1. ' Applicant Ghulam Muhammad has moved for quashment of the Sessions Case No,63/92 pending against him in Court of the Additional District Judge, Sanghar. Said case is outcome of F.I.R.
2. No,41/92 of Police Station Khipro, District Sanghar.
3. ' Said F.I.R. Relates to kidnapping of Mst. Rahiman alias Khani and her daughter namely Fajoo on 7- 7-1991 at 12 noon from house of complainant Muhammad Ibrahim situated in Gharibabad Mohallah, Khipro. Alleged incident took place in absence of the complainant, who was away on his vocational activity. On return to his house at 1-00 p.m. The complainant found Mst. Rahiman and her daughter Fajoo missing. He was informed by his brother-in-law Sono that on said day at 12-00 applicant Ghulam Muhammad employed in Rangers came and took away Rahiman and Fajoo to Tando Bago, on the pretext of illness of Rani daughter of Rahiman, who was married to Noor Muhammad cousin of Ghulam Muhammad. The complainant awaited for 2-3 days for return of Rahiman with whom he had married, after she was converted to Islam. Neither she was brought back nor Fajoo, complainant contacted his daughter Rani, who denied being ill and denied having seen her mother Rahiman and her sister. Fajoo. Complainant contacted father of Ghulam Muhammad, who disclosed that Ghulam Muhammad had not visited him for many days and he was also absent from duty. Complainant suspected Ghulam Muhammad his erstwhile friend to have abducted his wife for illicit intercourse. Complainant approached Suleman and Jewan and relatives of Ghulam Muhammad to prevail upon the latter for restoration of Mst. Rahiman and her daughter Fajoo. Complainant was kept on hopes and then given blunt refusal for restoration of his wife and his daughter. Hence he lodged F.I.R. No,41/92 on 11-7-1992 at Khipro Police Station. Police registered the case for the offences under sections 11 and 16 of the Offence of Zina (Enforcement of Hudood) Ordinance. After due investigation the applicant was challaned for the offences punishable under sections 11 and 16 of Offence of Zina (Enforcement of Hudood) Ordinance. Hence this application for quashment.
4. ' Mr. Abdul Majid Choudhary, learned counsel for the applicant argued that the evidence collected by police against the applicant could not be basis for his conviction. He also argued that the applicant could move this Court for quashment of the criminal case pending against him, without moving the trial Court for acquittal under section 249-A of Cr.P.C. In support he cited the cases of:- -
(i) Mian Munir Ahmed v. State 1985 SCMR 257,
(ii) Muhammad Saeed and others v. State and another PLD 1984 SC 29,
(iii) Zahfran v. State 1982 P Cr. L J 58,
(iv) Ehsanul Haq and others v. Muhammad Hassan 1989 P Cr. L J 1857,
(v) Abdul Ghani and another v. All Hassan and State PLD 1977 Lah.
5. 375.
6. ' Mr. Abdul Latif Ansari learned AA.-G., appearing for the State opposed the application vehemently.
7. He was of the view that the request for quashment of the criminal case was premature when the trial Court was never moved for acquittal under section 249-A of Cr.P.C. Learned AA.-G. Relied on the case of Nasrullah alias Nasra v. The State 1987 MLD 1027.
8. ' In the case of Nasrullah alias Nasra 1987 MLD 1027, the learned then Chief Justice of Lahore High Court observed as follows:-- "It is a settled proposition of law that inherent jurisdiction under section 561-A, Cr.P.C. Is not an alternate jurisdiction or additional jurisdiction and cannot be invoked when an alternate remedy is available. No adjudication is possible except through trial. The trial Court is empowered to acquit the accused at any stage of the case if it considers the challan to be groundless or finds that there is no probability of the accused being convicted of any offence. The petitioner has come to . This Court directly without invoking the jurisdiction of the trial Court under section 265-K, Cr.P.C. He should move the trial Court in the first instance, if so desired by him."
9. ' In the case of Mian Munir Ahmed 1985 SC MR 257 the main point which came for consideration before the Supreme Court of Pakistan was as to whether the High Court had jurisdiction to exercise its inherent powers under section 561-A of Cr.P.C. To quash proceedings pending before a Labour Court. In this respect it was held in the cited case that the provisions of section 561-A of Cr.P.C.
10. Apply to the proceedings pending before any Court, whether subordinate to the High Court or not, unless the offence being tried is an offence under any law other than the Pakistan Penal Code and the power has been specifically taken away by any enactment relating to the said special law. It was further held in the same case that the powers of the trial Court under section 249-A of Cr.P.C.
11. And section 265-K of Cr.P.C. Are co-extensive with the similar powers of the High Court under section 561-A of Cr.P.C. And both can be resorted to, but it would be proper to approach the trial Court in the first instance although there was no bar to the High Court entertaining in appropriate cases, an application under section 561-A, Cr.P.C. Directly. In the case of Muhammad Saeed and 6 others PLD 1984 SC 29 proceedings in respect of a private complaint were quashed. In said case the Lahore High Court had dismissed the application for quashment of criminal proceedings based on a private complaint. In said case very jurisdiction of the Additional Sessions Judge trying the case, was challenged on the ground that he had directly entertained the complaint. In cited case the point which is at issue in the instant case, never arose. In the case of Zahfran 1982 P Cr. L J 58 the only point at issue was, whether the plea of self-defence was available to the accused. No such point has arisen in the present case. In the case of Ehsan-ulHaq and others 1989 P Cr. L J 1857, the proceedings for the offences under sections 420, 406 and 506 of P.P.C. Were quashed on merits of said case. It is not known if in the cited case the trial Court was moved under section 249-A of Cr.P.C. In the case of Abdul Ghani and another PLD 1977 Lah. 375 the view taken was that where the sole object of the complainant is to put up such facts before the Court, so that he may secure the attendance of his adversary as an accused before the criminal Court and then dictate terms to him and settle other disputes with him, pendency of such case would obviously be an abuse of the process of the Court. It is not known if in the cited case the trial Court was approached in the first instance for acquittal of the accused. In this way the cases cited on behalf of the applicant had no direct bearing to this case except the case of Mian Munk Ahmed 1985 SCMR 257 where the person facing the trial had first approached the trial Court for acquittal under section 249-A, Cr.P.C. Before moving the High Court under section 561-A, Cr.P.C.
12. Agreeing with the observations made in the case of Nasrullah alias Nasra v. State 1987 MLD 1027, which fully applies to this case, I am of the view that this application is premature inasmuch as the trial Court has not been moved under section 249-A of Cr.P.C. The criminal miscellaneous application is, therefore, dismissed.