For the purpose of this application filed under section 561-A, Cr.P.C. The following statement of facts would suffice:--
2. Mst. Hasina Begum, the respondent No.2 was allotted Plot No.-456, Sector 1-A, Lines Area, Karachi.
She made an application before Project Director of the Lines Area alleging fraud against applicants. The inquiry made by the Project Director prima facie disclosed a case of cheating, and consequently a written report was sent to Brigade Police Station, where a case was registered against the applicants under section 420, P.P.C. Being Crime No.137 of 1986. The investigation revealed that applicants Muhammad Farooque and Mst. Rafiqa Begum were responsible for cheating, and consequently both of them were sent up in the Court of A.C.M. No.III (East), Karachi, in absentia, under section 512, Cr.P.C. The applicants when came to know about this criminal case got bail before arrest, and made an application under section 249-A, Cr.P.C. For their acquittal before the trial Court through their Advocate, but without success. They have now approached this Court seeking quashment of proceedings pending against them in the Court of A.C.M. No.III (East)
Karachi.
3. I have heard Mr. S. Ansar Hussain, learned counsel for applicants and Mr. Salman Ansari, learned counsel for State. I have also heard Ch. Muhammad Bashir, attorney appearing on behalf of respondent No.2.
4. It is contended on behalf of the applicants that the facts as disclosed in F.I.R. Do not constitute an offence under section 420, P.P.C. And the dispute, if any, was purely of civil nature. The learned counsel has also invited my attention to a civil litigation pending between the parties.
5. The perusal of the record shows that there is prima facie evidence connecting both the applicants with this crime. The extent to which the witnesses should be believed can only be determined by the trial Court after the case proceeds before it, and the evidence which is likely to be adduced by r he prosecution cannot be appreciated at this stage without the witnesses being examined.
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 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."
7. The case of Ghulam Muhammad v. Muzammil Khan and 4 others sorted 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 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:'
8. The cases reported as Mohsin Ali and another v. The State 1972 SCMR 229; Abdul Rehman v.
Muhammad Hayat Khan etc. 1980 SCMR 311; Marghoob Alam and, another v. Shams Din and another 1986 SCMR 303; Manzoor Hussain Shah v. The State 1988 SCMR 265 and Mrs. Shamsunnia Bakhtiar and another v. The State etc. 1989 P Cr. L J 2451 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 PLD 1985 Lah. 662, it was observed that quashment of proceedings at an early stage gives an unfortunate impression of stifling of criminal prosecutions by exercise of extraordinary 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.
9. Mr. S. Ansar Hussain, learned counsel for applicants has placed reliance on the case reported as Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another 1983 SCMR 775 and Ghulam Ali v. Javid and another 1989 P Cr. L J 507 in an attempt to show that the transaction between the parties was of civil nature and the F.I.R., which was lodged to harass the applicants, was liable to be quashed. The facts of both these cases are distinguishable. It may be added that the F.I.R. In this case was not lodged by respondent No.2, but in fact the law was set in motion by the Project Director B of Lines Area, who is the complainant in this case. The facts on record connect the applicants with this offence and in such a situation, it will be premature to prejudge the case of the prosecution by throttling it at its very inception.
10. An attempt was also made on behalf of the applicants to get an order of stay of criminal proceedings pending decision of civil suit. Reliance is placed; upon the case reported as Muhammad Akbar v. The State and another PLD 1968 SC 281. No attempt to obtain this relief from the trial Court was, however, made and consequently this prayer cannot be considered at this stage.
11. Having regard to the above legal position, I see no substance in this I D application filed under section 561-A, Cr.P.C. Which is accordingly dismissed.