In this case some very interesting and important question of law arise for consideration, and therefore, it is necessary to set out accurately the relevant facts in some detail.
2. On 25-6-1991 the respondent No.1; filed a direct complaint against the applicants for the offence under sections 419, 465, 466, 471, 496, 34, P.P.C., in the Court of A.C.M. No.X (East), Karachi, which was sent to Sessions Judge ex (East), Karachi, in terms of subsection (3) of section 190, Cr.P.C. The learned Sessions Judge transferred this complaint to Ist Additional Sessions Judge (East) Karachi, for disposal. The learned Additional Sessions Judge recorded the statement of respondent No.1 under section 200, Cr.P.C. And thereafter examined Mustaqeem Ahmad, Iqbal Hussain and Mst.
Ghazala Yasmeen under section 202, Cr.P.C. On 31-7-1991 the learned Additional Sessions Judge passed an order under section 204, Cr.P.C. And issued bailable warrants in the .Sum of Rs.20,000 (Rs. Twenty thousand) each against all the applicants. Out of the ten applicants two, namely, Hafiz Abdul Salam, applicant No.5, and Ayaz Ahmad, applicant No.8 appeared before the trial Court, while the rest were absent. The applicants applied for copies of relevant orders through their counsel, but they were not supplied to him. On 25-9-1991 the applicants invoked the inherent jurisdiction of this Court by filing this application under section 561-A, Cr.P.C. Seeking quashment of proceedings pending against them in the Court of Ist Additional Sessions Judge (East), Karachi.
3. The facts of the case as unfolded by respondent No.1 in his complaint lie within a narrow orbit and may be indicated. Mst. Ghazala Yasmeen daughter of respondent No.1 is a student of First Year (Arts). Muhammad Zakir, the applicant No.1 was interested to marry her, but his proposal was not accepted. It is alleged that the applicants in collusion with each other N fabricated a forged `affidavit of free will' of Mst. Ghazala Yasmeen and on the basis of this affidavit procured a forged Nikahnama by impersonating Mst. Ghazala Yasmeen. The respondent No. 1 came to know about this forgery after a false claim in this behalf was made by Muhammad Zakir, the applicant No.1. It was in these circumstances that the respondent No.1 filed a direct complaint against the applicants giving rise to this application filed under section 561-A, Cr.P.C.
4. I have heard Mr. Rashiduddin Ahmad Khan, learned counsel for applicants, Mr. B.M. Bangush, learned counsel for respondent No.1 and Mr. Habib-ur-Rasheed, learned counsel for the State, who has supported the contentions raised on behalf of the applicants.
5. Before examining the contentions raised on behalf of applicants, I propose to dispose of following legal points that have been urged by learned counsel for respondent No.1 in the course of arguments:--
(i) That eight out of ten applicants did not appear before the trial Court and they being fugitive were not entitled to any indulgence by this Court; and
(ii) the applicants had a remedy before the trial Court under section 265-K, Cr.P.C. For acquittal, which they did not avail and approached the High Court directly, and on this ground alone the application filed under section 561-A, Cr.P.C. Is liable to be dismissed.
6. The perusal of the record shows that the process in this case was issued by learned Additional Sessions Judge on 31-7-1991. On 12-9-1991 Hafiz applicant No.5, and Ayaz Ahmad, applicant No.8 appeared before the Court. Qazi Hakim Muhammad Shamim Khan, the applicant No.6. Tasaddaq Hussain, the applicant No.9, and Sarfraz Ahmad the applicant No.10 who were served did not appear before the Court. The rest of the applicants were, however, not served. The applicants who were entitled to copies of complaint, documents, statements, etc. Free of costs in terms of subsection (2) of section 265-C, Cr.P.C. Were denied certified copies of such documents even on cost vide order dated 4-9-1991 on the ground which is not tenable. It may be observed that even a stranger to a proceeding in Court is entitled to obtain certified copies of the Court record, if he satisfies the Court about the purpose thereof. The learned Additional Sessions Judge had sufficient powers to secure the attendance of the remaining accused, but they could not be prevented to seek remedy before the superior forum by refusing them the copies of the order and the relevant record. It was obviously under these circumstances that the applicants filed the present application under section 561-A, Cr.P.C., before this Court on 25-9-1991. The applicants were not absconders nor there was any such order passed against them. The cases of Chan Shah v. The Crown, reported in PLD 1956 FC 43, and Hayat- Bakhsh and others v. The State, reported in PLD 1981 SC 265, cited on behalf of respondent No.1 are clearly distinguishable. In the former case the petitioner who was convicted of murder and sentenced to death did not surrender but filed an appeal through his counsel. Likewise the convict in the latter case decamped after confirmation of sentence of death and it was in this context that it was held that such persons forfeit the right of audience. In the present case the applicants did not abscond from the trial Court. They wanted copies of relevant record on costs but their prayer made through their counsel was refused and it was in these circumstances that further proceedings before the trial Court were stayed by the then Chief Justice on 20-10-1991. There is, therefore, an air of utter unreality about this argument.
