against him for the recovery of Rs.11,13,000. He, therefore, got his Bungalow No.32/88, Daudi Bohra Co-operative Housing Society, Karachi, redeemed from Kaleemullah so that he could repay the aforesaid amount to those persons after selling it. He then authorised the present applicant to sell bungalow by executing the power of attorney. It is the case of complainant Muhammad Ismail that the applicant sold this bungalow to Major Asadullah at a much cheaper rate and misappropriated the amount so received, who also sold various other properties and thus defrauded him to the tune of Rs.6,58,000.
After usual investigation the applicant was challaned m the Court of A.C.M. No.V, (South) Karachi, to stand trial for the offence under section 420/406, P.P.C. It is in these circumstances that the applicant has invoked the inherent jurisdiction of this Court by filing an application under section 561-A, Cr.P.C., with a prayer that the proceedings pending against him be quashed.
3. I have heard Mrs. Salima Nasiruddin learned counsel for applicant and Mr. Habi-ur-Rasheed learned counsel for State. The latter has supported the prayer of the applicant for quashment of the proceedings.
4. It is contended on behalf of the applicant that the prosecution of the applicant is based on the same set of evidence and events upon which this Court has already quashed the proceedings in Cr. Misc. Application No.887 of 1986, and consequently the continuation of the present proceedings amounts to an abuse of the process of law. At first sight the argument appeared to be attractive, but from a close examination of both the cases, it is apparent that the F.I.R., out of which this application under section 561-A, Cr.P.C., has arisen proceeds on different premises. There is specific allegation of defrauding complainant Muhammad Ismail of Rs.6,58,000 against the applicant, whereas in the F.I.R. (Crime No.102 of 1985) Gulshan-e-Iqbal Police Station, lodged by one Habibullah, the present applicant was not implicated. The grounds on which the proceedings arising out of F.I.R. In Crime No.102 of 1985, Gulshan-e-Iqbal Police Station, were quashed by this Court are clear from the following extract of judgment dated 7-10-1987:-- "I have considered the contentions of the learned counsel and have also gone through the documents produced alongwith the quashment application and the affidavit filed by the complainant in this Court. The name of the present applicant does not transpire in the F.I.R. And even according to the affidavit filed by the complainant in this Court, the applicant Raees Ahmed had no concern whatsoever with the plots situated in Ismail Town. There is no allegation that he cheated any person or had obtained any amount from any of the persons who had booked plot in Ismail Town. The affidavit filed by complainant Habibullah clearly shows that he had no grievance so far as the present applicant is concerned, and the present applicant had not cheated the complainant in any way. In view of the above facts it is clear that no case was made out against the present applicant and it is not going to end in conviction even if the case is proceeded against him. The case of co---accused Kalimullah stands totally on different footing. I therefore allow this application and quash proceedings pending against the applicant Races Ahmed son of Abdul Jalil only."
5. The facts of this case are quite distinct which prima facie constitute an offence under section 420, P.P.C. There is no indication on record to show that the applicant had approached the trial Court seeking his acquittal under section 249-A, Cr.P.C. At any time. He has approached to this Court without exhausting the remedy available to him. No doubt the powers of trial Court under section 249-A or 265-K, Cr.P.C., as the case may be, are co-extensive with similar powers of the High Court under section 561-A, Cr.P.C. And both can be resorted to. The case of Mian Munir Ahmed v. The State, reported in 1985 SCMR 257, is a guiding authority on this subject. There is, however, nothing on record to show as to why the application under section 561-A, Cr.P.C. Was filed before this Court without first availing the opportunity before the trial Court. Undoubtedly in appropriate cases the High Court can be approached directly, but for that some material has to be placed before it to justify the same. The present application fort quashment of proceedings is thus liable to be dismissed on this score alone.
6. The scope of section 561-A, Cr.P.C. Was examined by the Supreme Court in M.S. Khawaja v. 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 that 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 furtherence of justice can accrue and similar perverse results."
7. The case of Ghulam Muhammad v. Muzammil Khan and 4 others, reported in PLD 1967 SC 317, is again relevant in a situation like this. Following the dictum as laid down in M.S. Khawaja v. 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 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."
8. The cases reported as Mohsin Ali and another v. The State 1972 SCMR 229, Abdul Rehman's v.
Muhammad Hayat Khan 1980 SCMR 311, Marghoob Alam and another v. Shams Din and another 1986 SCMR 303, Manzoor Hussain Shah v. The State 1988 SCMR 265, Akhtar Hussain Zaidi v. The State PLD 1985 Lah. 662 and Mrs. Shamsunnisa Bakhtiar and another v. The State 1989 P Cr. L J 2451 also support this view.
9. The extent to which the witnesses can be believed can only be determined by the trial Court after the case proceeds before it. It was, therefore premature for the applicant to have approached this Court at the initial stage of the case when no evidence was recorded.
10. There is no merit in the application filed under section 561-A, Cr.P.C. G and the same is accordingly dismissed.