' The material facts culminating in this application filed under section 561-A, Cr.P.C. Briefly, are that the marriage between applicant No,2 and Mst. Rehana Jabeen, sister of respondent No,1 took place on 3-5-1985 at Sukkur against a dower of Rs,50,000. They started their marital life at Karachi, where the applicant No,2 is said to have forced his wife to forego the amount of dower and on her refusal to do so, made imputation about her chastity. Mst. Rehana Jabeen was brought to Sukkur and thereafter notices were exchanged between the parties. It is the case of respondent No,1 that the notice sent to him by Mr. Nazir Ahmad Siddiqui, Advocate on behalf of applicants contained imputation made with a view to injure his reputation. The respondent No,1, therefore, filed a complaint against the applicants in the Court of City Magistrate, Sukkur, which disclosed a prima facie case for the offence under section 499-500-503/34, P.P.C. And was consequently brought on record on 4-11-1985. The applicants challenged this order in criminal revision which was, however, dismissed on 29-9-1988, by Additional Sessions Judge (Hudood), Sukkur. The applicants have now approached this Court seeking quashment of proceedings in the case pending against them in the Court of City Magistrate, Sukkur for the offence under section 499-500-503/34, P.P.C.
2. I have heard Mr. A. Rashid, learned counsel for applicants, Mr. Maqbool Ahmed Khan, learned counsel for respondent No,1, and Mr. Laeeque Ahmed Jafri, learned counsel for State.
3. It is contended on behalf of applicants that applicant No,1 and her late husband Abdul Hafeez Khan were prosecuted on the complaint of Mrs. Rehana Jabeen, sister of respondent No,1, for the offence under section 7 of the Offence of Qazf (Enforcement of Hadd) Ordinance, 1979, on the basis of the said notice dated 2-7-1985, and both of them were convicted under section 11 of the said Ordinance, against which they preferred appeal before this Court, which was allowed and they were acquitted. In other words it was submitted that the said notice which was considered and ignored by this Court cannot form basis of the prosecution initiated at the instance of respondent No,1. At first sight the argument appears to be attractive, but on a careful examination of the judgment recorded by Allahdino Memon, J. In Criminal Appeal No,199 of 1986, I have not discovered the result which on critical examination the learned counsel for applicants tried to produce. In accepting the said appeal my learned brother adopted the reason which may be set out in his own words:-- "I have considered the contentions of the learned counsel and have also gone through the R&P of the case. It is an admitted position that the learned Advocate who issued the notice Exh.10 was not examined, nor any other person was examined to prove that the notice (reply) Exh.10 was issued at the instance of the appellants, therefore, the same was not proved as required by law. It has been held by Honourable Supreme Court in Messrs Bengal Friends & Co. v. Messrs Cour Benod Saba & Co. PLD 1969 SC page 477 observation at page 483, that the documents which are not copies of any judicial record could not be received in evidence without proof of signatures and handwriting of person alleged to have signed or written them as required by section 67 of the Evidence Act. This legal position was reaffirmed by their Lordships in the case of Khan Muhammad Yousif Khan v. S.M.
Ayoob, reported in PLD 1973 SC page 160. It is also clear from the statements Exh.15, Exh.16 and Exh.17, that question regarding issuance of notice Exh.10 at the instance of the appellants was not put to them in order to enable them to explain. In Din Muhammad v. The Crown 1969 SCMR page 777, it was held that `Criminal Procedure Code section 342 circumstances from which inferences adverse to accused sought to be drawn would be put to accused when he is questioned under section 342, Cr.P.C.' In Murtaza Ali Khan v. The State PLD 1986 Kar. Page 121, it was held by a Division Bench of this Court that Tribunal/Court not putting any question to accused in his statement under section 342, Cr.P.C. Whether he had given confession and whether it was voluntary and true, held that it was mandatory for the Court to have put the above question to the accused to find out if confession was voluntary and true, and therefore, confession was ruled out of consideration. Mr. Usman Ghani Rashid, learned counsel for the complainant has contended that the matter may be remanded back to the trial Court for putting this question to the appellants under section 342, Cr.P.C. I am afraid the argument of the learned counsel cannot be accepted in view of the peculiar circumstances of the present case, inasmuch as it is clear from the above discussion that even the document itself was not legally proved, and therefore to remand the case back to the trial Court on this point will not serve any cause of justice, but will be an exercise in fultility. From the above discussion and the legal position it is clear that it was not proved that the notice Exh.10 was issued at the instance of the appellants. Moreover no question was put to the appellants to enable them to explain their position under section 342, Cr.P.C. Therefore, the notice Exh.10 could not be relied upon and used as a piece of evidence against the appellants."
4. It will be manifestly clear from a bare reading of the judgment that notice was not relied upon for two reasons firstly it was not proved in the manner as required by law, and secondly no question regarding the notice was put to accused in their statements recorded under section 342, Cr.P.C.
5. The evidence which was produced before the learned City Magistrate prima facie disclosed a case under section 500, P.P.C. The applicants did not contest the proceedings before the trial Court and instead invoked the criminal revisional jurisdiction of the Court of Session and ultimately sought relief under inherent powers of this Court.
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 reason 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. Muzammal 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 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. For the aforesaid reason, there is no merit in the present application filed under section 561-A, Cr.P.C. Which is accordingly dismissed.