7. With regard to the second point urged on behalf of respondent No.1 about the remedy available under section 265-K, Cr.P.C., the view taken by the Supreme Court in the case of Mian Munir Ahmad v. The State, reported in 1985 SCMR 257, is clear, wherein it was observed:-- "The powers of trial Court under section 249-A, Cr.P.C, and section 265-K, Cr.P.C. Are co-extensive with the similar powers of the High Court under sectional-A; Cr.P.C, and. Both can be resorted to. It would of course be proper to approach the trial Court in the first instance, but there is nothing to bar the High Court from entertaining in any appropriate case. An application under section 561-A, Cr.P.C., directly."
8. The application under section 561-A, Cr.P.C., made to the High Court without exhausting the remedy available under section 249-A, Cr.P.C" or 265-K, Cr.P.C., is therefore, not barred, although there should be strong reasons to do so. In the present case the learned Additional Sessions Judge was not even prepared to supply the copies of relevant record to accused and, therefore, the applicants were left with no other option but to seek remedy before this Court through this application filed under section 561-A, Cr.P.C. The objection raised on behalf of respondent No.1 is thus devoid of any force.
9. I now proceed to examine the contentions raised on behalf of the applicants. Mr. Rashiduddin Ahmad Khan, learned counsel who appeared on behalf of applicants made number of submissions, but he eventually confined his arguments in main to the following contentions, namely:--
(i) That the genuineness of the disputed documents is already in question before the Family Court in Suits Nos.364 and 464 of 1991 and, therefore, recourse to criminal proceedings was not legal.
(ii) That the dispute between the parties is purely of civil nature and recourse to criminal proceedings was mala fide, taken with a view to put pressure upon the applicants.
(iii) That the proceedings taken against the applicants were in disregard of the provisions contained in clause (c) of subsection (1) of section 195, Cr.P.C.
10. The first two contentions are both feeble and faint, thus lacked the vigour as well. This question was examined by the Supreme Court in the case of Muhammad Tufail v. The State and another, reported in 1979 SCMR 437, wherein it was observed that this contention could have some relevance if the question was, whether proceedings before Criminal Court be stayed. Again mere pendency of civil litigation is not a bar to the continuation of a criminal case. The cases of Akhtar Hussain Zaidi v. The State, reported in PLD 1985 Lah. 662 and Ahmad Bin Saleem v. The State and 3 others, reported in 1990 P Cr. L J 838, are clear on this point.
11. In the case of M.S. Khawaja v. The State, reported in PLD 1965 SC 287, it was made clear:-- "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 find 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:'
12. This view was reiterated in the case of Ghulam Muhammad v. Muzammal Khan and 4 others, reported in PLD 1967 SC 317, wherein it was observed:-- "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."
13. This view was also followed in the case of Siraj Din and another v. Peer Salim and another, reported in 1989 SCMR 1385. In the present case also the learned Additional Sessions Judge examined Mustaqeem Ahmad, Iqbal Hussain and Mst. Ghazala Yasmeen during the course of preliminary inquiry and then he passed a detailed order bringing the case on regular file. The case of the prosecution cannot be throttled at this stage simply because Muhammad Zakir, the applicant No.1 had filed a suit for restitution of conjugal rights against Mst. Ghazala Yasmeen on the basis of the same Nikahnama, which the respondent No.1 claims to be a forged document.
14. The third contention in my view, is clearly misconceived. The offence alleged against the applicants was not committed in respect of a proceeding in any Court and consequently the complaint by the said Court was not necessary.
15. In the circumstances stated above, there is no merit in this application filed under section 561-A, Cr.P.C. Which is accordingly dismissed.
N.H.Q./1684-M/K