1. ' This application under section 561-A, Cr.P.C. Is moved on behalf of applicant Mst. Zohra Alam daughter of Mir Manzar seeking quashment of a criminal case instituted on the basis of a direct complaint lodged by respondent No,2 Ahmed Bashir for an offence under section 506/34, P.P.C.
2. Pending in the Court of learned A.C.M. VI, East Karachi.
3. ' The facts leading to the filing of this application are that respondent No,2 Ahmed Bashir had instituted a direct complaint in the Court of A.C.M. VI East, Karachi on 31-10-1989. In the said complaint it was mentioned by the complainant that litigation was going on between the parties.
4. The applicant Mst. Zohra Alam is his ex-wife from whom he had four children but later on she abandoned the complainant and shifted to some other. Place and thereafter she started harassing the complainant through strangers. It is further mentioned that when the accused Mst. Zohra Alam was residing with her sister at Liaquatabad, through her nephew Sajid and his friends attacked the complainant on account of which the teeth of the complainant were dislocated for which the complainant lodged F.I.R. No,58/1987 at Police Station Liaquatabad for an offence under section 325/34, P.P.C. And the said case is still pending disposal in the Court. After the institution of the said case the accused Mst. Zohra Alam filed a false case in the Court of S.D.M. Ferozabad, East Karachi but the same was dismissed by the learned S.D.M. And in consequence thereof the complainant filed a suit for damages against the accused Mst. Zohra Alam being Suit No,1474/1989 which is pending in the Court of learned 1st Civil Judge, Karachi East. On 26-10-1989 at about 9-45 a.m. The complainant went in his car, driven by his driver Mastan Mir, to the shop of his Tailor Master Muhammad Rafiq which was situated near the residence of accused Mst. Zohra Alam. The said Tailor Master is well-known to the accused, therefore, the complainant told him to ask the accused not to harass him on phone which they have been doing for the last three nights and after finishing his work as soon as he came out of the tailor master's shop, the accused Mst. Zohra Alam alongwith co-accused reached there in a white colour car which was driven by Mst. Zohra Alam while the other two co-accused were its occupants. As soon as the accused Mst. Zohra Alam saw the complainant she immediately pointed him to the two co-accused who immediately got down from the car, caught hold of the complainant and gave him a beating. At that time many persons namely Wazir, Mushtaq Ali and others gathered who intervened and separated the accused from the complainant. Even the driver of the complainant was beaten. Before leaving, one of the accused took out a revolver and threatened the complainant that they will kill him and they will also burn his factory, house and his car. Again the Mohallah people intervened but the accused managed to leave the place by threatening the people who had gathered there.
5. ' On the basis of the above complaint, the statement of the complainant was recorded under section 200, Cr.P.C. And thereafter a preliminary inquiry was ordered in which the complainant examined two of his witnesses, namely Mushtaq Ali and Muhammad Wazir and thereafter the learned Magistrate took cognizance of the offence and registered the case under section 506/34, P.P.C. Vide order, dated 14-2-1990 and also issued bailable warrants against the three accused. It is in these circumstances that the applicant has preferred the present quashment application.
6. ' I have heard Mr. K.B. Bhutto learned counsel for the applicant, Mr. Muhammad Zubair Qureshi, learned Advocate for A.-G. For State and Mr. Raja M. Irshad, learned counsel for respondent No,2.
7. ' Mr. K.B. Bhutto, Advocate, has submitted that the applicant is the second wife of the respondent No,2 who is the complainant in this case and that the real dispute between the parties is in respect of one Bungalow which is the bone of contention. The present case is a false case, there is a chequered history of litigation between the parties and in the present case the witnesses in support of the direct complaint are procured witnesses. In support of his arguments the learned counsel for the applicant has relied on cases reported in 1989 P Cr. L J 342, 1988 P Cr. L J 402 and 1991 P Cr. L J 2167.
8. ' On the other hand Mr. Raja M. Irshad learned counsel for respondent No,2 has submitted that the contents of the complaint prima facie establish that the charge against the applicant for an offence under section 506/34, P.P.C. Is made out, no illegality has been committed by the learned Magistrate while taking cognizance and applicant has not even appeared before the trial Court and has come running to the High Court and filed the present quaslunent application. He has further submitted that from the statement of the respondent under section 200, Cr.P.C. And that of his witnesses under section 202, Cr.P.C. The applicant is fully implicated. He further submits that this is a premature stage for interference by the High Court under its inherent powers and in support of his submissions he has relied on the case reported in PLD 1967 SC 317 and 1981 SCM R 315.
9. ' Mr. Muhammad Zubair Qureshi, Advocate for A.-G. For State has also opposed this application on the ground that the powers under section 561-A, Cr.P.C. Are to be utilised when there is no other remedy available. But in the present case remedy under section 249-A, Cr.P.C. Was available to the applicant but the applicant has not even approached the trial Court. He has also relied on the case reported in PLD 1967 SC 317.
10. ' I have carefully considered the points raised by the learned counsel and I have also gone through the entire material available on record. There is no denial of the fact that this Court has the powers under section 561-A, Cr.P.C. To quash any proceedings pending before any subordinate Court, but this can be done only to prevent an abuse of the process of Court or to secure the ends of justice when there is no other alternate remedy available. In exercising such powers the Court can also take into consideration the material which is available on the record. In case arising out of a direct complaint, the material available will be the contents of the complaint and the statement of the respondent and his witnesses recorded under section 202, Cr.P.C. At the same time this Court can take into consideration other relevant material also. In the circumstances of a given case if the Court comes to the conclusion that a criminal complaint has been filed and proceedings are an abuse of the process of the Court, in that event the Court will certainly come to the aid of the accused in order to prevent harassme nt. In other words each case has to be judged from its own peculiar facts and circumstances. Keeping in view the above discussion, I have perused the contents of the complaint and I am satisfied from its contents that the learned Magistrate has rightly come to the conclusion that a prima facie case is made out. I have also gone through the case-law relied upon by the learned counsel. I may refer to the case of Mirza Naseem Baig v.
11. Muhammad Iqbal and another reported in 1981 SCMR 315 in which their Lordships of the Supreme Court have provided guideline dealing with the principle upon which the complaint can be quashed by the High Court. In this reported case the appellant had filed a complaint case alleging that the respondent No,1 had taken foreign breed hens and eggs worth Rs,1,700 from him for display in his poultry farm which was to be inaugurated by the then Prime Minister and it was promised that he will return back the same, but later on the same were not returned. The first respondent had also addressed a letter to his Advocate to pay Rs,1,000 on his behalf which was also stopped by him. In these circumstances the appellant filed a direct complaint before the learned Magistrate.
12. The learned Magistrate took cognizance of the offence under section 406, P.P.C. And summoned the first respondent to face the charges. The first respondent thereafter filed an application under section 561-A, Cr.P.C. Before the High Court for quashment of the said proceedings. The High Court quashed the proceedings holding that the case was false and concocted. Thereafter the appellant preferred leave to appeal before the Supreme Court which was granted and subsequently the appeal was allowed by the Supreme Court and remanded the case to the trial Magistrate after setting aside the order of the High Court. While allowing the appeal the Supreme Court made the following observations:-- "The principle upon which a complaint can be quashed is well-settled, namely, that the High Court should examine the complaint to determine as to whether it makes out an offence; and in doing this exercise it should not be influenced by any extraneous material which is not germane to the issue."
13. ' In the said order the Supreme Court has also observed that the High Court has the powers to quash the proceedings if it is satisfied from other cogent material that the prosecution was launched for improper motive, merely to harass the accused, or that its continuance would be an abuse of the process of Court or for other reasons which impell the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue.
14. ' In the case of Ghulam Muhammad v. Muzammil Khan and 4 others reported in PLD 1%7 SC 317 while examining the inherent jurisdiction and the powers under section 561-A, Cr.P.C. Their Lordships of the Supreme Court made the following observations:-- "The inherent jurisdiction given by section 561-A 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."
15. ' It will thus appear from the above decision of the Supreme Court that the High Court should be extremely reluctant to interfere in a case where the competent Court has after examining the evidence come to the view that a prima facie case is disclosed and has framed charge 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. In the present case the learned Magistrate after considering the complaint and the statements of the witnesses has prima facie come to the conclusion that an offence under section 506/34, P.P.C. Was made out. Therefore, in the light of the above authority of the Honourable Supreme Court, the order passed by the learned Magistrate under which the applicant and two others have been summoned cannot be brushed aside unless it can be shown from the contents of the complaint or the statement that no offence was made out. I have already observed hereinabove that perusal of the complaint specially paras. 8 and 9 clearly indicate that prima facie commission of the offence as mentioned by the learned Magistrate is made out. The learned counsel for the applicant has tried to persuade this Court on the basis of case reported in 1988 P Cr. .L J 402. This was a case in which the Court after considering the facts was satisfied that there was enmity between the parties and one of the accused Sajjan Shah was falsely implicated and since there was no corroboratory evidence the case was not likely to end in conviction. Therefore, the proceedings were quashed. In the case reported in 1989 P Cr. L J 342, the proceedings against applicant Zaheer Hassan were quashed as the Court had come to the conclusion that the proceedings against the applicant were mala fide and had been filed in order to harass and pressurise the applicant as such the proceedings under sections 151, 107 and 117, Cr.P.C. Were quashed by the High Court. In the case reported in 1991 P Cr. L J 2167 the proceedings were under Article 4, Prohibition Order, 1979 the applicant had preferred an appeal which was disposed of by a learned Single Judge of this Court and the appeal was dismissed. The facts of this case have no bearing to the facts of the case in hand.
16. In the light of my above discussion it is crystal clear that in cases where this Court comes to the conclusion or is satisfied from the contents of the direct complaint and other circumstances/material available on record that the proceedings are mala fide or that the same has been instituted to harass the accused in that event the Court can come to the aid of the accused. But in the instant case there is an additional circumstance which cannot be lost sight of, and, the same is mentioned in para. 5 of the direct complaint. Para. 5 of the direct complaint indicates that in the past also the accused through her nephew and his friends had given a beating to the respondent No,2/complainant for which the complainant had lodged F.I.R.
17. No,58/1987 at Police Station Liaquatabad for an offence under section 325/34, P.P.C. Which is pending disposal in the Court. On the basis of the material which is available on the record I am unable to agree with the contention of the learned counsel- for the applicant when he states that the case is false and concocted. There are disputed questions of fact but the contents of the- direct complaint, as already mentioned, prima facie indicate the commission of the offence as observed by ' the learned Magistrate. In these circumstances I am of the considered view that it will be premature to invoke the inherent powers at this stage and accordingly I reject this application.